Court File and Parties

COURT FILE NO.: FS-17-90092-00 DATE: 2024 08 22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SHIREEN CHOWDHURY v. PARVEZ KAMAL CHOWDHURY

BEFORE: McGee J.

COUNSEL: Suhar Abu-Jazar, for the Applicant Parvez Kamal Chowdhury, Self-Represented Respondent

Endorsement

[1] This is the return of Shireen Chowdhury’s April 26, 2024 Motion for an Order striking the respondent Parvez Chowdhury’s Answer and Claim. The Motion was first heard on May 31, 2024.

Adjournment Request Denied

[2] Parvez seeks an adjournment of this Motion as he did on May 31, 2024. On both occasions he files no materials, asserts that his father is dying, and that he needs more time to retain a lawyer and answer the proceeding. On the first return date of May 31, 2024 he further advised the Motions Judge, Justice Agarwal that he had recently obtained full-time work and required time to update his Financial Statement.

[3] On May 31, 2024 Justice Agarwal adjourned the motion to today, August 16, 2024, at 10 am, marked peremptory. Parvez was to pay monthly child support in the amount of $1,397 as ordered by Justice Stribopoulos in August 2022, the ongoing arrears of $103 per month under enforcement with the FRO, and the outstanding costs of $9,054.02 on or before July 8, 2024.

[4] Further terms of the adjournment included a requirement that Parvez produce his financial disclosure, as ordered in 2022 and pay costs thrown away of $1,000.

[5] None of the terms have been met, despite Justice Agarwals’ written caution on May 31, 2024 that “continued and flagrant disobedience of this Court’s Orders may result in his answer being struck” or that Parvez “may be denied participation rights at the trial of this proceeding.”

[6] The parties have been separated for almost eight years and all available accommodations have been granted to Parvez. It is time to move this matter towards a conclusion.

Background Facts

[7] The parties were married on December 16, 2002. They share three children, RC, MC, and AC [birthdates omitted]. Shireen and the children have continued to live at the former matrimonial home in Brampton since the parties separated on November 16, 2016. The home is owned by Shireen.

[8] Throughout, Shireen has made decisions for the children as the residential parent, in consultation with Parvez. Parvez has regular parenting time with the children, in accordance with their schedules and wishes.

[9] Because Parvez would not agree to resolve the legal issues arising from the end of the marriage, Shireen issued this Application for divorce, child support, parenting and an equalization payment on August 17, 2017.

[10] Parvez filed an Answer on October 17, 2017, mirroring the claims made by Shireen. Neither party has ever made a claim for spousal support, despite Parvez obtaining leave to make such a claim on February 16, 2023.

[11] It appears that Shireen does not have a claim for an equalization payment because the home is registered in her name alone, as is the mortgage on title. But for the home, the parties had only modest savings and debt at the time of separation. The home is evidenced by Shireen to have held only modest equity in November of 2016.

[12] Parvez pled within his Answer that the parties separated in September of 2017. I have reviewed the parties’ net family property on both dates of separation, and they are comparable, in that the home had minimal equity and the parties held only modest savings and debt.

[13] Throughout, the focus of the proceeding has been the amount and payment of child support. Parvez has been evasive with respect to his income and overall financial means. He did not pay any child support from 2016 to August 2022.

[14] In August 2022 Parvez was ordered to pay monthly table child support for the three children in the amount of $1,397.00 based upon an imputed income of $70,000, retroactive to January 1, 2022. The payment of child support pursuant to this Order, which is exclusive of the amount retrospectively payable for December 1, 2016 to December 31, 2022 is under enforcement with the FRO and has remained in arrears to this date.

[15] Parvez was also ordered in August of 2022 to secure a life insurance policy, provide financial disclosure within a month, and pay costs in the amount of $7,054.02. In the subsequent costs decision, the Motions judge found that Parvez had acted in bad faith.

[16] Parvez has not complied with any of the Orders made in August 2022, including the Order for disclosure. Since separation, Parvez has resided with his parents and maintained that he has no income, despite being a trained accountant. He has filed inconsistent Financial Statements.

[17] Parvez did not attend the Settlement Conference on February 16, 2023, instead, he sent an agent with limited instructions. He was granted leave to amend his pleadings, which he has not done. The Office of the Children’s Lawyer was requested to provide assistance because Parvez continued to dispute the parenting schedule. The resulting OCL Report dated March 21, 2023 confirms the children’s views and preferences that they wish to remain primarily resident with their mother.

[18] Shireen brought a further motion in August of 2023 to address Parvez’ refusal to provide spousal consent for the refinancing of the Brampton home. He agreed to the refinancing on the morning of the motion. He further agreed to pay costs of the Motion in the amount of $2000.00 within 30 days. He has never paid those costs.

Motion to Strike Pleadings Granted

[19] When a party fails to comply with a court order, r. 1(8) of the Family Law Rules, O. Reg 114/99, gives the court the power to make “any order that it considers necessary for a just determination of the matter.” This includes an order striking a pleading.

[20] Pursuant to r. 1(8.4), if an order is made striking out a party’s application, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
2. The party is not entitled to participate in the case in any way.
3. The court may deal with the case in the party’s absence.
4. A date may be set for an uncontested trial of the case.

[21] Similarly, the Child Support Guidelines, O. Reg 391/97, at s. 24 (a), provides the authority to strike pleadings due to a failure to provide financial disclosure pursuant to s. 21 of the Guidelines.

[22] The obligation to disclose financial information is the most basic obligation in a family law proceeding. The obligation is “immediate and ongoing […] A party’s non-compliance must be considered in the context of this strict financial disclosure obligation,” see Manchanda v. Thethi, 2016 ONCA 909, 84 R.F.L. (7th) 374 at para. 13 which goes on to state that a party who chooses “not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.”

[23] Justice Kraft, in her decision in Sheresht v. Abadi, 2021 ONSC 1665 affirmed the principles set out in Van v. Palombi, 2017 ONSC 2492, [2017] W.D.F.L. 3109, (Div. Ct.), at para. 30, in which the court set out the legal principles governing the exercise of judicial discretion to strike a party’s pleadings. The court stated the legal principles as follows:

(a) Is there a triggering event justifying the striking of pleadings? (b) Is it appropriate to strike the pleadings in the circumstances of the case? and (c) Are there other remedies in lieu of striking pleadings that might suffice?

[24] The analytical framework for determining whether a party’s pleadings follows accordingly. Am I satisfied that there has been non-compliance? If so, what is the most appropriate remedy based on the facts of the case before me?

[25] In undertaking this task, I must consider and weigh the following factors (1) the extent and persistence of the non-compliance, (2) whether the disobedience of the orders and Rules was wilful in nature, and (3) whether the non-compliant party made reasonable efforts to comply and is able to provide acceptable explanations for the breaches.

[26] When the non-compliance relates to support orders, I must also consider the payor's financial circumstances and his ability to pay support, and that the remedy should be proportionate to the issues in question and the conduct of the non-compliant party. It should not go beyond what is necessary to express the court’s disapproval of the conduct in issue, see Sheresht, at para. 36.

[27] I find that the striking of Parvez’s Answer and Claim is an appropriate remedy with respect to the financial issues because he has failed to evidence his income, or ability to earn income. I am satisfied that Parvez’ non-compliance is wilful and long standing, and that the most appropriate remedy based on the facts of the case before me is to strike his pleadings.

[28] The legal and financial issues are not complicated. Parvez has provided no acceptable explanation for having failed to comply with the disclosure provisions clearly set out in the August 2022 Order; particularly given the fact that he is potentially the holder of a modest equalization claim, because Shireen owns the home. He has taken no steps to pursue a claim for an equalization payment over the past seven years of litigation.

[29] The extent and persistence of his non-disclosure has been significant. Parvez has been able to retain counsel when he has desired to do so. I echo Justice Agarwal’s observation to Parvez during the May 31, 2024 Motion that his disclosure could be organized in four hours on a Sunday afternoon.

[30] The Ontario Court of Appeal in King v. Mongrain, 2009 ONCA 486, 66 R.F.L. (6th) 267, and later Purcaru v. Purcaru, 2010 ONCA 92, 75 R.F.L. (6th) 33, at para. 48, has given strong direction that pleadings should not be struck with respect to parenting issues if such a remedy leaves the court with insufficient information.

[31] I find that the striking of Parvez’s Answer and Claim is also an appropriate remedy with respect to the parenting issues because he has taken no steps since receipt of the March 21, 2023 Voice of the Child Report to present any evidence, or asset any claim for joint decision-making responsibility or for a change in parenting time.

[32] The three children are now almost 15 and 13 and the youngest is 10. Parvez has not prepared a Parenting Affidavit, a written proposal for a change in the parenting time that he presently enjoys with the children or set out any other basis that would change the parenting determinations from the current status quo which is a normative parenting schedule.

[33] Parvez has provided no evidentiary basis suggesting that his continued participation in the parenting issues is in the children’s best interests. During the motion his submissions on parenting consisted only of bold, misleading statements.

[34] I strike Parvez’ pleadings without finding that he has deliberately acted to frustrate the court process in the manner described by Justice Chappel in Levely v Levely, 2013 ONSC 1026, [2013] W.D.F.L. 2846; that is, he has not deliberately hijacked the process to further victimize Shireen and the children.

[35] Instead, Parvez has tenaciously avoided any steps that would move this matter towards a final resolution because he does not wish to be separated. He does not want to be divorced.

[36] Wilful non-compliance is sufficient to the test for the striking of pleadings. Here, Shireen and the children have been left in a situation of indefinite uncertainty for the past eight years. I am satisfied that Parvez’ avoidance of the issues rises to the level of wilful non-compliance and that his reasons for avoiding a final resolution, or determination do not lessen that standard.

[37] The proper administration of justice is best typified by timely, fair, and proportionate determinations. Rule 2 of the Family Law Rules sets as its primary objective the requirement that courts deal with cases justly by (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.

[38] Marriage is a voluntary state. Spouses are entitled to separate and to have the legal and financial issues arising from the end of their union resolved or determined in a timely manner. Children of separating parents deserve certainty in their parenting arrangements and assured financial provision. Litigation, with all its inherent costs and stress, must come to an end.

Next Steps

[39] Pursuant to Rule 1(8.4), Parvez’ pleadings are struck, and Shireen may proceed with an Uncontested Trial. The matter is set to the Assignment Court of September 23, 2024 at 2:00 by Zoom.

Costs

[40] Shireen asks for a full recovery of her costs in the amount of $4,294. Parvez does not contest the amount sought on any ground but for financial impecunity. I cannot assess such a ground in the absence of a current Financial Statement, but in any event, modest means do not protect a litigant from an award of costs.

[41] The purposes of a costs award are to indemnify a successful litigant who has acted reasonably to resolve the dispute or to seek an equitable outcome; to discourage and sanction inappropriate litigation behaviour; and to encourage and incentivize settlement. Rule 2(2) of the Family Law Rules adds a fourth purpose, to ensure that cases are dealt with justly, see Mattina v. Mattina, 2018 ONCA 867.

[42] In setting the amount of costs, the court shall consider the factors set out in Rule 24(12) with a focus on the reasonableness and proportionality of the amount sought as it relates to the importance and complexity of the issues. A successful party is presumptively entitled to the costs of a motion, and here, I find that the amount sought is most reasonable and proportionate.

[43] Although there may be some duplication and administrative tasks captured within the amount sought, the $4,294 does not include the costs of today’s three-hour attendance. Ultimately, I am satisfied that the amount of $4,300 is a fair, reasonable, and proportionate amount of costs that an unsuccessful litigant ought to have anticipated paying on a successful motion to strike pleadings.

[44] I award Shireen her costs in the rounded amount of $4,300, payable forthwith.

McGee J. DATE: August 22, 2024