ONTARIO COURT OF JUSTICE
B E T W E E N :
Moran Tal-Gavriel
Applicant
— AND —
Eran Gavriel
Respondent
Before Justice K.S. Neill Heard on January 14 2021
Decision on Motion released on January 22, 2021
Timm ……………………………………………………………. counsel for the applicant
Eran Gavriel ……………………………………………………………..on his own behalf
R. Habbi ………………………………………….Hebrew Interpreter for the proceeding
1The Motion for Summary Judgment brought by the mother to dismiss the father’s Motion to Change the final order of Justice Fraser dated September 29, 2015 was heard by Zoom on January 14, 2021 with the mother attending from Guelph, Ontario and the father attending from Tel Aviv, Israel. The father was not represented by counsel but had the assistance of a Hebrew interpreter, Ms. Habbi. The father was able to make submissions in English throughout most of the argument and only used Ms. Habbi’s services to interpret a few phrases to be able to put his position forward. The father confirmed that he would be able to understand any decision released in English.
Background:
Background
2The parties were married in June 2013 in Israel. They are the parents of one child, Ariel Meir Gavriel born […], 2013 (“A.G.”). A.G. is now 7 years old. In June 2014, the family moved to Guelph, Ontario to enable the applicant mother to complete a 3-year residency in the Animal Clinical Nutrition program in the Ontario Veterinary College at the University of Guelph. The parties separated in September 2014 around the time that the respondent father was criminally charged and was eventually convicted in June 2015 of committing an Indecent Act for which he received a conditional discharge. The father was placed on a 12-month probation order, including a no contact term with the mother and the maternal grandmother, and prohibiting him from attending at their residence or place of work. Shortly after the criminal trial, the father moved back to Israel where he continues to reside. He now has a son with a new partner, from whom he is recently separated.
3A.G. is a child with special needs and has been diagnosed with Autism and severe ADHD. He requires treatment and supports and is on medication.
4There is a lengthy history of litigation involving the parties since 2015 including a Hague Application and other court proceedings in several jurisdictions including Canada, Israel and France. It is important to briefly outline the nature of all of the proceedings to understand the litigious relationship between the parties over the past 6 years.
Initial Proceedings in Israel:
Initial Proceedings in Israel
5Following the parties’ separation in 2014, the mother commenced divorce proceedings in Israel. Both parties filed claims for custody in that proceeding. In May 2015, the family court in Israel determined that the proper jurisdiction to deal with custody and access issues was Canada and the pleadings filed in Israel were struck.
Hague Convention Application in Ontario:
Hague Convention Application in Ontario
6In May 2015, the father commenced a Hague Convention Application in the Ontario Superior Court in Guelph requesting that A.G. be returned to Israel. The father’s Hague Application was dismissed on June 29, 2015 by Justice Bielby, who confirmed that A.G.’s habitual residence was Ontario. On September 15, 2015, the father was ordered by Justice Bielby to pay costs of $13,199.75.
Initial Ontario Court of Justice Proceedings:
Initial Ontario Court of Justice Proceedings
7In January 2015, the mother commenced an Application in the Ontario Court of Justice in Guelph seeking custody, access and child support. An affidavit of service filed indicated that the father was served personally with the Application and supporting materials on January 30, 2015. The father failed to file any materials and was noted in default on July 23, 2015.
8Following an uncontested hearing, on September 29, 2015 Justice Fraser made a final order in the Ontario Court of Justice in Guelph that the applicant mother have sole custody of A.G, with access to the respondent father at the mother’s discretion, including a term that the applicant shall have discretion if the access shall occur, the timing, and length of such access including supervision of access, with such access to occur in the County of Wellington where A.G. was residing. The father was residing in Israel at the time. The order provided that the father pay child support of $724.00 per month on the basis on an imputed Canadian income of $80,000.00, $49.00 per month for A.G.’s reflux medication and 70% of any further section 7 expenses. Arrears of child support were fixed at $4,344.00 payable forthwith. Justice Fraser also ordered that the father pay costs of $8,654.95, which costs were to be enforced through the Family Responsibility Office.
Enforcement Proceedings in Israel:
Enforcement Proceedings in Israel
9As the father was residing in Israel, the Ontario Family Responsibility Office could not enforce the child support order. Therefore, in August 2016, the mother started the process of attempting to enforce the Ontario order of September 29, 2015 in Israel. A final order was made in Israel on September 4, 2018 to enforce the Ontario order of September 29, 2015.
10In December 2018, the mother also submitted a request to the Enforcement and Collection System Authority in Israel to collect child support and costs. There was a hearing on May 23, 2019 in the Enforcement proceedings in Israel, during which the father admitted to earning approximately $85,000.00 Canadian. The court found that the father owed arrears of child support, and the ongoing child support amount of $724.00 per month Canadian. The mother filed the court’s decision from May 23, 2019, but the decision is in Hebrew.
11The mother initially included the cost orders in the Ontario Superior Court of Justice of $13,199.75 and the Ontario Court of Justice of $8,654.95 in the enforcement proceedings in Israel. A decision from the Israeli Enforcement and Collection Authority dated October 11, 2020 reduced the father’s outstanding debt by $58,712.08 NIS (Shekels) removing the cost order of $13,199.75 from the Ontario Superior Court, for a new debt of to a total of $110,751.88 NIS or approximately $44,304.00 Canadian. The Enforcement proceedings do not include any arrears from October 2015 to September 2016 as they cannot enforce any amounts prior to two years before the request for enforcement was made in September 2018.
Litigation in France:
Litigation in France
12The mother and A.G. relocated to France for approximately one year from July 2018 to July 2019 due to the mother’s employment. Within days of the mother taking steps to enforce the child support order in Israel, on December 28, 2018, the father commenced litigation in France seeking joint “parenting authority” and seeking to reduce his child support obligations. In February 2019, the court in France made a temporary order to reduce child support to 100 Euros per month ($150.00 Canadian) as a result of the father’s argument of his increased costs to exercise access to A.G., which he was not exercising. The court in France also made an order that both parties undergo socio- economic and psychiatric evaluations. The court found that since separation, the mother had proposed visits to the father in Canada and communication with A.G. by Skype and the father refused all of these proposals. The court ordered that the father be permitted to have access with A.G. at a supervised access facility in France every 2 months, which access did occur in April and June 2019, and access by Skype once weekly.
13There has been no final order made in the litigation in France. That matter was before the court on September 28, 2020, wherein the judge determined that although there was a temporary order for child support made in the French litigation, the proper jurisdiction to deal with child support was in Canada where the mother and A.G. reside. The mother completed all of her required evaluations, but the father has not. The matter in France has been adjourned to April 12, 2021 to determine if the father had completed his socio-economic and psychiatric evaluations.
14The mother and A.G. relocated back to Guelph, Ontario in July 2019 where they have remained residing to date. In November 2018, the mother and A.G. received permanent resident status in Canada on humanitarian and compassionate grounds, with the history of domestic violence with the father being a factor. The father argues that there has never been proof of any violence against the mother, that she never filed any reports with the police and he has no criminal record in Israel. I note that in a decision of the court in France filed by the father, the court references the mother’s evidence that around the parties’ separation, the father planned to attack her and the Canadian authorities found on the father’s computer searches to locate and purchase weapons and lethal acid; and that the father acknowledged before Israeli courts to having “evil thoughts” about his wife.
Bankruptcy Proceedings:
Bankruptcy Proceedings
15In August 2019, the father made an application to declare bankruptcy in Israel.
16In the bankruptcy proceeding on December 18, 2019, the father was ordered to pay child support in the sum of $2,500.00 in NIS (Shekels), being approximately $970.00 Canadian dollars per month, which the mother continues to receive and includes child support and section 7 expenses.
17On February 19, 2020, the bankruptcy court in Israel made a decision that the father should not be allowed to continue legal proceedings in Canada, or any other jurisdiction other than Israel, to reduce child support. The decision also indicated that the father may bring proceedings in Canada to reduce child support once the bankruptcy proceedings were concluded.
18On December 29, 2020, the bankruptcy court in Israel released a decision requesting a further examination by the special manager to determine if there is any reason to continue the bankruptcy proceedings due to the father’s conduct. The court specifically indicated that:
“I believe that the debtor (father) should not declare bankruptcy proceeding, and it seems that this proceeding is intended to allow the debtor to continue litigation with the applicant (mother) under the protection provided by this proceeding.”
19As a result of the bankruptcy proceedings, the enforcement proceedings in Israel have been stayed.
The Father’s access with A.G.:
The Father’s access with A.G.
20The father has had minimal access with A.G. since he moved back to Israel in 2015 and only a few in-person visits at a supervised access facility when the mother and A.G. were residing in France. After the order in France of February 11, 2019, the father initially had regular contact with A.G. by Skype for several months which ceased in early 2020. The father has had no contact with A.G. since January 2020. Due to his unpaid child support, the father is not permitted to leave Israel.
The Father’s Motion to Change in Ontario:
The Father’s Motion to Change in Ontario
21On May 10, 2019, the father brought a Motion to Change the final order of Justice Fraser dated September 29, 2015 seeking to terminate his child support obligation as of May 1, 2018. This was the only relief requested by the father.
22A.G. stopped taking his reflux medication shortly after the final order of September 29, 2015 so the mother is no longer incurring the cost of $49.00 per month. However, A.G. has significant other expenses associated with his autism and need for a full-time assistant at school.
23It is not disputed that the father made no voluntary child support payments from 2015 to 2019. Although the father continues to dispute that he was served with the mother’s initial Application in 2015 in Ontario, despite an Affidavit of Service proving otherwise, in submissions on this motion he acknowledged that he was aware of the final order of September 29, 2015 a few months after the order was made. No appeal of this order or motion to set aside this order was brought in Ontario. The father made this same argument before the Israeli court that he did not have notice of the proceedings in Ontario, and a decision from that court dated September 4, 2018 found that the father:
“…had been aware of the summons to appear before the Canadian connection, since that summons was served on him in person on the 30th of January, 2015; that he was in a position to put forward his requests and arguments, as the Canadian Court had made several adjournments in order to enable him to appear at the hearing or to file submissions in defence, which the father chose not to do, in full knowledge of the facts; and that accordingly the principle of hearing both parties had been respected…”
24The Israeli court concluded:
“ …that the decision was lawful and that the judgment dated 29th September 2015 given by the court of the region of Ontario in Canada is enforceable in Israel.”
25The father again made this argument before the French court. In the decision dated February 11, 2019, Justice Hebrard ruled that the father’s “argument that the Canadian decision was given without him being given the possibility of being heard should be dismissed”.
26In the present Motion to Change before the Ontario Court of Justice, on September 9, 2019, the court made an order that the mother provide detailed disclosure, which order she has complied with. The court also made an order that the father provide certain disclosure and it is not clear if he provided all such disclosure.
27On January 14, 2020, an order was made for the father to provide the following disclosure to the mother by February 14, 2020:
A certified English translation of all decisions, judgements or protocols from the Israeli court and/or enforcement body;
A complete and certified English translation of the respondent’s application for bankruptcy in Israel, including but not limited to his Affidavit and Motion from August 2019, the decision dated December 18, 2019 and any subsequent decisions;
Certified English translations of the respondent’s government issued income tax information for the years 2016, 2017, 2018 and 2019 (when available);
Certified English translations of all non-English documents contained in the respondent’s disclosure brief;
Income information for the respondent’s partner/wife, Rosa Cobiens; and
Psychiatric evaluation of the respondent as completed by a court-appointed professional.
28As the father failed to provide the disclosure as ordered by February 14, 2020, on February 20, 2020, an order was made that the father provide the disclosure by March 20, 2020, which he failed to do. A further order was made on December 17, 2020 for the father to file the ordered disclosure by December 27, 2020. The father filed voluminous materials in November 2020 and on December 28, 2020, which I have reviewed. He acknowledges that he still has not satisfied the disclosure order in that:
The father has not filed official English translations of all decisions from the Israeli court. The father argues that due to the order in the bankruptcy court, he is unable to pay for these translations;
The father has not provided an English translation of his application for bankruptcy in Israel, his motion from August 2019 and decision dated December 18, 2019. The father acknowledges that he did not satisfy this requirement but did provide a letter from his lawyer in English outlining the steps that the father took in the bankruptcy proceedings;
The mother states that she only obtained the father’s income tax returns for 2106, 2017 and 2018 in Hebrew. The father’s 2018 income tax return from 2018 indicates that he earned $256,610 NIS or over $100,000.00 Canadian. The father’s only Financial Statement filed in these proceedings dated November 22, 2019 indicates that his 2018 income as $97,138.72 Canadian and his 2019 income was $107,933.76. He attaches portions of his 2016, 2017 and 2018 income tax returns which are in Hebrew;
The father has not provided English translations of all of the documents in his disclosure brief;
The father has never provided income information from his new partner/wife. In submissions on January 14, 2021, the father advised that he separated from partner in the summer of 2020; and
The father has not completed the psychiatric evaluation as ordered by the court in France.
29On July 6, 2020, the mother brought a Motion for Summary Judgment to dismiss the father’s Motion to Change, and requesting an order that no further proceedings may be brought by the father until his outstanding costs orders from September 15, 2015 and September 29, 2015 be paid in full. The mother states that the costs awards of $13,199.75 and $8,654.95 remain unpaid.
30As previously stated, and not disputed, the father made no child support payments from 2015 until 2019 when the order of September 29, 2015 was being enforced in Israel. The father argues that he did not pay child support as he was not provided with access to A.G. The mother indicates that as of July 2020, the father has paid approximately $53,968.00 in child support arrears due to enforcement proceedings but continues to be in arrears of over $43,000.00 in child support and in arrears of approximately $55,000.00 for section 7 expenses. The father disputes the amount of section 7 expenses.
31When the matter was before the court in Ontario on December 17, 2020, the father clarified that he no longer wished to terminate his child support obligation but wanted to reduce the child support amount and readjust his proportionate share of section 7 expenses. At the time of the final order of September 29, 2015, the father’s income was imputed at $80,000.00 Canadian, and he was ordered to pay 70% of any further s.7 expenses. The mother was not employed at that time. Both the father’s income and the mother’s income have changed. The father’s 2019 income was $107,933.00 and the mother’s 2019 income was $117,267.12 so there has been a change in circumstances. The father was granted leave to file a motion to seek a readjustment of child support and his proportionate share of section 7 expenses, which he has not yet done.
The Mother’s Motion for Summary Judgment:
The Mother’s Motion for Summary Judgment
32The mother’s primary position is that there is no genuine issue requiring a hearing on the father’s Motion to Change and that his Motion to Change should be dismissed. The mother further argues as the father has not satisfied the Ontario cost orders totaling over $21,000.00, and has not provided the disclosure as ordered three times in this proceeding, he shall not be entitled to take any further steps in these proceedings until these orders are satisfied.
33On the hearing of the motion for summary judgment, the father continued to argue that he was never served with the initial Ontario Court of Justice proceedings (which argument has been previously dismissed by 2 courts); how the mother inappropriately included cost orders in the Enforcement proceedings in Israel; that he cannot pay for any translations of documents or judgments into English as the bankruptcy court has prohibited him from spending money on Canadian proceedings at this time; that the mother left France without notice to him and the court can no longer rely upon the Final Ontario Court of Justice Order of September 29, 2015. The father admits that both parties’ income has increased since the order of September 29, 2015.
The Law and Analysis:
The Law and Analysis
34This is a motion for summary judgment, which is governed by Rule 16 of the Family Law Rules, with the ability of the court pursuant to sub rules 16(6.1) and (6.2) to weigh evidence, evaluate the credibility of the deponent, draw any reasonable inference from the evidence, and to order oral evidence on the motion to exercise these new powers.
35In Hryniak v. Mauldin1 (“Hryniak”), the Supreme Court of Canada called for a “culture shift” away from civil trials toward determining whether there is a “serious issue requiring a trial”. Hryniak confirmed that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result.2
36The Supreme Court of Canada in Hryniak outlined the questions to be asked in deciding whether the case should be dealt with summarily, being:
The judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact findings powers in Rule 16(6.1) and (6.2). There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.
If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers, provided that it is not against the interest of justice to do so. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
37Rule 16(6) is mandatory. If the court concludes that there is no genuine issue requiring a trial, the court shall make a final order accordingly.
38This is also a Motion to Change, which motions are presumptively dealt by way of affidavit evidence only, particularly when dealing only with financial matters, and a full hearing with viva voce evidence is not required.3
39The present Motion to Change by the father seeks relief that he acknowledges he is no longer requesting, and the father has not brought a motion to amend his Motion to Change. It is clear that A.G. is still a child of the marriage and entitled to child support. It is also clear that the father’s income has increased since the Final order of September 29, 2015, and therefore there is no basis to terminate the father’s child support obligation.
40Further, an order has been made on February 19, 2020 in the bankruptcy proceedings in Israel that the father is not to continue legal proceedings in Canada to reduce child support, and that the father may only bring proceedings in Canada to reduce child support once the bankruptcy proceedings are concluded. The bankruptcy proceedings are ongoing and there is no indication when they may be concluded. Although it is unclear if this decision binds this court, the father is bound by this decision.
41The courts in France and Israel have determined that the proper jurisdiction to deal with child support issues is Canada. Matters in the Ontario Court of Justice should not be adjourned sine die, and the father is at liberty to bring a fresh Motion to Change once his bankruptcy proceedings are finalized.
42For all of these reasons, I find that there is no genuine issue requiring a hearing on the father’s present Motion to Change before the court and it should be dismissed.
Order to Prohibit the Father from Bringing Any Further Proceedings:
Order to Prohibit the Father from Bringing Any Further Proceedings
43Rule 1(8) of the Family Law Rules provides as follows:
FAILURE TO OBEY ORDER
(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) on motion, a contempt order. O. Reg. 322/13, s. 1.
44It is not clear if the father has actually paid the cost order of September 29, 2015 of Justice Fraser in the amount of $8,654.95 as it appears that the enforcement proceedings in Israel included this cost order and in those proceedings the father has paid almost $54,000.00 Canadian in child support arrears which may have included these costs. It is clear, however, that the cost order of September 15, 2015 in the amount of $13,199.75 was excluded from the Israeli enforcement proceedings and has not been paid. As these costs relate to the Hague Application dealing with the issues of the habitual residence of A.G., I find that it is an order made in a related case to the father’s Motion to Change dealing with the final order of September 29, 2015, which is covered by Rule 1(8). The father has also failed to abide by three disclosure orders made within this Motion to Change.
45Appeal courts in Ontario have upheld orders that a party cannot bring any further proceedings until outstanding costs orders are paid or without leave of the court, as outlined in Rule 1(8) of the Family Law Rules.4 Lack of compliance with orders for disclosure are also grounds for the court to order that a party requires leave to take further steps in a proceeding. The father argues that he cannot provide some of the disclosure as ordered due to prohibitions made in the bankruptcy proceedings and his former partner’s income is no longer relevant as they have separated.
46The father cannot continue this litigation in Canada while the bankruptcy proceedings are outstanding. The father has an obligation to support his son, and he made no voluntary payments for child support from 2015 to 2019. However, he was able to fund and have legal representation for litigation in three countries. Only because of his limitations due to the bankruptcy proceedings in Israel does he no longer have legal representation for his present Motion to Change in Ontario.
47Therefore, there shall be a final order as follows:
The father’s Motion to Change dated May 10, 2019 is dismissed, without prejudice to the father to bring a fresh Motion to Change in the future, and subject to leave of the court.
The father shall be prohibited from taking any further steps in this proceeding until the costs award of $8,654.95 in accordance with the order of September 29, 2015 in the Ontario Court of Justice, and $13,199.75 in accordance with the order of September 15, 2015 in the Ontario Superior Court matter are paid.
The father must also obtain leave of the court to take any further steps in this proceeding.
Approval of the order is waived.
A copy of this decision shall be forwarded to the respondent by email.
48Regarding the outstanding disclosure, should the father obtain leave of the court to take any further steps in this proceeding, it will be up to the court at that time to determine what disclosure is required.
49Should either party request costs for this Motion for Summary Judgment, they may serve and file written submissions of no more than three pages, attaching any Offers to Settle or Bill of Costs by February 19, 2021.
Released: January 22, 2021
Signed: Justice K.S. Neill
Footnotes
- Hryniak v. Mauldin 2014 SCC 7
- Hryniak v. Mauldin, supra; Kawartha-Haliburton Children’s Aid Society v. M.W. 2018 ONSC 2783, [2018] O.J. No. 2399 (Ont.Div. Ct.)
- Rule 15(26) of the Family Law Rules.
- Juneau-Tripp v. Rilkey [2018] O.J. No. 5069 (Ont. C.A.); Guma v. Nedeleu, 2019 ONSC 3429 (Ont.S.C.)