ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-17796
DATE: May 24, 2012
BETWEEN:
Dhanmatti Pragg
Applicant/Respondent
- and -
Rajendra Ramkahlawan
Respondent/Appellant
COUNSEL:
• Maurice W. Pilon for the Appellant
• James Jagtoo for the Respondent
HEARING DATE: May 22, 2012
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION AND OVERVIEW
[ 1 ] In this family law matter, which originated in the Ontario Court of Justice, there is an appeal and a cross-appeal to the Superior Court from an order of Justice Brownstone dated December 20, 2011. The order, which was for child support payments based on an imputed income of $85,742.80, was made at an uncontested trial.
[ 2 ] The cross-appeal is by Dhanmatti Pragg, who submits that Justice Brownstone erred by not awarding three years of retroactive child support and by awarding partial indemnity costs instead of full indemnity costs.
[ 3 ] The appeal is by Rajendra Ramkahlawan, who submits that Justice Brownstone erred both procedurally and also substantively. There are two alleged procedural errors; namely (a) proceeding to make an order without Mr. Ramkahlawan having been served; and (b) making a costs order when functus. The alleged substantive error is that of imputing an inordinately high income to Mr. Ramkahlawan while ignoring evidence of his unemployment and impaired health.
[ 4 ] In resisting the appeal and advancing her own cross-appeal, Ms. Pragg submits that Mr. Ramkahlawan should not be granted an audience from this Court because he still has not complied with long outstanding disclosure orders. Ms. Pragg also submits that based on the uncontradicted affidavit evidence, which she submitted at the uncontested trial, Justice Brownstone made no substantive error, but he did err in not going further and making the support order retroactive for three years.
[ 5 ] For the reasons that follow, I am granting the appeal and dismissing the cross-appeal both without costs. I set aside the order of December 20, 2011, and I order that there shall be a trial of Ms. Pragg’s claim for child support including her claim for retroactive child support.
[ 6 ] Under s. 134 (1) of the Courts of Justice Act , R.S.O. 1990, c. C.43, a court to which an appeal is taken may make any other or decision that is considered just, and I shall exercise that authority to make the following procedural or interim orders:
• Mr. Ramkahlawan shall pay interim child support in the amount of $246.00 per month commencing on October 1, 2011 based on an income of $28,000 or such other sum as determined on motion to the Ontario Court of Justice.
• Mr. Ramkahlawan shall within 90 days of this order and at his expense, deliver a copy of his medical records and clinical notes from Dr. Paula Williams.
B. FACTUAL BACKGROUND
[ 7 ] In the late 1990s, Mr. Rajendra Ramkahlawan, who was married to Indra Harrilal, had a relationship with Dhanmatti Pragg. A daughter, Alyssa Pragg, was born in 2001. Mr. Ramkahlawan and Ms. Pragg lived together for five months in 2008. Ms. Pragg alleges that Mr. Ramkahlawan did not provide any financial support for his daughter at any time.
[ 8 ] On March 14, 2011, Ms. Pragg commenced an Application in the Ontario Court of Justice seeking, among other things, custody, child support, and retroactive child support for Alyssa from Mr. Ramkahlawan, Alyssa’s father.
[ 9 ] Ms. Pragg’s lawyer for the Application was and is James Jagtoo.
[ 10 ] Around May 12, 2011, Mr. Ramkahlawan, who was self-represented, served an Answer to the Application and a financial statement. He did not file the Answer.
[ 11 ] Mr. Ramkahlawan’s financial statement indicated that: he had no income; his wife paid all his expenses; he owned a house jointly with his wife with an undisclosed value; there was a mortgage on the house of an undisclosed amount; he had $2,528.77 in his bank account; and he had $120,000 in credit card debt. The financial statement attached only the tax return for 2009.
[ 12 ] On May 18, 2011 at the first appearance in family court, on consent Mr. Ramkahlawan was granted leave to file his answer late and for paternity testing. On consent, he was ordered to disclose the three prior years of personal income tax returns.
[ 13 ] On September 23, 2011, there was a case conference before Justice Brownstone. Mr. Ramkahlawan was now represented by Thora H. Espinet.
[ 14 ] At the case conference, it seems that the Answer had not been filed, although Justice Brownstone proceeded as if it had been filed.
[ 15 ] At the case conference, on consent, Ms. Pragg was granted sole custody. Justice Brownstone made a disclosure order. He ordered Mr. Ramkahlawan to disclose: business tax returns for 2008, 2009, and 2010 for Orthopaedics Unlimited (Ontario) and Orthopaedics Plus Ltd. (Trinidad) [corporations allegedly operated by Mr. Ramkahlawan] ; a copy of a loan application for renovations to the home in Toronto; a copy of the ownership of a Lexus; and a copy of credit card statements. Mr. Ramkahlawan was also ordered to pay interim child support in the amount of $246.00 per month for Alyssa Pragg based on the 2009 annual income of $28,000 commencing October 1, 2011, to continue until the disclosure was provided.
[ 16 ] The next hearing date was scheduled for January 17, 2012.
[ 17 ] Between September 23, 2011 and October 31, 2011, there was communications between the parties’ lawyers. Ms. Espinet send information in professed compliance with the disclosure order, but Mr. Jagtoo’s position was that Mr. Ramkahlawan had refused to comply with the order. There was also disagreement about the filing of the Answer. Mr. Jagtoo demanded that it be filed or he would note Mr. Ramkahlawan in default. Ms. Espinet’s position as of October 31, 2011 was that she believed that the court had lost the document but she would inquire further and file another answer if necessary.
[ 18 ] During this period, Mr. Jagtoo was attempting to obtain information for the January 17, 2012, hearing about Mr. Ramkahlawan’s alleged medical condition that prevented him from working. Mr. Jagtoo, wrote Dr. Paula Williams, Mr. Ramkahlawan’s physician, who had provided a very short letter indicating that Mr. Ramkahlawan “can only work in a position that does not require lifting and bending.”
[ 19 ] Ms. Pragg sought a detailed medical report and medical records, but Dr. Williams required Mr. Ramkahlawan’s consent, and he did not co-operate by providing that consent and went so far as to report Mr. Jagtoo to the Law Society for having contacted the physician.
[ 20 ] Ms. Pragg or Mr. Jagtoo apparently had enough with Ramkahlawan’s intransigence, and on October 31, 2011, Ms. Pragg brought a motion in writing for, among other things, an order to dispense with Mr. Ramkahlawan’s consent to the release of medical information and for an order that Mr. Ramkahlawan provide disclosure in accordance with the September 23, 2011, order. Mr. Ramkahlawan responded with an affidavit disputing Ms. Pragg’s account of the situation.
[ 21 ] On October 31, 2001, Justice Brownstone granted the motion to dispense with Mr. Ramkahlawan’s consent, and he made the following Endorsement:
Form 14B motion filed by the Applicant and responding material filed by Respondent; Reply filed by Applicant. Ruling as follows: …
Respondent’s consent to the disclosure of all medical information regarding his injuries and health status as they relate to his ability to work is dispensed with. Any non-custodial parent relying on a medical problem as the reason for a diminished ability to pay child support should have no problem consenting to a full and frank medical disclosure from his/her doctor(s). Applicant’s counsel may obtain such disclosure directly from Respondent’s doctor(s) without Respondent’s consent.
The Applicant’s request to strike the Respondent’s pleadings for lack of disclosure, and the Respondent’s request for costs against the Applicant, shall be dealt with on the next court date. The court notes, however, that the Respondent’s financial disclosure appears so far to be inadequate. He should consider himself warned.
[ 22 ] Pausing here, in the narrative, it is important to note that Justice Brownstone did not rule that Mr. Ramkahlawan had breached the disclosure order, but rather he warned Mr. Ramkahlawan that the “financial disclosure appears so far to be inadequate” and that this matter would be dealt with in January 2012.
[ 23 ] Thus, the situation at the end of October 2011, was that there was the outstanding matter of whether the Answer had been filed and the parties were heading to a January 2012 hearing with Ms. Pragg having the right to obtain medical records directly from Dr. Williams and Mr. Ramkahlawan having been warned that his disclosure appeared to be inadequate.
[ 24 ] This situation changed three weeks later. Without service on Mr. Ramkahlawan, on November 23, 2011, Ms. Pragg filed an affidavit for an uncontested trial. The affidavit included surveillance colour photographs of Mr. Ramkahlawan participating in the Carabana Parade. These photos appear to refute his alleged inability to work.
[ 25 ] In her affidavit material, based on estimates and conjectures of the likely monthly mortgage payments on the matrimonial home and on the value of the Lexis, Ms. Pragg indicated that she believed that Mr. Ramkahlawan’s annual income was $85,742.80. In her affidavit material, Ms. Pragg made much of the fact that the Answer still had not been filed and again took the position that Mr. Ramkahlawan was in breach of the disclosure order.
[ 26 ] On December 12, 2011, without hearing from Mr. Ramkahlawan, Justice Brownstone noted Mr. Ramkahlawan in default, vacated the hearing date of January 17, 2012, imputed Mr. Ramkahlawan’s income to be $85,742.80, and ordered him to pay $746.00 per month, commencing from April 1, 2011. Justice Brownstone made the following endorsement:
I am dumbfounded that at this late stage the respondent has still not served/filed an Answer. I assumed when I wrote my Endorsement on October 31, 2011 that the respondent had filed an Answer and that is why I referred to the possibility of striking the respondent’s pleadings. As is turns out, there are no pleadings to strike. The Respondent shall not be permitted to commence any proceedings against the applicant re child support until he has first served/filed all of the disclosure set out in paragraph 2 of the order dated September 23/11.
[ 27 ] The next day, dissatisfied that Justice Brownstone had not made the child support order retroactive and that he had not made a costs order, Ms. Pragg brought a motion in writing - again without service upon Mr. Ramkahlawan. Save for making a costs award, Justice Brownstone dismissed the motion and made the following Endorsement on December 13:
The applicant has now filed a 14B seeking further relief. This is inappropriate. The application was disposed of on a final basis by way of Form 23C on December 12, 2011. All relief being sought should have been included in the Form 23C. The applicant is not entitled to a “second kick at the can” following the making of a final order. In any event, I am not satisfied that this is a case retroactive child support, having regard to the test set out in the SCC case of D.B.S.
I agree that a costs order is appropriate. In all of the circumstances, I consider the amount of $5,000 plus GST plus disbursements in the amount of $698.83 to be appropriate, given the issues and circumstances in this case.
The Respondent shall pay the above costs, entirely attributable to the issue of child support and enforceable by FRO. He may not commence any proceedings until this costs order is fully paid and proof thereof is filed with the court.
[ 28 ] Based on the endorsements of December 12, 2011 and 13, 2011, Ms. Pragg took out an Order dated December 20, 2011. The Order provides:
The Respondent shall pay child support in the amount of $764.00 per month for Alyssa Pragg based on his attributed income of $85,742.80 commencing April 1, 2011.
The Respondent shall not be permitted to commence any proceedings against the Applicant until he has first served/filed all of the disclosure set out in paragraph 2 of the order dated September 23, 2011, as follows: ….
[ 29 ] After Mr. Ramkahlawan learned about the December 2011 hearings without notice, he appealed to this Court and Ms. Pragg delivered a cross-appeal.
C. DISCUSSION AND CONCLUSION
[ 30 ] There are indications in the record that Mr. Ramkahlawan has been belligerent and uncooperative. And there was no justification in his reporting Mr. Jagtoo to the Law Society, when Mr. Jagtoo was doing his job by obtaining medical information that Mr. Ramkahlawan should have been forthright and prompt in providing, especially because it was in his interest in doing so.
[ 31 ] This said, there was also was no justification for Ms. Pragg without service on Mr. Ramkahlawan, filing an affidavit for an uncontested trial.
[ 32 ] In November 2011, it was an open question whether Mr. Ramkahlawan had complied - or would comply by January 2012 - with the disclosure order. Justice Brownstone’s warning was an opportunity for Mr. Ramkahlawan to become compliant and the November 2011 order provided Ms. Pragg with the ability to obtain the medical information.
[ 33 ] The controversy, about whether the Answer was (a) filed, (b) not filed, (c) filed and lost by the Court, or (d) to be filed, was a silly dispute. The Answer and the Financial Statement had been served. Ms. Pragg had a copy of these documents and she knew that Mr. Ramkahlawan was defending the Application. At worst, somebody could have handed a copy of the Answer to Justice Brownstone at the upcoming hearing.
[ 34 ] It is rudimentary justice that a litigant be given notice of a trial or hearing that will affect his or her legal rights and that the litigant be given an opportunity to be heard. The very form that Ms. Pragg used to apply for an uncontested trial states that the Family Law Rules require all documents to be served on the opposing party and that the Court will made an order without notice in “very unusual circumstances” such as an emergency situation or a situation of danger or where service is impossible.
[ 35 ] Sadly, it is usual, not unusual, that there is a dispute about adequate disclosure in family law proceedings and there was no emergency. Justice Brownstone made his order in December 2011 and there was no emergency that justified cancelling the January 2012 hearing and proceeding ex parte . It was an error for the claim for child support to proceed to a final order in the absence of Mr. Ramkahlawan. Ms. Pragg’s affidavit material was slanted, adversarial, and argumentative and did not fairly present the situation to Justice Brownstone.
[ 36 ] It follows that the order of December 20, 2011, must be set aside and there should be a trial of the claim for child support, including the claim for a retroactive award.
[ 37 ] In these circumstances, it is not necessary for me to comment on whether there were any other procedural or substantive errors.
[ 38 ] I, therefore, grant the appeal and dismiss the cross-appeal, both without costs.
[ 39 ] Although Mr. Ramkahlawan was the successful party, there is enough evidence on the record to reveal that he should not be indemnified for his costs of this procedural misadventure.
[ 40 ] As indicated at the outset, I am exercising the court’s jurisdiction pursuant to s.134 (1) of the Courts of Justice Act and adding terms to the order. I do so for the purpose of attempting to get this matter back on track.
[ 41 ] Order accordingly.
Perell, J.
Released: May 24, 2012
COURT FILE NO.: FS-12-17796
DATE: May 24, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dhanmatti Pragg
Applicant/Respondent
‑ and ‑
Rajendra Ramkahlawan
Respondent/ Appellant
REASONS FOR DECISION
Perell, J.
Released: May 24, 2012