Court File and Parties
COURT FILE NO.: FS-LL-367118
DATE: 20121010
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jillian Bassett, Applicant
AND:
Matthew Bassett, Respondent
BEFORE: Czutrin J.
COUNSEL:
Harold Niman , for the Applicant
John Phillips , for the Respondent
HEARD: October 1, 2012
ENDORSEMENT
[ 1 ] The Applicant’s two motions are to:
Find the Respondent in contempt for failing to comply with court orders;
To strike the Respondent’s Answer for failure to comply with court orders and in particular disclosure as ordered by me on December 20, 2011.
[ 2 ] The motions have been outstanding since May 7, 2012 (re: disclosure and striking) and contempt since July 5, 2012.
[ 3 ] The motions have been adjourned mainly to allow the Respondent to satisfy previous orders.
[ 4 ] A brief review of this case:
a. The Applicant began this Application on March 20, 2011. By that time, according to the Applicant, the parties had been separated for nearly a year (since April 14, 2010).
b. The parties entered into a Separation Agreement resolving property issues, interim child support, but not parenting issues concerning Dagney (born December 1, 2009) and spousal support.
c. The debts associated with two boats (Supra and Cigarette) were identified in the Separation Agreement and in the Application, with an understanding that by January 2011, the Respondent was to advise whether he intended to retain the boats and assume the loans.
d. The Respondent filed his Answer dated April 13, 2011 and acknowledged that the “main issue is the determination of the income available to the Respondent”.
e. The Respondent filed one Financial Statement dated April 13, 2011 claiming self-employment income, plus a company car paid at $1,600 per month.
f. On April 24, 2011, Aston J., on consent, at a case conference, ordered the Respondent to pay all outstanding parking tickets for a vehicle licensed to the Applicant, discharge the balances on two Scotiabank loans (related to the boats) within 90 days and keep the monthly payments current until loans repaid.
[ 5 ] On December 20, 2011, I considered a motion brought by the Applicant.
[ 6 ] Included in my endorsement that day was my observation:
The material provided by the Respondent … leaves me to conclude that the Respondent has yet to take the issues raised by the parties’ separation and in particular the needs of his child seriously.
While by his actions to come he may prove otherwise, to date he has not provided a level of disclosure that can give this court any comfort. More importantly he has not made adequate, relevant or required disclosure to establish his income.
[ 7 ] At the same time (December 20, 2011), I made reference to non-payment re: loans and parking tickets as ordered on August 24, 2011.
[ 8 ] I allowed the Respondent until February 29, 2012 (two more months) to provide “satisfactory proof of payments” and disclose “… (failing proof) may result in his Answer being struck”.
[ 9 ] We are now seven months after February 29, 2012 (10 months after my order and 13 months after Aston J.’s order).
[ 10 ] In my December 20, 2011 order, I made it clear that the support I ordered was temporary-temporary so as to not require the Respondent to show a material change of circumstances to change the level of support, required him to provide the ordered disclosure made including “an income analysis to assist the court in determining his income.”
[ 11 ] I subsequently fixed costs on January 27, 2012 with respect to the December 20, 2011 motion.
[ 12 ] My order has not been satisfied.
[ 13 ] The parties appeared before me on May 7, 2012 with the Respondent having new counsel, who continues to appear. I noted that the Respondent was in significant arrears and has not complied with Aston J.’s order (dealing with the loans). The Respondent’s counsel suggested that he and the Respondent were not clear by what I meant by “income analysis”.
[ 14 ] I declined to strike the Respondent’s Answer for the second time, but stayed his request to change my December 20, 2011 order because of non-compliance with orders.
[ 15 ] My endorsement anticipated an expert being retained by the Respondent to provide an income analysis and a report by June 30, 2012.
[ 16 ] I required the Respondent to provide to Applicant’s counsel a written “confirmation” by the expert retained (including) purpose of the retainer, disclosure obtained and requested and when a report would be available.”
[ 17 ] I gave further directions concerning the boat loans.
[ 18 ] I fixed costs at $2,000.
[ 19 ] On July 24, 2012, the contempt motion that was then before Stevenson J. was adjourned to August 14, 2012, costs ordered, and terms fixed relating to refinancing of the boat loans prior to August 14, 2012 (almost one year anniversary of the original order).
[ 20 ] On August 14, 2012, on the return of the contempt motion before Mesbur J. was again adjourned to August 28, 2012 with terms and then adjourned again to October 1, 2012.
[ 21 ] While the Respondent submits that he has satisfied the loan payments, he has not provided proof that would avoid, for now, the contempt finding.
[ 22 ] While the Respondent made the effort at retaining an expert to provide an opinion on his income the expert required the Respondent to provide filed Tax Returns for 2010 and 2011 and prepared Financial Statements for Eaglecrest Securities Ltd. (“Eaglecrest”) and Argyle Inc. (“Argyle”). The Respondent submitted that he has to come up with $15,000 for the accountant to prepare the income tax returns and the financial statements and more money for the expert before a report can be prepared.
[ 23 ] The Respondent outlined his financial difficulties in another civil law suit, with C.R.A., a corporate bankruptcy. While he refers to no personal or corporate credit cards, he had earlier disclosed some credit card statements suggesting that he does have such cards.
[ 24 ] The Respondent asks for yet another indulgence and more time.
[ 25 ] The Applicant proposed three alternative orders as terms for yet another adjournment to October 22, 2012 re: disclosure and proof of the boat loans being discharged.
[ 26 ] The Respondent sought an adjournment to February 15, 2013 to have his expert provide an income report and until January 1, 2013 to file personal Tax Returns and to produce Financial Statements for Eaglecrest and Argyle to his expert.
[ 27 ] He offers no further payment on the arrears owing as a result of my December 20, 2011 order and wants me to reduce the combined $4,853 monthly support to $1,500 every two weeks.
[ 28 ] To do so would allow him to reduce the support without a new Financial Statement and non-compliance with my orders.
[ 29 ] This would allow non-compliance being rewarded. I grant the adjournment to a date to be fixed by the Trial Coordinator in March 2013 (before me, if available) as counsel arrange on the following terms:
By October 23, 2012, the Respondent shall, directly from Scotiabank, provide proof of the loans being fully discharged with all payments being honoured and satisfied.
By January 7, 2013, the Respondent is to provide copies, with all attachments of his personal and corporate Tax Returns for 2010 and 2011 to the Applicant’s counsel.
By January 7, 2013, the Respondent is to provide proof of compliance of all disclosure as ordered by me December 20, 2011. I note his position concerning certain disclosure but he will need to review what he has produced and explain his new contrary position on credit cards. He shall prepare a brief of documents with reference to the orders for disclosure and serve and file such brief.
By October 28, 2012, he is to provide an updated and detailed, and complete Financial Statement.
By October 19, 2012, he is to pay to Applicant $4,853 on account of the ordered support of December 20, 2011.
By November 15, 2012, he is to propose a payment plan to pay off the arrears within a reasonable time to be sent to the Applicant’s counsel and copy to me.
Applicant’s counsel may respond to the request by November 29, 2012, and I will provide further endorsement.
Pending further order re: arrears, the Respondent is to maintain the payments and may pay in installments one-half each 1 st of the month ($2,426.50) and 15 th ($2,426.50) with the first payment being November 2, 2012 and the second November 16, 2012 and continuing thereafter.
Costs are adjourned to return before me.
[ 30 ] Failure to abide by any of the terms of this order may allow the Applicant to move (at my discretion) without notice to the Respondent to strike his Answer.
Czutrin J.
Released: October 10, 2012