Court File and Parties

CITATION: Purcaru v. Vacaru, 2016 ONSC 1609 COURT FILE NO.: 04-FD-299927-0003 DATE: 20160307

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dan Purcaru, Applicant -and-: Felicia Vacaru, Respondent

BEFORE: F.L. Myers J. READ: March 6, 2016

Endorsement

Background

[1] By Endorsement dated February 10, 2016, reported at 2016 ONSC 1037, I stayed this application pending review under Rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Under Rule 2.1.01(3), the applicant was provided with notice that the court was considering striking this application as being frivolous, vexatious, or an abuse of process on its face. He has properly responded with written submissions explaining why, in his view, the application is meritorious and should proceed.

The Applicable Law

[2] In my prior Endorsement, I posited that Rule 2.1 of the Rules of Civil Procedure was incorporated into the Family Law Rules, O. Reg. 114/99, pursuant to Rule 1(7) of the latter. Rule 1(7) of the Family Law Rules provides:

(7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

[3] A week after the release of my prior decision, my colleague Ellies J. discussed the relationship between Rule 2.1 of the Rules of Civil Procedure and Rule 1(8.2) of the Family Law Rules in Frick v. Frick, 2016 ONSC 359. Rule 1(8.2) of the Family Law Rules provides:

(8.2) The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process.

[4] By contrast, the relevant portions of Rule 2.1 of the Rules of Civil Procedure provide:

2.1.01(1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

(2) The court may make a determination under subrule (1) in a summary manner, subject to the procedures set out in this rule.

(3) Unless the court orders otherwise, an order under subrule (1) shall be made on the basis of written submissions, if any, in accordance with the following procedures:

(6) Any party to the proceeding may file with the registrar a written request for an order under subrule (1).

[5] It is apparent that the two rules are not coextensive. Rule 1(8.2) of the Family Law Rules authorizes the court to strike a document that may be a waste of time, an abuse of process, or otherwise. Rule 2.1 of the Rules of Civil Procedure provides a comprehensive but brief process to dismiss proceedings that are on their face frivolous, vexatious, or an abuse of process. The Family Law Rule is both wider and narrower than the Rule of Civil Procedure. The Family Law Rule is wider in that it does not require that the offensive pleading be found to be frivolous, vexatious, or an abuse of process on its face. That is a difficult hurdle to surmount and is reserved for the clearest of cases. Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 at para. 8. However, the relief available under Rule 2.1 of the Rules of Civil Procedure is the complete dismissal of the proceeding. By contrast, the Family Law Rule provides for a document to be struck but does not end the entire proceeding. It is narrower in its focus and available relief therefore.

[6] Given the more comprehensive relief available under Rule 2.1 of the Rules of Civil Procedure, it is not surprising that its application may be somewhat more difficult to establish.

[7] Ellies J. noted other differences between the two rules. At para. 17 of Frick, he wrote:

It will be readily apparent that there are at least two major differences between rule 2.1 of the Rules of Civil Procedure and subrule 1(8.2) of the Family Law Rules. For one, subrule 1(8.2) does not refer to the mechanism by which the rule is to be engaged (i.e. by written request or on the court’s own initiative, as in Rule 2.1). Nor does subrule 1(8.2) set out any minimum procedural requirements, once the rule is engaged.

[8] Despite the differences in relief and process, Ellis J. expressed his agreement with the view expressed by J.E. Caspers J. in Nichols v. Nichols, 2015 ONCJ 360, that the two rules are analogous. Caspers J. was willing to consider a remedy under Rule 1(8.2) of the Family Law Rules without requiring a formal motion and oral hearing using the process provided in Rule 2.1 of the Rules of Civil Procedure. Ellies J. appears to have held an oral hearing but he applied the substantive tests under Rule 2.1 of the Rules of Civil Procedure as articulated by the Court of Appeal in Scaduto to the request for relief under Rule 1(8.2) of the Family Law Rules that was before him.

[9] In my view, the two rules are indeed analogous and complementary. There is a large spectrum of relief available to deal with frivolous and vexatious proceedings. Gao v. Ontario WSIB, 2014 ONSC 6497, at para. 7 et seq. Many of the relevant rules overlap. Rules 1(8.2) of the Family Law Rules and Rule 2.1 of the Rules of Civil Procedure address different aspects of the problem.

[10] Rule 1(8.2) of the Family Law Rule addresses mis-steps within a proceeding. It is most similar to Rule 25.11 of the Rules of Civil Procedure that allows the court to strike a document that:

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court

[11] Rule 2.1 of the Rules of Civil Procedure has a different purpose as set out in Scaduto at para 12:

Rule 2.1 is designed to permit the court to dismiss frivolous or vexatious proceedings in a summary manner. Resort to evidence defeats the purpose of the rule and leads to the danger that the r. 2.1 process will itself become “a vehicle for a party who might be inclined to inflict the harms of frivolous proceedings on the opposing parties and the civil justice system”: Gao No. 1, at para. 8.

[12] Rule 2.1 aims at preventing abuse of the system and the parties opposite by a vexatious litigant who would likely misuse an opportunity to participate in a formal, oral motion to strike or dismiss the proceeding. Some parties may abuse the procedural rights associated with oral motions such as the right to submit evidence, to cross-examine, to serve a summons to witness on third party witnesses, and thereby cause all the harms of vexatious proceedings even on a motion designed to determine if the proceeding ought to be terminated because it is frivolous, vexatious, or an abuse of process. This is the catch-22 nature of dealing with vexatious litigants. Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 8. The system must guard itself and its legitimate participants against abuse by those who would inflict the harms of vexatious proceedings on others even during the process of determining if the proceeding is abusive. Therefore, the focus on a motion under Rule 2.1 is not only on whether the proceeding is frivolous or vexatious on its face, but also on whether there is reason to apply an abbreviated process so as to prevent the applicant from abusing the parties or the system as the determination is being made. This might be an issue under Rule 1(8.2) of the Family Law Rules, but it need not always be so.

[13] In Frick, Ellies J. determined that Rule 1(8.2) did not apply to the case before him. Instead, he considered the issues under Rules 16(12) and (13) of the Family Law Rules. These rules are analogous to Rules 21.01(1) and (2) of the Rules of Civil Procedure that deal with preliminary determinations of law and motions to strike pleadings that fail to disclose a reasonable cause of action.

[14] As is apparent from the forgoing discussion, there are a number of rules in both the Family Law Rules and the Rules of Civil Procedure that all deal in some ways with vexatious steps in proceedings, vexatious proceedings, and vexatious litigants who bring such proceedings. I wholly agree with Ellies and Caspers JJ. who each viewed these rules as being “in keeping with Supreme Court of Canada’s call for timely, proportionate, affordable access to justice in Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.J. No. 7.” Frick, at para. 15.

[15] I see no benefit in highly technical efforts to scan and parse the various rules so as to neatly pigeon-hole particular cases into one or another. There is an infinite spectrum of fact situations and a number of rules designed to address different issues along that spectrum. There will be cases where one or another rule applies more readily. As my colleagues Ellies and Caspers JJ. have amply demonstrated, there can be elements of one rule engrafted into another process where appropriate. There need be no single applicable solution in each case. There may be cases where Rule 1(8.2) of the Family Law Rules neatly addresses a problem on its own. There may also be cases where Rule 1(8.2) does “not cover a matter adequately” so that Rule 1(7) of the Family Law Rules will then allow access to Rule 2.1 of the Rules of Civil Procedure or other rules as necessary or appropriate in the circumstances. In each case the court is seeking to promote efficient and affordable litigation recognizing that the “process of adjudication must be fair and just. This cannot be compromised.” Hryniak, at para. 23.

The Facts

[16] Mr. Purcaru has brought a motion to change the final order of Paisley J. dated May 6, 2009. The order that Mr. Purcaru seeks to change is a judgment after trial ordering him to pay equalization of net family property and child support to the respondent among other things. The motion appears on its face to be a typical motion contemplated by Rule 15 of the Family Law Rules.

[17] But this is anything but a typical case. As noted in my prior Endorsement, Mr. Purcaru had his pleadings struck at the commencement of the trial before Paisley J. This was done because Mr. Purcaru had persistently failed to comply with interim orders in the proceeding including, in particular, refusing to disclose documents concerning his assets.

[18] The orders made by Paisley J. striking Mr. Purcaru`s pleadings and granting judgment against him were upheld by the Court of Appeal. In the Court of Appeal, Mr. Purcaru admitted to “egregious” breaches of several court orders that caused “serious prejudice” to his ex-wife and their two children.” Purcaru v Purcaru, 2010 ONCA 92 at para. 34.

[19] Mr. Purcaru was held in contempt of court and served four months in jail for his breaches of court orders in the initial divorce application. Those breaches were never purged. Purcaru v Purcaru, 2011 ONSC 2320.

[20] Mr. Purcaru did not pay the amounts for which he was adjudged liable. The respondent has had to bring a receivership application, a fraudulent conveyance application, and other remedies to try to enforce the judgment of Paisley J. against Mr. Purcaru. Mr. Purcaru brought a prior motion to change that took a substantial period of time and delayed the respondent’s efforts to enforce the trial judgment. Mr. Purcaru’s pleadings were struck again in the fraudulent conveyance action. In striking Mr. Purcaru’s pleadings the second time, Kelly J. found that Mr. Purcaru had made efforts to impede the course of justice for the applicant and their children in that application. Purcaru v. Purcaru, 2010 ONSC 4031 at paras. 83 to 87.

[21] I heard the fraudulent conveyance application when it came to trial last November. I held that Mr. Purcaru had fraudulently conveyed over $650,000 to others with the intent to defeat his obligations to pay his ex-wife and support their children. Purcaru v Seliverstova et al., 2015 ONSC 6679 at para. 116. All of the facts recited in this section of the Endorsement are taken from my reported Reasons for Judgment in that application. Reference to prior decisions of the court is appropriate in considering the application of Rule 2.1. Raji at para. 11.

[22] After the fraudulent conveyance trial, I have also heard and dismissed a motion by Mr. Purcaru to require the FRO to refrain from suspending his driver`s license.

Mr. Purcaru`s Submissions

[23] Mr. Purcaru submits that he needs to change the judgment granted by Paisley J. He says that he became ill in 2008 and lost his business. He has been on ODSP but has now succeeded in obtaining a job that pays $48,000 per year. This would let him pay $1,560 per month for child support he says. But he needs his car to keep his job. Moreover, he says that since 2011 he has earned approximately $68,000 in the aggregate while the income imputed in the judgment of Paisley J. for that period totals $1.4 million causing child support obligations of over $450,000 to accrue.

[24] Mr. Purcaru says that he cannot possibly earn $350,000 per year as imputed by the judgment of Paisley J. He says that the court appointed receiver obtained by the respondent was not able to find that he had any further assets or income. He says that the respondent is still improperly claiming to be due an amount of $140,000 regarding a CRA debt that Czutrin J. found ought to be deleted from the judgment of Paisley J. Finally he asks for relief from the restraining order made by Goodman J. in June 2008 so that he can start to rekindle a relationship with his children who are now 17 and 14 years old respectively.

Analysis

[25] In the Reasons for Judgment in the fraudulent conveyance application, I discussed the assessment of the prior misconduct committed by Mr. Purcaru as follows:

It is fundamentally important in this proceeding that the rights and obligations of the various parties be kept separate. There is no liability under our law for having a relationship with a dishonest person. Moreover, even dishonest people are only liable upon proof of facts that establish a recognized basis for imposing liability at law. While a person’s past dishonesty may be relevant in a number of ways during a civil trial, there is no tort liability for breach of a court order per se. While the recitals above concerning Dan Purcaru’s proven misconduct provide a necessary background for understanding this application, the burden is upon the applicant to establish her entitlement to relief against each respondent individually. I approach this proceeding on the basis that for the applicant to obtain relief against each of the respondents, she must meet her burden of proof for each element of the relief sought against each of them.

[26] Unlike that case however, in this case, the burden will be squarely upon Mr. Purcaru. He relies on his current income, which he says is modest. He says that the receiver did not find any further income or assets. This from a person who has gone to jail to avoid disclosing his assets and who has more recently been found to have surreptitiously moved over $650,000 with the intent to avoid his obligations. He says that he wants to start paying child support at a modest level. He has not actually started to do so however despite outstanding orders.

[27] Two points are of particular note. First, his desire to protect his driver’s license strikes me as re-litigating the motion to refrain that has already been denied. Second, Ms. Vacaru has just finished her second trial and about a decade of ongoing litigation against Mr. Purcaru including a prior motion to change heard by Czutrin J. Does the right to bring motions to change include the right to subject a former spouse to perpetual litigation by a spouse who refuses to obey the rules or to respect the legal outcome? Ms. Vacaru holds an unsatisfied costs award of over $80,000 in relation to the fraudulent conveyance application alone. Does she have to incur yet more costs at the hands of a litigant who litigates in such a vexatious manner?

[28] In my view, this application has no chance of success. Before a court will give audience to Mr. Purcaru he needs to comply with outstanding orders by making honest and full disclosure of all his assets, asset movements, and income for the past dozen years, pay whatever he has or controls or can get towards his creditors’ claims, and voluntarily pay child support without imposing preconditions. He should not be heard in court before he acknowledges and respects that decisions of the court are binding upon him.

[29] Although his motion discloses a cause of action, a claim with no chance of success is properly characterized as frivolous. Gao, at para. 9. Moreover, a motion to change brought by Mr. Purcaru in these circumstances is quite fairly characterized as “a waste of time, a nuisance or an abuse of the court process” until he complies with outstanding orders of the court and shows that he can participate in the legal process within the bounds of the law. Re-litigating the motion to refrain and bringing proceedings to resume relations with teenagers whom he has been found to have tried to impoverish are also abusive.

[30] Finally, the fact that Mr. Purcaru can file submissions claiming to have no income or assets without making the least reference to the fact that he has been found to have fraudulently conveyed over $650,000 in assets establishes that he still is not conducting himself with integrity, transparency, and accountability in this proceeding. Where is the $325,000 that he sent to his brother in Romania for example? A limited process under either Rule 1(8.2) of the Family Law Rules or Rule 2.1 of the Rules of Civil Procedure is completely appropriate in this case. Subjecting Ms. Vacaru or the children to another minute of litigation or another dollar of costs against Mr. Pucaru before he has complied with his legal obligations is indeed exposing them to the harms of a vexatious litigant who will likely continue to abuse them and the system.

[31] The applicant’s motion to change is therefore dismissed without costs. This endorsement is to be sent to the applicant and the respondent by regular mail under subrule 2.1.01(5) and by email to those parties for whom the court has email addresses. The respondent may submit a draft order to the registrar for signing and entry without the necessity to seek approval as to form and content by the applicant. The respondent shall then serve a copy of the entered order on the applicant and file proof of service with the registrar.

F.L. Myers J.

Date: March 7, 2016