SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 29152/07
DATE: 2013-01-23

RE: SUDHIR PANDYA, Applicant

AND:

SANGREETA PANDYA, Respondent

BEFORE: MURRAY J.

COUNSEL:
Sudhir Pandya, Self-Represented

Alexandra Seaton, Counsel for the Respondent

HEARD: January 9, 2013

ENDORSEMENT

MURRAY J.

The Motions Before This Court

[1] There are two motions before the Court. One motion - a motion to change a final order - is brought by the applicant and one motion is brought by the respondent.

[2] January 9, 2013 was the date set by the court to hear the applicant’s motion to change. By previous court order, the January 9th return date was made peremptory to the applicant.

[3] The respondent, Sangeeta Pandya, in her motion seeks an order striking the applicant's pleadings and various other orders more specifically dealt with below.

The Applicant's Motions to Change

[4] The applicant initiated a motion to change the support provisions of two orders of this Court: the orders of Justices Quigley and Hourigan dated April 24, 2008 and April 22, 2010 respectively.

[5] The applicant’s motion to change was commenced in this court on October 7, 2011. The matter has been adjourned on multiple occasions since it initially began. A settlement conference scheduled before Justice Coats on December 12, 2012 was attended by the respondent but the applicant did not attend and the settlement conference did not proceed. As a result, the applicant was ordered to pay to the respondent costs in the amount of $1,500 to be enforced by FRO.

[6] The applicant’s motion to change was also set down for December 12, 2002. On that day, the respondent and her counsel attended and waited until late in the afternoon but again the applicant did not attend. The motion was therefore adjourned to Wednesday, January 9, 2013 peremptory to the applicant. The respondent was awarded costs for December 12th in the amount of $2,000 in any event of the cause.

[7] The applicant did not appear in court on January 9, 2013 pursuant to the order of December 12, 2012. It would appear that the applicant has elected not to participate further in the proceedings before the court.

The Respondent's Motion Returnable January 9, 2013

[8] The respondent has also brought her motion returnable January 9, 2013 with notice given to the applicant in accordance with previous court orders relating to the manner of service of documents on the applicant.

[9] The respondent asks that the applicant’s motion to change be struck and seeks her costs with respect to the costs incurred in responding to the motion and, in addition, she seeks other relief relating to enforcement of outstanding orders.

The Facts

[10] The applicant and the respondent were married in Nairobi, Kenya on August 11, 1984. Together they had two children, Sarit and Sonam, born on September 10, 1990 and November 5, 1991 respectively.

[11] The parties were divorced by order of the court dated April 24, 2008.

[12] On April 24, 2008, Justice Quigley granted the parties a divorce and further issued a consent order which provided that the applicant was to pay child support in the amount of $5,565 per month retroactive to January 1, 2008 for the two children of the marriage and further provided that the applicant was to contribute his proportionate share of section 7 expenses calculated in accordance with section 7 of the Federal Child Support Guidelines. The order of Justice Quigley also provided that the applicant shall pay to the respondent the sum of $9,000 per month as spousal support commencing May 1, 2008.

[13] On April 22, 2010, a final order was made by Justice Hourigan after a trial. The trial resulted in orders that the applicant pay to the respondent $9,000 per month for spousal support to commence on March 1, 2010 and child support for the children Sarit and Sonam in the amount of $5,275 a month, commencing on March 1, 2010. Justice Hourigan held that the order of Justice Quigley of April 24, 2008 was to govern the issue of section 7 expenses.

[14] In the material filed by the applicant in support of his motion to change, the applicant deposed that he had been suffering from illness including depression which adversely impacted on his ability to earn and that his income had been reduced significantly from what it was at the time of the orders of Justice Quigley and Justice Hourigan. From the material filed by the applicant, it would appear the applicant also had significant financial difficulties, including owing significant monies in unpaid taxes to the Canada Revenue Agency.

[15] I observe that from the material filed by both parties in these proceedings, it is not at all clear that the applicant has any ongoing child support obligation for the two children of the marriage who are now over 18 and may both have stopped living at home with their mother and finished their first post-secondary degree.

[16] According to the evidence of the respondent, the applicant has now moved to Dubai. The respondent deposes that the applicant informed her and the two children in September, 2012 that he was in the United Kingdom. In November, the applicant was appointed to the American Hospital in Dubai.

[17] According to the respondent’s evidence, prior to his leaving Canada, the applicant never informed the children of his intention to leave the country and has not communicated with them since August. According to the best information she has, the applicant is currently employed as a gastroenterologist in Dubai and has been so employed since the beginning of November, 2012.

[18] The evidence establishes that the applicant is in arrears with respect to his child support and spousal support obligations. The evidence is that as of December 15, 2012 the aggregate arrears of child and spousal support payable by the applicant to the respondent amount to $123,067.20. These obligations are already subject to support deduction orders made by this court.

[19] In addition, the evidence establishes that based on the applicant's obligation to pay a proportionate share of section 7 expenses, the applicant owes the respondent an additional $56,466.66 calculated as of November 2, 2012. The respondent is entitled to an order that this amount also be enforced pursuant to a support deduction order.

[20] In addition, there are outstanding costs orders, including a costs order of this Court dated December 12, 2012, obligating the applicant pay $2,000 in costs to the respondent.

[21] The evidence of the respondent is that she has incurred $16,004.20 of legal costs in responding to the applicant's motion to change.

[22] The respondent provided evidence that the applicant has an ownership interest in residential real property, that being Lot 109, plan 20 M1006, in the Town of Oakville, known municipally as 2093 Falling Green Drive, Oakville Ontario, L6M OG9. A review of the parcel register (provided to the Court by the respondent in her affidavit material) indicates that the current owners of the property are Sudhir Pandya and Nishi Pandya. According to the respondent, Nishi Pandya is the current spouse of the applicant. The applicant’s ownership interest in this residential property is confirmed by his most recent financial statement in which he states that he has a 50% interest in 2093 Falling Green Dr. valued at $375,000.

[23] According to the evidence of the respondent, in October, 2012 the applicant rented this residence and he currently receives $4,000 per month in rental income from the existing tenants.

[24] The applicant also discloses in his financial statement sworn March 7, 2012, that he has invested in two Ontario companies, being 2176589 Ontario Inc. and 2072497 Ontario Inc. The applicant deposes that he made an investment of $150,000 in 2176589 Ontario Inc. which he describes as a property with a veterinary clinic operating on it since December 2010. The applicant also deposes that he invested $350,000 in 2072497 Ontario Inc. which he describes as an investment in the hotel business.

Analysis

[25] Pleadings should be struck only in exceptional circumstances and where no other remedy would suffice. Here, the applicant seeks a change in existing court orders. The applicant is significantly in arrears, both with with respect to child and spousal support. The applicant has refused to pay costs orders awarded against him. The applicant has not attended at court for scheduled conferences and motions, including failing to attend this day, January 9, 2013, on a date made peremptory to him.

[26] The applicant has ignored court orders obligating him to pay child and spousal support. The applicant has failed to appear for scheduled settlement conferences and motions causing additional cost and inconvenience to the respondent. The applicant has failed to pay court ordered costs to the respondent. The applicant commenced litigation seeking to vary a court order. He has now effectively abandoned that motion. This is an appropriate case to strike his motion to change.

[27] In the circumstances, the respondent is entitled to recover legal costs incurred in responding to the applicant's motion to change on a full indemnity basis. Based on the evidence, these costs are fixed in the amount of $16,004.20. The applicant is entitled to have this amount treated as spousal support and enforced by FRO.

[28] Justice Herold on December 12, 2012 awarded the respondent $2000 in costs which remain unpaid. The respondent is entitled to have these costs treated as spousal support for purposes of enforcement by FRO.

[29] The respondent is entitled to section 7 expenses in the amount of $56,466.66.

[30] As I understand the Family Responsibility and Support Arrears Enforcement Act, 1996, FRO will, in appropriate cases, serve a support deduction order on an income source. FRO does not have all the enforcement rights of a judgment creditor. Furthermore, the support recipient has an obligation to provide the Director with sufficient information needed in order to enforce the order. In this case, the Court is not aware of whether the Director has accurate or sufficient information as may be required in order to enforce payment of arrears owed under previous orders of the Court or respecting other amounts ordered by this decision.

[31] As noted above, there is some evidence that a residential property in Oakville known municipally as 2093 Falling Green Drive, Oakville Ontario, L6M OG9 is 50% owned by the applicant and that this residence is currently leased to tenants for approximately $4,000 per month. The respondent has not provided the name of the tenants or a copy of the lease. Furthermore, as a 50% owner of the property, it is not obvious that the applicant is entitled to all rental income generated by the property.

[32] Similarly, while it is established that the applicant has made investments in 2176589 Ontario Inc. and in 2072497 Ontario Inc., it is not established that he receives income as a result of these investments. Indeed, no information has been given with respect to the head office address, officers or directors of these corporations.

[33] The respondent is not aware of any other potential income sources in Ontario for the applicant.

[34] The Court has been advised that the United Arab Emirates is not a signatory to support enforcement agreements and as a result FRO is unable to enforce support obligations in Dubai pursuant to the Interjurisdictional Support Orders Act.

Conclusion

[35] It is ordered that in addition to the arrears of child and spousal support pursuant to the orders of Justice Quigley and Justice Hourigan (which are already subject to enforcement by FRO), the applicant shall pay to the respondent as spousal support the following amounts:

1. $2,000 for legal costs awarded by this Court on December 12, 2012;

2. legal costs incurred in responding to the applicant's motion to change in the amount of $16,004.20; and

3. section 7 expenses in the amount of $56,466.66.

[36] Support deduction order to issue.

[37] A copy of this decision should be provided to FRO.

MURRAY J.

Date: January 23, 2012