COURT FILE NO.: 105/03

DATE: 20030221

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

NAUM BESPALY

Petitioner

• and -

ALEXANDRA BESPALY

Respondent

Marshall Kazman, for the Petitioner

Alexandra Abramian, for the Respondent

HEARD: February 21, 2003

BENOTTO J.: (Orally)

1This is a motion for leave to appeal the order of Madam Justice Ellen MacDonald, dated January 16, 2003, wherein she found the wife in contempt and gave her an opportunity to attend before her to purge the contempt.

2The brief background is as follows. Madam Justice Sachs in August 2002, made an order compelling the wife to answer certain undertakings and reattend at examination-for-discovery so that the examination could be continued. There was also an order for child support. The wife failed to comply with the order of Madam Justice Sachs and as of November, 2002, there were still outstanding undertakings.

3The husband brought a motion seeking to find the wife in contempt. The original return date was December 5th. That was adjourned twice, ultimately to January 16th when it was ordered to be peremptory to the wife. On that day, Madam Justice MacDonald found as follows:

"As extreme as a finding of contempt is, this is one of those cases where it appears that absent such a finding, the Respondent will continue to thwart these proceedings."

She found the wife in contempt and the parties returned to her on February 6th, wherein Justice MacDonald heard further submissions, fixed the costs and found as follows:

"The efforts made by the wife to comply with undertakings is entirely unsatisfactory. I was repeatedly assured by Mr. Kazman today that he will use every effort to ensure that documents requested from banks are obtained by him and delivered to Ms. Abramian. Mr. Kazman says that he was ill during the past week and unable to give this matter his complete attention. He asks that I make an order today that there shall be no more motions brought in this matter without leave and that I direct an expedited trial and early case conference in this matter. The difficulty with such a direction is that while the undertakings are still outstanding and remain unanswered, it is impossible for a judge or counsel or the parties to make informed decisions about the matters which are outstanding between the parties. The difficulty is compounded with the wife's abysmal track record on the matter of compliance with undertakings."

Madam Justice MacDonald imposed no penalty at that time.

4The purpose of the Toronto Case Management Rules and indeed all rules with respect to family law matters, is to ensure that issues with respect to disclosure are dealt with expeditiously between the parties so that they can proceed to deal with matters on the merits. These parties are not wealthy and the procedural wrangling in my view has sabotaged the ability of the parties to deal with matters on the merits.

5I have reviewed all of the facts in this case and find no reason to doubt the correctness of the order of Madam Justice MacDonald. Motion for leave is therefore dismissed. It is clear to me that there has been an attempt to thwart proper disclosure so that a meaningful case conference can be held. I implore the parties to move away from this consistent procedural wrangling and move towards a final resolution in the interest of the family.

6Costs to be paid by the wife to the husband fixed at $1,500, to be paid from the wife's share of the matrimonial home on closing.

BENOTTO J.

Date of Reasons for Judgment: February 21, 2003

Date of Release: February 27, 2003

COURT FILE NO.: 105/03

DATE: 20030221

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT