In S.B. v. W.B., 2020 ONSC 5023, Justice MacPherson went into the issue of not obeying court orders.
On June 26, 2020, the Judge had made a finding that the Respondent was in violation of the Final Order as he did not comply with its paragraph 9. He admits that he has not complied.
By contrast, the Judge was satisfied that the Applicant made best efforts to transfer her portion of the matrimonial home and the agreed upon Teacher’s Pension based on the materials before me.
The Judge looked at the history of not obeying court orders.
[22] Justice Quinn in Gordon v. Starr, [2007] W.D.F.L. 4107, [2007] (Ont. S.C.), expressed that: “One of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders.”
[23] Echoing this sentiment, Justice Corbett in Taylor v. Taylor, 2005 CanLII 63820 (ON SC), 2005 21 R.F.L. (6th) 449 (On. S.C) stated at para. 3:
When the court issues orders, it is essential that they be obeyed. Court orders are not “suggestions” or “frameworks” or “guidelines”. They are mandatory. They must be obeyed. A resentful spouse is not above the law. Where a party disagrees with an order, he may seek to appeal it. In some circumstances, he may seek to vary it. But it is not an option to simply disregard the Order (emphasis added).
[24] In Levely v. Levely, 2013 ONSC 1026, Chappel J. stated at paras. 12 and 13 that:
Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner. Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party. The frequency with which Family Law litigation degenerates into an abusive game of delay tactics, stonewalling, and dodging of judicial authority is a concern which must remain at the forefront of the judge's mind in considering remedies for a party's failure to participate as required in court proceedings or to comply with court orders. Family Law litigants who come to the court for assistance must come with a strong sense of assurance that the process will be an effective means of mending and stabilizing the family fabric, rather than a futile money pit of failed justice…
Judge’s analysis:
[25] The Respondent does not outline his attempts at obtaining the $300,000. The Respondent provides no evidence of applications for mortgages, loans or any attempts made to secure financing. He simply states that he tried to obtain funding, was unsuccessful and the Applicant will have to be patient.
[26] The Respondent’s affidavit was cavalier in presentation. I find it disingenuous for the Respondent to suggest in his factum that “….largely as a result of the COVID pandemic, the Respondent has been unable to access the funds to complete the settlement and to comply with the Court Order….”. Covid-19 was not a significant issue on January 22, 2020 or on February 12, 2020. In Canada, at that time, there were no states of emergency and there were no closures in terms of economic activity.
Blog analysis:
EVIDENCE – this is key to any affidavit presentation. This is especially true when a party is unable to follow a Court order for any reason. The party should explain IN DETAIL the reasons for not being able to follow the order and should give detailed evidence as to what the party has done to ensure that the court order was fulfilled. In the above case, had the father been careful in putting forward his reasons that he had followed all through in fulfilling the court order with actual evidence from Banks; his emails or other statements, the Court would likely not have made the observations it did.
Apart from cost consequences, when a party puts forward an unreliable position, it reduces the credibility of the party in the Court’s eyes – which can be long-lasting and damaging.
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