ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 8667/08
DATE: 2012-04-12
B E T W E E N:
Louise Simone Marie Lewchuk
Virginia L. Workman, for the Applicant
Applicant
- and -
Lawrence Joseph Lewchuk
Self-represented Respondent
Respondent
HEARD at Welland, Ontario: April 2, 2012
The Honourable Mr. Justice B.H. Matheson
ENDORSEMENT
[ 1 ] This application came before me on April 2, 2012.
[ 2 ] The hearing took about two hours.
[ 3 ] This is the twentieth time that this matter has been before the court. It would appear that not much has been accomplished since the first appearance on August 25, 2008.
SUMMARY OF SEVERAL ORDERS AND ENDORSEMENTS
[ 4 ] Endorsement of Tucker J. dated August 25, 2008 states that the claim of Dr. Lewchuk that there was no valid marriage was without merit. On consent disclosure ordered. There were 13 specific productions ordered by Tucker J. that the respondent had to comply with.
[ 5 ] Order of Justice Ramsay dated November 17, 2008 states spousal support ordered in the amount of $2,000 a month starting December 1, 2008. He also ordered that if the respondent did not make financial disclosure, the applicant may move to find respondent in default.
[ 6 ] Order of Justice Quinn dated May 13, 2009 states respondent shall provide updated particulars of his income. Ontario Medical Association shall be ordered to provide information as to any benefits being provided to the respondent. Daniel and Partners shall provide to the applicant all particulars of car accident that the respondent was involved with. Justice Quinn made other disclosure orders and a non-dissipation order. The court on its own brought a contempt proceeding against the respondent for failure to follow previous court orders.
[ 7 ] This hearing was adjourned several times.
[ 8 ] On July 15, 2010 Justice Quinn withdrew the contempt hearing. October 5, 2010 was set for an uncontested hearing. The order refers to a payment of $177,752 as a full and final equalization payment. The respondent had paid the sum of $92,000 in July 2009. The balance was to be paid before August 15, 2010.
[ 9 ] Again, the matter was adjourned several times for undisclosed reasons.
[ 10 ] Order of Tucker J. on January 6, 2011 states the respondent ordered to pay $11,943.49 before the pleadings of the respondent could be reinstated. If not paid then the uncontested hearing will take place on February 8, 2011. She also reduced the spousal support payment from the respondent to $1,170.
[ 11 ] Justice Tucker’s order of May 2, 2011ordered the following:
- College of Physicians and Surgeons shall produce the respondent’s financial information.
- Ross McBride to provide particulars of the respondent’s claim.
- Disclosure as set out shall be provided within 60 days of receipt of this order.
[ 12 ] There were several more adjournments.
[ 13 ] A trial date was set for three to five days starting May 22, 2012.
[ 14 ] On January 25, 2012 there was a consent order that ordered the following:
- Ministry of Health and Long Term Care or the Ontario Health Insurance Place will provide all amounts paid to the respondent in 2011 and his financial information starting in January 2012.
- The information referred to above will cease on May 16, 2012 unless there is a further order of the court.
[ 15 ] There were several adjournments after that until I heard the matter on April 2, 2012.
[ 16 ] The respondent filed documents, sometimes under oath, that basically stated that he had made an overpayment. He also indicated that the applicant was not accurate in her recollection of the facts. He did not address the issue as ordered by the courts of the lack of financial disclosure.
[ 17 ] In the affidavits referred to by counsel for the applicant, there is a recurrent theme. That is, the systematic nondisclosure of the financial situation of the respondent.
[ 18 ] He failed to disclose the two motor vehicle accidents that he had. There was no indication that the applicant knew of these accidents or the particulars of his claims. This would have a major impact on the question of equalization.
[ 19 ] He has repeatedly failed to obey the orders of the courts. It became so blatant that Justice Quinn on his own brought a contempt hearing. It was withdrawn by the court when there was a consent order.
[ 20 ] He was using another doctor’s OHIP billing number. This would make it more difficult to track his income from the Ministry.
[ 21 ] He states that he is ill both physically and mentally. He states that this prevents him from working. Yet in the documents filed, it would appear that, according to his figures, he was making $3,180.60 a month in 2011. See his financial statement of February 7, 2012.
[ 22 ] In the affidavit of Bernadette Page, dated March 1, 2012, the Ministry states that he made $20,919 in 2011, and so far in 2012 he has made $5,385.50. We also must remember that he was also billing under Dr. Taliano’s number.
[ 23 ] The respondent has a serious issue with disclosure. He has also delayed this matter more than once. The court must take control of its process and not let it be high-jacked by the respondent.
THE LAW
[ 24 ] The applicant is asking that the court make a vesting order with respect to 78 Colbeck Drive in Welland. This is to give the applicant some security for the spousal support to which she is entitled. The Court of Appeal of Ontario dealt with this issue in Lynch v. Segal , 2006 42240 (ON CA) , [2006] O.J. No. 5014 at the following paragraphs:
27 In Ontario, the court’s broad general power to grant a vesting order is found in section 100 of the Courts of Justice Act . In the specific context of family law claims, sections 9(1)(d)(i) and 34(1)(c) of the Family Law Act confer an equally broad power to grant a vesting order on an application for equalization of net family property or support, respectively. Vesting orders are discretionary and have their origins in the court’s equitable jurisdiction.
28 Section 34(1)(c) of the Family Law Act states:
34(1) In an application under section 33, the court may make an interim or final order,
(c) requiring that property be transferred to or in trust for or vested in the dependant, whether absolutely, for life or for a term of years.
32 … As a vesting order – in the family law context, at least – is in the nature of an enforcement order, the court will need to be satisfied (as the trial judge was here) that the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions: see Kennedy v. Sinclair (2001), 2001 28208 (ON SC) , 18 R.F.L. (5 th ) 91 (S.C.J.) , affirmed (2003), 2003 57393 (ON CA) , 42 R.F.L. (5 th ) 46 (C.A.) .
33 In addition, the court should be satisfied that there is some reasonable relationship between the value of the asset to be transferred and the amount of the targeted spouse’s liability and, of course, that the interests of any competing execution creditors or encumbrancers with exigible claims against the specific property in question are not an impediment to the granting of a vesting order. However, I would not go so far as to say – as argued by the appellants – that the onus to satisfy the court on these matters is at all times on the person seeking the order. I shall return to these issues later in these reasons.
[ 25 ] I am satisfied that all the requirements necessary to make the vesting order have been met. I have in my order dealt with the issues of spousal support and the respondent’s lack of reasonable response to the various orders.
[ 26 ] Therefore, there will be an order as follows:
An order striking the respondent’s pleadings as a result of his non-compliance with the order of Justice Tucker dated January 6, 2011 specifically paragraph 2 which requires the respondent to pay to the applicant spousal support effective December 1, 2010 at the rate of $1,170.00 per month.
An order pursuant to s.34 of the Family Law Act directing that the respondent’s interest in the matrimonial home located at 78 Colbeck Drive, Welland, Ontario shall be transferred to the applicant or shall be deemed to be held by the respondent, in trust for the applicant until such time as the obligation to pay spousal support to the applicant has been terminated.
An order requiring the respondent at his expense to register a charge on the property located at 78 Colbeck Drive, Welland, Ontario in such amount as counsel may advise and this Honourable Court deems appropriate to secure the payment of spousal support due to the applicant pursuant to the order of Justice Tucker dated January 6, 2011.
An order that the respondent provide updated particulars as to his income from all sources for the past 12 months and an order that the respondent continue to provide disclosure on a monthly basis to the applicant until trial of this matter which disclosure shall include the name and address of the income source, amount received weekly, monthly or yearly on a gross basis from this source in the amount still outstanding from any income source.
An order that the respondent provide to the applicant within seven days of the order a complete updated sworn financial statement in accordance with the Family Law Rules.
An order that the Ministry of Health and/or the Ontario Health Insurance Plan provide to the applicant’s solicitor particulars as to all monies paid to the respondent from 2010 until trial of this matter.
An order that Ross & McBride provide to the solicitor for the applicant forthwith all documents referred to in paragraph 2 of the order of Justice Tucker dated May 2, 2011.
An order granting the applicant leave to conduct questioning of the respondent at the Official Examiner’s Office, Ronald Penfound’s office, 80 King Street, 4 th Floor, St. Catharines, Ontario at such time as counsel may advise and the Honourable Court permits.
An order that Dr. Taliano and/or his office clerk provide full particulars as to:
(a) The respondent’s hours of attendance at his office;
(b) A copy of any employment agreement/training or other arrangement for provision of service entered into by the respondent and within the knowledge and control of Dr. Taliano;
(c) Full particulars of any payments made to the respondent in the last 12 months;
(d) Full particulars of any OHIP billing submitted by his office on behalf of the respondent or as a result of his payment arrangement or provisions of services at Dr. Taliano’s office.
[ 27 ] Costs of this motion are set at $2,000 payable by the respondent within 30 days.
Matheson, J.
Released: April 12, 2012
COURT FILE NO.: 8667/08
DATE: 2012-04-12
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Louise Simone Marie Lewchuk Applicant - and – Lawrence Joseph Lewchuk Respondent ENDORSEMENT Matheson, J.
Released: April 12, 2012