NEWMARKET

COURT FILE NO.: FC-10-35232-01

DATE: 20151102

CORRIGENDA DATE: 20151103

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Svetlana Bafas Applicant

– and –

Louis Bafas Respondent

Applicant – Self-represented

G. Yoon, Counsel for the Respondent

HEARD: October 14, 2015

RULING ON MOTIONS

(TEXT OF ORIGINAL DECISION HAS BEEN AMENDED – CHANGE APPENDED)

JARVIS J.:

[1] This is a Ruling with respect to two Motions by the respondent husband. As the (former) spousal parties are now divorced, for convenience of reference they shall be called “the husband” and “the wife.”

[2] The husband’s Motions seek an Order setting aside the Order of Nicholson J. dated April 29, 2014 striking his pleadings and extending the time for delivering disclosure beyond a time earlier ordered by Rogers J. on July 8, 2015. As an alternative to the relief relating to his struck pleadings, the husband seeks an Order permitting him to be cross-examined on his financial disclosure to determine his outstanding support obligations.

[3] The wife, not surprisingly, opposes the relief sought.

[4] There is a tortuous, and relevant, procedural background to this case.

Background

[5] The parties were married on January 15, 2000 and separated on August 19, 2009. There is one child of the marriage, a daughter, born April 1, 2000. She has always resided with her mother.

[6] The wife started an Application for custody and support on May 6, 2010. That Application was administratively dismissed on July 16, 2011. The wife says it was dismissed at the husband’s request because he promised to negotiate a resolution.

[7] When no resolution was achieved, the wife started a new Application on July 16, 2012 for essentially the same relief as her earlier proceeding.

[8] On February 4, 2013, and pursuant to temporary Minutes of Settlement signed by the parties, Nelson J. made an Order requiring the husband to pay $482 monthly child support and $400 monthly spousal support based on an income attributable to the husband of $53,300 a year. A term of that Order also provided for comprehensive disclosure to be exchanged by the parties. The divorce was severed from the corollary relief issues.

[9] On September 26, 2013, an Order was made by Nicholson J. at a Settlement Conference, also based on Minutes of Settlement. That Order was “final” with respect to the wife’s custody of the child but, importantly for the issues now before the court, Nicholson J. ordered each party to comply with the disclosure terms of the February 4, 2013 Order of Nelson J., and (on consent) terminated spousal support. Further disclosure directions were given, and comment made, regarding the husband’s unsatisfied disclosure.

[10] Despite the termination of the $400 monthly spousal support Order the Director continued to record the husband’s monthly support obligations in the combined amount of $882.

[11] On November 8, 2013 a Divorce Order was granted by Ferguson J.

[12] On January 30, 2014 Rogers J. dismissed a Motion brought without notice by the wife to strike the husband’s pleadings.

[13] On March 19, 2014 Rogers J. then heard a Motion, this time on notice to the husband, to strike his pleadings. Two weeks before the Motion was scheduled to be heard, but after it had been served on his counsel, the husband delivered a Notice that he intended to represent himself. He did not appear at court on March 19. Rogers J. made a detailed Order dealing with the husband’s disclosure, warning him of the risk of having his pleadings struck. The court administration was directed to serve the husband at the address in his filed Notice of Change in Representation. The husband was ordered to appear in court on April 17, 2014.

[14] On April 17, 2014 the wife’s Motion was returned before Nicholson J. As it was unclear whether the Order of Rogers J. had been served on the husband, the Motion was adjourned again to April 29, 2014 and directions were given to the court administration to serve the husband with the wife’s Motion documents, and the Order of Rogers J. The husband’s attendance was marked peremptory.

[15] On April 22, 2014 the husband was served with the Orders of Rogers J. and Nicholson J.

[16] The husband did not appear on the return date of April 29, 2014. Nicholson J. struck his pleadings.

[17] The wife brought a Motion for an Uncontested Trial. On June 4, 2014 Douglas J. dismissed the Motion because the wife had requested relief different from that set out in her Application. She was seeking to have imputed to her husband an income significantly higher than originally pleaded. The wife was given leave to serve her material on the husband, together with the Order now sought, after which her matter could be reconsidered.

[18] When the wife’s affidavit for an Uncontested Trial was returned to the court on July 11, 2014 Rogers J. endorsed the record that there was insufficient evidence to calculate the husband’s income and that the wife should schedule a date to appear in court to make oral submissions.

[19] On August 8, 2014, the wife brought a Motion returnable on August 20 for an Order imputing a $400,000 income to the husband and for child and spousal support. It is unclear whether the wife was seeking a change to the Orders of Nelson J. dated February 4, 2013 dealing with child support and Nicholson J. dated September 26, 2013 terminating spousal support or whether she was asking for a final Order with respect to both child and spousal support. The husband was served with this Motion.

[20] The husband retained counsel.

[21] On August 20, 2014 Kaufman J. adjourned the wife’s Motion to September 17, 2014 to permit the husband’s new counsel to obtain his client’s file from his former lawyer. There is nothing in the Record to indicate what transpired on September 17 but on September 21, 2014 the parties signed a Temporary Settlement Agreement. It was a two paragraph type-written, unwitnessed, statement that stated,

I Svetlana Bafas and Louis Bafas come to an agreement. That Louis Bafas will provide the outstanding disclosure to determinate Child Support and Spouse Support.

We agreed un til full (sic) discloser (sic) is reviewed Louis Bafas will monthly Child Support and Spouse Support the amount of $2,000. Plus Louis Bafas will buy me a car Nissan Juke, will get Life Insurance and will pay for Mortgage Broker courses and licence.

[22] It is unclear whether either the Director or the husband’s new lawyer were ever aware of this document.

[23] On or shortly after January 7, 2015 the husband was notified by the Director that there were arrears of support totalling $19,049 and that his Driver’s Licence would be suspended February 16, 2015. In response the husband sent the Director copies of cheques written, and given, to the wife for the support he said he was paying her directly pursuant to the Temporary Settlement Agreement between them.

[24] On or about June 3, 2015 the husband made a consumer proposal. There is no evidence as to the outcome of that proposal.

[25] On June 16, 2015 the Director recorded a $15,200 credit to the husband’s account and notified the husband by letter dated June 29, 2015 that he owed $8,256.75 in unpaid support and that his licence would be suspended effective August 9, 2015.

[26] On June 29, 2015 the wife brought a Motion returnable on July 8, 2015 for an Order in accordance with the Temporary Settlement Agreement and imputing a $400,000 income to the husband. Also requested was an Order for “serious actions on Louis Bafas for failing to obey several court Orders and providing false documents.” On July 8 Rogers J. noted that the husband had still provided no disclosure but she granted him leave to file that disclosure by August 15, 2015.

[27] On August 14, 2015 the husband brought the Motion now before this court to set aside the Order of Nicholson J., the return date of which was August 19.

[28] On August 17, 2015 the husband filed disclosure comprising 50 tabs, over three volumes, of the Continuing Record.

[29] On August 19, 2015 directions were given at Assignment Court adjourning the husband’s Motion to the September 30, 2015 Assignment Court to permit him to file all the material on which he would be relying in support of his Motion.

[30] Later on August 19 the wife brought an emergency Motion to enforce the parties’ Temporary Settlement Agreement. That was dismissed by Bennett J.

[31] The wife then brought another Motion for an Uncontested Trial based on her affidavit sworn September 17, 2015. Appended to her affidavit the wife attached as exhibits documents and calculations to corroborate her belief that her husband earned more than $400,000 a year. This was not before the court by the time that the husband’s Motion was returnable on September 30 but, in any event, the husband’s Motion did not proceed that day.

[32] The wife’s Uncontested Trial Motion came before Kaufman J. on October 2, 2015 and he questioned why the husband’s Motion had not proceeded before me on September 30, and the basis for the adjournment. He also concluded that the wife’s affidavit was insufficient and noted that, whatever the reason for the September 30 adjournment, the husband’s Motion would proceed on October 14, 2015 peremptory upon him. Kaufman J. also endorsed the record,

I cannot determine the basis of the adjournment (i.e. to October 14, 2015). In view of the background it will be incumbent upon counsel to satisfy the court on October 14 why the matter was further adjourned. That October 14 date is peremptory upon the respondent.

Having said that, the applicant’s request for an Uncontested Trial is premature. Furthermore, her affidavit is insufficient. If allowed to proceed after October 14, the matter will have to be set down for a Hearing before a judge wherein the applicant can try to make her case based on documentary disclosure.

Imputation of income and that argument may require the applicant to consult with a lawyer to assist in preparation of her argument.

[33] On October 6, 2015 the husband brought a Motion returnable October 14 for an Order extending the deadline of August 15, 2015 contained in the Order of Rogers J. dated July 8 by which the husband was to file his court-ordered disclosure. In support of this Motion was an affidavit of the husband sworn October 5, 2015 purporting to explain why he had not complied with earlier Orders of the court with respect to disclosure and alleging that he had complied with his disclosure obligations.

[34] On October 9, 2015 the wife brought a Motion, also returnable October 14, requesting, an Uncontested Trial. She requested $500,000 for a settlement of all the outstanding financial issues between the parties. This, again, is a claim not advanced in her Application. The wife also delivered an affidavit sworn October 8, 2015 opposing the relief sought by the husband.

[35] In summary, then, there were at least three Motions returnable on October 14 none of which was supported by a Factum setting out the procedural history of this matter or containing a list identifying what disclosure remained outstanding. The husband’s affidavit attempted to cast blame on the wife for delaying the proceedings but, as will be noted below, failed to satisfactorily explain why he had disobeyed the earlier disclosure Orders.

Analysis

[36] The issue of the husband’s qualifying income to determine his support obligations has been outstanding since the parties’ separated in 2009 and the wife commenced her first Application in May 2010. In these proceedings, the husband agreed to provide disclosure on February 4, 2013. Without this court deciding whether the husband has fully complied with the Order made by Nelson J. on that date, there is over a two and a half year delay in purported compliance. The husband’s affidavit sworn October 5, 2015 contains no explanation whatsoever why he ignored the disclosure Orders of Justices’ Nelson, Nicholson and Rogers in 2013 and 2014. No reasonable explanation is given why, before August 2014, the husband was unable to provide any of the disclosure he had agreed, and was repeatedly ordered, to provide. Even that disclosure took another year! That the husband parted ways with his lawyer in March 2014 due to unpaid legal fees and that, afterwards, his “participation in the process became sporadic” is indicative of what can only be charitably described as a cavalier disregard of his disclosure obligations and court Orders.

[37] No appeal of the Order of Nicholson J. striking the husband’s pleadings was ever undertaken by the husband and, dealing with his Motion now before the court, no authority was argued by his counsel about the court’s jurisdiction to set aside that Order.

[38] In summary then over five different judges and at least 12 court events preceded the parties’ appearance before me on October 14.

[39] Confusing this case too is the unreliability of the Director’s records in light of the terminated support Order and the impact of the Temporary Settlement Agreement on the husband’s obligations. The wife submitted in oral argument on October 14 that no support was being paid by the husband even though his Financial Statement sworn August 17, 2015 stated that he was paying the $482 monthly child support and $200 monthly on account of (unspecified) arrears. There is, plainly, a disconnect between what each of the party says was paid and what the Director records. Given these circumstances, there is simply no way that this court can decide the support issues in this case on the basis of the written record.

[40] Is the husband entitled to have his pleadings reinstated?

[41] In Purcaru v. Purcaru, 2010 ONCA 92, a husband’s pleadings were struck at the beginning of trial because the husband had breached several court Orders. He was not allowed to participate in the trial, only to observe. In dismissing the husband’s appeal of that Order, the court not only acknowledged the discretionary nature of the trial judge’s Order but also identified the parameters of that discretion.

[50] Nonetheless, the decision to strike pleadings and to determine the parameters of trial participation is a discretionary one that is entitled to deference on appeal when exercised on proper principles. The exercise of discretion will be upheld where the motion or trial judge fashions a remedy that is appropriate for the conduct at issue…

[55] In light of Mr. Purcaru’s conduct, the trial judge considered whether his participation would assist with arriving at the necessary factual findings. He decided it would not…

[58] In any event, if Mr. Purcaru had been allowed to participate fully in the trial without completing his disclosure, counsel for Ms. Purcaru would have unfairly been denied the opportunity to prepare to meet his evidence about his financial situation. The trial judge could have considered the alternative of allowing Mr. Purcaru to continue to participate, but drawing an adverse inference with regard to his assets and liabilities. However, such a sanction would have been inadequate in light of the trial judge’s specific conclusion that Mr. Purcaru would prolong the trial with irrelevant issues without providing the disclosure necessary to arrive at a fair determination of his relevant worth and income.

[59] The trial judge did not explicitly consider providing Mr. Purcaru with other lesser forms of trial participation that may have assisted the court with its fact-finding role. For example the trial judge did not specifically address permitting Mr. Purcaru to cross-examine his wife or her expert to test the value of her assets and liabilities. Nor did he address whether Mr. Purcaru could present argument at the conclusion of the evidence. It would have been helpful if the trial judge had specifically discussed these alternatives because a litigant denied the right to call evidence may still potentially contribute to a trial. That contribution could be made through partial or full cross-examination of one or more witnesses, or by making oral submissions on the evidence and the law. However, a review of the record in this case demonstrates several reasons why the trial judge decided against allowing Mr. Purcaru the opportunity to cross-examine or present oral argument.

[42] The decision in Purcaru was more recently followed in Cadas v. Cadas, 2013 ONSC 2608, a case not unlike this where the husband’s pleadings were struck but, unlike this case, a final Order had been made on an uncontested basis. The husband sought to set aside the equalization payment ordered because the wife in that case had failed to disclose important information that materially impacted the amount of the equalization to be paid. While Stevenson J. was prepared to set aside that part of the Order dealing with equalization, she was not prepared to reinstate the husband’s pleadings, following Purcaru. She considered, and ordered, other lesser forms of trial participation to assist the court in its fact-finding role.

[51] I am not prepared to reinstate the respondent’s pleadings. Paisley J. struck the respondent’s pleadings on April 14, 2011. The respondent did not appeal that order. Paisley J. provided the respondent with an opportunity to cure his breach. The respondent had up until 15 days before the undefended trial to cure his breach. His counsel was served with the Affidavit for Uncontested Trial on May 4, 2012, over a year after the respondent’s pleadings were struck and he still had not cured his breach…

[53] As the final order regarding equalization is being set aside, the equalization of net family property remains outstanding. I am prepared to allow the applicant to proceed with a trial only with respect to the equalization of net family property by filing a revised affidavit and an updated Financial Statement and Net Family Property Statement which shall serve as her evidence-in-chief. I am also prepared to allow the respondent to participate in the trial by cross-examining the applicant on her affidavit, Financial Statement and Net Family Property Statement and by making submissions…

[43] There is no reasonable explanation by the husband in this case why he failed for so long a period of time to provide the disclosure ordered, nor why he did not attend court in March and April of 2014. He does not say when he became aware that his pleadings had been struck, and no explanation is proferred why no appeal was ever taken, let alone considered. He is not entitled to have his pleadings reinstated but, in my view, some lesser form of trial participation may assist the court in its fact-finding role.

Disposition

[44] An Order shall issue as follows:

(1) The wife shall be permitted to proceed with the determination of the issue of the husband’s support obligations by way of trial, the scheduling of which she shall coordinate through the Trial Coordinator;

(2) Not less than 30 days before the date scheduled for trial the wife shall serve and file a Trial Record compliant with the provisions of Rule 23 of the Family Law Rules, which Record shall include her updated Financial Statement;

(3) Together with the Trial Record the wife shall serve on the husband and file with the court an Index identifying all of the documents upon which she will be relying at trial. Where the documents upon which the wife may choose to rely comprise, for example, business records the wife shall comply with the provisions of the Ontario Evidence Act and Family Law Rules dealing with Notice (where applicable);

(4) Not less than seven days before the trial date, or the date when trial sittings are scheduled, the wife shall serve on the husband and file with the court a written Opening Trial Statement that will summarize her case and the relief she is seeking;

(5) At the beginning of trial the wife shall provide to the court a copy of the draft Order setting out the relief she is seeking;

(6) The husband shall only have the right to participate at trial by cross-examining the wife and any witnesses she may call and by making submissions.

[45] Two last matters.

[46] During the course of these proceedings the wife has advanced claims that may require amendment to her pleadings. Consideration needs to be given to whether any such request for an amendment should be made well before commencement of trial. That is the wife’s responsibility.

[47] As for the issue of costs, the husband has been responsible for the inordinate delay in this case. While he has been partially successful in his Motion with respect to being permitted to participate in any trial, in a limited capacity, he has not been successful in having his pleadings reinstituted and, with respect to the Order of Rogers J. failed to comply with that Order requiring that the disclosure be filed by August 15. Moreover, and even though, this matter was scheduled as a Long Motion, no Factum was provided to the court, contrary to local practice. In the circumstances, it is appropriate that the husband pay to the wife her costs of these Motions fixed and payable in the amount of $2,500 inclusive of disbursements and HST, such Order to be enforced as a support Order pursuant to section 1 (1) of the Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c. 31 (as am).

[48] As the husband was able to file with the court the disclosure he alleges complies with the July 8, 2015 Order of Rogers J., that issue is now moot. This should not be interpreted, however, as any determination whether, in fact, the husband has complied with his disclosure obligations as ordered by Nelson J. on February 4, 2013.

Justice D.A. Jarvis

Released: November 2, 2015

AMENDMENT

Page 1 has been amended to reflect Mr. G. Yoon as counsel for the Respondent.