Court File and Parties

Newmarket Court File No.: FC-06-23514-01 Date: 20181010 Superior Court of Justice - Ontario

Re: Robert Weidenfeld, Applicant And: Sejal Parikh-Shah, as Estate Trustee of the Hana Weidenfeld, Deceased, Respondent

Before: The Honourable Mr. Justice D.A. Jarvis

Counsel: Applicant – Self-represented A. Gerstl – Counsel for the Estate Trustee for the Respondent

Heard: August 16, 2018

Ruling on Motion

[1] The respondent moves for an Order dismissing these proceedings because the applicant has failed to comply with disclosure and costs Orders of the court, and for want of prosecution. The late Hana Weidenfeld is the former spouse of the applicant. She and the applicant were divorced effective April 2, 1995. Ms. Weidenfeld died on May 22, 2016.

Procedural Background

[2] This case has a long, tortuous history and directly and indirectly involves two other actions involving the applicant, the late respondent, the parties’ children and third parties. Reference to the other actions will be made for contextual purposes only. The following facts are relevant to this motion:

(a) the applicant and the late respondent were involved in family law litigation in New Brunswick between 1992 and 1995. On March 2, 1995, the Court of Queen’s Bench in New Brunswick made an Order in divorce proceedings between the parties that awarded the respondent custody of the two children of the marriage (then six and four years of age). The applicant was also ordered to pay $35,000 to the respondent for lump sum child and spousal support and nominal on-going child support; (b) the applicant was also ordered to pay net costs of $15,000 to the respondent; (c) the parties were divorced on April 2, 1995; (d) the respondent and the children moved to Ontario shortly after the divorce Order. In this Application started by the applicant in 2006, he claimed that he had moved with the children and the respondent together and that the parties periodically cohabited afterwards, although maintaining separate residences and, later, separate living quarters in a residence owned by the respondent. The applicant claimed a beneficial interest in the respondent’s residence and her naturopathic practice; (e) the respondent denied that the parties had ever reconciled, denied his trust claims and claimed that the applicant had never complied with the 1995 child and spousal support Order; (f) on March 1, 2006, the applicant brought an emergency motion before a case conference had been held in these proceedings. Perkins J. dismissed the motion and ordered the applicant to pay to the respondent costs of $3,300 plus GST “as and when court directs at or after a case conference in this case”; (g) on March 17, 2006, Boyko J. held a case conference. The conference issues involved, among other things, custody of the parties’ son and disclosure. The applicant was ordered to provide listed disclosure within 21 days. [1] This disclosure involved financial information relevant to the claims being made by the applicant; (h) the applicant did not appeal the disclosure Order; (i) a further case conference was held by Timms J. on June 23, 2006. In addition to criticizing the applicant for having the parties’ 16 year old son sign a 268 paragraph affidavit in the custody litigation between his parents, Timms J. ordered the applicant to pay $400 costs to the respondent; [2] (j) the applicant brought a motion for custody and child support. On August 2, 2006, Bryant J. declined to make the Order requested and accepted the respondent’s submissions that the applicant had not paid either of the outstanding costs awards in the Ontario proceedings, was in breach of payment of anything on account of the $35,000 lump sum support Order made in 1995 in New Brunswick and had not complied with the disclosure Order made by Boyko J. The applicant’s motion for child support was ordered to be stayed until the applicant obtained leave proving that he had complied, or substantially complied, with the disclosure Order. The applicant was ordered to pay $2,500 plus GST forthwith; (k) the applicant sought leave to appeal the Order of Bryant J. from the Divisional Court; (l) on December 20, 2006, Nelson J. made an Order dismissing a motion by the applicant and ordered that he pay $1,000 forthwith to the respondent; (m) on May 2, 2007, the Divisional Court denied the applicant’s leave motion relating to the Order of Bryant J.; (n) the applicant sought leave to appeal to the Court of Appeal; (o) on June 12, 2007 in proceedings that the applicant had started in Toronto in 1996 [3] , Ferrier J. ordered the applicant to pay costs of $1,500 forthwith. On July 25, 2007, Croll J. ordered that the Toronto action be transferred to the Newmarket Superior Court where the applicant had started these proceedings; (p) on September 12, 2007 the Court of Appeal dismissed the applicant’s motion for leave to appeal the May 2, 2007 Order of the Divisional Court; (q) the applicant sought leave to appeal to the Supreme Court of Canada. On November 16, 2007, Wildman J. of this court stayed these proceedings pending disposition of the leave application. On February 18, 2008 the application for leave to appeal to the Supreme Court of Canada was dismissed by that court; (r) in October 2015 the applicant moved to Lethbridge, Alberta; (s) the respondent died on May 22, 2016; (t) on September 16, 2016 Douglas J. made an Order appointing the late respondent’s Estate Trustee to represent the estate’s interests in these proceedings. The evidence is undisputed that between February 8, 2008 and until about three months after the respondent died, a period of a little more than eight years, the applicant took no steps to pursue his Application; (u) on February 17, 2017, McGee J. held a case conference. Noting the serial breaches of payment of the costs Orders by the applicant, McGee J. prohibited the applicant from taking any further steps in these proceedings until he obtained leave and directed that, as part of any leave motion, the applicant demonstrate proof of payment of the outstanding costs awards; (v) on October 17, 2017 McGee J. held another case conference. After observing that the applicant had not complied with her Order made eight months earlier, but permitting the applicant limited participation in canvassing the merits of the case at the conference, McGee J. granted leave to the Estate to bring a motion to dismiss this Application. The applicant would only be permitted to defend any such motion if he made a partial costs payment of $5,000. The endorsement was released on October 23, 2017; (w) the applicant sought leave to appeal to the Divisional Court the Order made by McGee J.; (x) on November 1, 2017, I dismissed as procedurally improper an omnibus motion by the applicant for a broad range of disputed relief. The applicant had brought his motion pursuant to Family Law Rule 14(10) which deals with unopposed or procedurally uncomplicated matters. The applicant’s motion was anything but unopposed or procedurally uncomplicated; (y) the Divisional Court refused leave on May 25, 2018; (z) the applicant sought leave to appeal to the Court of Appeal. That request was refused on July13, 2018. The applicant was ordered to pay $300 costs; (aa) on August 1, 2018, I ordered that a motion by the Estate to dismiss this Application proceed on August 16, 2018. My endorsement clearly stated that “no other issue shall be [argued] at that time and no motion for any other relief may be brought except for the issue of dismissal and costs.” Directions were given with respect to the filing of motion materials. The applicant was aware of the Estate’s intention to appear before me for directions and counsel for the Estate brought to my attention at that time the fact that the applicant objected to the Estate’s motion proceeding. Counsel for the Estate provided the court with a July 26, 2018 email to him from the applicant that set out the applicant’s objection. I noted in my endorsement that there “is no reason why Applicant cannot be available.” Arrangements were made for the applicant to attend the motion by teleconference. A transcribed copy of my endorsement was requested by the applicant and emailed to him; and (bb) the applicant filed responding material. Notwithstanding my direction that no argument about any issue or motion other than dismissal and costs would be allowed, the applicant’s material included a motion to set aside my August 1 endorsement; a request for an Order to set a date for a Summary Judgment Motion to be brought by the applicant; and, an Order to stay the Order made by McGee J. on October 23, 2017 that required the applicant to contribute $5,000 towards the costs awards that he had not paid.

[3] In addition to this procedural history, there were a handful of other endorsements made about events not material to the issues to be decided.

[4] I permitted the applicant to defend the Estate’s motion even though he had not complied with either of the Orders made by McGee J. on February 17, 2017 and October 23, 2017.

[5] It is undisputed that the applicant has not complied with the following Orders:

(a) the 1995 Judgment of the Court of Queen’s Bench in New Brunswick that he pay $35,000 to the respondent; (b) the costs award of Perkins J. made on March 1, 2006 ($3,300 plus GST); (c) the disclosure Order of Boyko J. made on March 17, 2006; (d) the costs award of Timms J. made on June 23, 2006 ($400); (e) the costs award of Bryant J. made on August 2, 2006 ($2,500 plus GST); (f) the costs award of Nelson J. made on December 20, 2006 ($1,000); (g) the costs award of Ferrier J. made on June 2, 2007 ($1,500); and (h) the costs award of the Court of Appeal made on July 13, 2018 ($300).

[6] Excluding the Court of Queen’s Bench Judgment (which McGee J. in her endorsement made on October 23, 2017 observed that the applicant claimed was statute barred), the unpaid costs awards exceed $9,000 without GST or accrued interest. Nothing has been paid.

[7] In the material before the court, both parties referenced civil proceedings in the Newmarket Superior Court started by the applicant in 2016 against the estate, the parties’ children, their lawyer and a law firm dealing with what the applicant has alleged was “a legally questionable Will” that left the estate of the deceased respondent to the children. The applicant and the children are apparently estranged. On September 13, 2017, Bennett J. suggested, in this case, that both actions be consolidated. There is no evidence that this sensible suggestion was ever acted upon. There was also reference in the parties’ submissions before me that the applicant is also in breach of costs awards and, possibly, an Order for security for costs in the civil proceedings.

[8] The applicant has claimed throughout that he is impecunious. His claims for a beneficial interest are predicated on his allegations of financial assistance to the respondent in 2003 and 2004 that are undocumented in terms of proving his source of funds, chattels (such as a billiard table and artwork) whose billing statements name both parties but which the applicant told this court during argument that the respondent paid, and a home insurance policy that the respondent paid and which named both parties when the applicant lived in separate quarters in the respondent’s residence. Nowhere in his material does the applicant provide any evidence that he complied with the disclosure Order of Boyko J.

Analysis

[9] Family Law Rule 1(8) deals with the consequences of Order non-compliance. Those subsections relevant to the Estate’s motion are (b), (c) and (e) and provide 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,

(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; (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.

[10] The primary objective of the Family Law Rules is to deal with cases justly [4] and that includes,

DEALING WITH CASES JUSTLY

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3) . [5]

[11] The Estate argues that the Application should be dismissed because the applicant has persistently failed to comply with Orders of the court, mostly involving costs, and because the applicant delayed prosecuting his claims for over eight years without reasonable explanation until after the respondent died. That delay has prejudiced the estate and is an abuse of process.

[12] In Myers v. Myers, 2014 ONSC 1804 [6], the mother brought a motion to strike a father’s Motion to Change to reduce child and spousal support and rescind accrued support arrears. After reviewing the procedural history of the litigation and noting that the father was substantially in default of his support and costs payment obligations despite protracted enforcement proceedings MacLeod-Beliveau J. outlined a principled three step process to considering the application of Rule 1(8),

(a) is there a triggering event that would allow consideration of Rule 1(8)?; (b) is it appropriate to exercise discretion in favour of the non-compliant party?; and (c) if discretion is not to be exercised in favour of the non-compliant party, what is the appropriate remedy pursuant to the provisions of the Rule?

[13] The triggering event in this case is the rash of Orders which the applicant has ignored.

[14] In Myers, the court found that while Rule 1(8) allowed for conduct less than willfull to be sanctionable, the father’s Order non-compliance was “deliberate, willful and blatant.” [7] The father had not honoured a time-sharing parenting arrangement with the mother that had been ordered after a trial, failed to pay two modest costs Orders and persistently failed to pay support. MacLeod-Beliveau considered that,

“…the [orders are] necessary for a just determination of this matter. The orders protect the integrity of the administration of justice which is at stake when a party disobeys a court order” [8]

[15] In Ferguson v. Charlton, 2008 ONCJ 1 [9], an earlier case noted by MacLeod-Beliveau J., the father had a lengthy history of non-compliance with court Orders, ignoring five costs Orders over a four-year-period. [10] He had brought a motion to terminate his support obligations and claimed that he had no ability to pay as he was in receipt of social assistance (the applicant in this case claims that his only income is a modest government pension). After a review of case law, Spence J. observed that the exercise of discretion in favour of a non-compliant party,

“…will only be granted in exceptional circumstances. In my view, the court’s discretion whether or not to exercise its discretion in favour of a non-compliant party, ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party” [11]

[16] The disclosure Order made by Boyko J. required the applicant to, among other things, produce financial information relevant to his claims. This was never done or, if done, there is no evidence before this court that the applicant ever complied with that Order. In Roberts v. Roberts, 2015 ONCA 450 [12] the Court of Appeal observed,

[11] The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

[12] Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.

[17] Rule 24(10) dealing with costs mandates that a decision about costs relating to a step in a case be made promptly after that step or reserved for determination at a later stage in the case. Excepting the Order of Perkins J. made on March 1, 2006, all of the other six costs awards were effective on the date that they were made, two of which expressly stated that the costs were payable forthwith. In each case where a costs Order is made and its effective date is not deferred to a later stage in the proceedings, the party against whom the Order has been made is presumed to have the ability to pay. There was no such postponing of the payment of costs in any of the awards in this case. Even the Order of Perkins J. simply postponed payment until at or after a case conference. Significantly, none of the costs Orders was obeyed by the applicant. Nothing, not even a penny, was paid.

[18] There are no exceptional circumstances in this case warranting an exercise of discretion in favour of the applicant.

[19] In Myers, the court balanced the mother’s right to have some assurance that the court’s process would be enforced and respect for the administration of justice maintained against the father’s right to litigate with impunity. The father’s pleadings were struck. In Ferguson the father’s Motion to Change was dismissed after Spence J. reviewed in some detail the history of the proceedings.

[20] The applicant’s disrespect for the Orders of the court is an affront to the administration of justice and cannot be tolerated. He won’t obey court Orders with which he disagrees. Costs Orders are meaningless. McGee J. gave the applicant an opportunity to maintain his Application if he paid but a portion of the awards against him. The applicant tried to appeal that Order and lost. Nowhere in the material before this court when the Estate’s motion was argued was there any evidence from the applicant that he intended to comply with McGee J.’s Order or that he was even making an effort to do so.

[21] It is fair and just that the Application be dismissed.

[22] Even if I am wrong about dismissing the Application pursuant to Rule 1(8) and notwithstanding the low barrier to allowing a prima facie case to proceed, there is little obvious merit to the applicant’s undocumented and bald self-serving claims. He failed to produce disclosure relevant to proving his claims. His explanation that he refrained from prosecuting his case after the Supreme Court dismissed his leave application in February 2008 for over eight years until about three months after the respondent died “out of compassion for [her] health” is, to put it mildly, disingenuous given what he described was a “contentious and very expensive legal proceeding” that he had commenced in 1992 in New Brunswick and the “multitude of hearings and various orders…” in this “…intense and contentious litigation over two years…” from 2006 to 2008. [13]

[23] In Fakeiry v. Fakiery et al, 2012 ONSC 7233 [14], another case upon which the Estate relies, McDermot J. dismissed an application to add third parties against whom trust claims were being advanced because there was a five year delay in complying with an Order permitting the applicant wife to amend her pleadings to claim that relief. McDermot J. ruled that inordinate delay in prosecuting a case imposed on the wife an obligation to provide a “reasonable explanation” for failing to move the matter along to a trial on a timely basis. There was no such explanation given.

[24] In this case, the Estate has argued that the applicant’s delay in excess of eight years has caused it irreparable prejudice because the respondent has died. Given the nature of the applicant’s claims, the late respondent’s Answer denying them, the applicant’s disregard of the disclosure Order made by Boyko J. in 2006 when the respondent was alive, and the absence of any evidence of efforts by the applicant after he became aware in 2008 that the respondent was ill to move forward with his case, prejudice to the Estate is obvious.

[25] The Application is also dismissed for want of prosecution.

[26] If the respondent Estate seeks costs, the following provisions shall apply:

(a) the Estate shall deliver its costs submissions by October 24, 2018; (b) the applicant shall deliver his costs submissions by November 2, 2018; and (c) reply (if any) by the Estate to be delivered by November 9, 2018.

[27] Submissions shall be filed in the Continuing Record and shall be double-spaced and in the case of [26] (a) and (b) above shall be limited to four pages: reply shall be limited to two pages. Offers to Settle, Bills of Costs and any case law upon which either party may wish to rely shall be filed by the foregoing deadlines but not form part of the Continuing Record. Each party shall advise the judicial secretary ( nurit.suzana@ontario.ca ) when their submissions have been filed.

[28] Except for the filing by the applicant of his costs submissions and related material, the court staff is instructed not to accept any other court filings from the applicant relating to the issues raised in this Application about the relationship of the applicant and the late respondent and her estate. For greater clarity, this Order does not extend to the civil proceedings in file CV-16-128021-00 as there was no Order consolidating the family and civil actions even though the claims in the latter case appear to be derivative of the former. The merits of the civil proceedings were not argued in this motion.

[29] Approval of this Order by the applicant is dispensed with.

Justice David A. Jarvis Date: October 10, 2018

Footnotes

[1] While the Order referenced a Schedule D comprising the respondent’s disclosure request, it is clear from the applicant’s later dispute to “Schedule A” to the Order issued that the Schedules were identical. [2] A case conference was held on April 21, 2006 that dealt with case directions and recommended that the issue of the costs awarded by Perkins J. be addressed at the next case conference. [3] #96-MA-4685. This appears to be an Application by the applicant for, among other things, spousal support. [4] Rule 2 (2) [5] Rule 2 (3) [6] 2014 ONSC 1804 [7] ibid , para [30] [8] ibid [9] 2008 ONCJ 1 , 2008 O. J. No. 486 [10] ibid , para [62] [11] ibid , para [64] [12] 2015 ONCA 450 [13] Affidavit of the applicant sworn August 8, 2018, paras 8 and 13. [14] 2012 ONSC 7233