AMY MICHELLE ANDERSON ) ))) Applicant – v. –, 2017 ONSC 6239

CITATION : Anderson v. Anderson , 2017 ONSC 6239 COURT FILE NO.: 16-0167 DATE: October 18 , 2017 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: AMY MICHELLE ANDERSON ) ))) Applicant – and – CHRISTOPHER BRUCE ANDERSON Respondent ) ) ) ) ) ) ) ) ) ) G. Edward Lloyd , for the Applicant Beverley Johnston , for the Respondent ENDORSEMENT ON MOTION SWARTZ J. [ 1 ] This matter is returned to me today pursuant to the endorsement of Tranmer J. dated September 19, 2017 and before me was the sole issue as to whether the Respondent, Mr.

Anderson’s failure to pay the costs order of Pedlar J. of December 15, 2016, bars his current motion found at Tab 1 of Volume 3 of the Continuing Record. [ 2 ] I have reviewed the extensive affidavit material of the parties found in Volume 3, including the Notice of Motion of the Respondent and the affidavits contained therein in support of that motion, along with his financial statement. I have also reviewed the responding affidavits of the Applicant and supporting material, including a letter at Tab 7(

A) of the Continuing Record, Volume 3, which is a letter dated August 3, 2017, calling to counsel for the Respondent’s attention, the issue that the Applicant was opposed to the current state of affairs with regard to the outstanding costs order in excess of $11,000.00. [ 3 ] I have reviewed the authorities provided by both counsel for the Applicant and Respondent and thank them for their helpful materials, including their factums which I have reviewed in detail and in which set out a

summary of the current law and the issues as they appear before me today. [ 4 ] The parties have, on consent prior to argument on the issue of the costs, agreed to a number of items and I have endorsed the record accordingly. This should facilitate some movement on this file and it is to the parties’ credit that they both consented to those items today. [ 5 ] This is a contentious matter and Pedlar J.’s endorsement of December 15, 2016, makes clear reference to the context in which his costs order was made.

I refer to Pedlar J.’s written endorsement on costs wherein he notes that: “I find the ill-advised conduct of the Respondent herein both before and after the hearing of the motion falls within the type of conduct referred to in Rule 24 as “unreasonable”, which is to be discouraged by the court by allowing additional awards of costs over and above partial, or substantial indemnity, where parties have acted reasonably, but are still liable to pay costs.” [ 6 ] Pedlar J. ordered in the circumstances of that hearing that the Applicant was granted her actual costs claim in the amount of $11,829.96.

He notes that he was: “...taking into account the Respondent’s unreasonable conduct, the offer to settle of the Applicant, the importance and complexity of the issues raised, the rates of counsel and staff for the Applicant, and the time spent on the motion.” [ 7 ] That order stands to date. [ 8 ] I find that there have been minimal efforts to make payments against the costs order. It is undisputed that there were two payments made voluntarily by the Respondent of $200.00 each, aside from the involuntary garnishment collection which has provided some reduction in the costs order.

The costs are estimated to remain outstanding in the amount of approximately $8,000.00.

[9] I note that it is undisputed that the Respondent earns in excess of $110,000.00. He also has substantial family income fromhis spouse. In my view, this ought to have placed him in a position to budget more tightly and appropriately to meet his obligations topay this costs order over the last ten months. He has failed to make any significant effort to do so despite his obligations and the clearorder of the court. [10] The rules are clear that there are implications to a failure to obey court orders. Rule 1(8) of the Family Law Rules provides:

(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 considersnecessary 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 courtorders otherwise; (

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

g) on motion, a contempt order. Ont. Reg. 114/99, Family Law Rules, made under the Courts of Justice Act, R.S.O. 1990, c. C.43; emphasis added. [11] The rules set out in detail the options available to the court in order to arrive at a just determination of the matter. [12] I have referred to the cases provided to me by counsel and, in particular, Ferguson v. Charlton 2008 ONCJ 1 , [2008]O.J. No. 486 (O.C.J.), Dumont v. Lucescu, 2015 ONSC 494 (Can LII), Hughes v. Hughes (ON SC), [2007] O.J. No.1282 (S.C.J.) and, also, Myers v.

Myers [2014] ONSC 1804. [13] The Respondent has asked that I exercise my discretion and find that the circumstances of this case such that he ought not tobe sanctioned. It is his view that I ought not to impose consequences as a result of his failure to pay the order. He also asks that I notethat Pedlar J.’s order did not say “payable forthwith” and that this relieves him of the consequences of his failure to follow the order.

Ireject this argument and find that there has been more than a reasonable amount of time for this order to have been paid. [14] The Respondent has chosen to bring a further motion in this matter in the face of a substantial outstanding costs order. That isthe choice he has made. He has also chosen to refrain from making further payments on the costs order. There is no plan put forward tome today in argument or in his materials as to his plan to pay the costs order.

He simply says that the garnishment is sufficient. [15] I have reviewed the Respondent’s financial statement contained in the Continuing Record and note that his expenses appear toencompass all the expenses in his home notwithstanding the fact that his financial statement also notes a spouse who contributes inexcess of $2,000.00 per month in the household. [16] I find that there is room within the Respondent’s budget for him to have chosen to make payments on the costs order. He haschosen not to.

Had he chosen to do so, it is reasonable to expect that the costs order would have been paid by now. [17] He has chosen not to make reasonable payments and has chosen instead to commence another motion. [18] It is now over ten months since Pedlar J.’s order. [19] The Ferguson v. Charlton case notes clearly that there is a three-step process to considering a motion such as this and thosethree steps have been considered by me. [20] In step one, I must determine if a triggering event has occurred. I have determined that a triggering event has occurred.

Thereis non-compliance with a court order. [21] Once the triggering event occurs, the court must then ask at the second step whether it is appropriate to exercise discretion infavour of the non-complying party, in this case, the Respondent, Mr. Anderson, by not sanctioning him under subrule 1(8), or byordering that subrule 1(8) does not apply. This discretion is only to be granted in exceptional circumstances. I do not find that this is thecase in this matter.

I find that the onus has not been met by the Respondent to exempt him from the application of the rule. [22] In any event, under the third step, if the court determines that it will not exercise discretion, which I will not do in this case, Iam then left with broad discretion as to the appropriate remedy pursuant to the provisions of the rule. [23] It has been said in many cases that a court order is not a suggestion or a lifestyle choice. It is a court order. Compliance is notoptional. Consequences must flow for breaches of court orders, otherwise our justice system would simply degenerate into a system ofchaos.

The Dumont case, as well as Tajik v. Maharlouie, (ON SC), emphasize the clear consensus that the courtmust give pause before allowing breaches of court orders. The case law also sets out that it does not require more than one breach andthat one breach may often be enough. [24] I find the Gordon v. Starr case of 2007 to be applicable to this case and very helpful. Quinn J. noted that the rules are not to

be taken lightly. Court orders are not made as a form of judicial exercise. An order is not a suggestion. [ 25 ] Again, Quinn J. notes that non-compliance must have consequences. Most importantly for this case today, Quinn J. considers the appropriate remedies as he is required to do under the rules and concludes that to postpone the non-paying party’s motion makes the most sense. I find that in this case, this is the appropriate remedy.

To dismiss the motion of the Respondent without prejudice to his right to request that the motion be returned for argument upon payment of the costs is a fair and just result. [ 26 ] I also make an order pursuant to Rules 1, 2 and 17 that the settlement conference which is set for December 20, 2017 may be conducted as a combined settlement conference and case conference on the issues in this motion, if the costs order has been paid.

I have made this order specifically to expedite this matter and ensure that a case conference on the issues in this motion has been held in order that argument on the motion not be delayed once the costs order is paid. [ 27 ] The Applicant was successful in this matter today. She is entitled to costs. I have considered the factors in Rule 24.

I also considered both parties’ express desire to have this matter moved along. [ 28 ] Therefore, costs of today’s motion are fixed in the amount of $1,500.00, payable by the Respondent to the Applicant in the final determination of the matters between the parties whether that be by trial or on consent terms. I have confirmed with counsel that the costs of the September 19, 2017 attendance were fixed by Tranmer J. in the amount of $1,200.00 to be awarded by the Justice who decides the motion finally. [ 29 ] For the Reasons noted above, an order shall issue as set out in my written endorsement as follows:

(1) The Respondent’s motion is dismissed, without prejudice to the right of the Respondent to request the return of the motion for hearing upon payment of the December 2016 costs order of Pedlar J.;

(2) The settlement conference date set for December 20, 2017 may be conducted as a combined case and settlement conference (case conference for the issues in this motion and settlement conference on the balance of issues) if the costs order has been paid, in order to expedite this matter and ensure that a case conference on the motion issues has been held (Rule 1, 2 and 17); and

(3) Costs are fixed and payable by the Respondent to the Applicant in the amount of $1,500.00 for today’s hearing and are payable in the final determination of financial matters between the parties. _______________________________________ The Honourable Madam Justice D. Swartz Released: October 18, 2017 CITATION : Anderson v. Anderson , 2017 ONSC 6239 COURT FILE NO.: 16-0167 DATE: October 18 , 2017

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: AMY MICHELLE ANDERSON Applicant – and – CHRISTOPHER BRUCE ANDERSON Respondent ENDORSEMENT ON MOTION Swartz J. Released: October 18, 2017