top of page
  • Writer's pictureJared Davies, Lawyer

Failure to pay costs orders and child support leads to stay of proceedings pursuant to Cooley v. Cooley, 2024 ONSC 1133

Background
 
The case of Cooley v. Cooley involves a family law dispute with a complex history. The parties, who separated in 2017, share two young children. In 2020, an arbitration award granted the Respondent father parenting time, which was later incorporated into a court order in 2022. This order allowed for a review of the parenting schedule, which became the subject of the recent case conference.
 
Issue
 
The Respondent is trying to seek more parenting time. However, the question is whether the Respondent can proceed despite his past non-compliance with court orders. The Respondent’s pleadings had previously been struck, apart from the parenting portion of his case.
 
Notably, the Respondent had not paid child support since August 2022, accumulating arrears exceeding $250,000. Additionally, he has failed to contribute to s. 7 expenses and has not paid over $30,000 in court-ordered costs. Despite clear findings by multiple justices affirming the court's jurisdiction, the Respondent contends otherwise, justifying his non-compliance.
 
Analysis
 
The court had recognized the importance of fairness and just proceedings and highlights the Respondent's continuous breach of court orders.
 
[14] Rule 1(7.1) permits a court to make certain orders at any time during a case, including imposing conditions on procedural matters as are just (r. 1(7.2)).  Another order that can be made any time, is an order under r.1(8). If a party fails to obey an order in a case, the court may deal with the failure by making any order it determines necessary for the just determination of the matter,
 
However, the court reiterates prior concerns – namely, that parenting cases should not be lightly disturbed:
 
[15] In parenting cases, the remedies available under r.1(8) need to be balanced with the direction from the Court of Appeal that where children’s interests are involved, the court should use utmost caution in striking pleadings because the trial court needs the participation of both parties and information that each can provide about best interests: see for example King v. Mongrain, 2009 ONCA 486, 66 R.F.L. (6th) 267, and Haunert-Faga v. Faga (2005), 2005 CanLII 39324 (ON CA), 20 R.F.L. (6th) 293 (Ont. C.A.).
 
The court ultimately found that by refusing to pay child support, the Respondent was not demonstrating that he acts in the best interests of the child:
 
[16] I find that in this case, the Respondent’s failure to adhere to court orders and his refusal to pay child support go to the very question of the Respondent’s ability and willingness to act in the best interest of the children. He cannot ignore the financial needs of the children and then ask a court to accept that he is capable of acting in the best interest of the children if given increased parenting time with the children.
 
Drawing attention to the children's right to child support and their status as aggrieved parties, the court asserts that the Respondent's failure to meet financial obligations reflects on his ability to act in the best interest of the children. The judge emphasizes that allowing the Respondent to proceed without addressing the outstanding issues would undermine the administration of justice.
 
The court stayed the proceeding until the Respondent fulfills the outstanding costs of $31,735 plus interest. This decision emphasizes the court's commitment to ensuring compliance with orders before entertaining further relief.
 
Conclusion
 
In a balanced approach, the court imposes a stay on the proceedings, emphasizing the Respondent's responsibility to rectify his non-compliance by paying the outstanding costs. The decision aims to prevent further financial burden on the Applicant while maintaining a cautious stance on disallowing a parent to pursue a parenting case. The door remains open for the Applicant to bring a motion for security for costs, and the final decision on striking pleadings is left to another judge. This case serves as a reminder of the court's commitment to upholding justice, fairness, and the best interests of the children in family law matters.

Comments


This site cannot provide, or be a supplement to, legal advice. This blog post does not account for the unique facts of your individual case. There is no guarantee the information in the enclosed blog post is accurate or up to date. Information which appears on this website is general legal information only and does not create a solicitor-client relationship. If you need advice based upon your own particular situation, please speak to a lawyer.

bottom of page