Court File and Parties
Court File No.: FS-16-212 Date: 2019 01 11 Superior Court of Justice - Ontario
Re: Lidiia Novikova, Applicant And: Kirill Vladmirovich Lyzo, Respondent
Before: Van Melle J.
Counsel: R. Korytko, for the Applicant L. Kalra, for the Respondent
Heard: December 31, 2018
Endorsement
1This long motion was heard on December 31, 2018. The applicant Ms. Novikova (Lidiia) seeks: to invalidate a divorce granted in Russia; an increase in temporary spousal support and an increase in temporary child support.
2The respondent Mr. Lyzo (Kirill) asks that summary judgment be awarded upholding the divorce; terminating the spousal support obligation and reducing child support.
3On this motion, both parties were seeking various forms of relief. They each served and filed two factums and two Book of Authorities relating to each motion, all bearing different dates. The Confirmation Sheets were not completed in co-operation so that each side filed lists of different materials to be reviewed by the judge. None of the Confirmation sheets contained the Volume and Tab numbers at which the various affidavits could be found. As well, Justice Bloom’s endorsement, reserving to the motions’ judge the right to determine if the motion regarding the validity of the Russian Divorce should be decided before the argument of Lidiia’s motion was not provided in legible form.
4The Application was issued and served in September 2016. The case conference took place in July 2017 at which time it was anticipated that a Settlement Conference would be booked for October 2017. As trial dates are assigned at the Settlement Conference, this matter could likely have been tried at one of the concentrated sittings in January or May of 2018. Instead the parties chose to proceed by way of a long motion delaying considerably the resolution of this matter and increasing the costs to the parties accordingly.
Background
5The parties commenced cohabitation in September 2005 and married September 17, 2008 in the Russian Federation. They separated on December 1, 2015. They have two children, ages 5 and 8. Kirill came to Canada in 2012. In 2013, Lidiia and the children arrived in Canada. The parties and their children are permanent residents in Canada.
6On December 30, 2015 Kirill returned to Russia to attend his father’s funeral. He came back to Canada on January 24, 2016. He then returned to Russia on February 26, 2016 to help his mother. While in Russia, he filed for divorce. He returned to Canada on August 27, 2016.
7Lidiia brought an ex-parte motion on September 9, 2016 to stop Kirill from taking the children to Russia. She then commenced this Application in October 2016.
8The Russian divorce was finalized on June 8, 2016. The appeal period was 30 days.
9Kirill remarried in July, 2017.
Position of the Parties
10Kirill says that the Russian Divorce was properly obtained and should be validated. He relies on Section 22(3) of the Divorce Act and says that he had a “substantial connection” with the Russian Federation.
11Kirill takes the position that Lidiia received appropriate notice of the divorce because the paperwork was sent to her registered Russian Federation address by registered mail. Kirill takes the position that the Russian Divorce extinguishes Lidiia’s entitlement to spousal support.
12Kirill is seeking an adjustment to child support on the basis that since July 2018 he has the children with him half the time.
13Lidiia takes the position that the Russian Divorce was improperly obtained and should not be recognized. Lidiia’s parents live at the address on record for Lidiia with the Russian Federation, however, they refused to accept the registered mail as it was not addressed to them. Kirill says that these attempts to serve Lidiia effectively provided notice to Lidiia of the divorce proceedings, but I disagree. There was no evidence on this point, but it is probable that the registered mail had to be delivered directly to the addressee and not just someone at the same address.
14In any event, although Lidiia was advised by Kirill after he had instituted the action for divorce in Russia, that the divorce was proceeding, she believed that Kirill was simply obtaining a divorce and that the balance of the issues would be worked out between them or dealt with in Canada where they were both represented by counsel and discussions regarding resolution of the issues relating to their separation had already commenced.
15Lidiia says as well, that although she was aware that Kirill was seeking a divorce in Russia, despite her repeated requests she did not receive a copy of the actual application for divorce and did not receive the divorce order until August 2017.
16Lidiia alleges that Kirill obtained the Russian Divorce purposely to extinguish her right to spousal support.
17Lidiia also seeks a variation of Justice McSweeney’s January 30, 2018 order based on a material change in circumstances. The material change that she relies on is Kirill’s failure to disclose his employment contract prior to the January 30th order.
Russian Divorce
18For this motion, Kirill has produced the complete Russian divorce file. The record shows that the judicial officer adjourned the matter twice. It seems that he was concerned that there was no proof of service. On May 10, 2016 the English translation of the record says:
Reported about appearance of the persons summoned to the court hearing (return of the registered letters with the postal mark “storage period expired”) Declared the constitution of the Court, Secretary. Explained the right to self-disqualification (Art. 19 CPC RF) No self-disqualification declared. The court resolves the issue on the possibility to hear the case in the absence of the parties. The Court decided to postpone the trial to May 25, 2016 because of the non-appearance of the parties, who were properly notified about the date, time and place of the court hearing, but who did not inform the Court about the good reason of their non-appearance. To explain to the plaintiff that the court will leave the petition unexamined if the plaintiff, who did not ask to try the case in absentia, will not appear before the court upon the second summons.
19The case was postponed a second time to June 8, 2016 again because of the non-appearance of the parties and to request the information about the Respondent’s registration at the place of residence from the Office of the Federal migration service for Saint Petersburg and Leningrad Region in the Gatchina District.
20Finally on June 8, 2016 the Russian Tribunal granted the divorce. Additionally, the Tribunal declared the right, period and procedure to appeal. It declared the right to read the record of the hearing and know the procedure to file comments to it.
21The record shows as well that the decision couldn’t be appealed via the justice of the peace in the appellate procedure at the Gatchina Town Court during that month. In other words there was a 30 day appeal period.
22Kirill’s motion was framed as a motion for summary judgment validating the Russian Divorce and terminating Lidiia’s right to spousal support.
23Both parties rely on correspondence from lawyers in Russia. Kirill’s letter is from the lawyer who acted for him in Russia. Lidiia’s letter is from a lawyer setting out her opinion of the operative law. Both parties attach the correspondence (and translations) from the lawyers to their affidavits. Neither has filed an affidavit from the lawyer. The correspondence from the lawyers is tendered as expert evidence.
24In the case of Suwary v. Women’s College Hospital, 2008 ONSC 8789 Justice Strathy (as he then was) dealt with admissible evidence on a Summary Judgment motion. Although the test for the granting of summary judgment has changed somewhat, the rules for admissible evidence have not.
25At paragraph 23 Justice Strathy said:
It is well-established that a party intending to rely on the opinion of an expert on a summary judgment motion must put the evidence forward in a manner that will permit cross-examination of the expert. In Hiebert v. Lennox Canada Inc., 2007 ONSC 30790, Valin, J., stated at para 17:
If a party intends to rely on the substance of an expert’s report on a summary judgment motion, the evidence must be put before the court in a manner that will permit cross-examination of the maker of the report. This can be one in one of two ways. The expert can place the substance of his/her opinion in an affidavit sworn by him/her. Alternatively, the expert can swear an affidavit to which his/her report is attaches as an exhibit and swear to the truth of the contents of the report.
26Suwary deals with the issue of expert evidence, however Rule 16(5) of the Family Law Rules deals with all evidence on summary judgment motions:
If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.
27There is nothing in the correspondence from the lawyers setting out the Russian law as to whether or not Lidiia would be entitled to spousal support in Russia. As well, the correspondence from Kirill’s lawyer explains his opinion of the applicable law, however, the law itself with a translation is not appended. If a court had the benefit of reviewing the Russian divorce law it could well be that a court could have a different interpretation of the effect. As well, there is nothing setting out the qualifications of the person giving the information.
28At page 2 of the lawyer’s letter the lawyer says:
In addition, it is necessary to take into consideration that the citizen, individual entrepreneur or legal entity shall bear the risk of consequences of non-receipt of the legally important notices delivered at the addresses mentioned in the paragraphs first and second of this clause as well as the risk of absence of their representative at the aforementioned addresses [the Russian federation addresses]. The notices delivered at the aforementioned addresses shall be deemed to be received even if the respective person does not live (stay) at such address in fact. (underlining in original).
Based on the effect of the principles of good faith and reasonableness, Novikova L.A. should have ensured the possibility to receive the postal or other correspondence at the place of registration, which she did not make by the subjective reasons.
29In response, as I stated earlier, Lidiia attached a “Legal Opinion” to her affidavit. In the “opinion” that Lidiia has produced, the lawyer says:
He [Kirill] indicated in the statement the place of residence as the place of registration in the Russian Federation. There were no indications about the fact that the claimant, respondent and their children are actually residing on the territory of another state – in Canada. I assume he did it intentionally in order to simplify (expedite) the procedure of examination of the case. If the court had information about your stay outside the Russian Federation, the court should forward the summons through the Ministry of Justice of the Russian Federation and Justice authorities of Canada to the place of your actual residence in Canada.
30It is acknowledged that, Lidiia asked repeatedly for the divorce documentation and was only given it in August of 2016, after the appeal period had expired. The lawyer who acted for Kirill on the divorce in Russia states in his letter, that he was “too busy” to provide a copy of the divorce itself to Kirill for provision to Lidiia.
31Although I have reproduced parts of the correspondence from the two Russian lawyers, other than accepting that Lidiia did not receive a copy of the divorce judgment until after the expiration of the appeal period, for the reasons I have set out herein, I am unable to determine the validity of the balance of the information provided by them.
32Kirill had a lawyer in Ontario and a lawyer in Russia. He knew precisely where Lidiia was living at all times and that it was not Russia. He had an obligation to advise the Tribunal in Russia as to Lidiia’s address. He had an obligation to serve Lidiia with the documents. He did not provide her with a copy of the divorce documents. As he did not remarry until more than a year after the separation of the parties, one can assume that he obtained the divorce in Russia to defeat Lidiia’s claim to spousal support. Based on the lack of notice to Lidiia, I find that the Russian divorce must be set aside.
33Without deciding whether or not Kirill was entitled to petition for divorce in Russia in the first place, I find that although Lidiia knew that Kirill was obtaining a divorce in Russia, she was not provided with any of the documents. She was not given an opportunity to seek legal advice, which legal advice would have told her that she could not obtain spousal support in Canada, once a divorce in Russia had been granted.
Claim to Change Justice McSweeney’s Temporary Order
34On January 5, 2018 Kirill executed an employment contract with Facilité Informatique Canada Inc. However, the fact of the contract, and the contract itself were not disclosed until April 3, 2018. The contract was a 6 month contract but was renewed after that for another 3 months and appears to still be in effect. On January 30, 2018, Justice McSweeney made an order on consent: imputing income to Kirill at $105,571; interim child support for the two children in the amount of $1,540.00 per month commencing February 15, 2018 and interim spousal support of $648.00 per month commencing February 15, 2018.
35Lidiia says that she relied on Kirill’s representation as to his income in executing the consent. She was unaware that Kirill had signed a contract with Facilité Informatique. She asks that temporary support be changed to reflect the income that Kirill was to receive pursuant to the contract. The contract stipulates an hourly rate for Kirill of $140.00 per hour for a 37½ hour work week.
36Kirill says he did not give Lidiia a copy of the contract because he had not yet received it. This, however, does not explain his failure to at least advise that he had entered into the contract.
37On July 4, 2018 Justice Andre made an order that the parties share parenting time on an equal basis with each parent having overnights for 7/14 days every two weeks.
38Lidiia moves to change the temporary order to increase spousal support and child support. She seeks to have Kirill’s income imputed to $273,000 which is the hourly rate multiplied by 3 ½ hours per week.
39Kirill seeks a reduction in the support, saying that as he was not a spouse when Lidiia’s application was commenced, he should not have to pay any spousal support and saying that as he now has the children half the time he should not have to pay any support. He also seeks to have an annual income of $36,000 imputed to her and takes the position that she is intentionally and voluntarily underemployed. Kirill submits that his annual income should be set at $85,000. Kirill asks to set off the child support based on the imputed incomes of the parties.
40Even though this motion was argued on December 31, 2108, (and had been scheduled since July, 2018) Kirill was unable to provide even a rough estimate of his 2018 income. He says that he had to pay two sub-contractors. He attached letters from the sub-contractors to his affidavit, but again, did not produce affidavits from the two sub-contractors. While I accept that Kirill may have some expenses relating to the provision of services pursuant to the contract, there is not enough information to determine what his actual income is and whether or not additional income should be imputed to him.
41It appears likely that Kirill’s actual income is higher than the $85,000 he submits should be imputed to him. It could well be higher than the $105,000 that he agreed to have imputed to him in Justice McSweeney’s Order. This issue of his income however, is one that should be addressed at trial. Any retroactive adjustments can be made at that time.
42In support of her motion to change the temporary order, Lidiia has provided case law on variations when there is a material change in circumstances. Those cases apply to the variation of final orders and not to the variation of temporary orders. It is a mistake to apply the cases seeking a variation of a final order, to this case where a variation of a temporary order is sought.
43In Rowland v. Middlebrook, 2013 ONSC 2999, Justice Price reviewed the case law applicable to temporary orders, and concluded that particularly where adjustments are not addressed in the temporary order itself, temporary orders should only be varied in urgent circumstances. He quoted Jarvis J. in Pakka v. Nygard, 2006 ONSC 3090 who said:
The variation of an interim order is a difficult area. Policy considerations dictate that such applications be discouraged. They increase the stress and uncertainly of the parties and vastly increase the costs of litigation. To echo the words of Wolder J. in Thompson v. Thompson, such an order should be varied only where the failure to vary “would cause the payor to suffer undue hardship or that a continuation of the existing order would be incongruous and absurd”.
44Neither party has advanced evidence of urgency that would justify departing from the practice of not entertaining motions to amend temporary orders pending trial. As I noted earlier, a trial of this matter could already have occurred. It is now incumbent upon the parties to move this matter to trial as quickly as possible.
Decision
45For the above noted reasons, I find that the Russian divorce is not valid and that Kirill still has an obligation to pay spousal support.
46The issue of imputation of income to Lidiia based on underemployment is an issue best left to the trial judge. I will not reduce the child support payable by Kirill as section 9 of the Child Support Guidelines applies and an analysis of each parties’ expenses relating to the children will have to take place. A set off of child support applies only to split custody, not necessarily to shared custody.
47Kirill’s motion for summary judgment validating the Russian Divorce is dismissed.
48Lidiia’s motion seeking to have the Russian Divorce declared invalid is granted.
49The request for variation of Justice McSweeney’s January 30, 2018 Order is dismissed.
Costs
50Neither party came to court with a Costs’ Outline. I suggested to the parties that they decide how much in costs would be payable to the successful party. After consultation, they agreed to $1,500 plus H.S.T. Success has been divided. However, bearing in mind the importance of the issues and the time spent arguing the respective issues, Lidiia is entitled to receive 50% of her costs which I fix at $750 plus H.S.T. I base this finding on two things: the fact that Kirill proceeded with the Russian Divorce without providing the documentation to Lidiia until it was too late for her to do anything about it; and the failure to disclose his employment contract at the time that the consent forming the basis of Justice McSweeney’s order was entered into. This kind of behaviour must be strongly discouraged.
Van Melle J.
Date: January 11, 2019