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by Daniel Gloade on November 25, 2013

In the case of Scurci v Scurci, 2013 CanLII 73640 (ON SC) the Honourable Justice David Price dealt with a Mother’s motion to strike the Father’s Answer on the ground that the Father wilfully disobeyed court orders in order to get a strategic advantage at trial.

The parties had two children.  The Mother earned approximately $50 000 and the Father earned at least $80 000.00 per year. The parties separated in 2008.  Initially the children lived with the Mother but, in 2011, the eldest son moved from the Mother’s to the Father’s house.

The Father then commenced an Application for child support and the division of matrimonial property.

Late 2012 the Father was ordered to make monthly payments of $425.00 to the Mother.   The Father had not yet provided sufficient financial disclosure.  The payments were only a temporary measure due to the Mother’s financial hardships.  The amount of the payments was only a guess given the lack of disclosure.  Unfortunately, the Father refused to provide the Family Responsibility Office with his banking information.

At the time the Mother brought the motion to strike, the Father had still not complied with the court orders had he had only paid $1500 to the Mother and that was  paid  immediately before the hearing of the Mother’s motion.

Justice Price held that the Father willfully disobeyed the court orders in order to obtain a strategic benefit to him.  As a result, the Father’s pleading was struck with regard to the support and division of asset issues.

The Mother requested that the eldest child undergo a psychiatric assessment to determine whether the change in residence was the child’s genuine wish or the result of the Father’s attempt to alienate the child from the Mother.  The Father said he agreed with this request.  He was ordered to help select a psychiatrist to make the assessment and to pay a part of the Father’s initial retainer.  The Father missed court imposed deadlines and, as a result, the assessment was delayed for seven months.  The assessment was only ready at the eve of the Mother’s motion to strike.

Justice Price did not strike the Father’s request for custody of the children.  Justice Price acknowledged that the Mother suffered prejudice due to the Father’s unreasonable delay. The longer the eldest son resided with the Father, the less likely a judge will disrupt the status quo.  Also, if the Father was indeed alienating the Mother from the child, delay would make it more likely for the child to accept the Father’s perception of the Mother’s shortcomings.

That being said, Justice Price held that in deciding child custody, the best interests of the child are paramount.  The children’s options should not be limited due to court procedures.   The matter of child custody should be determined at trial.

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