Court File and Parties
COURT FILE NO.: 785-2011
DATE: 2016/03/11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Iryna Azarova AND Maksym Perepelytsya
BEFORE: The Honourable Justice Robert Pelletier
COUNSEL: Pamela Barron for the Applicant Edith M. Holly for the Respondent
HEARD: March 8, 2016
ENDORSEMENT
[1] On March 8, 2016, the Court heard cross-motions seeking various orders in relation to earlier proceedings.
[2] In essence, the Respondent wanted the November 7, 2013 order of Justice Smith varied in order to reflect the Respondent’s current financial situation. He also sought an order vacating the Restraining Order issued on November 7, 2013 on the basis that the existence of the order unduly interfered with his employment prospects in the area of international trade.
[3] The Applicant sought orders declaring the Respondent a vexatious litigant, security for costs of future proceedings, enforcement of existing disclosure orders and an order imputing income.
[4] I have concluded that the November 7, 2013 order must be reviewed and modified in the very particular circumstances of the present case.
[5] In the fall of 2013, the Respondent was in pre-trial custody on charges of abduction in relation to the parties’ son.
[6] I am persuaded that the Respondent was properly served with documents while in custody, and more importantly, Justice Smith was of that view when he made the default orders.
[7] I am however, of the view that the Respondent’s predicament at the time requires the Court to take a reasonable and practical view of the Respondent’s failure to engage in the proceedings in the fall of 2013.
[8] The Respondent vigorously contested the criminal charges and was successful. The charges were dismissed. He has consistently attended all other court proceedings and has taken an active role.
[9] The level of income imputed, I am satisfied on the basis of the information before me, was unrealistically high. That said I am not persuaded that the Respondent is incapable of earning income and his failure to do so since his release from custody requires that the child support and arrears be recalculated and not completely rescinded.
[10] To that end, the Respondent shall be deemed to have an income of $25,000 per annum, generating a monthly child support obligation, since his release from custody of $200 per month.
[11] I am not persuaded on the present record before me that the Restraining Order should be vacated. It was modified by this Court in August 2015 in order to facilitate access which was ordered. Beyond that, it cannot presently be concluded that the Restraining Order bars the Respondent from pursuing employment in his chosen field.
[12] I would confirm that all outstanding orders, in relation to disclosure, costs, division of assets or debts and all related orders be abided by strictly. The Court cannot countenance the practice of the parties in choosing which orders they wish to have enforced and which orders they chose to ignore.
[13] The Settlement Conference scheduled for April 5th at 3:30 p.m. is confirmed. The issue of custody and access will be re-examined with the benefit of up-to-date input from the office of the Children’s Lawyer.
[14] Accordingly, the following temporary orders are made.
The final order of Justice R. Smith, November 7, 2013 is varied to reflect an annual income of the Respondent imputed at $25,000 with a corresponding monthly child support objection of $200.00.
Arrears to date are fixed at $200 per month since the date of release of the Respondent on the criminal charges.
All existing orders in the present proceedings to be strictly abided by including costs and other orders relating to financial considerations.
Settlement Conference on the issues of custody and access scheduled for April 5, 2016 at 3:30 p.m.
All other orders sought are denied.
Pelletier, J.
Released: March 11, 2016
COURT FILE NO.: 785-2011
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Iryna Azarova AND Maksym Perepelytsya
BEFORE: The Honourable Justice R. Pelletier
COUNSEL: Pamela Barron for the Applicant Edith M. Holly for the Respondent
ENDORSEMENT
Pelletier, J.
Released: March 11, 2016