M.H. v. C.S., 2007 ONCJ 326 (CanLII)
Ontario v. Ahmad, 2007 CanLII 21968 (ON SC)
June 14, 2007R. v. Ahmad, 2007 CanLII 28750 (ON SC)
July 23, 2007Brampton Registry No. 1272/05
DATE: 2007·VII·03
CITATION: M.H. v. C.S., 2007 ONCJ 326
ONTARIO COURT OF JUSTICE
BETWEEN:
M.H.and B.H.,
Applicant,
— AND —
C.S.and S.S.,
Respondents.
Before Justice Joseph W. Bovard
Heard on 8 and 10 May 2007
Reasons for Judgment released on 3 July 2007
CIVIL PROCEDURE — Pleadings — Striking out pleadings — Grounds — Multiple grounds — Mother and maternal grandparents were locked in dispute over custody of, access to and support for 3 girls (now 15, 13 and 12 years old) — Because of mother’s chaotic and nomadic lifestyle, children had been living in stability of grandparents’ home for past 3 years — Of late, mother hardly exercised her access at all for reasons that made little sense and, in general, her credibility had become tattered in course of this litigation — She had ignored year-old order to take children to counselling and had failed to comply with order to make financial disclosure — Nevertheless, mother had launched contempt motion against grandparents for their alleged thwarting of her access, but progress of this motion was slow because of mother’s spotty court attendances —Court was prepared to give mother one further extension for this motion to allow her to secure new lawyer but was ready to render final judgment on custody, access and support — In midst of court’s oral summary of its reasons on those issues, mother stood up and began packing her things in order to leave, protesting that she was nor being treated fairly — Presiding judge warned her that, , if she walked out on court, her pleadings would be struck and her case would end — She turned her back on court and walked out and court struck her pleadings for her disregard of interlocutory orders and for her contemptuous attitude towards court by turning her back and walking out of court in middle of court’s explanation of its decisions — Striking party’s pleadings is very serious and extraordinary measure for court to take but, in this case, several provisions in Family Law Rules, individually or in combination, justified this response.
STATUTES AND REGULATIONS CITED
Child Support Guidelines, O. Reg. 391/97 [as amended], section 7.
Family Law Rules, O. Reg. 114/99 [as amended], subrule 1(8), subrule 2(2), subrule 2(3), subrule 2(4), clause 13(17)(b), clause 14(6)(e.2), subrule 14(22), subrule 14(23) and Form 14B.
CASES CITED
Ricafort v. Ricafort and Ricafort, 2006 ONCJ 520 (CanLII), 35 R.F.L. (6th) 210, [2006] O.J. No. 5332, 2006 CarswellOnt 8554 (Ont. C.J.).
AUTHORS AND WORKS CITED
Aston, David R. Henry Vogelsang, Brahm D. Siegel and Margaret A. McSorley: McLeod’s Ontario Family Law Rules Annotated 2006(Toronto: Thomson Carswell, 2006).
M.H. …………………………………………………………………………………………………….. on her own behalf
Anser U. Farooq …………………………………………………………………. for the respondent grandparents
Giselia F. Bettencourt for the Office of the Children’s Lawyer, legal representative for the children
[1] JUSTICE J.W. BOVARD:— These are reasons for judgment with regard to a contempt motion brought by Ms. M.H. against the respondents, and with regard to custody and access of Ms. M.H.’s three children, as well as, child support for them.
1: OVERVIEW OF THE CASE
[2] On 18 July 2005, Ms. M.H.’s three children, J.1 (born on […] 1992), J.2 (born on […] 1994) and J.3 (born on […] 1995), were all living with Ms. M.H.’s parents, the respondents, Mr. C.S. and Ms. S.S., and had been living with them since 2004. Ms. M.H. and her husband, Mr. B.H., filed an application on this date for sole custody of the children.
[3] The respondents filed an answer on 22 July 2005 in which they made a claim for sole custody of the children. They stated that the children had lived with them for the last year and that the children’s aid society recommended that they continue living with them. A letter from the children’s aid society was filed that says that the children were placed with the respondents for the past year, which would have been sometime in 2004. In addition, to their claim for custody, the respondents claimed child support pursuant to the Child Support Guidelines, O. Reg. 391/97, as amended, plus section 7 extraordinary expenses for dental costs and sport activities.
[4] The court made a temporary order on 25 July 2005 that the children continue to reside with the respondents and granting reasonable access to the applicant parents having regard to the children’s wishes. The court also requested the involvement of the Office of the Children’s Lawyer.
[5] In December 2005, the applicant father, Mr. B.H., was living in the United States and, although he supported their application, he decided to take a back seat. On this date, the court made a more detailed order for access in favour of the applicant mother, Ms. M.H..
[6] On 11 January 2006, Ms. M.H. filed a motion in which she asked that she be given custody of the children and that the respondents be found in contempt for refusing to give her access pursuant to court orders of 25 July 2005 and 1 December 2005. The motion was not properly served and so the court did not deal with it and it was adjourned to 11 April 2006. However, a case conference was held during which the applicant told the court that the respondents were not allowing her access to the children as had been ordered by the court previously. There was also an issue with regard to the children’s alleged refusal to see the applicant. The respondents were again ordered by the court to comply with the previous orders regarding access to the children by the applicant, and additional access was granted to allow the applicant to take the children to counselling.
[7] An endorsement by the trial co-ordinator on 11 April 2006 says that the motion was adjourned to 15 August 2006 and all parties were contacted by fax.
[8] On 7 June 2006, the court granted two motions under clause 14(6)(e.2) [procedural, uncomplicated or unopposed matters] of the Family Law Rules, O. Reg. 114/99, as amended, via Form 14B, brought by counsel for the applicant mother, Ms. M.H., and by counsel for the applicant father, Mr. B.H., removing both of them from the record.
[9] The respondents did not appear on 15 August 2006, the date that was set to hear the contempt motion and the motion regarding custody, access and child support and there was no explanation for Ms. M.H.’s absence. Mr. B.H. was in New Jersey. The court did not want to dismiss the contempt motion without giving Ms. M.H. another opportunity to appear and the motion was adjourned to 7 September 2006.
[10] With regard to custody, access and child support, the court made a temporary order giving the respondents custody of the children with specified access to the applicant, Ms. M.H.. The court ordered that the applicant father, Mr. B.H., should not have anything but telephone access to the children and only when initiated by the children and Ms. M.H. was prohibited from communicating with Mr. B.H. or allowing him to be present during any access visits. Ms. M.H. was also ordered to take the children to Catholic Family Services of Peel for counselling and to attend herself without the children as directed by the counsellor. The court also made an order for child support, without prejudice, for $598.00 commencing on 1 August 2006, based on an imputed income of $30,000.00 a year. In addition, both applicants were ordered to serve and file full financial disclosure by 15 September 2006. The court ordered that a copy of its endorsement be sent to the applicants.
[11] The applicants appeared in court on 7 September 2006. The access ordered on 15 August 2006 took place, but Ms. M.H. had not complied with the court’s order that she take the children to counselling and it was made clear to her that she must comply with the order. The applicants had not yet filed financial disclosure made either. They were ordered to file financial disclosure by 6 November 2006, failing which a final order of child support would be made. The case was adjourned to 21 November 2006 for a continuing case conference and to set a date to hear the contempt motion.
[12] On 21 November 2006, the applicant, Mr. B.H., appeared without counsel and the applicant mother, Ms. M.H., did not appear but her new lawyer did. Mr. B.H. filed a notice of withdrawal, which was granted, but his motion for dismissal of the children’s lawyer, who had appeared on the case since 15 August 2006, was dismissed and struck out under subrule 14(22). The court adjourned the contempt motion for a two-day hearing that was later set by the trial co-ordinators for 8 and 10 May 2007. The court again ordered Ms. M.H. to comply with its order of 15 August 2006 regarding financial disclosure and counselling for the children.
[13] On 29 March 2007, the respondents brought a motion under Form 14B to terminate access to the applicant mother because she was not exercising her access and it was contrary to the children’s interests to continue to take them to the access point. This motion was set for hearing on the same date that the contempt motion would be heard.
[14] On 4 May 2007 the applicant mother filed a motion under Form 14B for an adjournment of the contempt motion so she could retain new counsel, which would be her third lawyer. The motion was set for argument for the same date that as the contempt motion, 8 May 2007. The trial co-ordinator’s office left messages for Ms. M.H. on 4 and 7 May 2007 to advise her.
2: THE PROCEEDINGS OF 8 AND 10 MAY 2007
[15] On 8 May 2007, the applicant mother appeared without counsel. Her husband, Mr. B.H., also appeared and tried to sit at counsel table. However, Mr. Farooq, counsel for the respondents, objected since Mr. B.H. had withdrawn from the case, so I directed him to sit in the body of the court, which he did. Ms. Bettencourt appeared from the Office of the Children’s Lawyer as counsel for the children.
[16] I dealt first with the applicant mother’s motion for adjournment to get new counsel. She said that she fired her last lawyer because he made statements to the court on the last appearance, which she did not attend, that were not true — namely, that she did not attend court because she was at work when in fact she was sick. She also alluded to matters that could not be mentioned because they were covered by solicitor-and-client privilege that caused her to dismiss him as her lawyer.
[17] Mr. B.H. admitted that she had two other lawyers before retaining Mr. Antonios Karalis, her newly fired lawyer, and she gave explanations why they no longer acted for her. She said that she fired her first lawyer, Ms. Ibikemi L.O. Dare, because she and Mr. Farooq, counsel for the respondents, were always fighting and she thought that her lawyer was more concerned about that than her case, and in addition, she would not follow her instructions regarding the access issue. She said her second lawyer, Pauline M. Malcolm, refused to continue to act for her after Ms. M.H.’s husband, Mr. B.H., who was at that time a party to this action, dismissed his lawyer, Eva Swartz. She said that Ms. Malcolm would not continue to act for her because Ms. Swartz no longer acted for her husband. I found this quite dubious.
[18] During submissions regarding the adjournment application, the parties spilled over into discussing the other issues in the case and it is useful to mention what was said.
[19] Regarding the contempt motion, Ms. M.H. said that, although the respondents were no longer denying her access to the children, which was the basis of the motion, she still wanted to pursue it because they denied her access prior to January 2007 and she felt that they had to suffer the consequences of those actions. Basically, she wanted to punish them for something that she says they did in the past.
[20] I told her that I did not find this to be an acceptable reason to pursue the contempt motion, because the primary object of contempt in family law is not to punish the parties, but rather, to force them to comply with court orders. See: Ricafort v. Ricafort and Ricafort, 2006 ONCJ 520 (CanLII), 35 R.F.L. (6th) 210, [2006] O.J. No. 5332, 2006 CarswellOnt 8554 (Ont. C.J.), per Justice Heather L. Katarynych, at paragraph [17], where the court observed that (emphasis added):
| [17] The contempt power is used with restraint and in exceptional circumstances — essentially to respond to circumstances where it appears to be the only reasonable means to send a message to a litigant that court orders are not to be flaunted. That approach is consistent with the design of the Family Law Rules as a whole to enable a court to deal with a case justly, with particular attention to subrule 2(3) and subrule 2(4) of the rules. |
[21] Concerning access, Mr. B.H. admitted that she had not exercised her access since November 2006. She said that she could not for a variety of reasons, including that she was occupied between 4:00 a.m and 8 or 9:00 p.m. going to work and working. She said that she had two jobs and that she gets migraines and the medication makes her tired and disoriented.
[22] However, I note that, when the issue of costs came up, Mr. Farooq, counsel for the respondents, asked for $5,000.00 and Ms. M.H. said that she was not working because she was laid off in February 2007. This contradicted her statement that she could not exercise her access because of heavy work commitments. Moreover, the fact that, according to her, she was working up to February 2007 exacerbates the seriousness of her failure to comply with Justice June Maresca’s orders that she provide full financial disclosure to the respondents. She had no valid reason for not providing the disclosure. She blamed it on Mr Karalis, saying that he did not send the financial documents that she gave to him to the respondents. I found that was an easy out, because Mr. Karalis was not in court to give his side of the story and, considering her contradiction regarding her work schedule and alleged inability to exercise her access because of it, frankly, I did not believe it.
[23] With regard to Ms. M.H.’s disobedience of Justice Maresca’s order regarding counselling for the children, she said that she did not obey it because the counselling centre is Catholic and she is Protestant. When the court made this order, Ms. M.H. was not present, but the court directed court services to send a copy of the endorsement to her and her husband. She did not seek to vary the order, although she said she told her lawyer, Mr. Karalis, to do this. I do not believe this because of the damage she did to her credibility with regard to contradiction regarding her work schedule, which I discussed above. Another reason that I do not believe her is that she appeared before Justice Maresca on 7 September 2006 and Justice Maresca made it clear to her that she had to comply with the counselling order. I asked her why she did not mention the problem she had taking the children to a Catholic counselling centre to Justice Maresca and she told me that Justice Maresca would not listen to her and told her to just sit down.
[24] I do not believe Justice Maresca would prohibit Ms. M.H. from saying anything that was relevant to this or any of the issues. This is another example of Ms. M.H.’s blaming others indiscriminately for her own failures to obey court orders and it further damages her credibility.
[25] Ms. Bettencourt, the children’s lawyer, explained that the respondents have complied with Justice Maresca’s order regarding access to Ms. M.H. and have taken the children to the meeting point where Ms. M.H. is supposed to meet them on every occasion that they were supposed to, which is every three weeks since the order was made on 15 August 2006. Ms. M.H. has never shown up and she has not even bothered to call to say that she would not be there. They left messages on her cell phone to no avail and, when they tried her home number, it was disconnected. The children resent being stood up like this and it is causing them great emotional and psychological upset.
[26] After hearing all the submissions of the parties, I reluctantly decided to grant Ms. M.H. the adjournment that she requested because I thought that she needed sound legal advice regarding the viability of proceeding with the contempt motion and, if it did proceed, it would go ahead in a much more efficient manner than if I forced Ms. M.H. to argue it her self.
[27] I told the parties that I would give them a brief résumé of the orders that I was going to make with regard to the issues of custody, access, and child support, and costs, which included an order for costs in the amount of $5,000.00, and that I would stand down for a time in order to write my endorsement and then come back to court to read it. However, in the middle of my summary, Ms. M.H. stood up and began packing her things in order to leave. She protested that I was going to do whatever I wanted to do and that the proceedings were not fair. I told her that was not true and that, if she walked out on the court, I would end her case. I gave her the choice and she turned her back on me and walked out.
[28] I adjourned the case to the next scheduled date, 10 May 2007 to make the orders that I thought were necessary and to give reasons for them. On 10 May 2007, I struck the applicant mother’s pleadings and proceeded with an uncontested trial based on the evidence in the affidavits in the file and on a Form 23C affidavit sworn on 10 May 2007 by the respondent grandparents. Ms. Bettencourt, the children’s lawyer made submissions regarding custody and access.
[29] Ms. Bettencourt argued that, on the basis of affidavit material served on the applicants and filed with the court. it was in the best the children that the respondents have sole custody of them with access to the applicant mother at the discretion of the respondents, taking into consideration the views and preferences of the children, who are now 15, 13 and 12 years old. Salient points in these affidavits are:
| 1. | J.1, who was 14 years old when Ms. Montour swore her affidavits, said that previous to living with the respondent grandparents, she attended eight schools in eight years and moved twelve times. Since living with the respondents, she has stayed at the same school for two years and is developing friendships. | |
| 2. | All the children are very close to the respondents and they have three uncles and cousins that live within walking distance of each other. | |
| 3. | The respondents encourage a relationship between the applicant mother and the children. | |
| 4. | All three children have consistently and independently expressed a desire to live with the respondents over the last year and a half. |
[30] After considering all submissions made to me by the parties and the relevant law, I made the following final orders and stated that full reasons for these orders would be provided by 3 July 2007.
3: FINAL ORDERS MADE ON 10 MAY 2007
[31] The following final orders were made on 10 May 2007:
| 1. | The applicant mother’s pleadings are struck pursuant to subrule 14(23). | |
| 2. | The respondents, Mr. C.S. and Ms. S.S., are granted full and sole custody of J.1 (born on […] 1992), J.2 (born on […] 1994) and J.3 (born on […] 1995). | |
| 3. | The Applicant, Ms. M.H., is to have access to the children at the discretion of Mr. C.S. and Ms. S.S., the respondents, taking into consideration the children’s views and preferences. | |
| 4. | The respondents, Mr. C.S. and Ms. S.S., are to take the children for counselling at Catholic Family Services or to Ms. Kiru, or to any other counselling service or person that they decide is appropriate, taking into consideration the best interests of the children. | |
| 5. | Costs are awarded to Mr. Farooq, counsel for the respondents in the amount of $5,000.00, payable forthwith. |
4: ADDITIONAL ORDER MADE
[32] While writing these reasons, I realized that, on 10 May 2007 I neglected to make an order for child support. All parties were on notice that this was an issue. Therefore, considering that, because of the applicant’s failure to provide full financial disclosure, I have no more financial information than did Justice Maresca when she made her temporary order on 15 August 2006 that the applicant, Ms. M.H., pay child support to the respondents for J.1 (born on […] 1992), J.2 (born on […] 1994) and J.3 (born on […] 1995), in the table amount of $598.00 per month commencing on 1 August 2006, based on an imputed income of $30,000.00 a year, I order that her order be made final. There was no evidence regarding section 7 extraordinary expenses and therefore, I did not make an order in this regard.
5: REASONS FOR THE ORDERS MADE
[33] I struck the applicant’s pleadings under subrule 14(23) because, as indicated above, she was in clear breach of Justice Maresca’s order of 15 August 2006 that she take the children to counselling. In addition to not complying with Justice Maresca’s order regarding counselling, the applicant did not comply with her order concerning financial disclosure and gave reasons for this non-compliance that were suspect and not credible. Finally, Ms. M.H. demonstrated her contemptuous attitude towards the court by turning her back on me and walking out of court in the middle of my explaining the decisions that I had made and the orders that I was making. I warned her that, if she chose that option, I would end her case and, in spite of that, she chose to walk out.
[34] I granted the respondents, Mr. C.S. and Ms. S.S., full and sole custody of the children with access to the applicant mother at the discretion of the respondents, taking into consideration the views and preferences of the children because, on the basis of the evidence and considering all of the circumstances, it is in their best interests. They have been living with them since June 2004 and enjoy a stable and beneficial home environment with the respondents and they all want to live with the respondents. Ms. Bettencourt, counsel for the children, argued strongly that it is in the best interests of the children that the respondents have sole custody of the children with access to the applicant mother at the discretion of the respondents, taking into consideration the views and preferences of the children, and I agree with her.
[35] I ordered that the respondents, Mr. C.S. and Ms. S.S., are to take the children for counselling at Catholic Family Services or to Ms. Kiru or to any other counselling service or person whom they decide is appropriate, taking into consideration the best interests of the children because, in all of the circumstances, it is in best interests of the children as was envisioned by Justice Maresca’s original temporary order to this effect made on 15 August 2006. All three children have been the subjects of, and witnesses to, a lot of domestic violence and abuse and it is reasonable that they would need counselling to deal with the effects of this.
[36] I ordered costs in favour of the respondents because the amount asked for was reasonable and fair in the circumstances.
[37] The applicant, Ms. M.H., was treated fairly and in a reasonable manner by the court but she has shown a complete disregard for the court’s orders although she was given plenty of time to comply with them.
[38] Her submissions to me lacked genuineness and were contradictory. Her children are suffering under the current access regime and she is seeking to proceed with a contempt motion, the basis of which is dubious at best. The depth of her contempt and disregard for the court was displayed by her when she walked out of the court as I was explaining the orders that I was going to make after hearing from all the parties. I realize that striking a party’s pleadings is an extraordinary and very serious thing to do; however, I think that all of the circumstances point to the fact that Ms. M.H. has no regard for the court and no intention of complying with its orders. It places the court in a position of ridicule to allow a party in these circumstances, who refuses to obey the court’s orders and who walks out on a judge who is giving reasons for his orders, to nevertheless continue to use the courts resources and jurisdiction to purse further proceedings, much less this dubious contempt motion.
[39] I consulted McLeod’s Ontario Family Law Rules Annotated 2006 (Toronto: Thomson Carswell, 2006), edited by David R. Aston et al., and the annotation under subrule 14(23) says that the law is clear that to strike a party’s pleadings is an extreme remedy that should be used sparingly with utmost caution. I also understand that there must be clear evidence of deliberate default and a complete disdain for orders of the court. I find as a fact that these circumstances exist in this case and, therefore, I proceeded with the matter as an uncontested trial.
[40] If I am in error regarding my jurisdiction under subrule 14(23), I find that I could dismiss the applicant’s claim under subrule 1(8) which, in the case of a failure to obey a court order, gives the court the jurisdiction to make any order that it considers necessary for a just determination of the matter. This includes “dismissing a claim made by a party who has wilfully failed to . . . obey the order”.
[41] In addition, where a party does not obey an order to serve and file a financial statement, clause 13(17)(b) gives the court jurisdiction to strike out any document filed by the party. I find as a fact that the applicant, Ms. M.H., failed to obey Justice Maresca’s order of 15 August 2006 to make full financial disclosure, which order was re-stated to her on 7 September 2006 and on 21 November 2006.
[42] In making these orders, I was also guided by subrule 2(2), subrule 2(3) and subrule 2(4), which states that the primary objective of the rules is to deal with cases justly. This includes ensuring fairness and saving expense and time. It is clear that the applicant’s motions for contempt and for custody and access are wasting the court’s time because of the dubious nature of the contempt motion and the fact that, since November 2006, she has not even bothered to exercise the access that she was granted.