ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-09-67350-00
DATE: 2014-06-05
B E T W E E N:
NADESAN RAJAKULASEGARAM
Robert W. Wilson, for the Applicant
Applicant
- and -
VASUKI NADESAN
Unrepresented, for the Respondent
Respondent
HEARD: May 29, 2014,
at Brampton, Ontario
Price J.
Endorsement
NATURE OF MOTION
[1] When the grocery store business that Mr. and Ms. Nadesan operated together for a few months in 2007 failed at the end of that year, their marriage ended. Mr. Nadesan attributes the failure of the business to his wife’s abrasive manner with customers and suppliers, and says that it resulted in his losing about $300,000 that he had drawn from his Line of Credit. Mr. Nadesan, then 51 years old, separated from his wife on January 14, 2008, and returned to work as a salaried employee, first managing a Mr. Lube business in Windsor for a short time and then, since January 2009, managing Interstate Batteries, a large supplier of automotive, truck and other batteries, in Kitchener.
[2] Ms. Nadesan, who was then employed as a payroll benefits administrator with Caterpillar Tunneling, remained in the matrimonial home with the parties’ son, Neelan, who was then 14 years old.
[3] Mr. Nadesan began the present proceeding in October 2009, seeking a divorce, joint custody of the parties’ son, Neelan, and equalization and sale of family property. Ms. Nadesan, in her Answer, claimed custody of Neelan, child support, and an unequal division of family property.
[4] On April 2, 2014, Ms. Nadesan moved for interim child support for Neelan and an order appointing a forensic accountant to audit Mr. Nadesan’s businesses. By then, the parties’ investment cottage in Niagara-on-the-Lake had been sold under power of sale. On April 25, 2014, Mr. Nadesan moved for summary judgment dismissing his wife’s claim for unequal division of family property and her motion for a forensic audit.
[5] Mr. Nadesan now moves for an order requiring Ms. Nadesan to respond to a Request for Information that he delivered to her on April 28, 2014, an order striking Ms. Nadesan’s affidavit, and, if necessary, for a revision of a timetable which the court established in April for the hearing of his motion for summary judgment. Ms. Nadesan, who is self-represented, says that she recently secured new employment, was not consulted in advance about the date for Mr. Nadesan’s motion, and was unable to attend a hearing of the motion on May 29th without jeopardizing her new employment.
BACKGROUND FACTS
[6] Nadesan Rajakulasegaram (“Mr. Nadesan”) and Vasuki Nadesan (Ms. Nadesan”) are from Sri Lanka. They married in Alberta in 1992, after emigrating to Canada from England - Mr. Nadesan in 1986, and Ms. Nadesan in 1987. After they married, Mr. Nadesan, who had obtained a diploma in automotive engineering and a post-graduate degree in industrial management in England, worked at a series of positions in the automotive retail industry in Ontario, beginning as an salaried employee (managing a gas bar for Canadian Tire Corporation (“CTC”) from 1992 to 1997, and later as a CTC franchisee from 1997 to 2002, first operating a Pitstop franchise, and later a gas bar franchise, and later as a PartSource franchisee in St. Catharines from 2002 to 2004 and as a Shell Canada gas station franchisee from 2004 to 2006. Finally, in 2007, he bought three condominium units in which, for several months in the fall of 2007, he operated an Asian supermarket with the help of his wife. That business failed, causing Mr. Nadessan, he says, to lose in excess of $300,000 that he had drawn from a Line of Credit to finance the business’ operation.
[7] Ms. Nadesan remained in the matrimonial home when the parties separated. The home was later sold. Ms. Nadesan was employed as a payroll benefits administrator for Caterpillar Tunneling until February 28, 2014, when she was laid off. She recently secured new employment, which she commenced on May 26, 2014.
[8] Mr. Nadesan began the present proceeding by application issued October 8, 2009, in which he claims a divorce, joint custody of the parties’ son, Neelan, who is now finishing undergraduate studies, and equalization and sale of the parties’ family property.
[9] Ms. Nadesan delivered an answer in which she claims custody of Neelan, child support, and an unequal division of family property. She states that Mr. Nadesan has failed to account for substantial funds that he invested in his various franchises and in the grocery store business, including, she says, $53,000 which he persuaded her to withdraw from an RRSP.
[10] At a Case Conference on June 7, 2013, Snowie J. ordered Ms. Nadesan, who had been self-represented since her lawyer was removed from the record on May 28, 2013, to produce documents concerning the sale of the matrimonial home and the parties’ investment cottage in Niagara-on-the-Lake. She also ordered Mr. Nadesan to provide financial disclosure.
[11] A Settlement Conference proceeded before Andre J. on September 12, 2013. Mr. Nadesan delivered a disclosure brief at the conference, but Ms. Nadesan required additional disclosure with regard to the businesses Mr. Nadesan had owned previously. On consent, Andre J. ordered him to produce this additional financial disclosure within 60 days.
[12] Ms. Nadesan, alleging that Mr. Nadesan had failed the produce the disclosure required by Andre J.’s order, moved on December 10, 2013, for an order appointing a Forensic Accountant to audit Mr. Nadesan’s businesses from 1992 to the present. At a hearing on January 3, 2014, Mr. Nadesan delivered further disclosure material, and Barnes J. ordered Ms. Nadesan to review it and advise the Settlement Conference judge whether Mr. Nadesan had complied with Andre J.’s order. He further ordered that Ms. Nadesan could raise the issue of a forensic audit at the Settlement Conference. He ordered Mr. Nadesan to advise Ms. Nadesan by February 28, 2014, whether he required additional information from her.
[13] Following the Conference before Barnes J., Mr. Nadesan delivered a Request for further Financial Information to Ms. Nadesan on February 28, 2014.
[14] A further Settlement Conference took place before Fragomeni J. on April 1, 2014. Mr. Nadesan advised at that time that he intended to move for summary judgment dismissing Ms. Nadesan’s claim for an unequal division of family property and for a forensic audit. Fragomeni J. set out a timetable for the motion, as follows:
a) Mr. Nadesan to deliver his motion by April 25, 2014;
b) Ms. Nadesan to deliver her response by May 16, 2014;
c) Rule 20 Questioning to be conducted by June 6, 2014;
d) Mr. Nadesan to deliver his factum by June 18, 2014;
e) Ms. Nadesan to deliver her factum by June 25, 2014;
f) The motion to be heard as a long motion on July 7, 2014, for an estimated 3 to 4 hours.
[15] Mr. Nadesan served his motion on April 25, 2014 and filed it May 7th. His motion is for summary judgment pursuant to Rule 16 of the Family Law Rules, striking out Ms. Nadesan’s claim for unequal division of N.F.P. under s. 5(6) of the Family Law Act on the ground that Mr. Nadesan had no Net Family Property and had not engaged in conduct that warranted a finding that equalizing the parties’ NFP would be unconscionable. Mr. Nadesan also requests a finding that he has complied with the disclosure orders of Snowie J. dated June 7, Andre J. dated September 12, and Barnes J. dated January 3, 2014, and that requiring further disclosure from him would be disproportionate.
[16] In his endorsement of April 1, 2014, Fragomeni J noted that Ms. Nadesan intended to move for interim spousal support and interim child support, for disclosure, and for appointment of a forensic accountant to prepare a report “relating to the has-beens financial circumstances”. He stated: “The respondent [wife] will prepare and serve her Notice of Motion on the applicant in due course”.
[17] On April 2, 2014 (that is, the day after the Settlement Conference before Fragomeni J.), the wife delivered a Notice of Motion, for hearing April 22, 2014, for interim child support and spousal support and for the appointment of a forensic accountant. On April 22, 2014, Bielby J. adjourned her motion to May 15 and required her to file a fresh financial statement and affidavit by April 25, 2014. He ordered Mr. Nadesan to deliver his response by May 8, 2014.
[18] On May 12, 2014, Mr. Nadesan moved, for hearing on May 15th, for an order pursuant to Rule 13(11)(b) of the Family Law Rules requiring Ms. Nadesan to respond to his Request for Further Financial Information, delivered to her on April 28, 2014. On the same day, Ms. Nadesan delivered an affidavit to which she attached a fresh financial statement, sworn May 12, 2014. Her material also included the following:
a note prepared by the respondent wife Vasuki Nadesan. Explanation for the additional information requested by the applicant husband’s lawyer Mr. Robert Wilson.
Ms. Nadesan also attached a doctor’s note, explaining that she had suffered from severe gastroenteritis from May 2 to 12, 2014, which had prevented her from attending “to her legal duties.”
[19] On May 15, 2014, Barnes J dismissed Ms. Nadesan’s motion for interim support and for a forensic audit of Mr. Nadesan’s businesses. He wrote, in part:
Due to the current state of the evidentiary record, the respondent’s motion is dismissed, without prejudice to her to recommence motion, once the questioning is completed and a new evidentiary record is prepared.
[20] Barnes J. additionally ordered Mr. Nadesan to make himself available for questioning on an unspecified date, and for Ms. Nadesan to be questioned within 20 days thereafter. He added:
It is recommended to the respondent to seek the advice of counsel or duty counsel on the issues of questioning and the preparation of a proper evidentiary record before pursuing further the relief she seeks.
Mr. Nadesan’s Current Motion
[21] On May 20, 2014, Mr. Nadessan moved, pursuant to Rule 14(22) of the Family Law Rules, for an order striking Ms. Nadessan’s affidavit sworn May 16, 2014, and, if necessary, varying the timetable set by Fragomeni J. in his endorsement dated April 1, 2014. He submits that Ms. Nadesan’s affidavit does not set out the facts she relies on, as required by Rule 16(4.1) of the FLR.
The Facts Relevant to Ms. Nadesan’s Motion for Child and Spousal Support
[22] Mr. and Ms. Nadesan were married in 1992 and were together for 16 years, separating on January 14, 2008. In the meantime, Mr. Nadesan sold the inventory of his Shell service station franchise and moved to Windsor, Ontario, where he secured employment as manager of a Mr. Lube business, which he held until January 2009. He then secured employment as a manager of Interstate Batteries in Kitchener. He is still employed with that company, where he earned $84,231 in 2013. His income in the two preceding years was $76,173, in 2011, and $74,376, in 2012.
[23] Until early this year, Ms. Nadesan was employed as a payroll benefits administrator at Caterpillar Tunneling, where she earned $69,999.96 in 2013. Her income in the two preceding years was $76,354 in 2011 and $72,023 in 2012. She was laid off at Caterpillar on February 28, 2014, and only very recently secured alternative employment, which she began on May 26, 2014, the details of what she has not yet disclosed.
[24] The parties’ matrimonial home in Mississauga, which had been transferred to Ms. Nadesan during their marriage, was sold following their separation. Their investment cottage in Niagara-on-the-Lake was lost in a proceeding under Power of Sale.
[25] The parties have one child, a son, Neelan Aaron Nadesan, who is now 21 years old (born May 6, 1993). Neelan is currently in full-time attendance in postsecondary studies in engineering program at the University of Ontario Institute of Technology (UOIT). He rents a room where he lives while attending classes, returning to his mother’s on weekends and on holidays.
[26] Ms. Nadesan makes a substantial claim for retroactive child support, which she says Mr. Nadesan has not paid since the parties separated in 2008. She also claims repayment of $53,000 that she withdrew from her RRSP and loaned to Mr. Nadesan to enable him to invest in his grocery store business in 2007.
Ms. Nadesan’s Request for Adjournment
[27] Ms. Nadesan has informed the court that she was unable to attend on May 29, 2014, for the hearing Mr. Nadesan’s motion to strike her affidavit sworn May 16, 2014, because she had just begun new employment on May 26. She states that she was not consulted in advance regarding the date of the motion, although Mr. Nadesan’s lawyer says that after he served the motion, he offered to change the date of the hearing to accommodate her.
[28] The adjournment will not cause prejudice to Mr. Nadesan that cannot be compensated by costs. Additionally, Mr. Nadesan does not oppose an adjournment, on terms that permit him to conduct the questioning of Ms. Nadesan as provided for by Fragomeni J.’s order dated April 1, 2014.
[29] Ms. Nadesan informed Mr. Wilson that she would be available to attend for questioning on June 6, 2014. It can therefore be inferred that she is available to attend court that day instead, for the hearing of the motion. The motion is urgent as Mr. Nadesan seeks, among other relief, to change the timetable that Fragomeni J set on April 1, 2014, for the hearing of Mr. Nadesan’s summary judgment motion on July 7, 2014. It should therefore be given priority over the questioning.
CONCLUSION AND ORDER
[30] Based on the foregoing it is ordered that:
Mr. Nadesan’s motion to strike Ms. Nadesan’s affidavit and, if necessary, to revise the timetable for his motion for summary judgment, is adjourned June 6, 2014 at 10:00 a.m.
Ms. Nadesan shall, in the intervening week, deliver and up to date financial state in form 13.1, reflecting her current earnings. She shall also produce to Mr. Nadesan her contract of employment, if any, and her most recent pay stub.
If any medical condition has accounted for Ms. Nadesan’s failure to attend today, she shall also deliver an affidavit attaching a medical report, or her treating physician’s clinical note, concerning her condition.
Costs of today are reserved to June 6, 2014 before the justice hearing the motion on June 6, 2014
Approval of this order as to form and content is dispensed with.
Price J.
Released: June 5, 2014
COURT FILE NO.: FS-09-67350-00
DATE: 2014-06-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NADESAN RAJAKULASEGARAM
Applicant
- and -
VASUKI NADESAN
Respondent
ENDORSEMENT
Price J.
Released: June 5, 2014