Horner v. Benisasia, 2015 ONSC 335

Horner v. Benisasia, 2015 ONSC 335

COURT FILE NO.: FS-12-2492-00

DATE: 20150119

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CATHERINE JANE HORNER –and – RICK KHOMAL BENISASIA a.k.a. KHOMAL RICK BENIPERSAUD – and - JYOTI JOHAL a.k.a. PRABHJOT KAUR JOHAL

BEFORE: F. Dawson J.

COUNSEL: David Pomer, for the Applicant

Rick Khomal Benisasia, not appearing and no one appearing on his behalf

Leo Klug, for the Respondent, Jyoti Johal

HEARD: January 13, 2015

E N D O R S E M E N T

1The applicant Jane Horner and the respondent Rick Benisasia had an 18-year long common law relationship from July 1993 to September 2011. They have two children together. The children are in their late teens. Mr. Benisasia married the co-respondent Jyoti Johal soon after separating from Ms. Horner.

2During the relationship Ms. Horner and Mr. Benisasia lived in a home registered in Ms. Horner’s name. The home has been sold and the proceeds of sale are held in trust by the real estate lawyer. Trust claims are advanced in the family law proceedings concerning entitlement to those proceeds. However, when Mr. Benisasia declared bankruptcy he did not claim an interest in the home as an asset.

3A number of judges of this court have made interim or temporary orders that Mr. Benisasia pay Ms. Horner child support, spousal support and amounts for household and living expenses. Mr. Benisasia unsuccessfully appealed one of those orders to the Court of Appeal. Numerous costs orders have been made against Mr. Benisasia along the way, which remain unpaid. Those orders total over $58,000. There are also considerable arrears owing to Ms. Horner under the various support orders made against Mr. Benisasia.

4Ms. Horner now moves for the following relief. I paraphrase from the notice of motion returnable January 13, 2015:

1. An order that the amounts owing under the costs orders be treated as child or spousal support to be enforced by the Family Responsibility Office.

2. An order that $60,000 be paid out of the real estate lawyer’s trust account for living expenses.

3. An order that $25,000 be paid out of the real estate lawyer’s trust account to Ms. Horner’s counsel to cover ongoing legal expenses.

4. An order for a new timetable for questioning of the two respondents.

5. An order that Mr. Benisasia’s pleadings be struck or in the alternative that he not be permitted to bring any motion, cross-motion or motion to change or vary any existing order until all court orders have been complied with and all arrears have been paid.

6. An order that Mr. Benisasia post $25,000 as security for costs.

7. An order for a means of substitutional service on Mr. Benisasia by mail upon counsel for Ms. Joyal.

8. In the event Ms. Joyal’s counsel of record no longer acts for her a further alternative means of serving Mr. Benisasia.

9. An order that any costs awarded to Ms. Horner against Mr. Benisasia on this motion be treated as support and enforced by the Family Responsibility Office.

5I will deal with each of these claims for relief in order. Before doing so I observe that Mr. Benisasia did not appear on this motion although counsel for Ms. Joyal did. A comment on the validity of service of this motion is appropriate and will be useful later concerning the request for a means of substitutional service.

6Mr. Benisasia is currently self-represented. He was previously represented by counsel. When a notice was filed as required by the rules signifying that Mr. Benisasia would represent himself it specified that he could be served at 1357 Queen Street West in Toronto. When a student-at-law went to that address to serve this motion material it was found that the building was dark and under construction or renovation. The front door was inaccessible. The student has sworn an affidavit that copies of materials were left at the rear door.

7The student conducted internet research and determined that Mr. Benisasia previously conducted a funeral home business at 1357 Queen Street West and that that business had been relocated to 3263 Derry Road East in Mississauga. The student attended there but the business was closed. A copy of the motion material was left stuck through the handle of the front office door. I am advised that copies were also forwarded to Ms. Joyal’s counsel. Ms. Joyal and Mr. Benisasia remain married.

8In these circumstances I observe that there has been service in compliance with the rules. Mr. Benisasia supplied the address on Queen Street. However, I note that a parcel register for that address shows that the property had been sold prior to the date on which Mr. Benisasia filed his notice of intention to act in person and provided that address.

9I also note that counsel for Ms. Horner has made every reasonable effort to ensure the motion material came to Mr. Benisasia’s attention. I make an order in these circumstances validating service, although that may not technically be necessary given Mr. Benisasia’s notice that he could be served at the Queen Street address.

1. Should Past Costs Orders be Endorsed as Support to be collected by FRO?

10I am not prepared to make such an order in relation to past costs orders as I have not been provided with any authority that I may do so retroactively in relation to orders made by other judges of this court or by the Court of Appeal. However, I take other steps to enforce those costs orders below.

2. Payment Out of Trust of $60,000 for Living Expenses

11An order will go as requested. I note that all of the money in trust may well turn out to be Ms. Horner’s. That will have to be determined in this action. There are certainly arrears on the various orders of more than $60,000. However, should the court ultimately determine that all of the funds are Ms. Horner’s this amount will not be set off against arrears. That is for another day. At the moment it is clear that Ms. Horner requires funds for living expenses because Mr. Benisasia has not been making the payments he is required to.

3. Payment out of trust of $25,000 to counsel for Ms. Horner

12An order will go as requested. The $25,000 is to be used to discharge obligations for fees and disbursements incurred by Ms. Horner in connection with this case. The comments I made under item two above apply equally here.

4. An Order for a New Timetable for Questioning

13Mr. Klug, on behalf of Ms. Joyal, raises a number of concerns. First, he points out that Justice André provided in his order of August 20, 2013 that questioning was to take place within 60 days. However, well over a year has gone by without Ms. Horner’s counsel arranging the questioning. Mr. Klug is also concerned that in this case the issues for questioning need to be outlined in advance so that he can prepare. His concern is that there are so many documents and issues that the questioning could go on for many days. He submits that Ms. Horner’s counsel should be restricted to seven hours of questioning as provided for in the civil rules.

14On behalf of Ms. Horner, Mr. Pomer points out that there were delays associated with arranging questioning pursuant to Justice André’s order as there were two other busy lawyers involved and then Mr. Benisasia became self-represented. He submits that by letting this issue go beyond 60 days he was granting an indulgence to counsel for the respondents who never put him on notice that, if the questioning did not proceed within 60 days, they would object to it taking place.

15Mr. Pomer also submits that seven hours is inadequate. In this case Ms. Horner contends that Mr. Benisasia has assets he has not disclosed. Some of those are in the United States. There is evidence that Ms. Joyal has a substantial inheritance and a dispute about the extent to which she has shared assets and business interests with Mr. Benisasia. Mr. Pomer submits he has documentary evidence from the United States and elsewhere that will demonstrate that the court has been misled by the respondents.

16In my view there must be questioning. However, before it takes place there must be further documentary disclosure. I agree with Mr. Klug’s submission in this regard.

17I order that the applicant shall deliver an up to date affidavit of documents within 60 days. The respondents shall deliver an up to date affidavit of documents within 60 days following that. Questioning may take place as soon as that process is complete but within a further 60 days. Mr. Pomer advised me that he is prepared to reach agreement with Mr. Klug on dates for the questioning of Ms. Joyal.

18Counsel are to exchange written notices outlining the areas they wish to question about, with reference to relevant documents, at least 10 days prior to questioning. This applies to Mr. Benisasia if he remains self-represented. I order that questioning may not exceed 14 hours over the course of two or more days without leave of the court.

5. Should Mr. Benisasia’s pleadings be struck?

19I am not satisfied that Mr. Benisasia’s pleadings should be struck but I am persuaded that an order similar to the alternative order sought is appropriate. The evidence establishes that Mr. Benisasia has ignored costs orders and not complied with other orders of the court. There are substantial arrears. Based on the evidence this failure to obey court orders appears to be wilful.

20Pursuant to Rule 1(8)(e) I order that Mr. Benisasia is not entitled to seek any further order from the court in these proceedings or any related proceeding without leave of the court. Without restricting the generality of the foregoing, this order applies to any motion or cross-motion or motion or application to change or vary any existing order. This order applies until all outstanding costs and arrears have been paid in full by Mr. Benisasia.

6. Security for Costs

21Given my order under 5 above I will not make an order for security for costs.

7. Service of Documents Upon Mr. Benisasia

22I order that service of any document related to these proceedings may be made upon Mr. Benisasia by serving his wife and co-respondent Ms. Joyal by Priority Post, care of the law firm of Leo Klug at 1 West Pearce Street, Suite 601, Richmond Hill, Ontario, L4B 3K3. Mr. Benisasia and Ms. Joyal are husband and wife. I have no evidence they are not in communication. Various materials in the file suggests otherwise. I would have considered ordering service by mail at Ms. Joyal’s home address but Mr. Klug is understandably not willing to disclose Ms. Joyal’s home address beyond advising the court that he understands she resides in Mississauga. The evidence shows that Ms. Joyal has owned various substantial assets in the United States.

8. Alternative to 7 Above Should Mr. Klug No Longer Act for Ms. Joyal

23I order that in the event Mr. Klug should cease to act for Ms. Joyal in these proceedings Mr. Benisasia may be served with any documents related to these proceedings by sending them by Priority Post to the address provided in the Notice of Change of Representation filed by or on behalf of Ms. Joyal.

9. Costs of This Motion

24As Ms. Horner has been substantially successful on this motion she should have her costs from Mr. Benisasia. No costs are sought from Ms. Joyal.

25I have reviewed the applicant’s Bill of Costs. She seeks costs on a substantial indemnity basis. I find the hours slightly excessive. As the history of this matter reveals, Mr. Benisasia has acted unreasonably. In particular I note that in his notice of intention to act in person he provided an address for service for a building that had already been sold. He has not been complying with court orders.

26I fix costs payable by Mr. Benisasia to Ms. Horner at $9,200 including disbursements and taxes. This costs order is to be treated as spousal support and enforced by the Family Responsibility Office. In my view this approach is available having regard to the fact that support and maintenance are at issue in these proceedings: Clark v. Clark, 2014 ONCA 175, at paras. 61-63.

10. Approval of the Order by Mr. Benisasia

27This order may be issued and entered without approval of the draft order by Mr. Benisasia.

F. Dawson J.