COURT FILE NO.: FS-11-367118
DATE: 2013/10/07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jillian Bassett, Applicant
AND:
Matthew Bassett, Respondent
BEFORE: Czutrin J.
COUNSEL:
Harold Niman and Erin Chaiton-Murray, for the Applicant
Matthew Bassett, Respondent In Person
HEARD: September 30, 2013
ENDORSEMENT
[1] I have given the Respondent many opportunities to comply with the orders of this court. In particular, he had many opportunities to disclose his income for child and spousal support purposes. He failed to comply and did not appeal any orders.
[2] On November 30, 2012, I struck the Respondent’s Answer after he again failed to comply with court orders. The parties attended before me on September 30, 2013 to follow up on my order to strike the Respondent’s Answer, and address child support and spousal support issues.
[3] On October 1, 2012, I heard two motions brought by the Applicant. The Respondent was represented by counsel at that time. On October 10, 2012, I released my endorsement Bassett v. Bassett, 2012 ONSC 5601. My endorsement reviewed the history of this case and provided the following:
[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 1st of the month ($2,426.50) and 15th ($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.
[4] The Respondent failed to satisfy the terms of my October 10, 2012 order. The Applicant filed a 14B motion to strike his Answer.
[5] I struck the Respondent’s Answer on November 30, 2012. I gave him until January 10, 2013 (30 days) to comply with my October 10, 2012 order and bring a motion to satisfy me of his compliance. If the Respondent failed to comply, the Applicant was entitled to proceed by way of uncontested hearing.
[6] On March 1, 2013, I released an endorsement that again reviewed the history of this case, including the Respondent’s opportunities to make disclosure and provide an expert opinion on his income. I gave him time extensions to make disclosure and get an expert opinion. I wanted to allow the “Respondent to show good faith efforts as the existing support now asked to be made final was anticipated to be reviewed and adjusted once the Respondent provided a level of disclosure that would allow me or some other judge to have the best evidence available to determine the Respondent’s income.”
[7] My March 1, 2013 endorsement granted the divorce, made a final order of custody, continued the access on a temporary basis, and fixed costs. I endorsed that I would like to hear evidence on child and spousal support. I also provided counsel opportunity to appear to address whether the Respondent would participate at the hearing (because I struck his Answer).
[8] On April 2, 2013, counsel appeared for both parties to address the Respondent’s level of participation at the hearing. I released my endorsement Basset v. Basset, 2013 ONSC 2081 on April 11, 2013. In my endorsement, I set July 23, 2013 as the date for the hearing. It was ultimately postponed to September 30, 2013.
[9] In my April 11, 2013 endorsement, I concluded the following:
[23] As I started, the challenge is the reality that to this date, he has fallen into considerable arrears and I expect that the Applicant will ask me to impute income to the Respondent without the best evidence. The Respondent claims that he owes a great deal of money and in particular for taxes. He has submitted that he may have to go bankrupt. There is both child and spousal support in issue.
[24] There is a good chance that he will not comply with the support order that may be fixed and the issue will return in the future. The Applicant will of course need to present the best evidence she can as to the Respondent’s income. To allow the Respondent to cross examine the Applicant without disclosure and to increase her costs is unjust.
[25] Until May 31, 2013, the Respondent may serve on Applicant’s counsel any third party documents that might help establish his income from separation to May 31, 2013. By third party documents I include the disclosure ordered to date and would include any financial statements of companies that he is shareholder of, corporate and personal tax returns, credit card statements previously ordered, and any certified to be true documents from the CRA. The financial statements should include source and backup documents, invoices, bank and credit card statements.
[26] The Respondent to also serve an up-to-date and completed Financial Statement (complete) by May 31, 2013.
[27] When the Applicant presents her case, she is to disclose what she has received, not as her evidence, but to establish what she has received. She may then decide how she wants to address such disclosure by her evidence or other witnesses
[28] The Applicant shall provide a draft of the Order of what she will ask the court to make as a Final Order.
[29] The Applicant may call the Respondent for purposes of cross-examination, but is not obliged to call him.
[30] The Respondent shall produce a draft Order of the Final Order he may wish the court to make.
[31] The Respondent may make submissions, but may not participate in any other manner. Submissions are restricted to the evidence that will be presented to the court on the return date and is not an opportunity to give evidence directly.
[32] Costs will be addressed at the conclusion of the hearing. [Emphasis Added.]
[10] The Respondent attended the hearing on September 30, 2013. As has been his approach throughout the case, he failed to provide anything to assist me by May 31, 2013. He waited until September 25, 2013 to prepare an affidavit, contrary to my April 11, 2013 endorsement. The Applicant quite appropriately objected.
[11] There is no financial statement or any other documentation that I identified the Respondent could serve by May 31, 2013.
[12] For information purposes only, I note that his affidavit included a Notice of Intention to Make a Proposal dated April 26, 2013 pursuant to s. 50.4 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3. The Notice of Intention lacks detail, such as a list of creditors. The Respondent also attached Notices of Assessment for 2010, 2011, and 2012 all dated in June and July. They provide little assistance as there are no actual returns and no financial statement.
[13] In earlier material filed by the Respondent (2009 Income Tax Return and April 13, 2011 Financial Statement), the Respondent’s income appeared to be dividend income from his interest in companies.
[14] In his April 13, 2011 Financial Statement, he claimed income tax liability of $450,000. Yet, his 2010, 2011, and 2012 Notices of Assessment suggest a considerably smaller amount of income tax liability. I am aware that some may be corporate rather than personal liabilities.
[15] The Respondent failed to provide proper disclosure despite the many court orders and opportunities. Absent proper disclosure, I am in no better position to determine his income, assets, and liabilities than I was when I first touched this case over two years ago.
[16] The Applicant’s evidence suggests that the Respondent lives in an expensive home with his new partner, drives expensive automobiles, and carries on businesses.
[17] The Respondent submits that his income is between $48,000 and $75,000 based on his personal Notices of Assessment. He also asks that I allow him more time with his child.
[18] Without better evidence, the proposed order (attached) is to issue, but I additionally order as follows:
a. After paying costs ordered to date, the Respondent may return the issue of access to the child but no earlier than July 1, 2014.
b. After paying spousal support, child support and all costs to date, the issue of quantum of child support and quantum and continuing spousal support may be returned to the court de novo but only if the Respondent provides proper and up to date disclosure as previously ordered, including an income report.
c. The disclosure must also include complete detail of his consumer proposal, including a list of all creditors and the terms of any accepted consumer proposal and payments made.
Czutrin J.
Date: