RULING ON MOTION

Introduction

[1] The applicant brings this motion for an order pursuant to rules 1(8), 14(23), 13(17) and 19(10) of the Family Law Rules to strike the respondent's pleadings for the following reasons:

(a) On May 9, 2005, Justice Nelson ordered the respondent to pay for a joint Chartered Business Valuator (“CBV”) to report on his income (including cash income) and the value of his business. Before the CBV concluded the report, the respondent terminated the retainer and refused to continue to pay for the report contrary to the order. The respondent then retained his own CBV. As a result, the applicant has been prejudiced as she cannot lead expert evidence as the respondent's actual income including cash income.

(b) On October 22, 2012, Justice Rogers ordered the respondent to deliver to the applicant, the supporting source documents for the figures listed in the respondent's own CBV report, dated September 11, 2012 and the respondent has failed to provide such disclosure. As a result, the applicant has been prejudiced as she cannot challenge the respondent’s and his CBV’s evidence as to his income and value of his business.

(c) On December 22, 2011, Justice McGee ordered the respondent to loan the applicant $20,000 to pay for her own CBV to report on his income and the value of his business. The respondent advanced $10,000 but defaulted on the second $10,000. As a result, the applicant claims to have been prejudiced as she cannot lead expert evidence as to the respondent's income and value of his business.

(d) On May 9, 2005, Justice Nelson ordered the respondent to pay child support in the sum of $1,438 per month and spousal support in the sum of $5,800 per month. The respondent ceased paying any support since June 2012 (other than a lump sum payment of $12,000 weeks before the scheduled trial). Arrears stand at $38,666. As a result, the applicant claims that she's been prejudiced as she was unable to meet her and the child's living expenses on her income alone and had no funds to pay for her own CBV.

(e) On June 3, 2011, Justice Rogers ordered questioning. On August 3, 2011 the respondent was questioned and refused to answer 43 questions regarding his income.

(f) On May 9, 2005, Justice Nelson ordered the respondent to pay for the child's tuition at private school. On August 11, 2011, Howard Hurwitz, parenting coordinator, issued an arbitration award that ruled that the child was to continue to attend the private school. The respondent breached both the order and the award and registered the child in a public school near his home.

[2] In the event that this court does not strike the respondent's pleadings, the applicant is requesting that the trial scheduled in the May 2013 trial sittings be adjourned on the terms that the respondent remedy the alleged breaches in paragraphs (b) to (e) within 30 days and further, within 30 days, that the respondent pay to the applicant costs thrown away for the preparation of the trial and this motion in the sum of $10,000 and that in the event that the respondent fails to comply with any of the terms, the applicant wishes to move without notice to strike pleadings and seek an uncontested order.

[3] The respondent argues that the applicant's motion is improper for the following reasons:

(a) Her motion is prohibited by the trial management conference endorsement;

(b) Her motion is contrary to the opposition to an adjournment expressed by her counsel of the trial management conference;

(d) Her motion asks the court to determine the very issues set to be determined at trial.

[4] The motion was originally returnable before me on February 27, 2013. At that time I adjourned the motion and gave leave to the applicant to file a 14B motion before Justice Rogers to obtain leave to bring the subject motion in light of the order made at the trial management conference which prohibited any further motions without leave of the case management justice. Similarly, as the court order of October 22, 2012, as entered, was disputed by the respondent, I also gave leave to the respondent to file a 14B before Justice Rogers seeking leave to bring a motion pursuant to rule 25(19) of the Family Law Rules. Leave was granted to bring both motions and on March 20, 2013, the motion to change the order pursuant to rule 25(19) was dismissed. As a result, two of the respondent’s arguments that this motion is improper are now moot.

BACKGROUND

[5] The parties were married on August 29, 1998 and separated on December 26, 2003. There is one child of the marriage who is presently 13 years old. Pursuant to the final order of Justice Wildman, dated September 18, 2006, the parties share custody of the child on an approximately equal basis.

[6] There are no parenting issues outstanding for trial. The issues for trial are child support (arrears and ongoing), spousal support (arrears and ongoing) and equalization of net family property. It has been estimated that five days will be required for trial.

[7] Following the trial management conference on October 22, 2012, the matter was placed on the trial list for the November, 2012 trial sittings, but was unable to be called for trial as Mr. Benmor was involved in another lengthy proceeding. Evidence suggests that Mr. Benmor had been seeking an expedited trial. The matter was not reached in the May, 2013 trial sittings and is currently scheduled to be heard during the November, 2013 sittings.

[8] The affidavit in support of the motion is filed by Ms. Lam, the senior law clerk to Mr. Benmor and is dated November 26, 2012. The affidavit introduces into evidence the relevant court orders already granted in this matter, the arbitration award of Mr. Howard Hurwitz (with respect to the schooling for the child) and relevant correspondence with respect to the outstanding issues arising under the orders. It also includes a letter, dated May 30, 2012, from Mr. Frodis to Mr. Benmor, indicating an intention to bring a motion to vary the existing support order pending trial. That motion was never brought.

[9] This affidavit also refers to the respondent’s sworn financial statement, dated November 12, 2012, which reflects that the respondent purchased a home after separation which had a value as of the date of the financial statement of $700,000 and which was subject to a mortgage then valued at $379,000. It also suggests that the respondent has purchased a boat on October 26, 2011 for $50,299 and registered it to his elderly father, that one of his two businesses have sales of $5,769,971 and payroll of $1.6 million, including whatever income the respondent declares to himself, and that his businesses pay for his three vehicles (Porsche, BMW and motorcycle) and that he has accumulated RRSPs after separation totaling $171,144.

[10] The applicant has also filed a reply affidavit, dated February 21, 2013, the purpose of which was to:

(a) remind the court that the support order, dated May 9, 2005, required the payment of support to enable her to be solely responsible for paying of the bills on the matrimonial home, which would enable the son to have the stability of remaining in the home. The affidavit indicates that arrears stand at $49,615.68 (plus interest) and that she has not received any support for the past nine months with the exception of the garnishment of the respondent's income tax refund of $19,104.32;

(b) respond to the respondent's suggestion that the matrimonial home be sold or refinanced to enable him to discharge his arrears by suggesting that the respondent should refinance his own home;

(c) reflect upon an income statement of one of the respondent's companies reflecting an increase in sales from $413,522 in 2004 to $5,359,244 in 2011 and that because of missing financial disclosure she is unable to determine how much of the wages of $1,345,066 and consulting fees of $203,260 are paid to (or indirectly to) the respondent;

(d) advise the court that she is unable to determine how much of the respondent's personal expenses are paid by his two businesses and makes reference to the endorsement of Justice McGee, dated December 22, 2011, that the respondent’s “inextricably intertwining corporate and personal finances makes the venture of valuation for family law purposes all the more difficult”;

(e) indicate to the court that the respondent’s CBV’s income report reflects that the respondent has not disclosed his income for another business;

(f) comment to the court that despite a claim of financial hardship, the respondent's TD credit card for January 2012 reflects expenditures in that month alone of $58,646 including luxury travel;

(g) advise the court that the respondent is refusing to disclose details of his retainer with his CBV;

(h) advise the court that pursuant to the order of Justice Rogers, dated October 22, 2012, the following documents have not been provided:

(a) supporting source documents for the figures listed in the respondent's recent CBV report, dated September 11, 2012, such as the proof of the expenses listed as ‘indirect costs’ in the income statement for the years 2009 to present;

(b) proof of the claimed bank loans/obligations for the years 2009 to present;

(d) proof of the retained earnings for the years 2009 to present;

(e) all pages of his passport; and

(f) copies of the credit applications made since November 1, 2010;

(i) argue that the aforesaid records are the very evidence that the respondent's own CBV relied upon (or ought to have relied upon) in issuing his report and that the documents are necessary for her to present her case at trial and to challenge the CBV's and the respondent's evidence at trial without which she will be prejudiced; and,

(j) advise the court that their son has suffered due to the change from the Montessori school to the public school.

[11] In addition, the applicant indicates that it is her belief that the respondent misled Justice Rogers at the trial management conference by not advising the court that he had obtained a recent refraining order, which purported to reduce his monthly support obligation to $270 per month, commencing November 1, 2012. The applicant submits that the director of the Family Responsibility Office had no authority to alter a support order and she has since withdrawn from the enforcement process.

[12] The respondent has filed affidavits, dated December 4, 2012 and February 25, 2013. He states the following:

(a) In 2005, in a bid to reach resolution, he agreed to a consent order to reflect the quantum of child and spousal support and required the parties to jointly retain a CBV. Since that time, his income has decreased substantially and the applicant has steadfastly refused to become self-sufficient.

(b) He has been paying spousal support for almost twice the length of the marriage. In addition, the applicant has now obtained employment earning $35,000 per annum, employment which was obtained less than one month after he stopped paying support.

(c) The parties jointly retained Neil Maisel as their business valuator. As a result of the applicant's unreasonable belief as to the value of the business, Mr. Maisel was unable to complete his valuation after charging the respondent $30,000 to provide a four-page draft schedule indicating that the business was worth approximately $28,000 on the date of separation. Upon receipt of this document, the applicant insisted that she required a forensic audit and Mr. Maisel presented an estimate of $20,000-$27,000. As a result, the respondent withdrew from the retainer and hired his own expert, Mr. Paul Mandel who has now completed his valuation of both the business in the income for each year since separation.

(d) The respondent maintains that the May 9, 2005 order of Justice Nelson permits him to withdraw from the mutual engagement of the business valuation; the applicant suggests, in argument, that the order is ambiguous. The order states:

Counsel for the parties shall conduct a telephone interview with the business valuator to retain and instruct him to perform such professional services and, in the event the parties cannot agree on the terms, scope or cost of such engagement, then either party may provide written notice to the other of his/her withdrawal of this mutual engagement or any other mutual engagement with respect to this business valuation.

(e) The respondent also quotes from Justice McGee's endorsement of December 22, 2011 wherein, on motion, the applicant sought $68,206.80 in interim disbursements. Under the heading “merits of the mother's claims” the court comments that the mother claims the father owes an equalization payment to her of at least $500,000 additional to her having sole ownership of the matrimonial home and the investment condominium. The proposal rests on the valuation of the company in the net amount of $1,500,000. The court notes, “this is a fantastical claim… On the balance of probabilities, the mother's claim for equalization is not meritorious… The equalization claim proposed by the mother suggests a venture intended to find facts to fit the claim.” The court ordered the amount of $20,000 be loaned to the mother by the father after finding that the mother had not demonstrated that she is incapable of funding her expert or legal fees without an award pursuant to rule 24 (12) of the Family Law Rules. As a further term of the order, the court released the parties from any obligation to complete the joint valuation set out in the order of May 9, 2005. They may agree to do so or they may engage their own valuators.

(f) The respondent maintains that his evidence at trial will be that he is been overpaying support since separation and that he is owed a credit for his overpayment and that his income has been drastically reduced such that ongoing support payments must be reconsidered. He notes that the applicant is moving to strike his pleadings for failure to pay support, before the court is able to hear and evaluate his evidence for trial.

(g) The respondent submits that he has disclosed all items required of him pursuant to the endorsement of Justice Rogers.

(h) At the trial management conference, respondent's counsel indicated that if his expert’s report was not ready at the start of the trial, he would seek an adjournment and Mr. Benmor indicated that he would oppose any request for an adjournment of the trial and insisted that the trial had to proceed as scheduled. In e-mails, dated July 11 and July 23, 2012, Mr. Benmor continued to seek an expedited trial. He therefore maintains that all of the issues that the applicant now raises in her motion were in existence at the time of the trial management conference and were discussed with the presiding justice as potential issues.

(i) The respondent maintains that the applicant is misleading the court in asserting that she has been unable to lead her own expert evidence, both on business and income valuation, as a result of the respondent's failure to pay support. He states that until June 2012, he provided support of approximately $84,000 per annum. The applicant has resided in the matrimonial home since separation and has a mortgage payment of about $1,200 per month. There is approximately $600,000 in equity in the home and he has consistently offered to cooperate with the applicant should she wish to borrow against her share of the equity but she has never chosen to do so. The applicant has received $50,000 from the sale of the investment condominium.

(j) Furthermore, in her costs endorsement, Justice McGee states:

At its core, the mother's position appears to be shaped by a view that all matrimonial property will (or ought to) fall to her and thus, none of it should be dissipated in the course of the litigation. She seeks to have the father fund both his and her considerable litigation and experts fees, from his income which must also provide her with monthly payments of child and spousal support. This is not only an unreasonable, but is in unrealistic position. It is to be contrasted with the husband's proposal that equity in the jointly owned investment property be advanced to the mother for her use in the litigation. I find this to be a reasonable approach. It’s consistent with the principles in Stuart (supra): both parties are to be equally vested in the litigation, spending monies in a manner consistent with how one would spend one’s own monies, and equally at risk from an unwise course of litigation.

Although the court ordered the respondent to loan the applicant $20,000, it awarded costs in favour of the respondent in the sum of $15,000 payable on the earliest of the sale, refinancing, mortgage renewal or transfer of the matrimonial home, payment of an equalization or settlement or trial.

(k) The respondent maintains that the applicant’s arguments regarding his lifestyle, spending and ability to make support payments are all issues for trial wherein the trial judge can assess both retroactive and ongoing support obligations and order accordingly. He urges the court to enable him to participate in the trial.

(l) The respondent also agrees that his credit card transactions are frequently more than $50,000 monthly since his business has no operating line of credit and his personal credit cards have been used for that purpose since the commencement of the business.

(m) On March 8, 2013, the respondent was served with a request for information requesting 14 items. The general ledger for his company is more than 5,700 legal size pages for the year ending June 30, 2011 and more than 6,000 pages for the year ending June 30, 2012. He indicates it is likely not possible to provide proof of each transaction listed in the ledger, let alone reproduce the ledger itself.

[13] As noted, on November 26, 2012, $19,104.32 was delivered to the applicant by the Family Responsibility Office after the respondent's tax return was garnished. Further, on March 15, 2013, he provided the applicant with the second cheque for $10,000 as previously ordered by Justice McGee.

[14] In the applicant's affidavit, dated March 15, 2013, the applicant maintains ongoing prejudice as a result of the alleged breaches of the court orders by the respondent, in that her son is suffering in the new public school and she has been unable to afford to return him to his private school, she has been unable to pay bills for groceries and utilities, she has been unable to pay her lawyer and she has been unable to hire a CBV to help her receive that which she is entitled to at trial.

[15] In closing arguments, the applicant maintains that the only real remedy available for the multiple breaches of the court orders is to strike the respondent's pleadings. Mr. Benmor also provided an analysis of all the cases on which he was relying in support of his position that pleadings be struck. In the alternative, he requested that the matter be adjourned to the May 2013 trial sittings, on terms, including further disclosure, discharge of all arrears of support owing pursuant to the order of May 9, 2005, answers to the 43 questions that the respondent refused to answer at his questioning on August 3, 2011 and costs thrown away for the preparation of the trial and the motion in the sum of $10,000. Again, it is argued that the respondent has failed to provide information with respect to the valuation of his new company that is mentioned in the valuation report of Mr. Mandel.

[16] In closing arguments, Mr. Frodis states the following:

(a) The respondent is not in breach of the order of Justice Nelson, dated May 9, 2005, as the order allowed him to withdraw from the joint retainer and retained his own CBV;

(b) The respondent has complied with the disclosure as ordered by Justice Rogers on October 22, 2012;

(c) The respondent has complied, albeit late, with the payment required by Justice McGee in her order of December 22, 2011;

(d) The questions arising from the questioning pertained largely to custody, and since that issue is settled, the questions were irrelevant. Mr. Benmor indicates to the court, in this regard that many of the questions were with respect to the availability of cash from the respondent's business transactions; and,

(e) The support orders were temporary in nature, granted eight years ago and not designed for an eight year duration. The reason that the respondent did not bring a motion to change the temporary orders was due to the cost and the fact that the trial was approaching.

[17] Mr. Frodis points out that the trial is about equalization and support. He argues that his client complied with the orders as long as possible and sought a trial in November, 2012 in an attempt to alleviate the financial strain upon his client. In fact, the support orders were complied with from May 2005 until June 2012. He reiterates that at the trial management conference in October, 2012, the applicant wished to have the trial expedited and indicated an intention to contest any adjournment request by the respondent. He argues that at that time the applicant was fully aware of the breaches and yet expressed an intention to proceed to trial at the earliest opportunity. The trial management conference endorsement sheet reflects that Mr. Mandel’s report has not been delivered as of that day and if unavailable as of November 9, 2012, Mr. Frodis informs he will perhaps request an adjournment and Mr. Benmor today says he would oppose.

ANALYSIS

[18] The applicant relies upon the provisions of rules 1(8), 14(23), 13(17) and 19(10) of the Rules of Family Court in support of her motion to strike the pleadings of the respondent.

[19] Rule 1(8) (Failure to Follow Rules or Obey Order) reads as follows:

The court may deal with the failure to follow these rules, or a failure to obey an order in the case or a related case, by making any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate, including,

(a) an order for costs;

(b) an order dismissing the claim made by a party who has wilfully failed to follow the rules or obey the order. (Emphasis added).

[20] Rule 14(23) (Failure to Obey Order Made on Motion) reads as follows:

A party who does not obey an order that was made on motion is not entitled to any further order from the court unless the court orders that this sub- rule does not apply, and the court may on motion, in addition to any other remedy allowed under these rules,

(a) dismiss the party’s case or strike out the party’s answer or any other document filed by the parties;

(b) postpone the trial or any other step in the case;

[21] Rule 13(17) (Failure to Obey Order to File Statement or Give Information) reads as follows:

If a party does not obey an order to serve and file a financial statement or net family property statement or to give information as this rule requires, the court may,

(a) dismiss the party’s case;

(b) strike out any document filed by the party;

(d) order that any information that should have appeared on the statement may not be used by the party at the motion or trial;

(e) make any other appropriate order. (Emphasis added).

[22] Rule 19(10) (Failure to Follow Rule or Obey Order) reads as follows:

If a party does not follow this rule or obey an order made under this rule, the court may, on motion, do one or more of the following:

(a) Order the party to give another party an affidavit, let the other party examine a document or supply the other party with a copy free of charge;

(b) Order that a document favorable to the party’s case may not be used except with the court's permission;

(c) Order that the party is not entitled to obtain disclosure under these rules until the party follows the rule or obeys the order;

(d) Dismiss the party’s case or strike out the party’s answer;

(e) Order the party to pay the other party's costs for the steps taken under this rule, and decide the amount of the costs;

(f) Make a contempt order against the party;

(g) Make any other order that is appropriate. (Emphasis added).

[23] Rule (2) recites the primary objectives of these rules which is to enable the court to deal with cases justly. Dealing with a case justly includes:

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[24] Rule 2(4) reminds us that the court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

[25] The thrust of the applicant's argument is that the respondent should be deprived of participating in the trial as a result of numerous breaches of court orders. Mr. Benmor correctly argues that court orders are not made as a form of judicial exercise; an order is an order and not a suggestion. Non-compliance must have consequences. Clearly, there have been triggering events that would justify this court in granting the relief requested by the applicant.

[26] The thrust of the respondent's argument is that he should not be deprived of participating in the trial. It is for the trial judge to determine the legitimacy of the respondent's income and the support obligations flowing from same. On October 22, 2012, at the trial management conference, the applicant's position was that she was ready for trial, she wanted the trial expedited and she would vigorously oppose any request for an adjournment by the respondent in the event his expert’s report was not ready for the trial anticipated in November 2012.

[27] With respect to the breaches, the court does not find any ambiguity in the order of Justice Nelson, dated May 9, 2005. This was a consent order and it clearly states that in the event the parties cannot agree on the terms, scope or cost of such engagement, then either party may provide written notice to the other of his/her withdrawal of this mutual engagement or any other mutual engagement with respect to this business valuation. Furthermore, the order of Justice McGee, dated December 22, 2011, specifically releases the parties from any obligation to complete the joint valuation set out in the order, dated May 9, 2005. Pursuant to the terms of that order, the parties were free to engage their own valuators. The applicant may now feel frustrated that Mr. Maisel is refusing to testify, although under summons because he has an outstanding account with the respondent. That is an issue that can be dealt with by the trial judge. Based on the wording of the May 9, 2005 order and the specific wording of the December 22, 2011 order, the court does not find the respondent in breach in this regard.

[28] With respect to the order of October 22, 2012, the respondent maintains that he has fully complied with the disclosure. Whether or not that is accurate is an issue that can be dealt with by the trial judge.

[29] With respect to the order of December 22, 2011, there has now been compliance. Furthermore, in determining the issues before this court, the court relies upon the observations of Justice McGee that the applicant's position with respect to the equalization issue is both unreasonable and unrealistic, but again, that is an issue that can be dealt with by the trial judge.

[30] With respect to the refusal to answer questions, the questioning was ordered on June 3, 2011 and the respondent was questioned on August 3, 2011. The respondent maintains that most of the unanswered questions pertain to issues pertaining to the child and since those issues are not before the court, the unanswered questions are not relevant. The applicant maintains that the unanswered questions delve into the issue of availability of unreported income by the respondent. Clearly, at trial, if information is been withheld by the respondent that the trial judge finds to be relevant, an adverse inference can be made by the court. The court also notes that there is no notation on the trial management conference endorsement sheet pertaining to this issue; if it was of such importance to the applicant that it is deemed sufficient to strike the respondent pleadings, the applicant could have requested permission of the case management justice to bring a motion prior to trial. In the alternative, the applicant could have indicated to the case management justice that she was unable to proceed to trial without these questions be answered. On the record, she did neither.

[31] With respect to the order requiring the respondent to pay for the child's tuition at private school, the applicant could have brought a motion at the onset of the school year to pursue a remedy on a timely basis. In the alternative, she could have raised this issue with the case management justice. Lastly, she could have chosen to encumber her share of the matrimonial home and request that the respondent pay the monthly carrying charges pending a determination at trial. This court does not condone the breach of Justice Nelson's order, but recognizes that at the beginning of the school year in question, the respondent could have sought a motion date which, by its nature, would have been scheduled during the trial sittings in which this case was expected to be called for trial. Under the circumstances this is an issue best left to the trial judge and in that regard both parties have leave to add this issue to the agenda for the trial.

[32] The remaining breach deals with the support orders. Again, this court does not condone the breach but acknowledges compliance from the date of the order, being May 9, 2005, up to the month of June 2012, together with the garnishment of the respondent’s income tax refund which reduced the accumulated arrears. The respondent gave notice to the applicant of an intention to bring a motion to change the temporary order but with the expectation that the matter would be tried in November 2012, he chose not to pursue that avenue of relief. The issue of arrears of both spousal and child support was marked down on the trial management conference endorsement sheet as an issue for trial, at which time the trial judge will hear evidence and make a determination as to entitlement, duration and quantum as well as a determination of the respective contributions towards section 7 expenses.

[33] In Percaru, 2010 ONCA 92, Justice Lang, speaking for the majority of the court stated:

(47) I wholly accept Mr. Purcaru’s argument that pleadings should only be struck and trial participation denied in exceptional circumstances and where no other remedy would suffice.

(48) This is particularly so in a family law case where the resulting judgment may provide for continuing obligations that can only be varied on proof of a change in circumstances. A change in circumstances may be difficult to establish if the initial judgment is based on incorrect assumptions, thus perpetuating injustice. Similarly, special care must be taken in family law cases where the interests of children are at issue. The consequences of striking pleadings or limiting trial evidence when custody or access is at issue was discussed in King v. Mongrain 2009 ONCA 486, (2009), 66 R.F.L. (6th) 267 (Ont. C.A.), where Gillese J.A. observed at p. 273 that pleadings should not be struck if such a remedy leaves the court with insufficient information to determine custody. See also Haunert-Faga v. Faga 2005 39324 (ON CA), (2005), 203 O.A.C. 388 (C.A.).

(49) The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court. As this court said at p. 23 of Marcoccia v. Marcoccia 2008 ONCA 866, (2009), 60 R.F.L. (6th) 1 (Ont. C.A.), the remedy of striking pleadings is “a serious one and should only be used in unusual cases”. The court also explained at p. 4 that the remedy imposed should not go “beyond that which is necessary to express the court’s disapproval of the conduct in issue.” This is because denying a party the right to participate at trial may lead to factual errors giving rise to an injustice, which will erode confidence in the justice system.

[34] This court recognizes that if the applicant prevails at trial with respect to both her position on property and on the respondent's income, that she will still be entitled to an equalization payment and that she is likely to encounter difficulty in enforcing the arrears that have accumulated to date pursuant to the order of Justice Nelson of May 9, 2005. As that order remains in force until changed at trial, she is entitled to some protection.

[35] With respect to the relief claimed by the applicant and in accordance with the primary objective of these rules and recognizing that to provide for a just determination of the issues this court has authority to make orders as it deems appropriate, it is ordered as follows:

(a) The applicant may forthwith attend at the business premises of the respondent and take copies of all ledger entries and whatever other documentation she deems appropriate, at her expense, without prejudice to reapportionment by the trial judge;

(b) The applicant has leave to encumber the matrimonial home up to the sum of $48,206.80 which represents the sum requested by the applicant before Justice McGee, less the $20,000 already advanced. The respondent shall consent, as may be required, to the registration of a line of credit secured against the home in this amount and shall be responsible for payment of interest only from the date of registration until the determination by the trial judge is released at which time the line of credit shall be discharged, unless the trial judge orders otherwise;

(c) The respondent shall forthwith provide to the applicant a collateral mortgage to be registered against the property, municipally known as 65 Anjac Crescent, Markham Ontario, in the amount of $49,615.68 representing security for the quantum of arrears alleged to owing at the date of the motion. The collateral mortgage shall remain in place subject to the determination of the trial judge;

(d) The applicant has leave to serve and file her own CBV report, if so inclined, 30 days prior to trial;

(e) The issue of schooling for the child is to be added to the agenda for trial without the amendment of pleadings. The onus shall be on the respondent to seek a change of the temporary order of Justice Nelson, dated May 9, 2005;

(f) This matter is to be given priority for the trial sittings at Newmarket commencing in November, 2013, with the trial coordinator to make note that the parties have indicated that if a courtroom becomes available at another courthouse the parties would travel to Oshawa or Barrie, in order of preference; and,

(g) There are to be no further motions brought in this matter without the prior permission of the case management justice to be requested by 14B, on notice.

[36] Under rule 24, there is a presumption that a successful party is entitled to the costs of a motion. Success on this motion has been divided and in light of the relief requested, the court finds that the respondent has been more successful. Under rule 24(6), if success in a step in a case is divided, the court may apportion costs as appropriate. Under rule 24(4), despite the presumption as set out in subsection (1), a successful party who has behaved unreasonably during the case may be deprived of all or part of the party’s own costs. If this court was determining this issue today, it would not award costs in favour of the respondent as to do so could be interpreted as condoning non-compliance with court orders. Under rule 24(10), the onus is on this court to decide who, if anyone, is entitled to costs and set the amount of costs. Ultimate success of this motion can only be determined after a trial when the court is able to hear evidence and make a determination as to income and award support thereon. Whereas this court has made a determination that the respondent is not in breach of the order of May 9, 2005 with respect to the joint valuation, the remaining findings of this court can best be reviewed after hearing of the evidence and as such the costs of this motion shall be reserved to the trial judge. At that stage, the trial judge will be in the best position of considering the reasonableness or unreasonableness of each party’s behaviour in the case and any other relevant matter in determining the issue of costs including any offers to settle that may have been served.

Justice R. Kaufman

Release Date: August 9, 2013

Sharma v. Sunak, 2013 ONSC 5195

Case Summary

RULING ON MOTION

Introduction

BACKGROUND

ANALYSIS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 5

Legal Tests 1