) ) ANGELA ELIZABETH VAN Applicant/Respondent in Appeal – v. –, 2017 ONSC 2492

CITATION : Van v. Palombi, 2017 ONSC 2492 DIVISIONAL COURT FILE NO.: 946/16 DATE: 20170505 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, LINHARES de SOUSA and SPIES JJ. BETWEEN: ) ) ANGELA ELIZABETH VAN Applicant/Respondent in Appeal – and – DAVID PALOMBI Respondent/Appellant ) ) ) ) ) ) ) ) ) Rachel Radley , for the Applicant/Respondent in Appeal Patrick Di Monte , for the Respondent/Appellant ) HEARD at Toronto: April 18, 2017 LINHARES de SOUSA J.

REASONS ON APPEAL Nature of Proceedings [ 1 ] This is an appeal from the order of Healey J., dated October 7, 2015, striking the pleadings of the Appellant Father, David Palombi, vacating the trial management conference date, and ordering the Appellant Father to pay $5,000 in costs. [ 2 ] The Appellant Father seeks to set aside the order of Healey J. striking his pleadings and to have the matter remitted for a trial, to be scheduled as expeditiously as possible.

He also seeks leave to appeal the costs order of Healey J. and seeks his costs of this appeal on a substantial indemnity scale. [ 3 ] The Respondent Mother, Angela Elizabeth Van, contests the appeal, requests that the appeal be dismissed and seeks her costs on a full recovery basis. Factual Context [ 4 ] This appeal arose out of a longstanding, high conflict matrimonial matter involving multiple interim proceedings. [ 5 ] The parties separated in September of 2010 and divorced two years later in June of 2012.

On March 29, 2012, the parties entered into a Separation Agreement which addressed, in part, custody and access in relation to their children. The Separation Agreement provided that the parties were to have joint custody of both children of the union, L-R, born August 2, 2008, and M. born March 17, 2010.

The Separation Agreement further provided that the two children were to reside primarily with the Respondent Mother and secondarily with the Appellant Father during certain times. [ 6 ] Despite the parties’ Separation Agreement, the family law litigation between the parties has continued, involving both financial and parenting issues, by way of multiple interim proceedings throughout 2013, 2014 and 2015 (see volume 1 of Respondent’s Compendium). [ 7 ] The children have consistently been the subject of the parties’ high conflict litigation and continuing multiple proceedings to the present, along with a sundry collection of family financial, support and property issues, resulting in multiple comprehensive, multidirectional orders.

I think it would be fair to conclude that the joint parenting arrangement, agreed to by these parents in their Separation Agreement, has not been working. On a substantial basis the parties have had to continually resort to court proceedings to

resolve their differences. [ 8 ] The current litigation from which this appeal has arisen has to do with the issues of custody and access, specifically should the Appellant’s access to the children be supervised or not. This question arose subsequent to the release of a custody and access assessment, also subject to some litigation but agreed to by the parties, made pursuant to s. 30 of the Children’s Law Reform Act , R.S.O.1990, c. C.12 (the “ CLRA ”). The parties had jointly retained Mr. Daniel Musselman to conduct the assessment. [ 9 ] It is not disputed that Mr.

Musselman, both verbally, when he met with the parties in June of 2015, and also in his final written report, filed with the court on July 29, 2015, recommended that the Respondent Mother should have sole custody of the children and the Appellant Father should have only supervised access with the children. [ 10 ] By the end of July, 2015 both parties had motions before the Court regarding the issues of custody of and access to the children. The various motions came before McGee J. on July 29, 2015. Mr.

Musselman’s written custody and parenting assessment and recommendations (“Assessment Report”) were also before her. Furthermore, the Appellant Father, at the time of the motion, had not been seeing his children since June of 2015, because the parties could not agree on the terms of supervised access, as had been recommended by Mr. Musselman.

McGee J. found, among other matters, that the Appellant Father was absolutely refusing to engage in supervised access. [ 11 ] After examining all of the voluminous affidavit material filed by both parties, much of which has been made available to this Court, McGee J. concluded that this was an exceptional case in which a parenting assessment report could properly be used on an interim motion.

She found that, the present circumstances are harming the children…that [the Appellant] demonstrated no insight into how that may emotionally harm the children, accepted no responsibility for that distress and expressed no remorse or regret for his action. Absent taking any personal responsibility for his actions, the harm to the children will continue. [ 12 ] She concluded her decision with the following words: I conclude that this is the exceptional case in which an assessment report should be used in a motion.

Balanced with the evidence as a whole, I further find that the terms of the access ordered by Justice Nicholson on July 17, 2014 should be stayed. I decline to make any order for custody as that ought to be determined at trial; however, I do order that the mother shall have temporary decision making for any health care decisions for the children.

The girls are in an active course of therapy and there must be a parent able to make decisions for their health and wellbeing. (See tab 6 of volume 1 of the Appeal Book and Compendium.) [ 13 ] McGee J. also expedited the matter to trial by scheduling a trial management conference. This has not taken place. All progress towards the trial of this matter has now stopped as a result of the motion to strike and this appeal. [ 14 ] McGee J. did not have time to deal with the Respondent’s motion to strike the Appellant’s pleadings, one of the motions before her. That issue came before Healey J. on October 7, 2015.

Her order is the subject of this appeal Decision of Healey J. [ 15 ] Healey J. struck the Appellant’s pleadings, relying on rule 1(8) of the Family Law Rules which states:

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including, (

a) an order for costs; (

b) an order dismissing a claim; (

c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party; (

d) an order that all or part of a document that was required to be provided but was not, may not be used in the case; (

e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (

f) an order postponing the trial or any other step in the case; and (

g) on motion, a contempt order. [ 16 ] At the Appellant’s request, she also vacated the trial management conference that had been set for October 13, 2015. Furthermore, she fixed the costs of the motion before her at $5,000 and made the costs payable by the Appellant Father to the Respondent Mother within 30 days (See tab 1 of volume 1 of the Respondent’s Compendium). [ 17 ] In coming to her decision, Healey J., based on the examination of the affidavit material before her (which has been made available to this Court), made the following findings:

(1) The triggering event is that the Appellant failed to comply with court orders: firstly, three orders for costs, dated August 15, 2014, January 9, 2015, and July 29, 2015 respectively, totaling $26,125.00 and secondly, the failure to pay for one half of the children’s therapy costs, contrary to orders dated July 10, 2014 and January 14, 2015, even though he has received and kept reimbursements from Manulife, his benefits provider. His explanation for this latter finding was rejected as self-serving and non-explanatory.

(2) The Appellant Father has paid $0 towards the total cost orders. The Appellant’s claim of impecuniosity as to why he has not paid the costs was rejected by Healey J. in the face of his financial disclosure before the Court, which included money spent by him on a summer cottage rental and Latin dancing, as well as the allocating of funds to bring motions on frivolous matters and to conduct himself in such a way as to force the Respondent Mother to seek relief from the Court to make him comply with court orders, such as prohibiting him from feeding dairy products to their lactose-intolerant child.

(3) The Appellant Father demonstrated bad faith by the fact that he had not paid a single dollar towards what he owed the Respondent Mother for her costs and so his failure to comply was found to be, in part, wilful and deliberate.

(4) Based on these findings Healey J. then went on to consider the “real question” before her, which she identified as “whether this is an appropriate case to strike, on the factual record”.

(5) Based on these findings as well as the findings of McGee J.’s endorsement of July 29, 2016, which Healey J. found continued to apply on the evidence before her, she found as follows: the Appellant Father takes no responsibility for the harm inflicted by him on the children; he exercises access only on his terms, still refusing to see the children supervised by a professional, as recommended by Mr.

Musselman; the Appellant Father has not contacted the children’s therapist to discuss the children or to seek involvement in counselling; he has not contacted the Respondent Mother, even through Family Wizard, to inquire about the children; he has provided no consent for his own therapist to contact either Mr.

Musselman or the children’s therapist, to work towards a resolution of his parenting issues; the sincerity of his position that he wants to seek sole custody at trial to safeguard the children’s best interests is questionable based on his conduct to date; he has done nothing to move toward meaningful access in this case, so much so that McGee J. felt that it was an appropriate case to stay his access pending trial; and the Appellant’s claim for custody had little merit in this case.

(6) Healey J. concluded her decision with the following words: This is an exceptional case in which the [Appellant’s] pleading should be struck given his wilful non-compliance with any portion of the cost orders, his wilful non-compliance with the sharing of therapy costs, and the well documented history, as shown in the motions and endorsements, of disregarding the best interests of the children, which is the primary governing principle behind the issues he wishes to litigate”. (See Transcript of Proceedings, dated October 7, 2015, before The Honourable Justice S. Healey).

Position of the Parties Position of the Appellant Father [ 18 ] While counsel for the Appellant Father raised the question in his factum of whether Healey J. had the jurisdiction to strike all of the Appellant’s pleadings, including his answer, pursuant to rule 1(8) of the Family Law Rules , it was conceded in argument that such jurisdiction existed under the current rule 1(8), with which I agree. [ 19 ] The Appellant Father takes the position that Healey J. misapprehended the evidence before her in concluding that he acted wilfully and deliberately in his non-payment of the costs awards rather than concluding that he did not make such payments because of his impecuniosity.

He also denied that he has brought any frivolous motions and that all interim proceedings taken by him were reasonable. [ 20 ] The Appellant Father submits that the motion judge erred in law in striking the Appellant’s pleadings on the facts of this case because it is the most draconian of remedies, should be used only as a last resort and is not justified in this case where the Appellant’s inability to pay has been clearly demonstrated.

He submits that this is particularly so where the questions of both custody and access are at stake, which touch the best interests of the children. [ 21 ] The Appellant Father further argues that the Respondent Mother has a number of other enforcement mechanisms and civil remedies by which she could enforce the costs awards. By having his pleadings struck, the Appellant is effectively precluded from participating at the trial and is not able to advance the best interests of the children.

Position of the Respondent Mother [ 22 ] The Respondent Mother submits that the factual finding of Healey J., that the Appellant Father was willfully choosing to not pay the costs awards, was supported by the evidence identified by Healey J. [ 23 ] The Respondent Mother further submits that the Appellant’s pleadings were struck for many reasons and not just because of his wilful non-payment of the costs awards, the most important of which touched on the wellbeing of the children and the damage being done to them by the Appellant, as identified by Mr. Musselman in his Assessment Report.

These were identified in the evidence as the Appellant’s continual involvement of the children in the adult conflict, the granting and withdrawal of his consent to efforts to get the children the professional help they need, such as the children’s therapy and activities, the pocketing of insurance benefits received for the children’s therapy that the Respondent was owed and the continual bringing of frivolous motions before the Court. [ 24 ] The Respondent Mother submits that all of Healey J.’s findings of facts were supported by the evidence and she did not misapprehend or misstate any of the evidence. [ 25 ] The Respondent Mother further submits that the motion judge properly stated the legal test to be applied in determining whether the Appellant’s pleadings ought to be struck. [ 26 ] Furthermore she properly applied the three-step test to the facts of the case.

It is the Respondent’s position that there was no error in law or fact made by Healey J.

Standard of Review [27] It was not disputed that in this matter, an appeal from an order of a judge of the Superior Court of Justice, the standard ofreview on questions of law is correctness and on questions of fact, palpable and overriding error. (See Housen v.

Nikolaisen, 2002 SCC33, [2002] 2 S.C.R. 235). [28] Moreover, in family law matters, involving intricate and complex ongoing relationships between the parties and the bestinterests of children, appellate courts should give significant deference to the factual findings and decisions of lower courts who have thebenefit of observing and interacting with the parties and of directly hearing their evidence in the courtroom and because of the fact-basedand discretionary nature of family law decisions. (See cases cited at paragraph 79 of the Respondent’s Factum and Van de Perre v.Edwards, 2001 SCC 60, [2001] 2 S.C.R. 518 at paragraph 11).

Although the motion judge relied on affidavit evidence and did not hearviva voce evidence of the parties, her decision was an exercise of discretion. Motion Judge’s Findings of Fact [29] As indicated earlier, there was voluminous motion material before Healey J. to consider in coming to her factual conclusions,much of which was also before this Court, in two thick volumes of Appeal Books and Compendium, filed by the Appellant and fourthick volumes of the Respondent’s Compendium.

Given the evidence found in those documents and the long history of this high conflictfamily law litigation, I can find no overriding or palpable error on questions of fact found by Healey J. Motion Judge’s Statement and Application of the Law and Jurisprudence [30] The legal principle governing the exercise of judicial discretion to strike a party’s pleadings is a three-pronged test as follows:

(1) Is there a triggering event justifying the striking of pleadings?;

(2) Is it appropriate to strike the pleadings in the circumstances of the case?;

(3) Are there other remedies in lieu of striking pleadings that might suffice? [31] These three-pronged principles are well established in the case law. (See Kovachis v. Kovachis, 2013 ONCA 663, 367 DLR (4th)189 ; Chiaramonte v. Chiaramonte, 2013 ONCA 641, 370 D. L. R. (4th) 328; Purcaru v. Purcaru, 2010 ONCA 92, 265 O.A.C. 121 at paras. 47-48; King v. Mongrain (2009), 2009 ONCA 486 , 66 R. F. L. (6th) 267 (Ont. C.A.); Haunert-Faga v. Faga (2005),2005), (ON CA), 203 O.A.C. 388 (C.A.) ; and Marcoccia v. Marcoccia (2009), 2008 ONCA 866 , 60 R. F. L. (6th) 1 (Ont.

C.A.). [32] This Court is satisfied that the motion judge correctly stated the legal test to be applied to the motion to strike pleadings of aparty pursuant to rule 1(8) of the Family Law Rules. In the questions she articulated in her reasons, it is evident that she identified thetest as a three-step legal test for striking pleadings. [33] Firstly, was there a “triggering event” which justified the striking of the pleadings?

Healey J. clearly began with this first stepand found that there was a “triggering event”, namely the wilful non-compliance with the costs awards and the failure of the AppellantFather to pay his share of the children’s therapy costs without providing any persuasive explanation for his non-compliance. [34] Secondly, Healey J. considered the second stage of the test which was to ask, is this an appropriate case to strike on the factualrecord?

After making the factual findings that she did in this case, she was alert to the factors to be considered in determining whetherthis was an appropriate case to exercise her discretion to strike the pleadings. Those factors include the following found in the case law. [35] The jurisprudence indicates that even in the event of a court finding a “triggering event”, justifying the striking of pleadings, itis still within the discretion of the court to decide to strike or not on all of the circumstances of the case.

Furthermore, the striking ofpleadings and the denial of trial participation which follows as a result, should only be done in exceptional circumstances and where noother remedy would suffice. The third step of the test is the examination of other remedies that might be appropriate in lieu of strikingpleadings, a step that the motion judge fails to mention. [36] The rationale for such a cautious and restrained test was explained in the case of Kovachis v. Kovachis, supra, at paragraph25.

The consequence of an order striking the pleadings of a party effectively prohibits that person from participating in any way at thetrial of the matter. Without that participation there is a risk that the court will not have all necessary and accurate information to reach ajust result.

If the judgment provides for continuing obligations or relationships that can only be varied on changed circumstances, asoften happens in family law judgments, then injustice may be perpetuated. [37] On the facts of Kovachis the Court of Appeal overturned the decision of the motion judge to strike the pleadings for non-disclosure, because it was not one of those “exceptional cases” on the evidence before the court. The Court of Appeal found that therewas not wilful non-disclosure on the part of Mr. Kovachis, who had produced substantial financial disclosure.

Furthermore the Court ofAppeal found on the evidence that what Mr. Kovachis had not disclosed was not material nor important, so as to trigger the principle ofproportionality. [38] The case of Chiaramonte, supra was another case considered by the Court of Appeal where Mr. Chiaramonte had hispleadings struck by the motion judge for non-disclosure contrary to court orders. At para. 33, the Court of Appeal recognized that themotion judge’s decision to strike pleadings and deny participation at trial was entitled to deference, …if exercised on proper principles; Purcaru, para. 50.

Absent palpable and overriding factual error, appellate courts ought not to interfere

with a motion judge’s properly exercised discretion to strike pleadings. However, given the exceptional nature and significantimplications of denying a party participation at trial, it is essential that this remedy of last resort be granted only on a proper evidentiarybasis. [39] On the facts of that case, after a review of the record, the appellate court found that the motion judge’s findings regarding thedisclosure made by Mr. Chiaramonte were erroneous and mischaracterized. In view of the palpable and overriding error in finding thatMr.

Chiaramonte had willfully breached the existing court order, his pleadings were restored and Mr. Chiaramonte was permitted toparticipate at the trial. [40] In the case of Purcaru v. Purcaru, supra, the Ontario Court of Appeal was asked to overturn the decision of the trial judgewho exercised his discretion to strike Mr. Purcaru’s pleading and thereby restrict his participation at trial. On the facts of that case Mr.Purcaru was found to have depleted assets in the face of an asset preservation order to the detriment of Ms. Purcaru.

He was also foundto have been deceptive with respect to the transfer and the hiding of some of his assets and with respect to certain court documents. [41] The Court of Appeal stated that pleadings should be struck only in “exceptional cases and where no other remedy wouldsuffice”. At paras. 49, and 50, the Court of Appeal stated: [49] The adversarial system, through cross-examination and argument, functions to safe guard against injustice. For this reason, theadversarial structure of a proceeding should be maintained whenever possible.

Accordingly, the objective of a sanction ought not to bethe elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court. This court said at p. 23 of Marcoccia v. Marcoccia (2009), 2008 ONCA 866 , 60 R. F. L. (6th) 1 (Ont. C.A.), the remedy of striking pleadings is“a serious one and should only be used in unusual cases”. The court also explained at p. 4 that the remedy imposed should not go“beyond that which is necessary to express the court’s disapproval of the conduct in issue”.

This is because denying a party the right toparticipate at trial may lead to factual errors giving rise to an injustice, which will erode confidence in the justice system. [50] Nonetheless, the decision to strike pleadings and to determine the parameters of trial participation is a discretionary one that isentitled to deference on appeal when exercised on proper principles.

The exercise of discretion will be upheld where the motion or trialjudge fashions a remedy that is appropriate for the conduct at issue….. [42] The Court of Appeal identified at paragraph 48 a particular caution when dealing with family law cases where the interests ofchildren are at issue: [48] Similarly, special care must be taken in family law cases where the interests of children are at issue. The consequences ofstriking pleadings or limiting trial evidence when custody or access is at issue was discussed in King v. Mongrain (2009), 2009 ONCA 486 , 66 R. F. L. (6th) 267 (Ont.

C.A.) where Gillese J.A. observed at p. 273 that pleadings should not be struck if such a remedyleaves the court with insufficient information to determine custody. [43] This “special care” is of particular concern in the present appeal, given the nature of the case. One must seriously considerwhether the complete non-participation of the children’s father at the custody and access trial would be in the children’s best interests.

The evidence is clear that the Appellant is a father who, despite his egregious conduct throughout this litigation, has been quite involvedin the children’s lives and has had substantial contact with them until his access was stopped by himself and finally stayed by thedecision of McGee J.

The Respondent Mother, through the submissions of her counsel to this Court, has strongly indicated that shewants the children to see their father but under conditions that are not harmful to the children. [44] While I find that there was a solid evidentiary base for the motion judge’s findings of fact with respect to the egregiousnessand willfulness of the Appellant’s conduct throughout this litigation and its harmful effects on the children of the marriage justifying themotion judge’s striking of the pleadings, I find that she erred in principle in the application of the third stage of the test, particularly innot considering other possible remedies than the striking of the pleadings and total non-participation in the trial on the part of theAppellant. [45] It is evident from the transcript of the proceedings before Healey J. that other remedies were suggested at the motion, even bycounsel for the Respondent Mother.

As an alternative remedy to the striking of the pleadings of the Appellant Father, counsel for theRespondent Mother suggested that the court stay the motion to strike pleadings that was before the Court pending the payment of theoutstanding costs amounts owed, or order the Appellant to pay security for costs of the trial before proceeding any further. However,counsel for the Appellant Father submitted to Healey J. that if she were to make such orders his client would not be able to make thosepayments and comply with any such order, thereby effectively eliminating that alternate remedy.

However, Healey J. never consideredpermitting the Appellant Father to participate in the trial, on the parenting issue, in a prescribed way and that was an error. [46] Because the future trial concerns issues of custody and access, I am of the view that the Appellant should be permitted inparticipate in the trial on the limited issues of custody and access alone and only on a limited basis. I am not prepared to eliminate hisinvolvement entirely as it relates to the parenting issues because that may impact on the best interests of the children.

This is particularlytrue since the Appellant Father has now commenced supervised access with the children, despite his initial resistance to it. In my viewthis limited participation would have been a proper and appropriate application of the second and third stages of the legal test to thecircumstances of this case. [47] I therefore would allow the appeal in part. The Appellant’s pleadings remain struck, and I make no change to the costs ordermade by the motion judge against the Appellant Father. However, I order that he be allowed to participate in the trial of the custody andaccess issue in the following ways:

(1) The Appellant is to receive notice of all court proceedings that touch on the questions of custody and access.

(2) The Appellant shall be permitted to cross-examine only the custody and access assessor agreed to by the parties, Mr.Musselman, on his final written Assessment Report filed with the Court pursuant to s. 30 of the CLRA and on any updated report that

may be made in preparation for the trial of the parenting issues. Given the length of time which has passed since Mr. Musselman completed his parenting assessment, the parties might consider the advisability of asking him to consider doing an update of his assessment in preparation for trial which no doubt would include his meeting with both parents.

(3) The Appellant Father shall not be allowed to call any witnesses or introduce any documents save through his cross- examination of Mr. Musselman.

(4) The Appellant shall be permitted to make final oral or written arguments, as determined by the trial judge, at the end of the trial on the sole issues of custody and access.

(5) An expedited trial management conference shall be scheduled in this matter so that an early trial date may follow in the best interests of the children.

(6) The Appellant is prohibited from bringing any further motions prior to this matter being tried on its merits at trial without leave. Costs [ 48 ] The parties have agreed on the appropriate quantum of costs in the amount of $5,000. However, the Respondent Mother was not wholly successful on appeal, as the appeal was not completely dismissed. Nevertheless, it is clear that she was substantially successful on this appeal as the Appellant’s pleadings remain struck.

Costs of the appeal are therefore fixed in the amount of $4,000.00, all in, payable to the Respondent within 30 days. ___________________________ Linhares de Sousa J. I agree ___________________________ Swinton J. I agree ___________________________ Spies J. Date of Release: May 5, 2017 CITATION : Van v. Palombi, 2017 ONSC 2492 DIVISIONAL COURT FILE NO.: 946/16 DATE: 20170505 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, LINHARES de SOUSA and SPIES JJ. BETWEEN:

ANGELA ELIZABETH VAN Applicant/Respondent in Appeal – and – DAVID PALOMBI Respondent/Appellant REASONS FOR JUDGMENT Linhares de Sousa J. Date of Release: May 5, 2017