Plech v. Barwicz, 2016 ONSC 875

CITATION: Plech v. Barwicz, 2016 ONSC 875

COURT FILE NO.: FS-15-400350

DATE: 20160203

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Malgorzata Maria Plech, Applicant

AND:

Zbigniew Barwicz, Respondent

BEFORE: Kiteley J.

COUNSEL: Harold Niman, for the Applicant

Herschel I. Fogelman, for the Respondent

HEARD: In writing

ENDORSEMENT ON 14B MOTION

[1] The Respondent has brought a motion to sever the divorce from the corollary relief and an order that the Applicant pay costs in the amount of $1,000. In support of the motion I have the affidavit of Karen De Souza, legal assistant in the firm of the Respondent. In her affidavit sworn January 22, 2016, she deposed that the parties married in 1995, separated in November 2014 and have two children. She attached a copy of the consent temporary order of Paisley J. dated March 3, 2015 in which he ordered that each party would receive $150,000 USD from a specific account and that the prior order freezing accounts would be modified. In addition, it provided that commencing March 1, 2015 the Respondent would pay to the Applicant an “undifferentiated monthly amount of $12,500 on a without prejudice basis”.

[2] Ms. De Souza also referred to correspondence between counsel on the issue of whether the Applicant would consent to sever and she attached copies of letters dated November 23, 2015, December 7, 2015 and January 6, 2016. In the letter dated December 7, 2015, counsel for the Respondent wrote as follows:

On the issue of the Divorce Order, in our view, your client’s position [in refusing to consent to severance] is completely ridiculous. There are clearly “reasonable arrangements” in place for the support of the children. As you are aware, Mr. Barwicz is paying a significant amount of support to your client each month in addition to maintaining all of the other expenses for the family.

If your client is not prepared to consent to sever the divorce from the corollary proceedings, then Mr. Barwicz will bring a motion seeking this relief.

[3] At paragraph 9 of her affidavit, Ms. De Souza also said the following:

Due to the Applicant’s refusal to consent to sever the divorce from the corollary issues in these proceedings notwithstanding the Respondent’s significant monthly support payments to the Applicant and his payment of other expenses for the benefit of the children and the Applicant, the Respondent had no choice but to bring this motion.

[4] In response, the Applicant has filed an affidavit sworn January 27, 2016 in which she explains the reasons for not consenting including the following:

(a) the Respondent has failed to respond to repeated requests for disclosure;

(b) the Respondent has failed to provide an income report;

(c) the Respondent has not updated his financial statement sworn February 24, 2015 and in the meantime, he has experienced major changes to his financial circumstances including:

(i) moving from a condominium to a house that he appears to be renting for $13,000 per month;

(ii) he recently entered into a Service Agreement with a different company. The date on the agreement is November 20, 2015 but it was only produced in a letter dated January 6, 2016 following letters from the Applicant’s lawyer persisting in seeking disclosure;

(iii) the Respondent recently incorporated a management/investment company in Poland and likely opened undisclosed bank accounts in Poland;

(iv) the Respondent is living in Poland;

(v) according to the Respondent’s comparison of net family property statements, his girlfriend is listed as a beneficiary of his life insurance policy;

(vi) the Applicant raised the possibility that the Respondent is earning significantly more income than he has disclosed;

(d) the Applicant believes that the Respondent is trying to “starve her out” of the litigation process by bringing costly and unnecessary motions;

(e) the Respondent does not pay all of the extraordinary expenses for the children and she gave examples;

(f) the Respondent should be required to pay child support and the children’s section 7 expenses in accordance with the Federal Child Support Guidelines. At this point, it is not possible to determine his true income for child and spousal support purposes;

(g) the Applicant gave examples of how the Respondent’s luxurious lifestyle has continued since separation.

[5] The Applicant deposed that in his financial statement dated February 24, 2015, he listed an annual income of $528,000 and then she pointed out the deficiencies in disclosure and the inconsistencies based on the limited disclosure he has provided.

[6] The Applicant pointed out that the Respondent had not given a reason as to why he seeks to sever the divorce and at paragraph 34, she said as follows:

Zbig could have provided all relevant disclosure and an income analysis by this point, had he wanted to make proper disclosure. It is only through his delay that the Court is not in a position to determine whether adequate arrangements are in place for our children. In all of the circumstances, Zbig should not be granted the relief requested. I have no doubt that if the divorce is granted, Zbig will continue to delay, will continue to take matters into his own hands and to do as he wishes, and will act without regard to the impact on me or our children. I fully expect he will conduct himself in this way to increase my legal fees and force me into a position where I have no choice but to settle on his terms. If the divorce is granted now, Zbig will have no incentive to deal with me fairly and to ensure that I receive proper support from him for our children. As such, I do not believe that this is a case where the divorce should be severed from the other issues at this early stage.

Analysis

[7] S. 11(1)(b) of the Divorce Act provides as follows:

In a divorce proceeding, it is the duty of the court. . .

(b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage and, if such arrangements have not been made, having regard to the applicable guidelines, to stay the granting of the divorce until such arrangements are made. . .

[8] Neither counsel provided a factum or a brief of authorities. It is clear from s. 11(1)(b) that the judge has a positive duty to satisfy herself as to the arrangements for the support of the children. That duty is engaged before the granting of the divorce. While this is a motion to sever as a precursor to the motion for divorce, the submission is that the duty of the court cannot be satisfied at the stage of requesting the divorce order so there is no point in making the order of severance. I agree that it is open to raise the s. 11(1)(b) duty at this stage.

[9] The judge has a duty to satisfy herself that “reasonable arrangements” have been made, not that the arrangements for child support are “adequate” which is the adjective used at paragraph 34 of the Applicant’s affidavit.

[10] The duty to be satisfied that “reasonable arrangements” have been made is qualified by “having regard to the applicable guidelines”. At this stage in disclosure, I cannot be satisfied that the amount paid bears any relationship to the Child Support Guidelines. I appreciate that the Respondent’s income exceeds the maximum according to the table, but s. 4 of the Guidelines applies.

[11] S. 11(1)(b) contemplates that the court will stay the granting of the divorce until reasonable arrangements have been made for the support of the children. Since this motion is at the stage of severance, I do not stay the granting of the divorce. The Respondent is not prohibited from bringing a motion that addresses s. 11(1)(b) provided that it is based on his affidavit. The affidavit of the legal assistant contains hearsay and contrary to rule 14(19) does not provide the source of the information other than in her role as legal assistant. If her evidence was limited to attaching copies of letters sent and received, it might be acceptable. But it contains much more, including, as indicated above, her evidence that the Respondent is paying “significant monthly support payments to the Applicant”. Evidence going to the fundamental issue as set out in s. 11(1)(b) must come from the Respondent. While evidence as to the reason for requesting the severance (and therefore the divorce) is not essential, it is typically provided.

[12] As indicated above, the notice of motion included a request for costs in the amount of $1000. The motion did not succeed. Pursuant to rule 24(1), the Applicant as successful party is entitled to costs. I am not going to ask for written submissions on a matter as modest as this. The affidavit from the Applicant was 6 pages and consisted of 34 paragraphs and 9 exhibits. It reflects a considerable effort made under the time constraints of a 14B motion. Since $1000 was the starting point and the Applicant made that considerable effort, I am satisfied that the costs should be $3000 on a partial indemnity basis.

ORDER TO GO AS FOLLOWS:

[13] Motion by the Respondent to sever the divorce from the corollary relief is dismissed.

[14] The Respondent shall pay to the Applicant costs of the motion on a partial indemnity basis fixed in the amount of $3000 payable by March 3, 2016.

Kiteley J.

Date: February 3, 2016