Ont. CA affirms mother’s sole decision-making authority after father’s ‘repeated non-compliance’

The father has not paid child support since the court proceedings started

Ont. CA affirms mother’s sole decision-making authority after father’s ‘repeated non-compliance’

The Ontario Court of Appeal has upheld an uncontested trial order, awarding sole decision-making authority and child support to the mother of four children.

In Kim v. McIntosh, 2023 ONCA 356, Adan McIntosh and Anita Kim met in 2005 and had four children together but did not marry. They eventually separated in 2019. Kim commenced an application for sole decision-making authority for the children, child support, and other relief. The children have always lived in Ontario with Kim, and she has been their exclusive provider since the separation. The children's father, Adan McIntosh, is an Australian national who returned to Australia shortly after the split. He has not paid child support since the family court proceedings started over three years ago.

McIntosh appealed the order of Justice Jana Steele of the Superior Court of Justice made after an uncontested trial. The Ontario Court of Appeal noted that the case has been marred by McIntosh's "repeated non-compliance with numerous court orders and a seemingly interminable stream of motions and appeals."

In 2020, McIntosh brought a motion for an order extending the time allowing him to file his response to the application brought by Anita Kim. He was granted an extension, but only under specific terms. McIntosh filed an answer to Kim's application, but he did not comply with the terms of the court order on which he was granted a further extension of time to file his answer. The matter came before Justice Steele.

In her endorsement, Justice Steele wrote a detailed history of the litigation, including McIntosh's failure to pay any costs orders, breach of a restraining order, and failure to post the required security for costs. Justice Steele concluded that she would proceed with the uncontested trial.

Justice Steele wrote, "Mr. McIntosh continues to pursue litigation in this court while at the same time disregarding the court's orders. This is not acceptable."

Justice Steele then turned to a consideration of the merits of Kim's application. She considered Kim's request that she be given sole decision-making authority over the three children. Justice Steele said that the only test is in the children's best interests. She noted that Kim had been the sole decision-maker for the children during the last two years. McIntosh's residence in Australia made any joint decision-making arrangement difficult. Justice Steele was also satisfied that there was no evidence the parties could communicate effectively in a manner which would permit joint decision-making. Accordingly, Justice Steele awarded sole decision-making to the mother, Anita Kim. Justice Steele also made a non-removal order as there was evidence that McIntosh had previously taken steps to remove the eldest child to Australia unlawfully.

McIntosh claimed to be destitute and unable to pay child support. However, based on the evidence before her, Justice Steele concluded that McIntosh was intentionally unemployed. She noted that McIntosh had several university degrees and held many positions over the years. She ordered retroactive child support at a rate of $500 per month and ongoing child support at $732 per month.

Justice Steele proceeded with an uncontested trial because McIntosh had not complied with the conditions under which the extension of time for filing his answer was granted.

The Ontario Court of Appeal ruled that McIntosh's non-compliance with the terms of the extension granted by the court justified Justice Steele's decision to proceed through an uncontested trial. The court further noted that McIntosh could not escape his obligation to comply with court orders by pleading impecuniosity. The appeal court acknowledged the finding that he was intentionally unemployed and capable of earning a good income.

The appeal court held that since Justice Steele did not commit an error in proceeding with an uncontested trial, it is not very likely that McIntosh has standing to challenge the merits of the order made in the uncontested trial. The court said that Justice Steel's order determined the substantive rights in the proceedings and stood as a final order. The appeal court ultimately dismissed McIntosh's appeals and motions.

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