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“In considering delay, courts should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support. See: Michel, par. 121.

A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted. See: Michel, par. 113.

Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. See: Michel, par. 86.

Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.

Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support. See: D.B.S., par. 106.

Blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support. Where present, it weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award. See: Michel, par. 119.

The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty. See: Michel, par. 34.

If there has been a hardship present during their childhood, or if the child needs funds at the time of the hearing, this weighs in favour not only of an award, but also of extending the temporal reach of the award. See: Michel, par. 120.

If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship. In all cases, hardship may be addressed by the form of payment. See: Michel, par. 124.”

Mpamugo v. Nyeche-Woluchor, 2022 ONCJ 488 (CanLII) at 59-67

“Because it is a family law case, I will begin with Family Law Rule 25(19). It reads as follows:

(19) The court may, on motion, change an order that,

(a)  was obtained by fraud;

(b)  contains a mistake;

(c)  needs to be changed to deal with a matter that was before the court but that it did not decide;

(d)  was made without notice; or

(e)  was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

The Ontario Court of Appeal has held that the authority to change an order includes the authority to set it aside: Gray v. Gray, 2017 ONCA 100 paragraphs 26 and 31.

I find that the present case does not fit within the situations listed in Rule 25(19)(a-e). However, there is authority for applying rule 19.08 of the Rules of Civil Procedure.

In Bompas v. Henry 2018 ONSC 7718 paragraph 15 the court stated:

[15] It is my view that the inquiry should not end with r. 25(19)(e).  Rule 2(2) of the FLR’s states that the primary objective of the rules is to enable the court to deal with cases justly.  In consideration of what would be just, I refer to r. 19.08 of the Rules of Civil Procedure.  That provides the court with the authority to set aside a default judgment on such terms as are “just”.  The Ontario Court of Appeal considered that test in Mountain View Farms Ltd. v. McQueen. It said that the ultimate task is to determine whether the interests of justice favour granting the order and five factors identified for consideration.  The court further said that the factors were not to be regarded as rigid rules nor must all need be satisfied before the judge can grant relief.  The factors are:

a)   Whether the motion was brought promptly after the respondent learned of the default judgment;

b)    Whether there is a plausible excuse or explanation for the defendant’s default in complying with the rules;

c)    Whether the facts establish that the respondent has an arguable defence on the merits;

d)    The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

e)    The effect of any order the court might make on the overall integrity of the administration of justice.

This was repeated in Ostapyk v. Ostapyk, 2022 ONSC 400 paragraph 13.

Rule 19.08(1) reads as follows:

A judgment against a defendant who has been noted in default that is signed by the registrar or granted by the court on motion under rule 19.04 may be set aside or varied by the court on such terms as are just.

Rule 19.01(1) shows that this applies both where a defendant has failed to deliver statement of defence and where a statement of defence has been struck out, as here.”

            Hakim v. Hakim, 2022 ONSC 6051 (CanLII) at 8-12

“If a person fails to obey an order in a case, rule 1(8) of the FLRs provides the court with the discretion to make any order it considers necessary to arrive at a just determination, 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.

I further note r. 1(8.1) that allows for the same relief, with the exception of an order for contempt, as set out above should a party fail to follow the FLRs.

The consequence of striking a party’s pleadings in a case, unless the court orders otherwise, are set out in r. 1(8.4), as follows:

1. 1. 1. 1. 1.    The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
            2.    The party is not entitled to participate in the case in any way.
            3.    The court may deal with the case in the party’s absence.
            4.    A date may be set for an uncontested trial.

In family matters, the case law directs that the court’s authority to strike pleadings and deny trial participation should be used sparingly and only in exceptional circumstances. An order eliminating a party from participating in a case is a drastic remedy, one of last resort when no other will suffice. See Purcaru v. Purcaru, 2010 ONCA 92, at para. 47, and Chiaramonte v. Chiaramonte, 2013 ONCA 641, 36 R.F.L. (7th) 11, at paras. 31 and 32.

In Kovachis v. Kovachis, 2013 ONCA 663, paras. 27-36, the court set aside the lower court’s order striking pleadings saying the judge failed to consider the substantive disclosure already made, the lack of evidence that the responding party willfully disobeyed the disclosure order, the principle of proportionality fundamental to all civil proceedings in Ontario, and further failed to identify the disclosure still outstanding and the importance of it.

In Roberts v. Roberts, 2015 ONCA 450 (CanLII), at paras. 11, 12 and 13, our Court of Appeal had this to say about a party’s obligation to make financial disclosure:

[11]      The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

[12]      Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party.  It also impacts the administration of justice.  Unnecessary judicial time is spent and the final adjudication is stalled.

[13]      Financial disclosure is automatic.  It should not require court orders – let alone three – to obtain production.

In 2016, the Court of Appeal in Manchanda v. Theti, 2016 ONCA 909 (CanLII), leave to appeal refused, [2017] S.C.C.A. No. 29 (S.C.C.), upheld the motion judge’s decision and stated:

[13]     … after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, willful non-compliance must be considered egregious and exceptional. This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11. In 2015, Family Law Rule 13 was amended to emphasize a party’s financial disclosure obligations. A party’s non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.

See also Sparr v. Downing,, 2020 ONCA 793, at para. 4; Peerenboom v. Peerenboom, 2020 ONCA 240;  and  Martin v. Watts, 2020 ONCA 406.

In Mullin v. Sherlock, 2018 ONCA 1063 (CanLII) the court established the following framework for decisions under rule 1(8):

[44]      First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.

[45]      Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:

• • • • • • •       the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;
            •       the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
            •       the extensiveness of existing disclosure;
            •       the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
            •       any other relevant factors.”

            Elbadawy v. Moustafa, 2023 ONSC 6024 (CanLII) at 22-29

“The parties appeared before me for a seven-day trial. The Father was represented by senior counsel, while the Mother represented herself. Both parents testified, along with two school principals, the Father’s new partner, the Mother’s family friend, and a social worker and clinical investigator with the Office of the Children’s Lawyer (“OCL”), Eva Casino. Ms. Casino testified that the Child, was able to articulate his views and preferences clearly and that his views were independent, balanced, and insightful. I rely on both her testimony and the OCL Report. The parties did not oppose the Court taking judicial notice of information contained in the Association of Family and Conciliation Courts (Ontario) 2021 Parenting Plan Guide (“Parenting Plan Guide”), which succinctly outlines the developmental needs of children of separated parents who are around the same age of the Child, and also provides guidance on developing appropriate parenting plans in the face of family violence.”

            A.C. v. K.C., 2023 ONSC 6017 (CanLII) at 3

“In respect of the first issue, we find that the trial judge made no reversible error in ordering the occupation rent. The appellant argued before this court that the trial judge erred in law because he did not apply the requirement that such an order be exceptional. We disagree. While it is settled law in Ontario that an order for occupation rent be reasonable, it need not be exceptional: Griffiths v. Zambosco, (2001) 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397. The appellant was unable to refer us to any Ontario authority in support of the argument to the contrary.”

            Non Chhom v. Green, 2023 ONCA 692 (CanLII) at 8

“Section 56(4) differs from s. 33(4) Family Law Act in that s. 33(4) operates even when there is a valid and subsisting domestic contract but the provision respecting support results in unconscionable circumstances: Scheel v. Henkelman, [2001] O.J. No. 55 (Ont. C.A.).

In general, the doctrine of unconscionability with respect to domestic contracts under s. 56(4)(c) Family Law Act focuses on whether or not there were unconscionable circumstances surrounding the formation of the contract. Under s. 33(4), the focus is on the results of the waiver of support: does that waiver result in unconscionable circumstances when the agreement is triggered by separation: Toscano v. Toscano, 2015 ONSC 487 (Ont. S.C.J.).”

          Golton v. Golton, 2018 ONSC 6245 (CanLII) at 181-182

“As stated by the court in Rebiere v Rebiere 2015 ONSC 1324, at para 14: It is not always necessary to call expert evidence to prove values for minor assets: see Da Costa v Da Costa [1972] O.R. No. 384 (Ont. C.A.) at para 37. Where there is a failure to produce proof of the value of assets, the court can estimate values, perhaps arriving at harsh choices or simply ascribing no value: see also: Earle v Earle, [1997] O.J. 1308 (Gen Div – Fam. Ct.).”

            Siddiqui v. Siddiqui, 2022 ONSC 5784 (CanLII) at 87

“The calculation of spousal support must be based on established principles, which requires that I determine entitlement to support, duration and quantum, and decide whether a lump sum payment is appropriate as opposed to periodic payments.

Duration and quantum of support are separate and interrelated tools available to courts to best achieve the purposes of an order for spousal support, which, according to s. 15.2(6) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), are to:

a.   recognize any economic advantages or disadvantages to the spouse arising from the marriage or its breakdown;

b.   apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

c.   relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

d.   in so far as practicable, promote economic self-sufficiency of each spouse within a reasonable period of time.

These principles are consistent with the concept of marriage as a partnership. There is a presumption that spouses owe one another a mutual duty of support: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 20.

The threshold issue to be determined is entitlement. The Applicant did not argue this issue. Nevertheless, it is critical for the court to determine all grounds for entitlement because the basis for entitlement may significantly impact quantum and duration of spousal support: see Cassidy v. McNeil, 2010 ONCA 218, 99 O.R. (3d) 81, at para. 64. A strong compensatory claim will be a factor for a higher range in the Spousal Support Advisory Guidelines (SSAG): see s. 9.1 of the SSAG; see also Schulstad v. Schulstad, 2017 ONCA 95, 91 R.F.L. (7th) 84, at para 54.”

            Graczyk v. Ivach, 2023 ONSC 5880 (CanLII) at 21-24

“Courts have a broad discretion to award costs, and the court may determine by whom and to what extent costs shall be paid:  Courts of Justice Act, RSO 1990, c. C. 43, s. 131 (1). In the family law context, there is a presumption that a successful party is entitled to the costs of a proceeding and, in fixing the quantum of costs, the court shall consider the reasonableness and proportionality of each party’s behaviour: Family Law Rules, O. Reg. 114/99, r. 24 (1) & (12).

These determinations presuppose the existence of objective benchmarks against which relative success, reasonableness and proportionality can be measured. Those objective benchmarks are present when a court makes findings of fact and law and issues an order. It is for this reason, as Middleton J. succinctly observed over a century ago, that costs are generally regarded as “incident to a determination of the rights of the parties, and ought not to be made themselves the subject matter of the litigation.”: McClellan v. Powassan Lumber Co., [1914] O.J. No. 381 (Ont. H.C.), at para. 8 (emphasis added) (“McClellan”). The same point was made more recently by Myers J. in Muskala v. Sitarksi, 2017 ONSC 2842, at para. 8.

These objective benchmarks are absent when parties resolve disputed issues on consent: Dhillon v. Dhillon, [2009] O.J. No. 4459 (S.C.J.), at para. 10; Witherspoon v. Witherspoon, 2015 ONSC 6378 (“Witherspoon”), at para. 42. There are a myriad of reasons why parties may decide to compromise or settle their claims without necessarily conceding that positions previously held were wrong. Thus, to attempt to use a negotiated compromise solution as the proper benchmark against which to assess relative success, or the reasonableness of either party’s behaviour, is questionable as a matter of principle: Witherspoon, at para. 42. See also Waterloo North Condominium Corporation No. 161 v. Redmond, 2017 ONSC 1304, at paras. 24-39; Talbot v. Talbot, 2016 ONSC 1351, at paras. 44-60.

It therefore follows that, where parties compromise their claims and settle litigation, the award of costs is very much the exception rather than the rule. Another way of expressing this principle is that “when parties reach a settlement as between themselves, the court should be very slow to make an award of costs against one of them.”: Mark M. Orkin & Robert G. Schipper, Orkin on The Law of Costs, 2nd ed., (Toronto: Thomson Reuters Canada Ltd., 2022), at § 2:35.

This is not to deny that there may be exceptional cases in which a costs order is appropriate even following a negotiated resolution. For example, where there has been a vast disparity in the relative costs that have been incurred by the parties, thereby precluding a negotiated settlement without an award of costs, and where the court is in a position to determine relative success based on the record before it, it may well be appropriate for the court to make an award of costs: Kearney v. Hill, 2017 ONSC 6306.  But as a matter of principle, an award of costs following a negotiated resolution will generally be inappropriate.

          Goetschel v. Goetschel, 2022 ONSC 5860 (CanLII) at 12-16

“The cases of F.K. v. A.K., 2020 ONSC 3726 (CanLII), and S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) set out and clarified the legal threshold for when a final order can be varied on a temporary motion.

The starting point of any analysis is the decision of Pazaratz, J. in F.K. v. A.K., 2020 ONSC 3726 (CanLII). Starting at paragraph 48, Pazaratz, J. provides an excellent overview of the legal considerations:

1. 1. 1. 1. 48. Todetermine a request to change custody, access or parenting order, the court must embark upon a two-stage inquiry. Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (SCC).
            49. The first step: There must be a material changein circumstances since the last order was made.

 a.    There must be a changein the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.

b.    The changemust materially affect the child.

c.     It must be a changewhich was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.  The change must be substantial, continuing and “if known at the time, would likely have resulted in a different order.” L.M.L.P. v. L.S. [2011] SCC 64.

d.    The finding of a material changein circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.

e.    If there is no material changein circumstances, the inquiry ends.  The court would be without jurisdiction to vary the order.  Litman v. Sherman,  2008 ONCA 485 (Ont. C.A.).

f.     If there is a material change, the court must move tothe second stage and consider the best interests of the child and whether to vary the original order.

50. The second step:

a.    If a material changein circumstances has been established the court, then embarks on a fresh inquiry into the best interests of the child.

b.    In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie.   There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones, 2000 CanLII 22571 (ON SC); Persaud v. Garcia-Persaud2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.

c.    The court must ascertain the child’s best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except tothe extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young 2003 CanLII 3320 (Ont. CA).

d.    The child should have maximum contact with both parents if it is consistent with the child’s best interests. Gordon v. Goertz; Rigillio v Rigillio2019 ONCA 548 (Ont. CA).

e.    Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining tothe child’s needs and the ability of each parent to meet those needs. Gordon v. Goertz.

….

1. 1. 1. 1. 52. The added complication: the father seeks a temporaryvariation of a finalparenting order.  This requires that the court conduct an even more stringent analysis:

a.     In all instances, courts must exercise caution before changingan existing arrangement which children have become used to.

b.    This is especially the case where the existing parenting arrangement has been determined by way of court order.  The starting point is that court orders are presumed tobe correct. Montgomery v. Montgomery 1992 CanLII 8642 (ON CA); Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).

c.      And the level of required caution is further heightened if the court is being asked tochange a final parenting order on a temporary basis.  If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.

d.    Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority togrant a temporary variation of a final order in the appropriate circumstances. Stokes v. Stokes 2014 ONSC 1311 (SCJ); Huliyappa v Menon 2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ).

e.      But the evidentiary basis togrant such a temporary variation must be compelling.

f.      The court must start with the aforementioned two-part material changein circumstances analysis.

g.    But for a temporary variation, the court must also assess whether the changedcircumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.

h.    The onus on the party seeking a temporary variation is onerous.  They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being.  They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely tocontinue or exacerbate actual or potential physical and/or emotional harm for the child.

i.      The court must be satisfied that the child’s best interests requirean immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.

j.       The court must be satisfied that the existing order has come tobe demonstrably contrary to the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.

k.    Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair tothe child to delay implementation.

l.      And given the qualitative difference between untested affidavit materials on a motioncompared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established.

m.   On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril.  After that, priority switches torescuing and protecting the child.  And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.

Dambrot, J. sitting in Divisional Court in S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) as a modification of the threshold described by Pazaratz, J., at paragraph 40 concurred that the court must be satisfied “that circumstances exist of so compelling and exceptional nature that they require an immediate change”. However, he continued:

40 … I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K. It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child’s physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test.

Dambrot, J. in S.H. v. D.K. supra, sent a cautionary note when the court is asked to overturn longstanding status quo on a temporary motion. Analytical rigor must be maintained. In overturning a decision that changed a final order on a temporary basis, Dambrot, J. wrote at paragraph 61:

I noted earlier the motion judge’s caveat on the stringent legal test in F.K. that cautioned against placing too much emphasis on maintaining the status quo may have led him into error. I am satisfied that it did. Having reviewed his reasons in detail, I am driven to the conclusion that he watered down the importance of maintaining the status quo on an interim motion, and that his approach runs directly contrary to what Benotto J. said in Davis v. Nusca, that “there is the basic principle of maintaining the status quo until trial which is extraordinarily important in family law cases.” The motion judge lost sight of the importance of maintaining the status quo until trial and conflated the requirement that there be compelling reasons to make an order on an interim basis with a determination of the best interests of the child. He gave the requirement of compelling reasons no real meaning and disturbed a long-standing parenting arrangement on an interim basis in the complete absence of urgent, exceptional or in any other sense compelling reasons. In effect, he gave final relief on an interim motion.

In Epshtein v. Verzberger-Epshtein, 2021 ONSC 7694 (CanLII), Kurz, J. set out that the proper text for an interim variation of a final parenting order requires:

a.   A strong prima facieproof that there is a material change in circumstances regarding a parenting issue;

b.   The parenting issue must be an important one;

c.   The circumstances arising since the final order must be urgent or pressing; and

d.   The moving party must then prove that the remedy sought is in the child’s best interests.”

            Y.H.P. v. J.N., 2023 ONSC 5766 (CanLII) at 21-25