Court File and Parties
Court File No.: Brampton 1962/04 Date: 2012-09-25 Ontario Court of Justice
Between: Rikki Szuky, Applicant
— And —
William Pereira, Respondent
Before: Justice P.W. Dunn
Heard on: 18 September 2012
Ruling on Motions released on: 25 September 2012
Counsel: Paul Buttigieg Esq. for the Applicant Ms. Lisa Kadoory for the Respondent
Judgment
Background
1This case started with the respondent's Motion to Change dated 13 September 2010 (Vol. 3, Tab 1) in which Mr. Pereira sought to vary custody of the parties' daughter, Ayres Szuky, born 19 September 2004, to himself.
2The proceedings have stalled over the applicant's requests for financial disclosure, upon which she would base her claim for child support. Orders were given for the respondent to do s.21 Guidelines financial disclosure on 9 December 2004, 1 March 2005, 16 September 2011 and 20 August 2012. There has been partial compliance with those orders, but in Mr. Buttigieg's opinion, never has there been full compliance. Mr. Pereira's financial circumstances are complex, because he was self-employed as a real estate agent, and apparently he has a financial arrangement with his fiancé, Dianna Egredzija.
Financial Statement Issues
3The applicant brought a motion dated 26 July 2012 (Vol. 10, Tab 3) requesting certain disclosure, and specifically for leave to bring a motion also dated 26 July 2012 in Vol. 10, Tab 4(B). I granted orders on 20 August 2012 regarding the motion in Vol. 10, Tab 3 as follows:
(1) The respondent was required to file a fresh financial statement with attachments by 4 September 2012.
4The respondent filed an affidavit sworn 14 September 2012 by Sheena Bezemer, a law clerk at the respondent's lawyer's law firm. It stated in paragraph 8 that there have been no major changes in the respondent's financial position since his last financial statement and when the case was in court on 26 March 2012.
5Mr. Buttigieg argued that the respondent was in breach of my 20 August 2012 order requiring the respondent to file a fresh financial statement. I believe the respondent is entitled to rely on Rule 13(12) which requires a party before a motion to either file a new financial statement or file an affidavit saying the information has not changed. The respondent may claim compliance with Rule 13(12) by relying on Ms. Bezemer's affidavit, even though there was a court order for a fresh financial statement. I doubt whether a financial statement presently sworn would be insightful, because the respondent was still gathering data to give to his accountant to be considered as part of his income. There was a technical breach of the 20 August 2012 order, in that the respondent was to deal with the financial statement issue by 4 September 2012. Ms. Bezemer's affidavit was sworn 14 September 2012. I will overlook that irregularity this time.
6If the applicant believes there is fresh information in the respondent's circumstances, perhaps that could be addressed through questioning.
7Ms. Kadoory stated that the respondent was in the process of supplying back-up documents to his accountant who is presently unavailable. Also the respondent was commissioning an income analysis of his income, together with that of Ms. Egredzija, through a firm of business evaluators. I have no quarrel with the respondent's approach, provided he intends to proceed with serious dispatch. It would behove the respondent to keep Mr. Buttigieg well informed of the progress in undertaking and completing the income analysis procedure. That might help to avoid further motion(s) by the applicant for financial disclosure. The respondent has little credibility with the applicant regarding any commitment on his part to do complete financial disclosure.
8It was the respondent's position that he could not produce an up-to-date financial statement until his income analysis is complete. I should expect that by the return date, if the respondent is not able to produce his financial statement, he will at least be able to say when it will be ready.
(2) The respondent was ordered to file a Form 35.1 affidavit by 4 September 2012.
9It was the respondent's position that this had been filed on 13 September 2010 (and is in Volume 3, Tab 3). In paragraph 11 of the affidavit as part of its standard content, Mr. Pereira undertook to file an updated Form 35.1 (or an affidavit to describe any minor changes) if there are any future changes in his life or circumstances affecting information in the original Form 35.1 affidavit. Since the respondent did not file a revised Form 35.1, the court was invited by the respondent to conclude that there have been no changes in Mr. Pereira's circumstances. Yes, there have been variances over the years in the respondent's financial circumstances, but I believe not to the statements in the original Form 35.1 on custody and access issues. Ms. Kadoory pointed out that the criminal convictions against the respondent were referenced in the original Form 35.1, because those matters were a concern to Mr. Buttigieg.
(3) The respondent was required to give particulars of his real estate administrative suspension.
10As stated previously, Mr. Pereira revealed his criminal convictions in his original Form 35.1 affidavit, which was sworn on 9 September 2010. Ms. Bezemer's affidavit stated that because of the respondent's criminal convictions (dangerous driving in 2001 and impaired driving in 2010), he was administratively suspended from working as a real estate agent, and was not earning any income "at present". There seems to be an unexplained gap in time between when the Form 35.1 was filed (revealing information about the convictions), and the respondent's suspension. I am not certain what information the respondent gave Mr. Buttigieg to comply with order 3 (above), but the applicant's counsel was not satisfied with it. At Mr. Buttigieg's request the following order will issue:
Order for the Real Estate Counsel of Ontario to give Mr. Buttigieg information to explain the administrative suspension of William Pereira, as a real estate agent in Ontario, together with all relevant documents.
This order may need to be amended, depending on the requirements of the Real Estate Counsel.
(4) Mr. Pereira was required to file a Remax Commission Sales Report for 2012.
11Apparently the respondent complied with this order.
(5) The applicant was granted leave in the court's ruling for the 26 July 2012 motion (Vol. 10, Tab 3), to bring a motion for financial disclosure by Ms. Egredzija and for procedural matters involving the respondent.
(That motion was in Vol. 10 at Tab 4(B))
Outstanding Disclosure
12Ms. Bezemer's affidavit in Exhibit A (Vol. 11, Tab 2) acknowledges that the respondent must still provide:
- Sworn financial statements and Notice of Assessment for 2011;
- Joint BMO account statement (#078) for January 2012;
- Income tax returns for the years 2009-2011 inclusive, and Notice of Assessment (or reassessment) for 2011.
Costs Award
13The applicant requested costs against the respondent for her need to bring the motion in Vol. 10, Tab 3. Strictly speaking, since I found that the respondent complied with the Rules about his financial statement and the Form 35.1 affidavit, there will not be costs with respect to those matters. However, the respondent's overall dilatoriness in producing income tax returns and Notices of Assessment is causing delay in fixing the respondent's income. There should be a cost award to motivate the respondent to move more expeditiously to accelerate the disclosure process. Regarding the applicant's motion in Vol. 10, Tab 3,
Order for the respondent forthwith to pay costs to the applicant of $1,000 inclusive of disbursements and H.S.T. These costs will be collected by the Family Responsibility Office in the same manner as child support.
14The applicant's requests of the respondent regarding her motion in Vol. 10, Tab 3 are now complete.
Disclosure from Ms. Egredzija
15Turning now to the applicant's motion in Vol. 10, Tab 4(B), the following orders will issue:
By 18 January 2013, Ms. Egredzija will serve the applicant and file the following:
(1) Complete income tax returns with the required attachments for 2008, 2009, 2010 and 2011, together with Notices of Assessment or Reassessment.
(2) A statement from Remax Realty showing all commissions earned and received in 2011 and 2012.
The date 18 January 2013 was arbitrarily chosen by me. I do not know if the financial disclosure can be ready by that date.
16Ms. Egredzija objected to producing her 2008 income tax information, because she said she had no involvement with Mr. Pereira in that year. I agree with Mr. Buttigieg that production of Ms. Egredzija's tax information may be useful in comparison to the years that she did have an economic relationship with the respondent.
17Ms. Egredzija said she did not work for Remax in 2011. That may be so, but compliance with the order will establish that fact, one way or the other. There will be no order for costs against Ms. Egredzija arising out of the applicant's motion. I sincerely trust though that Ms. Egredzija will be more forthcoming and compliant with court orders than Mr. Pereira has demonstrated over the years.
Procedural Orders
18Finally in regard to the procedural requests against the respondent in the applicant's motion of 26 July 2012 in Vol. 10, Tab 4(B), the following orders will issue:
The respondent's motion to change regarding his request for custody is stayed until the respondent complies with the court's financial disclosure orders against the respondent and against Ms. Egredzija. The respondent may make requests involving access issues of an important and pressing nature with leave of the court before the financial disclosure is complete.
19This is as far as I am prepared to go with respect to paragraphs 3 and 4 in the applicant's motion in Vol. 10, Tab 4(B).
Order for the respondent to provide the applicant with a certified copy of his current Canadian passport to be provided by 12 October 2012.
20There will be no order at this time to set a date for an uncontested trial.
Access Issues
21I am aware from the respondent's case conference brief that he is seeking an order that the child attend his wedding and participate in a family trip following it. There may also be a Christmas access issue. These are important matters that should be considered despite the imbroglio over disclosure.
22If the applicant does not consent to the respondent's requests:
Leave is granted to the respondent to serve and file a motion in Chambers for access for his nuptials and following holiday and Christmas access provided the respondent:
(a) Files an itinerary and contact points where the applicant could reach the child while away; and
(b) Explain in an affidavit the provenance for the costs of the travel and how it is being financed. If money is forthcoming from persons other than the respondent, those persons must also file affidavit(s) to explain their financial contribution.
The respondent's motion is to be served and filed by 5 October 2012;
The applicant's Answer is to be served and filed by 19 October 2012;
The respondent's Reply to the applicant's Answer is to be served and filed by 26 October 2012.
A decision will be reached solely on the affidavit material. I do not expect there will be time for a hearing. Corroborative affidavits from knowledgeable third parties are welcome.
Adjournment
23This case is adjourned to 10:00 a.m. on 5 February 2013, courtroom 210. Allow 90 minutes for a case conference.
24The reasons for the adjournment are:
(1) to update the court on financial disclosure issues. I am truly expecting that Ms. Kadoory and Mr. Buttigieg will work collectively to resolve the disclosure issues once and for all;
(2) to review the respondent's wishes for custody and access;
(3) to receive the Children's Lawyer's report.
Released: 25 September 2012
Justice P.W. Dunn