Written on behalf of Shariff & Associates

Judges regularly remind parties that court orders are not suggestions, and that non-compliance can have significant consequences. Ontario’s Family Law Rules give the courts broad remedies to deal with issues of non-compliance, including the discretion to stay proceedings and, in certain cases, a court may refuse to hear an application by a party who is in default of a court order. The rationale is that parties should not be able to obtain relief while they are in breach of a court order. However, judges will still consider the circumstances of each case before making a decision.

Courts Apply Three-Part Test Before Deciding Whether to Grant Relief

Section 1(8) of the Family Law Rules provides that “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…

(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.”

In Burley v. Burley, the Ontario Court of Appeal confirmed that courts have discretion “not to entertain an application by a pay or spouse who is in continuous default”. Ferguson v. Charlton set out a three-part test to be used by the courts when considering whether a party’s non-compliance will prevent them from obtaining relief under Rule 1(8). The three-part test is as follows:

1. The court must ask if there has been a triggering event (for example, non-compliance with an existing court order) that would allow it to consider the wording of Rule 1(8).
2. If the triggering event exists, the court must ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning the party under Rule 1(8).
3. If the court determines that it will not exercise its discretion in favour of the non-complying party, it is left with broad discretion as to the appropriate remedy under Rule 1(8).

Ultimately, the onus is on the non-complying party seeking relief to show why it would be appropriate for the court to exercise its discretion. Previously, courts have indicated that discretion should only be exercised in the non-compliant party’s favour in exceptional circumstances. When determining the appropriate remedy, judges can consider all relevant factors, including the importance of the non-compliance, the context and complexity of the issues in dispute, and efforts to avoid non-compliance.

Failure to Explain Non-Compliance Leads to Stayed Application

In Covell v. Covell, a divorce application was brought by the applicant, in which he sought orders dealing with parenting matters, child support, and a divorce. However, the respondent brought a motion for a stay of proceedings until the applicant paid outstanding costs orders of $16,000 and transferred funds from his RRSP to satisfy child support arrears that accrued from a 2014 court order. According to the respondent, the applicant’s failure to comply with the order should disentitle him to relief until the outstanding payments are made.

However, the applicant disagreed. While the Ontario Family Responsibility Office (FRO) was not enforcing the costs awards, it did not mean the applicant was failing to comply with the order. It required him to pay $450 each month towards all arrears, including the cost arrears. The Court found there was no indication that the applicant did not substantially comply with the order to pay $450 per month, since there was no condition that an amount of the payment be set against the costs arrears, as opposed to child support or spousal support arrears. Since the applicant did not fail to comply with this part of the 2014 order, it did not constitute a triggering event that permitted considering rule 1(8).

Applicant’s Failure to Apply RRSP Funds to Pay Arrears Constitutes Triggering Event

This still left the requirement that the applicant transfer funds from his RRSP. The evidence was that the applicant made withdrawals from his RRSP in 2014, 2015, and 2016. The first withdrawal took place before the order was made. However, the applicant used funds from the second and third withdrawals for his own purposes instead of paying down the arrears.

The 2014 order required the applicant to withdraw as much as he could from his RRSP each year and apply the amounts towards child support, spousal support and cost arrears. In the case of the 2015 and 2016 withdrawals, it was evident that the applicant failed to obey the order, and this constituted a triggering event.

Applicant’s Application Stayed Pending Paying of Arrears

Once a triggering event was identified, the applicant was required to prove to the court that it should exercise its discretion and not sanction him. However, he failed to do so. The Court noted that his explanations for failing to apply the RRSP funds towards the arrears were unclear and contradictory. This left the Court with broad discretion to settle on an appropriate remedy. Some weight was given to the fact that the proceeding was being heard in the context of a motion to change a final order, and that the applicant claimed to have concerns about the RRSP provision, but did not try to change that aspect of the order.

Ultimately, the respondent’s motion was allowed and the application was stayed pending payment by the applicant of the outstanding amounts.

Party in Default Must Prove Why They Should Be Granted Relief

Courts need to ask whether it is appropriate not to sanction a party that is in breach of a court order when the same party seeks relief from the court. Importantly, the court’s discretion will only be exercised in a non-compliant party’s favour in exceptional circumstances. Courts will pay attention to the party’s conduct and can also consider the history of the litigation before making a determination.

Contact the Family Lawyers at Shariff & Associates in Markham Stouffville for Trusted Advice on Post-Divorce Modifications and Support Matters

The experienced family law lawyers at Shariff & Associates work closely with clients, whether an applicant or respondent, on a variety of variation applications. Our trusted family law team will review your situation and provide a realistic assessment of the likelihood of success with respect to your particular application. To review your matter with a member of our trusted team, contact us online or call us at 905-591-4545.