CITATION: Szczerba v. Szczerba, 2016 ONSC 4772
COURT FILE NO.: FS-15-83668-00
DATE: 2016-07-25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Krzysztof Mark Szczerba v. Krystyna Szczerba
BEFORE: Lemon J.
COUNSEL: Peter J. Chmiel, for the Applicant
Monika Curyk, for the Respondent
HEARD: July 21, 2016
ENDORSEMENT
The Issue
[1] Ms. Szczerba moves for a variety of productions from the company owned and operated by her husband’s son. She also seeks productions that were ordered to be produced January 27, 2016. While Mr. Szczerba acknowledges that he has not produced as required of him, he denies that he should be required to produce records from the third-party company.
[2] Although Ms. Szczerba had requested that Mr. Szczerba’s pleadings be struck if the productions were not made, she specifically withdrew that request at the commencement of the motion.
Background
[3] The parties were married October 27, 1979. They separated September 30, 2013. Mr. Szczerba had a four-year-old son at the time of their marriage. Ms. Szczerba states that she raised the child as hers throughout their marriage. That son, Artur, is now 36 and operates a business, Gryphon Transportation Inc.
[4] Although a settlement conference was set for August 5, 2016 at 10 a.m., because of the failure on the part of Mr. Szczerba to produce the required records, that date has now been vacated. No new dates were available at the time of argument and counsel shall arrange a new date as quickly as can be conveniently scheduled.
Ordered Productions
[5] The parties attended a case conference on January 27, 2016. A consent order was obtained and Mr. Szczerba was required, among other things, to produce a fully completed financial statement, a letter from the Bank of Montreal setting out all accounts in his name, a benefits booklet setting out his benefits available through his employer, his rent application and agreement, his 2015 income tax return and notice of assessment and an evaluation of his RRSPs on the date of separation. The only item from that list that has been provided is a number of Bank of Montreal records but without a confirmation from the bank that those are all of his accounts.
[6] Mr. Szczerba did not file an affidavit in response to the motion. Rather, his lawyer’s legal assistant provided a hearsay affidavit. I agree with counsel for Ms. Szczerba that I cannot rely upon the hearsay set out in that affidavit to the extent that it responds to an issue in dispute. The effect of that is at there is little explanation as to why Mr. Szczerba has failed to make the ordered productions. There are explanations of why the productions might have been delayed but no explanation of the failure to produce.
[7] Accordingly, Mr. Szczerba shall produce the balance of the disclosure ordered pursuant to the order of Justice Van Melle dated January 27, 2016 by August 31, 2016. That includes the outstanding question set out in paragraph 10 below.
Non-party Records
[8] A further term of the consent order was that Mr. Szczerba was to produce:
As regards to Gryphon Transportation Inc.:
i.) Prove divestment of interest;
ii.) Prove receives no income from same;
iii.) Prove original interest in same;
iv.) Prove not an employee, director or officer of the corporation.
[9] In response, the only thing that Mr. Szczerba has produced is a letter, (which, it appears, Ms. Szczerba already had at the time of the order) dated September 21, 2015. It is signed by Artur Szczerba. It states:
The purpose of this letter is to clarify Krzysztof Szczerba’s relationship with Gryphon Transportation Inc. As of June 30, 2013, Krzysztof Szczerba was removed from the corporation and relinquished all his shares. Krzysztof Szczerba receives no taxable benefits, dividends or any form of compensation from Gryphon Transportation Inc.
Please feel free to contact me at the below number if you have any questions.
[10] It is agreed that, at the date of separation, Mr. Szczerba did not, apparently, have an interest in Gryphon. From this letter, it appears, however, that he did 3 months before separation. To me, it is significant that the question of Mr. Sczcerba’s original interest in the company has not been answered. There is nothing to suggest that Mr. Sczcerba followed up with the offer for further information.
[11] Mr. Szczerba’s counsel submits that Mr. Szczerba cannot obtain the records from the non-party, Gryphon. Mr. Szczerba says nothing.
[12] The simplest way to deal with this matter would have been for Ms. Szczerba to bring an application for documents in the possession of the nonparty, Gryphon. For reasons undisclosed in the materials, Ms. Szczerba has declined to do so. Instead, she relies upon the Rules as they presently are along with the outstanding order.
[13] In his Financial Statement, sworn May 19, 2015, Mr. Szczerba leaves Part Eight blank. There, he was to set out the value of all property that he had disposed of during the two years immediately preceding the making of the statement. He fails to set out the disposition of his shares in the company June 30, 2013.
[14] Pursuant to Rule 19, every party shall, within 10 days after another party’s request, give the other party an affidavit listing every document that is relevant to any issue in the case and “is available to the party on request”. As can be seen, Artur Szczerba left it open “to contact me at the below number if you have any questions”. There is no evidence to suggest that Mr. Szczerba has done so. Again, there is no evidence from Mr. Szczerba.
[15] Ms. Szczerba further requests that if Gryphon fails to produce the records in question, the obligation should fall upon Mr. Szczerba to bring a motion to compel Gryphon to produce the records as set out in the Notice of Motion. Ms. Szczerba relies upon the case of Chapman v. Chapman, [2009] O.J. No. 2405 (OCJ). There, S. B. Sherr J. ordered the husband to do exactly that. In this case, I agree with Ms. Szczerba that that would be appropriate.
[16] The hearsay affidavit sets out that the company was first incorporated by Mr. Szczerba to assist his son in obtaining credit to operate the business. It suggests that Mr. Szczerba lent his son money and maintained a credit card jointly with the business also only in order to assist his son. If that is correct, no doubt, the son, if requested, would be happy to assist his father to provide the records to bring this issue to an end.
[17] It appears that Mr. Szczerba does not see the necessity of complying with court orders. It does not seem appropriate that Ms. Szczerba should incur the cost of a further motion that may well be made unnecessary if Mr. Szczerba made any efforts on his own behalf.
[18] I am satisfied that the documents requested are directly relevant to the issues of spousal support and division of property. They are standard documents that would be kept by the company in the ordinary course of business.
[19] The production of those records, if they support Mr. Szczerba’s apparent position, will bring an end to this issue in a cost efficient fashion. Costs of that motion may also be determined based on those productions.
[20] Taking all of the above into consideration, I order that Mr. Szczerba shall:
a) Complete Part 8 of a fully updated Financial Statement by August 31, 2016. All documents that support that financial statement which have not been provided to date shall be provided at the same time.
b) Mr. Szczerba shall request from his son, Artur Szczerba, all of the records set out in paragraph 1 of the notice of motion on or before August 5, 2016.
c) Mr. Szczerba shall provide the response to that request by August 31, 2016.
d) If Gryphon fails to produce the records as requested, Mr. Szczerba shall immediately bring a motion for production of the records on behalf of both parties with notice to Ms. Szczerba.
Costs
[21] If the parties cannot agree upon costs, written submissions shall be made to me. Ms. Szczerba shall make her submissions within 15 days and Mr. Szczerba shall respond within 15 days thereafter. There will be no reply submission unless requested by me. Each submission shall be no more than three pages not including any offers to settle or bills of costs.
Lemon J.
DATE: July 25, 2016
CITATION: Szczerba v. Szczerba, 2016 ONSC 4772
COURT FILE NO.: FS-15-83668-00
DATE: 2016-07-25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Krzysztof Mark Szczerba v. Krystyna Szczerba
BEFORE: Lemon J.
COUNSEL: Peter J. Chmiel, for the Applicant
Monika Curyk, for the Respondent
ENDORSEMENT
LEMON J.
DATE: July 25, 2016