SUPERIOR COURT OF JUSTICE – ONTARIO
RE: William michael kahansky, Applicant
AND:
Orb-bohn wilkes, Respondent
BEFORE: C. Horkins J.
COUNSEL: William Michael Kahansky, acting in person
Joel Skapinker, for the Respondent
HEARD at Toronto: May 11 2017
ENDORSEMENT
Introduction
1There are two motions before the court.
2The respondent mother brings a motion for an order striking the applicant father’s pleading for failure to comply with the following court orders:
(1) The August 5, 2015 consent order of Thorburn J.
(2) The July 20, 2016 consent order of Hood J.
(3) The January 4, 2017 order of Mesbur J.
(4) The February 7, 2017 cost order of Harvison-Young J.
3In response, the applicant father brings a motion for the following orders:
(1) Setting aside the court order of Thorburn J. and paras. 4 and 5 of the order of Hood J. directing the father to make full disclosure and pay support;
(2) Setting aside the arrears of child support and spousal support. The arrears as of May 1, 2017 total $22,361;
(3) Directing that the mother comply with the order of Thorburn J.;
(4) Removing the Office of the Children's Lawyer from this application;
(5) Directing that the children undergo a pyscho-educational assessment and directing that the father have “reintegration therapy” with the children.
4While the father’s motion seeks to “set aside” orders, this is in fact a motion to vary interim orders that were made on consent.
The Background
5The father and mother were married on March 14, 2000 and separated in June 2013. They have two children ages 16 and 13.
6The father issued his application for a simple divorce on August 6, 2014. The mother filed an answer on July 5, 2015. In the answer, the mother advanced her own claims for a divorce, custody of the children, child and spousal support and equalization. The father never filed a reply to the mother’s answer.
7On August 5, 2015, the parties attended a case conference before Thorburn J. and she issued a consent order. The parties were represented by counsel. This order directed the father to disclose his complete corporate tax returns and bank statements. He was also ordered to pay $892 a month for child support and $714 a month for spousal support. The order states that the support is based on an imputed income of $60,000.
8The order of Thorburn J. also directed the mother to disclose what happened to $28,000 that she removed from a bank account. Finally, the order requested that the matter be referred to the Children's Lawyer for their assistance with the children and the issue of access. The Children's Lawyer accepted the request and appointed counsel for the children.
9A further case conference was held on July 20, 2016 before Hood J. The parties were represented by counsel. A consent order was issued dealing with the father’s access to the children, the father’s disclosure and his obligation to continue making support payments. The parties signed a consent that was witnessed by counsel. The order gives the father access to the children as arranged by the Children's Lawyer and required mother to make best efforts to encourage the children to see the father. Further, the father was ordered to make “full disclosure” including the following documents:
(a) personal and business tax returns;
(b) business evaluation;
(c) bank statements;
(d) credit card statements;
(e) RESP statements;
(f) income analysis
10On November 24, 2016, the mother brought a motion for custody of the children. Kiteley J. granted the mother temporary custody of the children. In her endorsement, Kiteley J. states that the father is in breach of the support orders and had accumulated support arrears of $15,937. Further, Kiteley J. states that the children do not wish to see their father and there was no evidence that the mother was causing the children to be alienated from the father.
11On January 4, 2107, a settlement conference was held. Mesbur J. issued a consent order granting the mother sole custody of the children. In her endorsement, Mesbur J. states that the father’s disclosure “remains outstanding and has since 2015”. Mesbur J. ordered that the father “shall fully comply with Hood J’s order by March 1, 2017 failing which the respondent is free to move to strike his pleadings on the basis of his continued failure to comply with court-ordered disclosure”.
12In addition to the disclosure already ordered, Mesbur J. ordered that the father produce the Minute Book and Share Registry for Dunleavy Cordun Inc. and Dunleavy Cordun Associates Inc. Finally, Mesbur J. ordered that questioning was permitted, but had to be completed by April 18, 2017. A trial management conference was set for June 5, 2017.
13The father was represented by counsel when all of the above orders were made. After Mesbur J’s order the father became self-represented.
14On February 7, 2017, the father brought a motion before Harvison-Young J. seeking an order that funds the mother withdrew from the Dunleavy Cordun Inc. corporate bank account be applied to the support arrears that he owes. Harvison-Young J. dismissed the motion. She stated that the evidence about the withdrawal of the monies was in dispute. The father said that the withdrawal of the money had ruined his business and prospects. The mother said that the father’s conduct was the cause of his problems and she had to withdraw the money because she was in dire need of funds for herself and the children. The motion judge directed that the issue of the mother’s withdrawal of $28,000 from the account be considered within the context of equalization. Lastly, the motion judge noted that the father had not met his disclosure obligations and the deadline of March 1, 2017 set by Mesbur J.
15The mother brought a motion to strike the father’s pleading. This motion came before me on April 25, 2017. The father had filed an affidavit sworn April 19, 2017 stating that he had complied with the documentary disclosure orders, but he offered no proof. As well, the father had served the mother with his own motion dated April 30, 2017, but it was not properly served. The motions were adjourned to allow for proper service and to give the father an opportunity to file a further affidavit.
16The father then filed an affidavit sworn on May 1 2017 and a form 14B motion dated April 30, 2017 that incorrectly states that his motion is on consent.
17While the father has filed two notices of motion, both dated April 30, 2017, I will deal with them as one because they seek the same relief.
18The mother filed a responding affidavit sworn May 3, 2017.
19At the start of the hearing of the motions, the father served the mother with an affidavit sworn on May 11, 2017. With the consent of the mother, I allowed the father to file this last affidavit.
20Lastly, a trial management conference is set for June 5, 2017.
analysis
Status of Father’s Disclosure
21The father has not complied with the disclosure orders. The limited disclosure that has been provided is reviewed below. Much of the disclosure is unclear, contradictory and fails to support the father’s affidavit evidence.
22When the father filed his first financial statement, sworn July 31, 2015, he attached his personal income tax returns for 2012, 2013 2014. He later produced Notices of Reassessment that reveal the following information.
23In the 2012 income tax return, the father’s line 150 income was $60,000. A Notice of Reassessment for 2012 confirms the $60,000 income and a balance owing of $55,228.42. There is no evidence to explain the balance owed.
24In 2013, the father reported “NIL” income on his income tax return. However in the Notice of Reassessment the line 150 income is $85,366. The Notice of Reassessment states that the father owes $55,407.33. There is no evidence to explain this difference in income or the balance owed.
25In the 2014 income tax return, the father reported “0” income. In the Notice of Reassessment for 2014, the line 150 income is $74,366 with $14,366.09 owed. There is no evidence to explain this difference in income or the balance owed.
26The father has not produced his income tax returns for 2015 or 2016. He obviously filed a 2015 income tax return because a Notice of Reassessment was issued. This Notice shows “0” income and a balance owed of $57,402.98.
27The father has not produced any personal bank statements.
28The father has not complied with the order to produce credit card statements. He produced one credit card statement from Hudson’s Bay for the period October 17, 2016 to November 16, 2016. It shows a previous total balance owing of $7,340.57. No other statements are provided for this credit card. The father’s affidavit reveals that he had a CIBC Visa card as of June 2013, because a balance owing on the card was paid using sale proceeds of the matrimonial home. Credit card statements for the Visa card are not produced. It is not known if the father has or had any other credit cards for which statements must be provided. He has provided no evidence.
29The orders directing production of corporate tax returns and bank statements refer to Dunleavy Cordun Inc. This company was incorporated on June 7, 2012. The Articles of Incorporation list the mother as the sole director. Other documents describe the father as the president of the company. Both parties had signing privileges at the bank. On August 1, 2014, the mother resigned as a director of the company and tendered her shares to the father.
30The father has not produced the corporate tax returns for Dunleavy Cordun Inc. It is unclear if any corporate income tax returns have ever been filed with Revenue Canada.
31The father attached to his affidavit a typed undated and unsigned letter from “Steve Walsh”. This is part of a group of documents marked as exhibit 30 to the father’s affidavit sworn on May 1, 2017. The father says that Mr. Walsh is his former accountant. This letter is not on the letterhead of Mr. Walsh. There is no address or any contact information on this letter for Mr. Walsh, who apparently prepared this letter and addressed it to “Bill”.
32The Walsh letter purports to give an estimate for the preparation of financial statements. The letter does not reveal the name of any company that is the subject of the estimate. The letter refers to the “experience putting together the 2013 results”. If Dunleavy is the company that is the subject of this letter, the 2013 results for the company have not been produced. An estimate of $5,000 is given for bookkeeping fees, financial statements and corporate tax returns for a company that is not identified in the letter.
33The father has produced 4 statements from Dunleavy’s Scotiabank account covering the period of September 2014 to April 2015. This shows that he has access to the corporate bank statements. Four monthly statements is not full disclosure.
34The father states that he does not know where the Minute Book and Share Register for Dunleavy Cordun Incorporated are located. He does not describe any efforts to locate these documents.
35Dunleavy Cordun Associates Inc. is a company that the father used to own. He states that it ceased to operate in 2012 and he does not know where the Minute Book and Share Register are for this company. As a result, he says that he cannot comply with Mesbur J.’s order. He does not describe any efforts to locate these documents. Articles of Incorporation for this company are not attached to his affidavit.
36The father now states that he cannot afford to pay for the business valuation and income analysis that he agreed to in the consent order of Hood J. He has provided a letter from AP Valuations showing that an income valuation for 2012-2015 will cost $7,500 -$10,000 and a business valuation will cost $5000 - $10,000. However, when the father agreed to the consent order in July 2016, he was unemployed as of June 2016 (according to his sworn financial statement dated March 7, 2016).
37The father has not complied with the order of Hood J. to produce the RESP statements. He produced a single page which appears to be generated from a RESP account with CST. It is not dated and is incomplete.
Father’s Financial Statements
38In the father’s July 31, 2015 financial statement, he states that he is employed by Dunleavy Cordun Inc., that he earned no income in the previous year and that his self-employment income before expenses is $6,736/month ($80,832/year). The source of the self-employment income is not revealed.
39In his July 12, 2016 financial statement, the father states that he is self-employed. The name and address of the business is not revealed. The gross income from all sources in the previous year is $60,000. Self-employment income before expenses is $5,000.
40In his March 7, 2017 financial statement, the father states that he has been unemployed since June 2016 and receives $706/month from social assistance. His gross income from all source for the previous year is $1,600. This financial statement conflicts with the July 12, 2016 financial statement in which he states he is self-employed with gross monthly earnings of $5,000.
Father’s Evidence about Financial Problems
41The father states that he cannot afford to pay support, obtain a business valuation or income analysis or pay the costs order. He was approved for Ontario Works as of October 13, 2016 and receives $1,138.71 a month. He also has a drug benefit eligibility card.
42A statement from FRO dated May 1 2017 shows that the father paid support of $1900 on 6 occasions (May – September 2016) for a total of $11,400. The statement confirms that the arrears of support total $22,326 as of May 1, 2017.
43The father states that he is not working and cannot find a job. This is contrary to evidence from the mother. She provided an announcement from Glass Magazine dated January 7, 2017. This announcement states that “Nathan Allan Glass Studios welcomed two new sales representatives to its network. Bill Kahansky of Dunleavy Cordun Inc will cover the Ontario and Quebec territory”.
44The father’s most recent affidavit responded to this information. He states that he is trying to sell products with Nathan Allan and Lamboo. He provided a letter from each company. The undated letters state that the father has not been paid any commissions to date.
45The father is the president of Dunleavy Cordun and continues to identify himself with the company in various emails that he has sent.
46The father states that his financial problems were caused by the mother’s withdrawal of $28,000 from Dunleavy Cordun’s corporate bank account. He states the mother withdrew “all of the corporate bank account funds”. There are no banking records to support this allegation. Because the mother withdrew all of the money, father states that he has no money to obtain the documents that the court ordered and cannot pay support.
47The mother withdrew the $28,000 from the Cordun bank account in July 2015. It is her evidence that she did so because the father was not paying support. The mother’s only source of income is welfare.
48In his affidavit, the father states that the withdrawal of the $28,000 “triggered several other issues” that he describes as follows:
The money withdrawn belonged to customers.
After the money was withdrawn, the company had no money to pay suppliers for materials and orders could not be fulfilled. As a result the company received no further orders.
Because no orders came in, the father could not expect to earn any income from the company and could not pay support.
The mother removed “all of the corporate funds”.
49There is no evidence to support the father’s assertion that the withdrawal of the $28,000 “triggered several other issues”. What is attached to his affidavit does not support this evidence.
50To support his statement that the $28,000 belonged to customers, the father produced seven purchase orders from customers during the first half of 2015. The price on one purchase order was $108,848.09 and a second purchase order was for $86,500. No amounts are revealed on other purchase orders. There is no evidence of payments received from customers that were deposited into the Dunleavy Cordun bank account. There is also no evidence that the mother removed “all of the corporate funds”.
51The father also blames the lawyer who represented him when the order of Thorburn J. was issued on August 5, 2015. He now states that he gave his lawyer explicit instructions not to agree to any support because he had no money to pay support. The fact that he is blaming the lawyer almost two years after the order was signed is a convenient excuse that lacks credibility. If true, I would expect this to have been raised by the next lawyer who represented the father. It was never raised as an excuse for non-payment until this motion.
52On April 20, 2017, the father issued a statement of claim in the Superior Court against his former lawyer, the mother and mother’s counsel. In essence, he blames all of them for mother’s withdrawal of the $28,000. Of note, the father does not allege in this statement of claim that his former counsel acted contrary to his instructions, as he now claims.
Father’s motion to Vary the interim orders
53I will deal with the father’s motion first and explain why the relief he seeks is denied.
54The father’s motion to set aside the various orders is in fact a motion to vary interim orders that directed him to make disclosure and pay support.
55The father also seeks relief concerning the children.
The Children
56The Children's Lawyer appointed counsel for the children because it was in the best interests of the children to do so. The father did not serve counsel for the children with his motion. There is absolutely no evidence to support the father’s request that counsel be removed and it is denied.
57The father’s request that the children undergo a psycho-educational assessment and have reintegration therapy with the father is also denied. As noted, he should have served counsel for the children with his motion. The mother has a final order for sole custody of the children and it is her responsibility to make health and education decisions for the children. Kiteley J previously rejected the father’s assertion that the mother was alienating the children against the father. This relief is denied.
Mother’s Compliance with Order of Thorburn J.
58Paragraph 3 of Thorburn J.’s order requires the mother to disclose “what happened to the $28,000 she removed from the account”. The father says that the mother has not complied. The mother has complied with this order.
59The mother has explained that she and the children do not have enough money to live. The mother learned that the father had withdrawn $30,000 from Dunleavy Cordun’s bank account. She withdrew half of the remaining balance. The mother had borrowed money from friends because the father was not paying support. She used the $28,000 to repay the loans.
60Furthermore, in her order dated February 7, 2107, Harvison-Young J. dealt with the issue of the $28,000. She ordered that the withdrawal is to be considered in the context of equalization.
61This relief is denied.
Variation of the orders
62In summary, the variation that the father seeks is an order eliminating all support arrears, striking the order that he pay costs and striking the order to pay spousal and child support going forward.
63The father agreed to pay support on an imputed income of $60,000. The consent order of Thorburn J. was based on this imputed income.
64The father claims he is unemployed and cannot afford to pay the arrears or ongoing child and spousal support.
65If the father is unemployed as he states, nothing has changed. He described himself as unemployed when he consented to Justice Thorburn’s order dated July 20, 2016. In his sworn July 2015 financial statement, the father stated he had no income and in his sworn March 7, 2017 financial statement, he states that he has been unemployed since June 2016.
66Section 17(4) of the Divorce Act R.S.C., 1985, c. 3 (2nd Supp.) deals with the variation of a child support order as follows:
(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
67Section 14 of the Federal Child Support Guidelines, Reg. SOR/97-175, sets out what constitutes a change in circumstances:
14 For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;
(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and
(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).
68The father has not satisfied the court that a change in circumstances has occurred since the order of Thorburn J. His motion to vary the child support order is denied.
69Turning to spousal support, there is a heavy onus on the party that seeks to vary a temporary spousal support order. Chappel J. summarized the test in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689 at para. 20:
The test that applies on a Motion to vary a temporary spousal support order has evolved within the parameters of the general principle that parties in matrimonial proceedings should be encouraged to advance their case to trial as soon as possible. Using this foundational principle, the Ontario Court of Appeal determined in Lipson v. Lipson [1972 CanLII 470 (ON CA), [1972] 3 O.R. 403-404] that proceedings to vary interim support orders should not be encouraged. It held that in order to succeed on a Motion to change a temporary spousal support order, a party must establish that there has been a substantial change in circumstances since the previous temporary order was made. Variation proceedings relating to temporary orders should not become the focus of the parties' litigation. The onus on a party who seeks to vary a temporary spousal support order rather than waiting until trial is a heavy one. [Footnotes omitted]
70This test has been applied consistently by the court: Oxley v. Oxley, 2010 ONSC 1609, at para. 26; Biddle v. Biddle, [2005] O.J. No. 737 at para. 18; Boissy v. Boissy, [2008] O.J. No. 2783 at para. 16; Colivas v. Colivas, 2016 ONSC 715 at para. 26.
71The father has not met the heavy onus to justify a variation of the orders. He has not shown a substantial change in circumstances since the temporary support orders were made. As explained above, nothing substantial has changed since the father consented to the orders.
72In summary, the father’s motion to vary the orders of Thorburn J. and Hood J. by eliminating support arrears and all future support is denied. For the same reasons, there is no basis for relieving the father from paying the costs order of Harvison-Young J.
The mother’s motion to strike the father’s pleading
73The mother seeks an order striking the father’s pleading because he has not complied with the consent orders that require him to provide disclosure, he has not paid costs and owes significant support arrears.
74I have already reviewed the disclosure that was ordered. While the father has provided some disclosure, it is very limited.
75The father’s excuses are hollow. The court has given the father numerous opportunities to comply with the consent orders.
76As Myers J. stated in Manchanda v. Thethi, 2016 ONSC 3776 at para. 4 “[e]arly, voluntary, and complete disclosure of financial information is essential to family law proceedings.”
77In Roberts v. Roberts, 2015 ONCA 450, at paras 11-13 the court emphasized the importance of disclosure:
11 The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.
12 Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.
13 Financial disclosure is automatic. It should not require court orders -- let alone three - to obtain production.
78More than three orders have been issued in this case that deal with the father’s non-compliance. Justices Thorburn and Hood issued consent disclosure orders. Mesbur J. noted the father’s non-compliance and extended the time to comply. The father did not comply as noted by Harvison-Young J.
79As the Court of Appeal explained in Manchanda v. Thethi, 2016 ONCA 909 at para. 13, this court has the power to strike claims in the face of non-compliance with court orders:
Our second reason is this: after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, willful non-compliance must be considered egregious and exceptional. This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11.) In 2015, Family Law Rule 13 was amended to emphasize a party's financial disclosure obligations. A party's non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.
80The father’s failure to comply with the consent court orders can no longer be tolerated. The father’s non-compliance triggers rule 1(8) of the Family Law Rule, O. Reg. 114/99. This rule gives the court the power to make any order that is necessary for a just determination, including an order striking the father’s application. It states:
(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) on motion, a contempt order.
81The only pleading that the father has filed is an application for a simple divorce. The father’s non-compliance as set out above justifies an order striking the application. This is a just determination in the circumstances.
82The father has not defended the claims of the mother that she advanced in her answer. To do so he had to file a reply. Family Law Rule 10(6) sates that “[a] party may, within 10 days after being served with an answer, serve and file a reply (Form 10A) in response to a claim made in the answer”.
83Although the father never filed a reply, he has been proceeding in this litigation as if he did file a reply (i.e. he challenges the support orders and requests access). He has never brought a motion for an order to permit the late filing of a reply. If an applicant wants to dispute claims that are set out in an answer, the applicant must file a reply.
84The only access order was made by Hood J. on July 20, 2016. This temporary order states that the father shall have access to the youngest child as arranged by the Children's Lawyer and with that child’s input. The order also states that the father shall have access to information about the children from “medical professionals and schools”. There is no order that gives father access to the older child who is now 16. The mother was ordered to use her best efforts to encourage the children to see and/or talk to their father. No further access orders have been issued.
85If the father had filed a reply, I would order that it be struck for all issues except custody and access, if not resolved. Courts ought not to preclude a parent’s participation on issues of custody and access that involve the best interests of the children (see Santos v Pantelidis, 2016 ONSC 164 at para. 10).
86In this case custody has been resolved. The mother has a final order that gives her sole custody of the children. There is no claim for access because father has not filed a reply.
87The father’s interest in pursuing access is unclear. Since the order of Hood J. dealt with access, as if the father had filed a reply, it would be unfair and not in the best interests of the children, to bar his participation on this issue. Therefore, the father shall have an opportunity to file a reply to seek access to the children. However, his participation in the litigation going forward shall be limited to the access issue and will only be permitted if he serves and files a reply no later than May 29, 2017.
conclusion re motions
88In summary, I make the following orders:
(1) The applicant’s notices of motion dated April 30, 2017 are dismissed.
(2) The applicant’s application is struck pursuant to rule 1(8)(c) of the Family Law Rules.
(3) If the applicant wishes to file a reply to the respondent’s answer, he may do so, but only on the issue of his access to the children. The reply shall be served and filed by May 29, 2017 and his right to participate in this case shall be limited to the issue of access to the children.
(4) If the applicant does not file a reply as permitted in (3) above, then he shall have no further right to participate in this case and the consequences set out in rule 1(8.4) of the Family Law Rules apply as follows:
The applicant is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
The applicant is not entitled to participate in the case in any way.
The court may deal with the case in the applicant’s absence.
A date may be set for an uncontested trial of the case.
costs
89At the conclusion of the hearing of the motions, the parties provided submissions on costs, win or lose. The respondent has been successful and is entitled to her costs. Her counsel seeks costs of $1,500 all inclusive. This is a modest and very reasonable amount for the lengthy motions that this court heard. I fix the respondent’s costs at $1,500 all inclusive. The applicant shall pay the respondent costs of $1,500 all inclusive.
C. Horkins J.
Date: May 19, 2017