SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BORYS VASYLYEV
Applicant
AND:
GALYNA KOSTYSHYN
Respondent
BEFORE: CHAPNIK J.
COUNSEL: Carol J. Smith Reide L. Kaiser
for the City of Toronto, for the Respondent Galyna Kostyshyn
Legal Services
HEARD: MAY 26, 2015
ENDORSEMENT AS TO internationAl support order
1The issue before me rests on the matter of a Provisional Variation Order for support rendered by the Honourable Mr. Justice Campbell in the Supreme Court of British Columbia on October 31, 2011. As it is a provisional order, it has no force or effect until confirmed by this court, pursuant to s.18 of the Divorce Act. Since the British Columbia proceedings are styled with Borys Vasylyev (Borys) as the applicant and Galyna Kostyshyn (Galyna) as the respondent, I will refer to them as such notwithstanding that in the original orders made in Ontario, Galyna was the applicant and Borys the respondent.
background
2The parties were married on June 12, 1999 in the Ukraine and in 2001, they emigrated to Canada. There are two children of the marriage,namely Yuri Vasylyev (Yuri) born February 26, 2000 and Michael Vasyliev (Michael) born March 23, 2006. The applicant returned to the Ukraine in 2007 where he obtained a divorce decree and remarried in 2008.
3The respondent applied for custody of the children of the marriage, child and spousal support, and s.7 expenses by application in the Ontario Superior Court of Justice in September 2008. By order of the Honourable Madam Justice Klowak dated August 27, 2009, she was granted sole custody of the two children of the marriage, child support in the sum of $753 per month retroactive to April 1, 2008 and spousal support of $818 per month commencing September 1, 2008. The orders were made based upon an imputed income for the applicant of $50,000 per annum. A copy of the order of Klowak J. is attached to this order as Exhibit A hereto.
4The City of Toronto has a financial interest in these proceedings by virtue of the respondent’s assignment of the order of Justice Klowak to it from April 1, 2008 to the present. The arrears owed by the applicant under that order as at March 11, 2015 total $98,919 to the City and $31,352 to the respondent.
5The applicant moved to British Columbia and he applied for a variation of the order of Klowak J. in 2010. The court in British Columbia granted his application and issued orders rescinding the operative clauses for child and spousal support and substituting orders for child support of $100 per month effective April 1, 2008, and for spousal support of $1 per month effective September 2008. The arrears in child and spousal support were to be varied accordingly and “subject to recalculation by the Ontario Courts.” A copy of the Provisional Variation order of Campbell J. in the Supreme Court of British Columbia is attached as Exhibit “B” hereto.
The reasons for judgment of Justice Campbell
6In his reasons, Justice Campbell relied on the information provided to him by the applicant. In those proceedings the applicant indicated that he was not made aware of the order rendered by Klowak J. in Ontario, and that the judge wrongfully imputed income to him of $50,000 per year. At paragraph 7 of the decision, Justice Campbell states:
His financial disclosure is barren in the sense that the only expense he lists is $300 towards the rent but says that is because his wife supports him. He says that he regularly travelled to and from the Ukraine to help with his mother and that he travelled to and from the Ukraine on a regular basis. This is a little hard to reconcile with his recorded income. In 2006, the documents show his gross income as $9,267. In 2007, he filed income tax documents saying he earned $9,550. In 2008, $5,580. In 2009, $6,720 and for 2010, $3,461.
7Later, at paragraph 16 of his reasons Justice Campbell again expresses some concern about this:
But part of the concern I have here is the obvious gap between what Mr. Vasylyev says he did in terms of travel and the like over the last four or five years, a remarriage, and a situation where he declares he has no income now and only assists a little bit with the rent or mortgage with his second wife.
8At paragraph 8 of the judge’s reasons, he states:
His documents further disclose this: he says that there is no supporting official documentation that he divorced Ms. Kostyshyn in the Ukraine in June 2008. He says she was represented, and that there was no order made regarding the children and that she got the family assets: a house, an apartment and the chattels.
9I am satisfied that the concerns of Campbell J. were well-founded and that the respondent was not being honest with the British Columbia court.
the respondent’s evidence
10In his Petition to the British Columbia court, the applicant claimed that he did not receive notice of the Ontario Court proceeding and only became aware of the Ontario order “much later”. The court noted that the trial was “uncontested”. The respondent explains in her affidavit sworn May 20, 2015 that the applicant was served with her application on 2008 and “chose not to defend it”. She gives details of the service stating that he was “well aware of what was going on and called me on the telephone about my claims against him”. That would explain why the order was marked as “uncontested”.
11As for the income of $50,000 imputed to the applicant, the respondent says she advised the court at the time that the applicant was “a professional carpenter and sauna manufacturer and was making about $50,000 per year”. She also noted, that a significant proportion of that income was comprised of the applicant’s income as a Tai Chi instructor for which she estimated a cash income of approximately $15,000 per year.
12At the time, the respondent was on social assistance, having been a pharmacist in her country of origin but needed retraining to be employed in Canada. In addition, their son Michael suffered from a disability and had several surgical operations on different parts of his body. “Michael is developmentally delayed, has heart problems, is unable to sit or stand, is deaf in one ear and has sight problems”.
13The applicant, in his Petition to the British Columbia Court stated that a divorce order had been previously granted in the Ukraine, in which the respondent “received a division of family property in her favour”. He uses this to explain why no support orders were made there. As regards the property in the Ukraine, the respondent attests that the only issue there was the property that the parties jointly owned, namely an apartment which her husband attempted to list and sell without her consent. She retained counsel and her “portion went to paying off my Ukrainian lawyer and to family members for the payment of debts”.
14As for the applicant’s alleged health problems she states at paragraph 20 of her affidavit:
The applicant also alleged that he has a lower back problem. I agree that he was struck by a car in 2001 and later had a fall while at work. He had some physiotherapy for the first accident, none for the second and has never had a lower back problem that impaired his functioning. In fact the applicant is a very athletic man and bragged to me that he knew “how to fall” and thus avoided injury from the second incident. At no time did he have to stop working as a result of either incident.
15It would appear that the applicant provided no evidence to the court in British Columbia to support his alleged medical disability or his assertion of being incapable of gainful employment or of any efforts to secure suitable employment.
16In her affidavit, the respondent also refers to her son Michael’s deteriorating condition, his needs, their difficult living conditions and her employment efforts. In summary, at paragraph 34, she states:
At present I see few opportunities for myself in the employment field, even with further education, assuming that I can do the latter. Michael’s needs are all-consuming of my energy and time that I give freely without regrets to the son I love.
17The respondent’s circumstances vary considerably from what she describes as those of the applicant. She produced evidence that the applicant, now 48 years of age, is resourceful, versatile in earning income and physically fit, and that he has travelled to China, the Middle East, Israel and the Ukraine. He also operates a Tai Chi business and a cleaning business with his new spouse and teaches a hydrotherapy course. Much of this was gleaned through various social media sites on the internet.
18In summary, it is the respondent’s submission that, given the above and particularly the fact that the applicant and his wife “travel and teach extensively” the applicant is able to pay the support ordered by Klowak J. in 2009 and the accumulated arrears which are substantial.
conclusion
19In my view, had Justice Campbell been apprised of the above, he would not have made the Variation Order he did. For the above reasons, the provisional variation order made in the Supreme Court of British Columbia is not confirmed, and the order for variation in that court has no force or effect.
20The order of Klowak J. rendered in this court on August 27, 2009 continues in effect.
21Costs to the respondent, as requested, in the sum of $2,500 and to the City of Toronto in the sum of $1,000 as against the applicant Borys Vasylyev, are payable forthwith.
CHAPNIK J.
RELEASED: June 4, 2015