CITATION: Mazza v. Mazza, 2015 ONSC 2117
COURT FILE NO.: FS-11-00372824-000
DATE: 2015-04-07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tracey Ann Mazza
AND: Vincenzo Mazza
BEFORE: Justice Moore
COUNSEL: Jeffry Radnoff, for the Applicant
Paul Pellman, for the Respondent
DATE HEARD: March 31, 2015
E N D O R S E M E N T
[1] Tracey Ann Mazza (“Tracey”) and Vincenzo Mazza (“Vince”) have been involved in this litigation since the spring of 2011; yet, incredibly, Vince has yet to complete pleadings and disclosure obligations necessary to moving it forward to a determination of divorce and corollary issues. The motion at issue here arises from unrequited serial offers of second chances.
[2] Tracey has afforded Vince many and generous opportunities to comply with the Family Law Rules and the several orders of this court regarding Vince’s still outstanding disclosure obligations; Tracey resists this motion to set aside the default Divorce Order issued by Paisley J in August of 2013.
[3] Tracey submits that Vince is the author of his own misfortune[^1] and that he has been deprived of his ability to fully participate in this litigation because of his own failure to comply with the Rules and with court orders and the deadlines that they imposed.
[4] She points out that Vince has had legal representation at least since December of 2011 and has been given many extensions of time to bring himself into compliance but he has not done so and has yet to provide a reasoned, reasonable explanation for his failure and/or any indication of when he might ever be ready to comply.
[5] In his latest affidavit[^2], Vince asserts that he was unable to file an Answer in this litigation because of outstanding income tax issues that prevented him from completing and filing a Financial Statement with appropriate tax returns appended. He added that his projected timeline for completion of his tax returns would be March 2, 2015 and that upon completion, he would immediately send all of his income tax information and an updated Financial Statement to Tracey.
[6] Vince also filed affidavit evidence on this motion from Omri Dor, a chartered accountant who Vince retained in September 2014. Mr. Dor states that he and Vince have worked diligently although he did not specify particulars of his scope of work, the information and documents available to him and services that he actually rendered. He admitted to a hiatus period in December of 2014 and January of 2015 but by January 30, 2015, Mr. Dor states that he and Vince “established a plan of action”.
[7] Mr. Dor concluded his affidavit saying that his objective was to complete addressing Vince’s very complicated personal tax situation by the end of February of 2015 and that Mr. Dor would then have to prepare and file approximately 20 returns.
[8] In answers Vince gave during questioning in October of 2014, he confirmed that he had filed “nil returns” for the previous 10 years indicating that he earned nil income in those years but he also confirmed that he was up to date with tax return filing obligations in those years.
[9] He further confirmed that nil income earned in those years was clearly not the case and that he would need to go back and refile returns for all of those years. This evidence is contradicted by Vince’s affidavit evidence[^3] stating that he was unable to file his answer in this litigation because he was unable to complete his income tax returns. He supported that statement by attaching an exhibit[^4] clearly saying:
We have been unable to file the [Answer] because of the need for a sworn financial statement which attaches income tax returns and notices of assessment which at this point do not exist as they are being completed.
[10] On this issue, there is also evidence from Tracey[^5] confirming Vince’s position that he had not filed an income tax return in the last 3 years.
[11] If “nil returns” were, in fact, filed with the Canada Revenue Agency, neither Vince nor Mr. Dor made reference to any in their February 2015 affidavits and none have been produced to Tracey. This is troubling but even more troubling is the fact that the court is left with no evidence explaining the long delay in preparing and delivering tax returns and an accurate Financial Statement in this case.
[12] Vince asserts that his delay[^6] following the time he learned the default judgment was caused, at least in part, by being depressed by his need to complete over 10 years of income tax returns, a task that seemed insurmountable.
[13] Mr. Dor refers to Vince’s illness and the holidays delaying his efforts in December of 2014. Whatever illness Vince may have had in 2014 is not identified in the materials before me. Whether Vince was clinically depressed and, if so, the effect of such illness upon his obligations to the orders and process of this court is not in evidence either.
[14] The parties agree that they attended a case conference on December 12, 2011 and agreed there that Vince would provide a Financial Statement, financial disclosure, proof of income for the previous 4 years and his last 3 years of tax returns by January 13, 2012. He did not comply.
[15] The parties attended a further case conference on February 27, 2012; on that occasion, Justice Mesbur ordered Vince to provide documentation to show his income for the previous four years within 30 days, along with tax returns for the previous four years and that he produce the balance of his disclosure and an Answer and a Financial Statement within 30 days. He is in default of that order.
[16] In light of his ongoing default, a settlement conference scheduled for May 30, 2012 was adjourned. Tracey requested confirmation from Vince's accountant that steps were being taken to prepare his income tax returns. That confirmation did not arrive for many months and, as noted above, the accountant’s evidence is not as complete and helpful as it should be on a motion such as this.
[17] On July 25, 2012, Justice Stevenson ordered that Vince must provide his full income tax returns, including all schedules, slips and other documents filed with the tax returns for 2004 and following within 60 days. Vince remains in breach of that order. Her Honour’s endorsement is germane for it confirms that Vince was not then diligently attending to the obligations upon him in this action. She stated:
The applicant has been attempting to move forward with this matter for 15 months. There have been two case conferences and two adjournments of settlement conferences due to the respondent's delay in complying with court orders….The disregard of court orders by the respondent cannot be condoned. I therefore order the respondent to pay the applicant the sum of $2000 payable forthwith.
[18] The evidence is clear that Tracey followed up repeatedly in and after 2012 for the information and documentation that Vince undertook to and that the court ordered him to provide. In 2014, Tracey took steps to collect upon the outstanding default judgment. At that point, Vince moved to set aside or vary the terms of the Divorce Order. On December 18, 2014, Justice Kiteley made a preservation order an order that Vince provide monthly bank account statements and provided timelines for delivering materials leading to this motion. Vince failed to comply with the reporting requirements of that order in a timely fashion.
[19] Vince admits that he should have acted more efficiently and effectively in his disclosure obligations but he points to case law[^7] confirming that on a motion to set aside a default judgment, the court will consider five factors, one of which involves whether the facts establish at least an arguable defense. In the Education Invention Centre case, Justice Perell stated[^8] that the factor of showing a defence on the merits is particularly important, because it may justify the court exercising its discretion to set aside the default judgment, even if the other factors are unsatisfied in whole or in part.
[20] In the instant case, Vince insists that he has a viable defense to at least some of the claims that Tracey raises in this litigation. Until he provides complete financial disclosure as required by the Family Law Rules and court orders, it is impossible to assess whether he has raised a defense with an air of reality to it and one that raises a genuine issue requiring a trial on the merits in the unique circumstances before me.
[21] In his affidavit evidence, Vince submits that the Divorce Order is a default judgment calling for a lump sum spousal support payment and an equalization payment; he insists it is flawed. In respect of spousal support, Vince submits that his income was not reflected accurately in the calculation of the lump sum payment and could not be properly determined because he had yet to complete his income tax returns for those years.
[22] With respect to the income imputed to him by Justice Paisley he insists that the information before the court was inaccurate.
[23] Vince further submits that the equalization payment ordered does not justly reflect the situation of the parties. He suggests that there was a double counting of his interest in a company and a difference of over $500,000 in terms of date of marriage savings. These discrepancies, he says, have the impact of negating any equalization payment owing to the applicant.
[24] What makes this case unique is the fact that Vince has repeatedly undertaken to provide full, fair disclosure on all financial issues and has been ordered to do just that. He has not taken steps to appeal any of the orders of this court and he has not adequately explained why he has not complied with each and every order in a timely fashion. In my view, it is not reasonable for Vince to consent to providing financial disclosure and to flaunt orders of the court in that regard and then insist that financial issues that inform any realistic defence he proposes to plead should be ignored simply because he baldly insists he may have a viable defence on one or more of those issues
[25] In Davis, the Court of Appeal stated that circumstances leading to a default judgment in a Family Law case may differ from those in other cases. Rouleau J.A. wrote:
While I consider the Lenski v. Roncaioli test to be a useful guide, it was designed for cases of default judgment in circumstances that are substantially different from the case at bar. In the present case, the genesis of the order was a failure to comply with a previous order.[^9]
[26] The genesis of the default judgment in the instant case was Vince’s failure to provide financial disclosure, this notwithstanding court orders to do so.
[27] In these circumstances, the court looks to the impact of conduct, such as that evidenced by Vince over the past many months, upon the administration of justice. In the Vacca case, Ferrier J put it this way:
Repeated delays and failures to comply with procedural orders affect not only the parties to the action. They significantly increase the cost of the administration of justice due to the impact on administrative and judicial resources. Repeated breaches of orders must attract significant sanctions otherwise the case management rules will become ineffectual and the ultimate goal of the rules will be unattainable.[^10]
[28] What Ferrier J said of the adverse impact of non-compliance with court orders in the context of case managed actions applies equally to this case.
[29] In Nashid, Herman J recognized that striking a person’s pleadings is an extreme remedy It it is warranted where, as here, non-compliance has continued over a lengthy time with no indication or evidence that the litigant intends to comply with court orders in future and there comes a point at which the court cannot give further indulgences, in the interests of fairness to the other side and the administration of justice.[^11]
[30] This case is similar in its facts to Horzempa where O’Connell J. took a dim view of the conduct of the respondent who had ignored orders of this court. The court found that it:
cannot lose sight of the fact that this motion is a process that Mr. Ablett invoked, a process that he wants the court to entertain on a mountain of historical noncompliance by him and absolutely no attempt to bring himself into compliance or to adequately explain that noncompliance.
Regrettably Mr. Ablett sees the court process as a one-way street, admitting of all kind of excuses on his behalf while excluding the right of the other party to get even a modicum of justice, much less satisfaction from the various court orders that sit as paper testament to their existence, but holy lack the ability to be enforced.[^12]
[31] Mr. Ablett appealed this decision. In a per curiam decision, the court concluded:
At the end of the day, we are satisfied that the appellant is the author of his own misfortune. He has only been deprived of the right to fully participate in the proceedings because of his own failure to comply with court orders and to respect the Rules of Court and the deadlines they impose.[^13]
[32] Vince has been promising but not producing appropriate, complete financial disclosure since December 2011. He has been ordered to provide disclosure repeatedly; he has provided conflicting evidence about the state of his CRA filings and his attempts to remedy any mis-information he has provided to tax authorities. He has not provided reasonable explanations for his delays and failures to comply with court orders. He has not moved promptly to set aside the default judgment. His conduct adversely impacts the overall integrity of the administration of justice.
[33] Even if Vince had an arguable defence, he cannot now be allowed to pursue it. I agree with Gray J. that:
The policy underlying the Rules of Civil Procedure[^14] is twofold: to ensure that cases that are not settled are tried on their merits; and to ensure that cases are processed and heard in an orderly way. A civilized society must ensure that a credible system of justice is in place and the Rules of Civil Procedure made pursuant to the Courts of Justice Act reflect the scheme created by the Province for the orderly handling of civil cases.
The Rules reflect at balance. The litigant does not have an untrammeled right to have his or her case heard. In order to be heard, a case must be processed in accordance with the Rules…[^15]
[34] For these reasons, I conclude that Vince has forfeited his opportunity to participate in this litigation. The Divorce Order of Paisley J will not be varied or set aside.
[35] Tracey shall recover reasonable costs of this motion, including costs directed by Kiteley J to be fixed by the motion judge, in amounts to be agreed upon between the parties or fixed by me. In the event that the parties are not able to resolve costs issues, they may serve and file written submissions, not to exceed three typed, double spaced pages each and supported by Tracey’s Bill of Costs and other relevant supporting material.
[36] Tracey’s costs submissions must be filed within 30 days in the Family Law office for my attention; Vince’s responding submissions must be filed within 15 days thereafter. No Reply submissions will be received.
Moore J.
DATE: April 7, 2015
[^1]: Horzempa v. Ablett [2011] CarswellOnt 10739 (S.C.J.), as affirmed by the Ontario Court of Appeal [^2]: Dated February 12, 2015 [^3]: February 12, 2015 at para 11 [^4]: Exhibit E, September 27, 2012 letter from Mr. Pellman to Tracey’s lawyer , Ms. Nicoll [^5]: Affidavit od March 13, 2015, para 6 and Exhibit E (December 7, 2011 letter from Mr. Pellman to Ms. Nicoll) [^6]: In and after August 2013 [^7]: Education Convention Center of Canada v. Algoma University, 2015 ONSC 1200, at paras 5-7 [^8]: At para 7 [^9]: Davis v. Morris, 2006 8196 (ON CA), [2006] 146 ACWS (3rd 961 ()nt. CA), at paras 14 and 15 [^10]: Vacca v. Banks, 2005 CarswellOnt 146, at para 23 [^11]: Nashid v. Michael, 2012 ONSC 675, at paras 34-35. [^12]: Horzempa v. Ablett, 2011 ONSC 2001, at paras 28-29. [^13]: Horzempa v. Ablett, 2011 ONCA 633, at para 10 [^14]: And, in my view, the Family Law Rules [^15]: Broniek-Harren v. Osborne, 2008 CarswellOnt 2544, at paras 28-29