CITATION: Kang v. Kang, 2016 ONSC 4468
COURT FILE NO.: FS-13-1934
DATE: 2016 04 06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MANJIT KAUR KANG v. GURNEK SINGH KANG
BEFORE: FAIRBURN J
COUNSEL: Jaret Neil Moldaver, for the Applicant
Karen Dosanjh, for the Respondent
HEARD: March 22, 2016
ENDORSEMENT
[1] Ms. Kang and Mr. Kang separated some years ago now. Motions are brought for various forms of relief.
[2] On September 11, 2013, Justice Price made an order. It included the following:
(a) Mr. Kang was to retain a certified income and business valuator to, among other things, value his interest in a taxi licence in British Columbia.
(b) Mr. Kang was to bear the cost of the valuation “initially from Mr. Kang’s share of the amount” on deposit in the parties’ joint savings account, subject to later re-apportionment in the costs order made at trial.
[3] The following term appears in Price J.’s order:
The terms of reference of the valuator shall direct him/her to proceed stages, first to make a preliminary assessment and identify the documents and information he/she will require to make the valuation; second to review that information and those documents to provide to the parties his/her informed valuations; and, third, and only if requested by either party, to provide a formal written report.
[4] Both parties were directed to cooperate fully with the valuator in providing any information and documents required.
[5] On March 20, 2015, Justice MacKenzie made an order. Among other things, he required Mr. Kang to produce all of the outstanding disclosure requested by the valuator, Bonnie Prussky, within 30 days. In the event Mr. Kang was not able to obtain the disclosure requested, the respondent was to provide an affidavit outlining the steps he took to obtain the disclosure.
[6] On August 7, 2015, I heard a motion by Ms. Kang seeking to strike the pleadings of the respondent for his willful failure to obey prior court orders, including as they related to the disclosure issues set out above. While Mr. Kang swore an affidavit on June 19, 2015, this was after the time required under MacKenzie J.’s order. Mr. Kang explained he had made several attempts to get information for Ms. Prussky, but failed. He had learned that the value of the taxi at the time of marriage was $115,000 and at the time of separation was $345,000. In his affidavit, Mr. Kang swore that Black Top & Checker Cabs was not able to provide further information.
[7] I made a further order for disclosure, including for a number of outstanding productions. This was to be completed within 14 days of my order. I later made a costs order in the amount of $10,000 against Mr. Kang, to be complied with within 60 days of the release of my reasons for costs.
[8] Both Ms. Kang and Mr. Kang bring motions for various forms of further relief.
- Divorce
[9] Mr. Kang asks that his application for divorce be severed from all outstanding corollary relief and that it proceed on an uncontested basis. He says that he is up-to-date in his child support obligations, pursuant to this court’s September 11, 2013 order.
[10] I am not prepared to sever the divorce from the balance of the proceedings at this stage. Both Kang children are pursuing post-secondary education. Among other things, the s. 7 expenses are very much in dispute. So too is the level of child support that should have been paid over the past few years, an amount that Ms. Kang says should have exceeded the temporary order put in place.
[11] The application to sever the divorce application is dismissed. The divorce will be determined at the same time as the other issues in this case.
- The RESP
[12] Both of the Kang children continue to reside with Ms. Kang. They are pursuing post-secondary education at Guelph University and Sheridan College.
[13] Back in August of 2015, Ms. Kang received a cheque in the amount $24,599.85 from Heritage Education Foundation. It is from an RESP contributed to over the course of the marriage. The cheque was made payable to both of the Kang parents. It was forwarded to Mr. Kang’s counsel on August 20, 2015. Ms. Kang asked that the cheque be endorsed so that the money could be used for its intended purpose.
[14] There is no point in reviewing the long history of this cheque. Needless to say, there has been wrangling over whether the kids are actually in school and, if so, how the money should be deposited and accessed.
[15] Despite Mr. Kang’s approach to this issue, by the time the matter appeared before me, he was prepared to agree that the monies go into an account in trust for use in paying for the post-secondary education of the Kang children.
[16] Within 14 days of this order, the cheque from Heritage Education Foundation, in the amount of $24,599.85, shall be endorsed by Mr. Kang and returned to Ms. Kang’s counsel.
[17] If the cheque has become stale dated, I order that that Heritage Education Foundation issue a new replacement cheque in the same amount.
[18] Ms. Kang shall deposit the cheque in the amount of $24,599.85 into a bank account in trust for the benefit of the children of the marriage: Navpreet and Lovedeep Kang. These funds are only to be used for the purpose of their post-secondary education. The funds may be administered unilaterally by Ms. Kang. She may release the funds to the children upon proof of an expense associated to their post-secondary education. She may also use the funds to reimburse herself for expenses already incurred for their post-secondary school education.
- Costs Order Dated October 15, 2015
[19] As above, arising out of the last application, I ordered that Mr. Kang pay $10,000 in costs within 60 days of the release of my October 15, 2015 order. The amount is yet to be paid.
[20] Mr. Kang takes the position that he should be able to pay the $10,000 out of his portion of the joint account he holds with Ms. Kang. Ms. Kang says that she is likely to receive all of the money from the joint account once equalization is determined in this matter. As such, any costs being taken from that account will be akin to her paying herself. She says that Mr. Kang should pay his costs from a source other than the joint account.
[21] I find that Mr. Kang must pay his $10,000 in costs from a source other than the monies held in the joint account. Having regard to the materials filed, it seems to me that there is a possibility that Ms. Kang may receive a substantial equalization payment. As set out in my costs endorsement, there are all manner of reasons for which costs are assigned, including in this matter. These reasons would be too easily subverted if, in a case like this, there exists a risk that costs were being paid from money that might eventually be found to be rightfully that of the beneficiary of the costs order.
[22] Mr. Kang has 10 days from the date of this order to comply with my October 15, 2015 costs order. The money will not be taken from any source that is currently frozen or in dispute in this litigation.
- Order to Release $30,000 for Ms. Kang and Mr. Kang
[23] Having reviewed the materials filed on this motion, I am satisfied that following resolution of the issues at trial, Ms. Kang will be receiving a sizeable equalization payment. It is inconceivable to me that it will not well outstrip the $30,000 she asks be advanced at this stage.
[24] She has had the two children of the marriage living with her. They have been attending expensive educational institutions. She has been assisting with this. She has been embroiled in litigation trying to get disclosure for some time. The matter has dragged on for too long. It seems to me that being advanced $30,000 dollars is entirely reasonable at this stage.
[25] Mr. Kang also requests that he be advanced $30,000 out of the joint account shared by him and Ms. Kang. He claims to have no access to funds. He claims he had to move into his parents’ home to live. I have read the materials and listened to submissions. It is not clear to me why Mr. Kang requires $30,000 at this stage. On the basis of the evidentiary record filed, I am satisfied that he has an income from which he can make payments. As above, Ms. Kang may receive a sizeable equalization payment following the trial of this matter. I am not prepared to order that $30,000 be advanced to Mr. Kang for the same reasons he should pay his costs order without access to the joint account.
[26] TD Canada trust shall release the sum of $30,000 from Ms. Kang’s share of the parties’ joint savings account number 11796087604, payable to Teplitsky, Colson in trust.
- Request to Strike Mr. Kang’s Pleadings and order for an uncontested trial
[27] Ms. Kang asks that Mr. Kang’s pleadings be struck pursuant to Rule 1(8) of the Family Law Rules and Rule 60.12 of the Rules of Civil Procedure. She makes this request because she says that Mr. Kang has failed to comply with 4 prior court orders: (1) Price J. dated September 11, 2013; (2) MacKenzie J. dated March 20, 2015; (3) Fairburn J. dated August 7, 2015; and (4) Fairburn J. dated October 15, 2015. She also asks that the matter be set down for an uncontested trial.
[28] On June 19, 2015, about 3 months following MacKenzie J.’s order, Mr. Kang provided an authorization to Black Top & Checker Cabs, the company through which Mr. Kang owns a partial interest in a taxi licence, to speak to Ms. Prussky (the valuator). Ms. Prussky attempted to do so on July 27, 2015. She said that a Mr. Ullah, from Black Top, refused to provide any details as it relates to the value of Mr. Kang’s share. While he gave a bottom line as to the value of the share in the taxi, a value that I note differed from what Mr. Kang provided in his June 2015 affidavit, he would not provide any further information to Ms. Prussky.
[29] In January 12, 2016 correspondence, Ms. Prussky wrote to counsel and confirmed that while she had been provided with “responses” to her disclosure requests, independent third-party confirmation with respect to the value of the taxi licence has not been forthcoming. Her own internet research about the value of the taxi licence suggested amounts “significantly higher” than the amounts provided by Mr. Kang. While she said that she was provided with access to Black Top and had a discussion with “Mr. Ullah” on July 27, 2015, he would not provide her with any details and told her that “Mr. Kang has all of the information related to the market values”. He advised that Mr. Kang’s counsel could contact him for the information. She noted that, in the absence of third-party confirmation, she would be forced to rely upon the values given in Mr. Kang’s June affidavit.
[30] On January 14, 2016 Mr. Ullah wrote to counsel for Mr. Kang. Mr. Ullah suggested that Mr. Kang’s share of the taxi licence on the date of marriage was $132,000 and on the date of separation was $300,000. He said that Black Top Taxi would not provide any further information pertaining to the issue. He then said that Mr. Kang only owns the night share of the taxi and a “separate individual who is not a party to the proceedings in Ontario” owns the day share. He went on: “It is our company policy that we do not provide information to any person requesting information of our licences without an authorization. If there is any further information you require please direct all such inquiries to our legal department and they may be able to assist your [sic] accordingly.”
[31] On January 20, 2016, Ms. Prussky sent an email suggesting that she had everything she needed for her analysis. Then, on January 26, 2016, she wrote to counsel to clarify that in order to properly value and confirm ownership of Mr. Kang’s taxi licence, she needed independent verification. She also needed independent verification of the value of the licence. She had neither. She reinforced that internet research suggested values “significantly higher” than the amounts outlined by Mr. Ullah and Mr. Kang.
[32] Finally, on February 12, 2016, Mr. Ullah sent a letter to counsel for Mr. Kang. He confirmed that he received an authorization to speak with Ms. Prussky about Mr. Kang’s 50% share in the taxi licence. He said that: “since receiving this authorization in June 2015, our office particularly myself has not received any type of written or phone communication from any person or representative of AP Valuations including Ms. Bonnie D. Prussky.”
[33] He reinforced that he would not provide information about the other half owner of the taxi licence as he would need the consent of that owner. He also reinforced that Black Top would not provide further information pertaining to the issue:
If you or any other party requires Black Top to testify in court about Mr. Kang’s share and value you will have to send our office the necessary documents instructing and directing Black Top to provide the court in Ontario with this information.
[34] It is unclear to me at this stage where the problem with Black Top & Checker Cabs lies. I do not believe that Mr. Ullah has never been contacted by Ms. Prussky. I accept that she spoke to him on July 27, 2015 and that he was not particularly helpful.
[35] With that said, while Mr. Kang was extremely tardy in the first place, including getting the authorization to Black Top, and while I am not particularly satisfied that he has taken all necessary steps to extract information from Black Top, information that surely he is entitled to as the half-owner of the licence, this matter has been dragging on for far too long. Ms. Kang is entitled to move along with this litigation and bring it to some meaningful closure. She is entitled to do so without spending all of the money in dispute on legal fees.
[36] Nonetheless, being unsure about whether the problem is Mr. Kang or Black Top, I am not prepared to strike the pleadings and order an uncontested trial.
[37] I am prepared to grant Ms. Kang an order with two options:
(a) She may proceed to trial without the productions having been made. If she does this, Mr. Kang may not lead any evidence respecting why he says that the value of the taxi licence is what is set out in his June affidavit. While Ms. Kang will be at liberty to lead evidence suggesting the value is higher than Mr. Kang’s bald statement of value, Mr. Kang will not be able to rebut her position about value with any evidence. The value will be determined by the trial judge.
(b) Alternatively, Ms. Kang may bring a motion to have Black Top added as a party to the litigation. If she chooses to do so, I will entertain that application.
- The $5000 Required by the Valuator
[38] Ms. Prussky has repeatedly told counsel that she requires another retainer in the amount of $5000. Upon receipt of the retainer, Ms. Prussky has said that she is prepared to continue with the draft report, albeit without the disclosure requested.
[39] The $5,000 has not been paid. Mr. Kang says that $35,000 should be advanced to Ms. Kang out of her proceeds of the joint account and she should pay $5,000 out of that to Ms. Prussky. In other words, Mr. Kang says that Ms. Kang should pay the $5,000. Ms. Kang says that Mr. Kang is responsible for payment and his failure to make payment has slowed things down.
[40] As I set out earlier, in Price J.’s order of September 11, 2013, he required that the cost of the valuation be met initially by Mr. Kang. It is clear to me that the spirit and intent of Justice Price’s order was that Mr. Kang pay for the report, at least in draft form. The $5,000 is required to get it to this stage. This is a reasonable approach with which I agree.
[41] Mr. Kang will pay $5,000 to Ms. Prussky within the next 10 days. Consistent with Price J.’s order of September 11, 2013, this will be subject to potential re-apportionment after trial.
- Mr. Kang’s Request to Have Ms. Prussky Removed
[42] Mr. Kang says that Ms. Prussky should be removed from this matter as the valuator. I find nothing wrong with Ms. Prussky’s approach to this litigation and her role within it. She has taken diligent steps to ascertain information required by any professional valuator. She has been stalled in her efforts to get this information. Her efforts have been diligent and made in good faith. To remove her at this stage would be to undo all that she has already achieved. She should be paid and produce her draft report.
[43] I dismiss the application for her removal.
- Restraining / Non-Harassment Order
[44] Ms. Kang asks for a restraining/non-harassment order. She sets out her grounds in an affidavit sworn January 18, 2016. I have considered these grounds. I have also considered the grounds advanced in her sister’s, Ms. Garcha’s, sworn affidavit of March 3, 2016.
[45] While the allegations set out in the affidavits are most distasteful, I am not convinced that a restraining or non-harassment order are required.
[46] Section 46 of the Family Law Act permits the granting of a restraining order against a person if the applicant has “reasonable grounds to fear for his or her own safety” or that of the children.
[47] Having considered all of the information available, I am not prepared to make the order at this time. If Mr. Kang’s behaviour continues, Ms. Kang is at liberty to renew her motion on the basis of further evidence. Mr. Kang would be well-advised to stop speaking ill of Ms. Kang.
[48] The motion for a restraining/non-harassment order is dismissed. The motion to amend Ms. Kang’s April 30, 2013 application to include a claim for a restraining/non-harassment order, and a claim for damages for torts, including but not limited to, intentional infliction of mental distress, is adjourned sine die.
- Costs of this motion.
[49] Unless the parties can agree on the costs of this motion, I will take written submissions. In the event they cannot agree, Ms. Kang shall provide no more than three pages of written submissions within 15 days of this order. Mr. Kang shall provide no more than three pages of written submissions within 15 days of receipt of Ms. Kang's submissions. Submissions shall be double-spaced.
FAIRBURN J
DATE: April 6, 2016
CITATION: Kang v. Kang, 2016 ONSC 4468
COURT FILE NO.: FS-13-1934
DATE: 2016 04 06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MANJIT KAUR KANG v. GURNEK SINGH KANG
COUNSEL: Jaret Neil Moldaver, for the Applicant
Karen Dosanjh, for the Respondent
HEARD: March 22, 2016
ENDORSEMENT
FAIRBURN J
DATE: April 6, 2016