SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CS-13-477962 and RS-13-388450
DATE: 20151224

RE: Alka Singh, Applicant

AND:

Rajeev Singh Chandel (a.k.a. Rajeev Kumar Singh) and Shakuntala Singh, Respondents

AND BETWEEN:

Rajeev Singh Chandel, Applicant

AND

Alka Singh, Respondent

BEFORE: Kiteley J.

COUNSEL:
self-represented Alka Singh

A. Rick Toor, for Rajeev Singh Chandel (a.k.a. Rajeev Kumar Singh)

HEARD: October 27, 2015

ENDORSEMENT ON MOTION DURING TRIAL

[1] On October 13, 2015 I released a detailed Trial Management Conference endorsement arising from the TMC held on October 7, 2015. The trial started on October 21, 2015. On the morning of October 22, 2015, Ken Wise, lawyer for Alka Singh asked to be removed as counsel. I granted that order. Ms. Singh then brought a motion pursuant to rule 4 of the Family Law Rules for an order that she be represented at the trial by Zev Wise, articling student and the son of Ken Wise. I dismissed that motion.[^1]

[2] As a consequence, the trial had to be adjourned to give Ms. Singh the opportunity to retain a lawyer. That led to Mr. Toor asking for an opportunity to bring a motion for an order for payment out of the funds held in trust. I established a timetable for that motion to be heard on October 27, 2015.

[3] Mr. Toor served a notice of motion and affidavit by email on Friday October 23, 2015. Ms. Singh served responding material on Monday October 26. I specifically directed that her record not exceed 50 pages. Instead, Ms. Singh served a motion record and affidavit with exhibits attached that totaled 315 pages. Mr. Toor pointed out that Zev Wise had contacted him prior to sending the voluminous material by fax and Mr. Toor had agreed to accept it because of the time constraints on condition that Ms. Singh would provide a paper copy of the entire affidavit and exhibits. Instead of bringing that with her to the motion, she sent it by mail to Mr. Toor and he of course did not receive it before the motion. He nonetheless agreed to proceed with his client’s motion. I pointed out to Ms. Singh that she did not comply with my order and ought to have complied with Mr. Toor’s conditional acceptance.

[4] In the notice of motion, Mr. Singh asks for the following:

(a) an order that the Applicant be paid $8000 in accordance with paragraph 11 of the order of Justice Goodman dated March 14, 2013;

(b) an order that the Respondent pay to the Applicant $771.37 which represents the outstanding costs award in the Court of Appeal file no. C57440 plus post-judgment interest as per the Courts of Justice Act rate;

(c) an order that $60,000 be released to the Applicant from funds currently held in trust for living and legal expenses.

[5] Czutrin J. made an ex parte order dated November 27, 2012 in which he directed “a preservation order freezing” funds in certain bank accounts in the name of Mr. Singh. On December 13, 2012, a consent order was made continuing that order until January 15, 2013. On March 14, 2013, Goodman J. heard a motion as a result of which she made a consent order, paragraph 4 of which was that on a without prejudice basis, the funds in certain accounts would be paid to Ms. Singh’s then counsel Chsherbinin Litigation to be held in trust. The aspect of the order that was not on consent provided that Mr. Singh receive $8000 from the funds held in trust to permit him to travel to Toronto to be cross-examined and to remain in Canada for three weeks.

[6] In an endorsement dated July 11, 2014, Justice Backhouse held as follows:

With respect to Mr. Singh’s request to have the $8800 ordered by Justice Horkins [should be Justice Goodman] paid out to him, in my view that order should be set aside without prejudice to the request being renewed before the trial judge. The order was premised on Mr. Singh having no funds to attend for examination in Ontario. Ms. Singh has now produced evidence that Mr. Singh had funds. Mr. Singh has denied that these were his personal funds. Ms. Singh raises a further issue of his flying business class and then trying to conceal this. These are matters of credibility and are better left to the trial judge.

[7] Justice Backhouse also ordered a trial to commence November 17, 2014, estimating 10 days of trial. She indicated as well that since Mr. Chsherbinin was no longer acting for Ms. Singh, he would transfer the funds to Mr. Ken Wise to be held in trust pending trial.

[8] At a TMC held on November 10, 2014, the trial date was changed to March 16, 2015 for 10 days.

[9] At a TMC held on March 9, 2015, the trial was changed to October 19, 2015.

[10] On July 23, 2015, Justice Kelly released an endorsement on motions before her including the motion by Mr. Singh for release of funds. She agreed with the ruling by Justice Backhouse.

[11] During submissions on October 27, 2015, I declined to consider paragraph (a) of Mr. Singh’s motion on the basis of the endorsement dated July 11, 2014 that set aside the earlier order and left it to the trial judge.

[12] Paragraph (b) of the motion seeks an order for payment by Ms. Singh of costs ordered to be paid by her as a result of an appeal she launched in the Court of Appeal. The amount ordered was $750, not $771.37 which Mr. Toor explained included interest. No interest was awarded so only the amount of $750 is under consideration. Ms. Singh says that she did not know about that order until the trial began and that her lawyer had advised Mr. Singh’s lawyer quickly that her appeal was not being pursued and there should be no costs. The fact is that there is an order for costs and she should be required to pay it. While Mr. Toor did not ask that it be paid from the funds in trust, I will do so in order that the question of compliance is avoided.

[13] As for paragraph (c) of the notice of motion, the request is on the basis of a need for living and legal expenses. Ms. Singh vigorously opposes the motion. She denies that Mr. Singh needs any money, insists that he has extensive property in India, takes the position that he is or should be working. As is the case in all aspects of these matters, there are many questions of credibility.

[14] I have reviewed the orders that have been made with respect to the funds in trust. On the basis of the record before me, it is not clear whether the initial order and subsequent orders were pursuant to s. 12 of the Family Law Act or were in the nature of a Mareva injunction. If it is in the nature of a Mareva injunction, I cannot determine whether it is an “ordinary Mareva injunction” that restricts a party from dealing with his own assets or a property based Mareva injunction that restrains the party from dealing with assets to which the plaintiff asserts title. As indicated in Ostrich Farming Corporation v. Kendall, a Mareva injunction is not designed merely to preserve the defendant’s assets so as to be available to meet a judgment; it is designed to protect the plaintiff from having its property expended for the defendant’s purposes.[^2]

[15] The original order made by Czutrin J. referred to it as a preservation order. It had the effect of freezing the contents of a bank account. In the absence of any basis upon which I can conclude that it was an ordinary Mareva injunction or a property based Mareva injunction, I rely on the plain language of the order and I therefore assume that it was made pursuant to s. 12 of the Family Law Act.

[16] The factum provided by Mr. Toor assumes that it is a Mareva injunction and that the three step test in CIBC v Credit Valley[^3] had to be met. I disagree. Having been made pursuant to s. 12 of the Family Law Act, different considerations apply. In order to make such an order the court must consider it necessary for the protection of the other spouse’s interests under Part 1 of the FLA to make an interim or final order restraining the depletion of a spouse’s property and for the possession, delivering up, safekeeping and preservation of the property. The threshold is whether it is necessary for the protection of the interests of the plaintiff under Part 1 of the FLA. I conclude that at the time of the granting of the order, Czutrin J. found that it was necessary to make an order against Mr. Singh in order to protect the interests of Ms. Singh to an equalization of net family property.

[17] According to the net family property statement of Mr. Singh, he is entitled to an equalization payment in the amount of $123,000. On this motion, he is asking for $60,000. I appreciate that there will be some challenges to that calculation but it does indicate that he is entitled to a considerable portion of the $212,000 being held in trust. On that basis, it is not necessary to continue the preservation order to protect the interests of Ms. Singh to an equalization of net family property.

[18] The reason why Ms. Singh is anxious to have the entire amount held is because she claims in these proceedings that Mr. Singh has misappropriated $1.2 million from her arising from transactions that she alleges he made in a business which she owned but which he operated. The funds held in trust as well as his claim to the former matrimonial home constitute all of the assets in Ontario. That misappropriation claim is the subject of the civil action which is the second of the two actions that will continue to trial. That claim cannot be the subject of a FLA section 12 preservation order.

[19] As indicated above, Ms. Singh delivered a motion record of over 300 pages in her continuing effort to demonstrate how Mr. Singh’s evidence is not credible or reliable and should be disregarded. I will continue to be the trial judge in this matter and for that reason I am cautious about making findings of credibility. But, based on the approach I take to this motion, I need not make such findings. It does not matter whether Mr. Singh needs money to pay back family members who have loaned him money; whether he has the ability to earn enough to pay his expenses; whether he misled the court in his estimate of taking economy class flight from India and instead he took business class; whether he will use the money for legal expenses to fight the criminal case in India or the criminal case recently started in Canada (both of which have a relationship to the misappropriation claim), or for the trial of these two actions that started in October. I make no findings on any of those submissions. I do observe that to the extent that Mr. Singh intends to use a significant portion of the funds to continue to retain counsel in the trial that had to be adjourned for the reasons indicated above, it will be money well spent. Given the introductory day on October 21, the evidentiary and legal issues in these cases require counsel. Having said that my conclusion on this motion is based strictly on the interpretation of s. 12. For that reason, the motion for release of $60,000 is granted.

[20] As a result of the orders above, the sum of $212,000 is held in trust, originally by Ms. Singh’s former lawyer Nikolay Y. Chsherbinin but, pursuant to the endorsement of Justice Backhouse, it was to be transferred to Ken Wise. I do not have confirmation as to whether that transfer occurred.

[21] Ms. Singh gave me a costs outline anticipating that I would dismiss the motion and she would recover costs. Mr. Toor did not give me a costs outline. As indicated below, I have established a timetable for written submissions.

[22] As a reminder, the next step is a Trial Management Conference before me on January 8, 2016 at 9:15 a.m. Mr. Singh may join by conference call. Ms. Singh must attend in person. This date is peremptory to Ms. Singh whether she has counsel or not. On that occasion I will set the date for resumption of the trial. On October 27, 2015 Ms. Singh and Mr. Toor agreed that when the trial resumes, it will not be on the basis of evidence in examination in chief by affidavit but will reflect the ordinary approach of oral evidence in examination in chief and in cross-examination and will reflect the usual rules of admissibility of documents. Part of that discussion was whether either party could amend the list of witnesses that was canvassed at the October 7, 2015 TMC and later confirmed in the endorsement dated October 13, 2015. Without now permitting changes to the witness list, I expect that Ms. Singh and Mr. Toor will complete the Trial Scheduling Endorsement Part 1 and Part 2 in which they each list the witnesses they are now asking permission to call.

ORDER TO GO AS FOLLOWS:

[23] From the funds held in trust to the credit of these actions, Nikolay Y. Chsherbinin or Ken Wise, as the case may be, shall pay to Rajeev Singh Chandel (a.k.a. Rajeev Kumar Singh) or to whom he in writing directs the following payments:

(a) the sum of $750.00 in full satisfaction of the obligation on Ms. Singh to comply with the order made by the Court of Appeal dated September 3, 2014, to be paid out of whatever portion the trial judge decides is payable to Ms. Singh.

(b) the sum of $60,000.

[24] By January 11, 2016 Mr. Toor shall make written submissions as to costs not exceeding 3 pages plus costs outline plus offer to settle this motion, if any.

[25] By January 25, 2016, Ms. Singh shall make written submissions as to costs not exceeding 3 pages plus costs outline plus offer to settle this motion, if any.

[26] By January 6, 2016, Ms. Singh and Mr. Toor shall serve and file Trial Scheduling Endorsement Part 1 and Part 2.

[27] Mr. Toor may take out this order without approval from Ms. Singh.

Kiteley J.

Date: December 24, 2015

[^1]: 2015 ONSC 6648

[^2]: Referred to at paragraph 20 of CIBC v Credit Valley 2003 12916

[^3]: Footnote 1