Court File and Parties

Court File No.: 201/09
Date: 2012-08-23
Superior Court of Justice - Ontario

RE: DOMINIC VITO VETRO, Applicant

AND:

GABRIELLE VETRO, Respondent

BEFORE: GRAY J.

COUNSEL:
J. Kelvin Ford, Counsel for the Applicant
Gabrielle Vetro, Self-Represented

HEARD: August 16, 2012

ENDORSEMENT

[ 1 ] This is a motion by the respondent for an order striking the applicant’s pleadings. In Marcoccia v. Marcoccia (2009), 2008 ONCA 866 , 60 R.F.L. (6 th ) 1 (Ont. C.A.), at para. 3 , the Court of Appeal stated, “A remedy striking a pleading is a serious one and should only be used in unusual cases.” This is such a case. For the reasons that follow, the motion is granted and the applicant’s pleadings are struck.

Background

[ 2 ] The application in this matter was filed on January 13, 2009. Since then, there have been innumerable appearances before the Court. It has been scheduled for trial three times. A number of orders have been made, many of which have not been complied with.

[ 3 ] On June 2, 2011, Price J. heard a motion by the respondent for interim child support and interim spousal support. The trial had been scheduled to take place in the “blitz” sittings in April, 2011, but had been adjourned to the sittings in November, 2011. Price J. ordered that the applicant pay interim child support in the amount of $1,380 per month, commencing January 1, 2011, based on the applicant’s declared income of $59,000 for 2010. He ordered that the respondent could re-apply for interim spousal support after filing her income tax returns and notices of assessment.

[ 4 ] On August 10, 2011, I heard a motion by the respondent for interim spousal support. By cross-motion, the applicant requested sale of the matrimonial home; an advance on what he claimed as an equalization payment; and an order varying the order of Price J.

[ 5 ] I dismissed the applicant’s cross-motion, and ordered that he pay interim spousal support in the amount of $1,500 per month, effective September 1, 2011.

[ 6 ] As noted, the matter had been adjourned to be heard at trial during the blitz sittings in November, 2011. On November 9, 2011, van Rensburg J. removed the matter from the trial list, and ordered that a settlement/trial management conference be held before her in Brampton on January 16, 2012. On that date, she ordered that the matter proceed to trial in Milton during the blitz sittings commencing on March 26, 2012. Approximately one month before the trial sittings were to commence, the applicant’s solicitor requested that the trial not commence until April 16, 2012, as the applicant would be in Europe on business until April 15 th . On April 17, 2012, the matter was called for trial but there were only three days left in the sittings, and the trial could not proceed.

[ 7 ] The respondent had had some difficulty obtaining full disclosure from the applicant. On March 19, 2012, she wrote the applicant’s counsel and requested 14 items of disclosure.

[ 8 ] In terms of the support that was ordered by me and by Price J., the applicant paid only the amount of $2,880 in 2011. He paid it one week before the parties were to appear before a judge in November, 2011 at a pre-trial conference.

[ 9 ] The applicant paid $1,380 to the Family Responsibility Office (FRO) in January, 2012. He paid it the week before the parties were to appear before a judge for a trial management conference.

[ 10 ] FRO began to make demands for payment, and commenced proceedings to suspend the applicant’s driver’s licence and cancel the applicant’s passport. The applicant made an agreement with FRO to pay $3,000 per month, and he paid that amount in February and March, 2012. After the trial was not reached in April, 2012, the applicant stopped paying.

[ 11 ] On June 27, 2012, motions brought by both parties came before me. Among other things, the respondent requested an order that the applicant release an RESP, so that it could be used for educational expenses for one of the parties’ children. The applicant requested an order terminating or reducing the interim support orders made by Price J. and by me. He also requested an order requiring FRO to refrain from suspending his driver’s licence.

[ 12 ] During the hearing of the motion, the applicant’s counsel disclosed, for the first time, that the RESP had been cashed by the applicant and he had spent the money. After consultation with the applicant, applicant’s counsel advised me that the applicant would pay to the respondent the sum of $5,500 that had been in the RESP account.

[ 13 ] I dismissed the motion brought by the applicant to vary the earlier support orders. A motion that had been brought by the respondent for an order requiring disclosure by the applicant, and for an order striking the applicant’s pleadings, was adjourned.

[ 14 ] I granted the applicant’s request for an order requiring FRO to refrain from suspending his driver’s licence, on terms. I ordered that he pay the sum of $9,000, representing $3,000 per month for the months of April, May and June, 2012, that he had agreed with FRO that he would pay, and that he continue paying $3,000 per month thereafter. I ordered that if he failed to pay any of these amounts, FRO could suspend his driver’s licence.

[ 15 ] On July 18, 2012, Miller J. adjourned the respondent’s motion to strike the applicant’s pleadings to August 8, 2012. In the interim, she ordered the applicant to provide a valuation of one of his businesses by September 30, 2012, and ordered the applicant to provide outstanding bank and credit card statements before August 8, 2012. She also ordered him to provide any outstanding business consulting contracts by that date.

[ 16 ] On August 8, 2012, the motion was adjourned to August 16, 2012, peremptory to the applicant. The applicant was ordered to pay costs of $1,000. The applicant had changed counsel at the last minute. This had happened a number of times, and it happened again before the motion was ultimately argued before me on August 16, 2012.

[ 17 ] When the applicant did not pay the amounts contemplated in my endorsement of June 27, 2012, FRO proceeded to suspend the applicant’s driver’s licence.

[ 18 ] Without doing the exact arithmetic, it is apparent that shortly before the return of the motion on August 16, 2012, the applicant was approximately $43,000 in arrears with respect to the support orders that Price J. and I had made. Specifically, he had not paid the amounts I had required him to pay in order that his driver’s licence not be suspended. He had not paid the $1,000 in costs ordered as a condition of his obtaining an adjournment on August 8 th . While he had provided some of the documents that he had been ordered to provide, and that he had insisted were forthcoming, he had not provided all of them.

[ 19 ] On August 14, 2012, two days prior to the return of the adjourned motion on August 16, 2012, new counsel for the applicant attempted to file a lengthy affidavit with several attachments. Court staff refused to accept the material since it was filed late. Counsel for the applicant requested that I review the material nevertheless.

[ 20 ] The material consists of an affidavit sworn by the applicant on August 13, 2012.

[ 21 ] In his affidavit, the applicant blames his previous counsel for failing to obtain an order setting aside or reducing the orders requiring him to pay interim child and spousal support. At para. 6, the applicant deposes, “My previous counsel did not put forward crucial evidence relevant to the disposition of the motion. Most egregiously, he misrepresented to the Court my position with respect to the children’s RESP – with the result that I was ordered to repay Ms. Vetro $5,500.”

[ 22 ] As noted earlier, the fact that the applicant had improperly cashed the RESP was only disclosed during the motion that was argued before me on June 27, 2012. The respondent had requested an order requiring the applicant to consent to the release of the RESP so that it could be used for its intended purpose. Following consultation with the applicant, the applicant’s counsel advised me that the applicant was prepared to pay the respondent $5,500.

[ 23 ] It is not clear to me how the applicant’s position with respect to the RESP was misrepresented. Is the applicant now saying that he had the right to cash the RESP and use it for his own purposes? Is the applicant now saying that he was not prepared to pay the sum of $5,500 to the respondent? The applicant, in his affidavit sworn August 13, 2012, does not say. In his submissions before me, Mr. Ford asserted that the applicant actually received less than $5,500 when he cashed the RESP, because there was withholding tax. With respect, that can hardly be the concern of the respondent.

[ 24 ] The applicant deposes that notwithstanding his agreement with FRO to pay $3,000 per month, he now says he was unable to continue paying that amount after March, 2012, “because of my financial straits.” He says he now continues to pay $120 per month to FRO.

[ 25 ] The applicant swears that he borrowed $15,000 from his parents, and that he will use the funds as follows:

(a) $9,000 to be paid to FRO, to satisfy what should have been paid in April, May and June, 2012;

(b) $3,000 to be paid to FRO, to satisfy what should have been paid in July, 2012 pursuant to the agreement;

(c) $1,000 to be paid to the respondent in satisfaction of the costs order dated August 8, 2012; and

(d) $2,000 to be paid to the respondent in partial satisfaction of the order concerning reimbursement of the RESP.

[ 26 ] The applicant has attached to his affidavit a copy of the balance sheet for his business as at January 31, 2012. It purports to disclose gross business income for the year ending January 31, 2012 of $64,932. He claims that business expenses related to the operation of the business were deducted, leaving relevant income for support purposes of $29,800.

[ 27 ] The applicant swears that he lives in a basement apartment, upon which he pays rent in the amount of $1,000 per month. He claims he is in arrears of his rent.

[ 28 ] The applicant claims that he will receive payment from several clients towards the end of August, 2012, and “from these sums I will continue to pay support.”

[ 29 ] In terms of the applicant’s disclosure obligations, he acknowledges that this has been a running theme. He swears “Unfortunately, the disagreement has been exacerbated by the careless way in which this matter was handled by my previous counsel.” He says the material was not provided to the respondent in a properly indexed disclosure brief. He has attached as an exhibit to his affidavit a copy of a letter to the respondent enclosing the disclosure brief. The disclosure brief itself is not attached to the affidavit, so that it is impossible to see what disclosure has actually been made.

Submissions

[ 30 ] The respondent submits that the applicant’s pleadings should be struck. She submits that no other remedy will suffice. She submits that the applicant, being self-employed, is able to hide his real income, and he has done so. He has avoided his responsibility to pay court-ordered support, and he has paid support only at a time when he is scheduled to be in court, and only minimally. He has failed to provide disclosure, notwithstanding many assurances that he will do so.

[ 31 ] The respondent submits that to fail to strike the applicant’s pleadings in these circumstances will simply mean that the rules and orders made by the Court are meaningless.

[ 32 ] The applicant submits that his pleadings should not be struck. He acknowledges that there has been some default in disclosure, but asserts that this was the fault of his previous lawyers. He says his failure to pay court-ordered support is because of his financial situation.

[ 33 ] The applicant submits that the striking of pleadings is a draconian step, and should be taken only as a last resort. He relies on Purcaru v. Purcaru (2010), 2010 ONCA 92 , 75 R.F.L. (6 th ) 33 (Ont. C.A.).

Analysis

[ 34 ] I accept that pleadings should be struck only in clear cases. However, this is such a case.

[ 35 ] While the applicant, in his most recent affidavit, purports to acknowledge that court orders are not suggestions and that they must be complied with, his conduct suggests otherwise.

[ 36 ] The orders for interim support were made based on the applicant’s own evidence as to his income. He went into default almost immediately, and any compliance since the orders were made has been minimal, and has been made only on the eve of scheduled trials or motions. Indeed, he reneged on an agreement he made with FRO to pay $3,000 per month. He now says he cannot afford to pay the amount he agreed to pay. I find that very hard to believe.

[ 37 ] The applicant’s assertion of his financial situation and his level of income have varied according to what suits his interest at any particular point in time. His failure to pay court-ordered support is egregious, and cannot be tolerated.

[ 38 ] Perhaps the most shocking aspect of the applicant’s conduct is his treatment of the RESP. That account was set up to assist in the education of the parties’ children. The applicant literally stole the money for his own purposes. When this was finally disclosed, because he could not hide it any longer, he agreed to repay the money, and now says his position was misrepresented. If I take his latest affidavit at face value, he has repaid only $2,000 of the amount he took.

[ 39 ] I am not at all satisfied that the applicant has made full disclosure, even now. Once again, any disclosure he has made has been late, reluctantly made, and less than fulsome.

[ 40 ] Even without the issues regarding disclosure, I would strike the applicant’s pleadings simply on the basis of his non-compliance with court orders regarding support, and particularly his conduct regarding the RESP.

Disposition

[ 41 ] For the foregoing reasons, the respondent’s motion is granted and the applicant’s pleadings are struck. The respondent may proceed to have the matter heard at an undefended trial.

[ 42 ] If the respondent is claiming costs, I will entertain submissions in writing, not to exceed three pages, together with a costs outline, within five days. Counsel for the applicant shall have a further five days to respond. The respondent shall have three days to reply.

GRAY J.

Date: August 23, 2012