Mona Gupta v. Tarun Gupta, 2017 ONSC 6867

Mona Gupta v. Tarun Gupta

CITATION: Mona Gupta v. Tarun Gupta, 2017 ONSC 6867 COURT FILE NO.: FS-11-73067-00 DATE: 2017-11-16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mona Gupta, Applicant AND: Tarun Gupta, Respondent

BEFORE: Barnes J.

COUNSEL: Robert A. Fernandes, for the Applicant Sherri D. Moss, for the Respondent

ENDORSEMENT

introduction

1Mona Gupta seeks an order prohibiting Tarun Gupta from taking any further steps in this proceeding, including proceeding with his motion to set aside the order of Justice Sproat dated April 28, 2014, until he pays to Mona Gupta the sum of $250,000 towards his child support arrears.

2In the alternative, Mona Gupta seeks a temporary order requiring Tarun Gupta to post security in an amount of no less than $250,000 as a prerequisite to taking any further steps in the proceeding.

3Upon considering the material filed and the submissions of counsel, I direct Mona Gupta to provide the Court with a timetable of when the property, with municipal address 10 Huron Avenue, Jersey City, New Jersey, 07306 (the Property), shall be listed for sale. Tarun Gupta shall provide the Court with an updated Financial Statement with an explanation of his current financial resources, and ability to pay the child support arrears and/or post security, independent of the proceeds from the sale of the Property. Both parties shall provide this information to the Court by December 8, 2017.

summary of relevant facts

4Mona Gupta and Tarun Gupta were married on August 11, 1998. They have two children under the age of majority. They were separated on December 29, 2008.

5All parenting issues between the parties have been dealt with in the Ontario Court of Justice by the final orders of Justice P.W. Dunn dated March 9, 2010 and Justice A.W.J. Sullivan dated April 6, 2017. Mona Gupta has sole custody of the two children and Tarun Gupta has access on alternating weekends and mid-week.

6On March 3, 2014, I found Tarun Gupta in breach of several provisions of the order of Justice T. Bielby, dated November 21, 2013; the Order of Justice Tzimas dated July 13, 2013; the Order of Justice Barnes dated December 13, 2013 and the Order of Justice Price dated June 5, 2012. Due to this history of non-compliance, I struck Tarun Gupta’s answer and ordered the trial in this matter to proceed as an uncontested trial. In effect, Mr. Gupta’s right to participate in the trial was dispensed with.

7By Order of the same date, I dispensed with the participation of Tarun Gupta in the sale of the Property and vested sole authority in Mona Gupta to sell the property in a timely manner.

8On April 28, 2014, there was an uncontested trial before Justice Sproat. Justice Sproat’s Order of the same date included: an imputed income to Tarun Gupta of $144,307 per annum; Tarun Gupta’s support arrears were fixed at $247,092 as of December 31, 2014, which he was to re-pay at the rate of $6,863.67 per month commencing January 1, 2014; commencing January 1, 2014, Tarun Gupta was to pay $1,946 per month in child support and $550 per month as his contribution to the children’s section 7 expenses.

9In September, 2016, Tarun Gupta brought a contempt motion on the basis that Mona Gupta had failed to comply with the Order of Justice Barnes dated December 13, 2013, ordering Mona Gupta to sell the Property. Mona Gupta, by cross motion, sought an order staying all proceedings by Tarun Gupta until he pays the cost orders of Justice Barnes dated March 5, 2015 and Justice Sproat dated April 18, 2014.

10By Order dated October 19, 2016, Justice Fairburn dismissed the contempt motion and granted Mona Gupta’s order. Tarun Gupta has paid all the outstanding costs orders as required by Justice Fairburn’s Order. He now seeks to set aside the April 18, 2014 Order of Justice Sproat on the basis of alleged errors in calculation.

ISSUES

11The main issue is whether Tarun Gupta should be prohibited from taking any further steps in this case, until he pays all or a portion of his child support arrears or in the alternative, posts security.

POSITION OF THE PARTIES

12Mona Gupta is opposed to granting Tarun Gupta leave to proceed with his motion to set aside Justice Sproat’s order unless Tarun Gupta pays support arrears of $247,092, as of December 31, 2014, or in the alternative posts security for the same amount.

13Tarun Gupta submits that he does not have the financial resources to pay the support arrears or post security. He explains that he will be able to pay the support arrears or post security once he receives his share of proceeds from the Court ordered sale of the Property. The Property has an estimated equity of just under $2,000,000. He submits that since Mona Gupta is a joint owner with an equal share in the equity of the Property and with sole control of the Court ordered sale of the Property, her interests are not prejudiced if he is permitted to proceed with his motion to set aside, without paying the outstanding arrears or posting security.

LAW

14The Court has the authority to grant a stay of proceedings: Section 106, Courts of Justice Act, R.S.O. 1990, c, C.43. The primary objective of the Family Law Rules, O. Reg. 114/99, is to enable the Court to deal with cases in a fair and just manner and court decisions should accord with this primary objective: Family Law Rules 2(2), 2(3)(a) and 2(4).

15When a party fails to abide by a court order the Court may make such decision as it considers necessary and just in all the circumstances: Family Law Rules 1(8)(e)(f) and 1(8.4)(2). A Court may prohibit a party from bringing further motions where the Court determines that the motions are without merit, causing unnecessary delay or constitute an abuse of the Court’s process: Family Law Rule 14(23).

16When a party’s pleadings are struck, that party cannot commence any future proceedings without leave of the Court: Family Law Rule 1(8.4) (2). In the ordinary circumstance, a Court will not hear an appeal to set aside a support order until the said order has been complied with: A.A. v Z.G., 2016 ONCA 660, at para. 4. The threshold issue on a motion seeking leave to commence proceedings is whether the party’s default of the court ordered obligations was deliberate and wilful, or simply a result of an inability to pay: Brophy v Brophy, 2004 25419 (ONCA) at paras. 9 to 12 and A.A. v Z.G., 2016 ONCA 660, at para. 4. By necessity, the application of these principles is driven by the circumstances of each case, including factors such as the quantum of the support award; the quantum of the unpaid arrears and the presence or absence of prejudice to the other party should leave be granted.

17The Court may make an order for security for costs in circumstances where such an order is just. Such circumstances include: where the case is a waste of time or a nuisance and the party does not have enough assets in Ontario to pay for costs: Family Law Rules: 24(13), 24(14) and 24(15); Rules of Civil Procedure, R.R.O. 1990, and O. Reg. 194. Rule 56.01 and 56.02. The conduct of a party is a relevant consideration. For example, security for costs may be appropriate where the party has a low prospect of success and engaged in conduct that unnecessarily added to the cost and length of the proceeding: Perron v Perron, 2011 ONCA 776 at para. 21 to 23; or the party had deliberately accumulated the arrears: Stelter v Stelter, 2013 ONCA 508, at paras. 5 and 11.

ANALYSIS

18In essence, the parties are in agreement that Tarun Gupta’s motion to set aside should proceed. They disagree on the terms for granting leave. It is not disputed that there is a Court ordered sale of the Property; the Property has equity of just under $2,000,000; both parties have an equal interest in the Property; Mona Gupta has complete control over the sale of the Property; Tarun Gupta’s share of the Property’s equity will be sufficient to pay the support arrears or to post security for costs; Mona Gupta’s plans to comply with the Court order to sell the Property is unknown and an updated reliable information on Tarun Gupta’s current financial circumstances has not been provided.

19Under all these circumstances, I conclude that the record is deficient and it is appropriate and just in all the circumstances to direct Mona Gupta to provide the Court with a timetable of when she shall list the property for sale and Tarun Gupta shall provide to the Court an updated Financial Statement with an explanation of his current financial resources, and his ability to pay the child support arrears and/or post security, independent of the proceeds from the sale of the Property. Both parties shall provide this information to the Court by December 8, 2017.

Barnes J.