Court Cases & Orders

Dad’s “Repeated Non-Compliance” Gets Him Bumped from His Own Trial

Written by Russell Alexander / (905) 655-6335

Dad’s “Repeated Non-Compliance” Gets Him Bumped from His Own Trial  

The Ontario Court of Appeal found nothing wrong with a prior judge’s decision to come down hard on a father who had repeatedly ignored previous court orders – and had not paid a dime in child support in the three years since the proceedings between him and the mother began. It confirmed the prior judge’s ruling to effectively oust the father from participating in the trial hearing – by proceeding on what is known as an “uncontested” basis.  

In Kim v. McIntosh, the unmarried parents of four children had lived together for 15 years before separating.  The father immediately moved back to his native Australia, leaving the children with the mother. He never paid her any child support whatsoever, despite several court orders. He was also granted two extensions to file his material late, but only on condition that he pay about $35,000 in outstanding costs – which he also ignored. He claimed he was destitute. 

However, he did find the wherewithal to instigate what the Appeal Court later called “a seemingly interminable stream of motions and appeals.”    

At one point the matter had come back before the trial judge, who had clearly had enough. After chronicling each step of the protracted litigation, and listing each of the father’s defaults in payment or compliance, the judge wrote:  

[The father] continues to pursue litigation in this court while at the same time disregarding the court’s orders. This is not acceptable. 

The judge then took an unusual step:  She decided to proceed in an uncontested trial (which means only the mother is allowed to make submissions and give evidence). She then made an order directing sole decision-making be awarded to the mother, and set out certain entitlements to child support.   

In the judge’s view, this was in-line with the children’s best interests, given that they had always lived in Ontario with the mother, who had been their exclusive caregiver for the entire three years since separation.  And rather than being impecunious, the judge concluded, the father was simply intentionally unemployed; he had two university degrees and a history of many jobs.  Plus, with him living in Australia, joint decision-making would be difficult. 

The father appealed, unsuccessfully.  The Appeal Court found “ample justification” for the judge’s decision to proceed with an uncontested trial, and no reason to question her conclusion as to the father’s intentional unemployment.  The Court wrote: 

The [father’s] failure to comply with any of the costs orders, or the security for costs order, even in part, must be viewed as intentional. We see no error in [the judge’s] decision to proceed with an uncontested trial. 

Finally, the Court of Appeal went on to dismiss what it called an “omnibus appeal”, in which the father challenged and appealed various other orders and steps that had been made in the case along the way.  

Full text of the decision: Kim v. McIntosh, 2023 ONCA 356 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.