SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-06-055609-00
DATE: 2012-08-20

RE: MAHESHINDER SINGH BINDRA and HARLEEN BINDRA

BEFORE: M.J. DONOHUE J.

COUNSEL:
Manjit Virk, for the Moving Party/Applicant

Vicki A. Coristine, for the Responding Party, Respondent

HEARD: August 13, 2012

E N D O R S E M E N T

[ 1 ] Mr. Bindra brings this motion to set aside default judgment rendered by Justice Ricchetti June 25, 2009. He also seeks to set aside the Order of Justice Fragomeni of September 20, 2007 which struck his pleadings and ordered his bank accounts and safety deposit boxes to be frozen until further order of the court.

[ 2 ] Mr. Bindra also seeks the court to order custody of their 15 year old daughter, Gurleen Bindra, to him.

[ 3 ] The parties separated in 2004. Mr. Bindra was represented by counsel, Ms. Sepuya, and filed an application on January 6, 2006 for a divorce and for equalization of net family properties. No claim was made for custody or access.

[ 4 ] Mrs. Bindra in her answer did claim custody of the children. A final order was granted by Justice Snowie on November 15, 2006 that Mrs. Bindra have permanent custody of both children. This final order was made on consent of the parties.

[ 5 ] As Mr. Bindra has never previously sought an order for custody or access and consented to the 2006 custody order, I find it not appropriate to upset the arrangements of that order. It would not be in the best interests of his 15 year old daughter to change the custody order after 6 years without serious evidence of danger to this teenager. I do not see such evidence. The daughter’s evidence is that she does not want custody changed. In the original notice of motion of July 28, 2011, there was no request for custody. There was a request for access.

[ 6 ] Access was dealt with in Justice Ricchetti’s order of June 25, 2009, which order Mr. Bindra seeks to set aside.

[ 7 ] Clear factums were provided by both parties. Both relied on Page-Cole v. Cole , (2009) 57152 (ON SC) as setting out the test for whether a default judgment should be set aside.

(a) the motion should be set aside as soon as possible after he becomes aware of the judgment;

(b) his affidavit must set out the circumstances upon which the default arose that give a plausible explanation for the default; and

(c) he must set forth facts to support the conclusion that there is an arguable case on its merits.

(a) Was this motion brought as soon as possible after he became aware of the judgment?

[ 8 ] Mr. Bindra’s evidence is that he became aware of the judgment in July 2010 when CIBC would not release $300,000.00 he deposited into his account.

[ 9 ] In April 2011, Mr. Bindra retained counsel to respond to the motion brought by CIBC to pay the funds into court. Mr. Bindra brought this motion July 28, 2011 and filed it with the court August 3, 2012. A year’s delay does not show diligent efforts to set the judgment aside.

[ 10 ] Mr. Bindra deposes that he was not aware of the order of Justice Fragomeni in September 20, 2007. That was the order that struck his pleadings and froze his bank accounts.

[ 11 ] Justice Fragomeni’s order notes that Mr. Bindra did not appear at the motion but that he was “duly served through former counsel.” His former counsel, Ms. Sepuya, got off the record on that date as well.

[ 12 ] Mrs. Bindra served Justice Fragomeni’s order by mail at 36 Octillo Boulevard, Brampton, which was his brother’s home and the address for service.

[ 13 ] He and his brother depose that they did not receive that order. I do not accept their evidence that this order did not come to their attention. Three months after Justice Fragomeni ordered Mr. Bindra’s accounts to be frozen, Mr. Bindra wrote an email December 15, 2007 saying, “U have frozen the money meant for the house for a family that once existed. U ruined the family. Now at least make use of this frozen money.”

[ 14 ] A year later in an email by Mr. Bindra on December 28, 2008 he writes, “U take the money frozen in banks and India flat.” in his attempts to discuss settlement.

[ 15 ] I find that these emails clearly support Mrs. Bindra’s evidence that she served the order and he was aware of it.

[ 16 ] Mr. Bindra continued to pay the lower temporary spousal and child support payments ordered by Justice Kruzick on July 6, 2006. Payments were paid by other family members or by bank draft which supports a finding that he was aware he could not write cheques on his account.

[ 17 ] Justice Fragomeni’s order was also sent to Mr. Bindra’s employer, Trident International Holdings, on October 31, 2007 asking for information. It is reasonable to conclude the employer communicated the order to Mr. Bindra.

[ 18 ] This conclusion is reinforced by Mr. Bindra’s inclusion in his motion of a request that the respondent wife be restrained from communicating with his employers in Dubai.

[ 19 ] I find that on the evidence Mr. Bindra was aware of Justice Fragomeni’s order within weeks or months of the order date September 20, 2007. He did not take action until August 2011.

[ 20 ] I find he did not take action as soon as possible after becoming aware of the judgment. He fails this part of the test.

(b) Does Mr. Bindra’s affidavit set out the circumstances under which the default arose?

[ 21 ] Mr. Bindra advised that he was not represented by counsel as he could not afford it and he never received the order. He explained he lived in Dubai.

[ 22 ] For the same reasons noted in (a) above, I find that he was in email contact with the family and, in fact, was aware of the order, but took no steps to set it aside.

[ 23 ] As he did nothing, the matter proceeded without notice to trial pursuant to the Rules .

[ 24 ] I find he fails this test as well.

(c) Does Mr. Bindra have an arguable case on the merits?

[ 25 ] Justice Ricchetti’s judgment is for child and spousal support and a $5,000.00 equalization of net family property.

[ 26 ] Mr. Bindra’s evidence on the motion does not provide any material to contradict the material on which Justice Ricchetti made his findings.

[ 27 ] Mr. Bindra’s financial statement actually shows his income at $89,000.00 which is not taxed in Dubai as compared to his declared $48,000.00 on previous financial statements and the $72,000.00 which Mr. Bindra had consented to in 2006.

[ 28 ] Justice Ricchetti imputed Mr. Bindra’s income to be $125,000.00 in light of the tax free income he received.

[ 29 ] Mr. Bindra’s counsel provided no reason or calculation to suggest that the imputed income should be less.

[ 30 ] Mr. Bindra’s evidence attacks Mrs. Bindra’s evidence that related to other matters such as property in India and a restraining order. As Justice Ricchetti’s order does not relate to these matters, the evidence provided is irrelevant.

[ 31 ] I find further that Mr. Bindra does not come to the court with clean hands. He has still not satisfied the disclosure he was ordered to provide and for which Justice Fragomeni struck his pleadings.

[ 32 ] As the applicant Mr. Bindra has failed to satisfy any of the three tests necessary for setting aside a default motion. I dismiss his motion.

[ 33 ] With respect to access, Justice Ricchetti left it to the discretion of Mrs. Bindra. Mr. Bindra has shown very little interest in these proceedings in pursuing access and there is not sufficient evidence to change the prior final order.

[ 34 ] The respondent, Mrs. Bindra, brings a cross motion for the arrears in child and spousal support and outstanding costs orders to be paid to her from the $300,000.00 which has been paid into court.

[ 35 ] She seeks an order that the balance of the monies be paid to the Family Responsibility Office for security for future enforcement of child and support payments.

[ 36 ] Exhibit 1 to this motion is a calculation of the arrears owed as of January 1, 2012 of $170,102.00. The last 8 months have a shortfall in support of $2,500.00 per month such there is an additional $20,000.00 owed. The equalization payment of $5,000.00 is owing as are the costs awarded at trial of $2,500.00. These sums also attract interest of 3%.

[ 37 ] I order these sums, plus the interest, to be paid from funds held in court.

[ 38 ] As the respondent has been successful in dismissing the applicant’s motion and successful on her motion, I invite written submissions on costs, of 3 pages or less, from the parties within 14 days of this order. Any potential cost order is also to be paid out from funds in court.

[ 39 ] As the applicant husband has still not provided disclosure (orders since 2006), I find it appropriate to direct the balance of any funds in court to be paid to the Family Responsibility Office as security for future spousal and child support, subject to any further order of the court in the event that there is no further entitlement to support.

M.J. Donohue J.

DATE: August 20, 2012

COURT FILE NO.: FS-06-055609-00

DATE: 2012-08-20

SUPERIOR COURT OF JUSTICE - ONTARIO RE: MAHESHINDER SINGH BINDRA and HARLEEN BINDRA BEFORE: M.J. DONOHUE J. COUNSEL: Manjit Virk, for the Moving Party/Applicant, Mr. Bindra Vicki A. Coristine, for the Responding Party, Mrs. Bindra ENDORSEMENT M.J. Donohue J.

DATE: August 20, 2012