Court File and Parties

Newmarket Court File No.: FC-14-45645-00 Date: 2018-09-17 Superior Court of Justice - Ontario

Re: Judy Pauline Biniaminov, Applicant And: Valeri Biniaminov, Respondent

Before: The Honourable Mr. Justice D.A. Jarvis

Counsel: P. Viater, Counsel for the Applicant H. Fernandes, Counsel for the Respondent

Heard: September 14, 2018

Ruling on Motions

[1] There are two motions before the court. The father has moved to vary the Orders of McGee J. dated April 29, 2015 and me dated October 19, 2016 with respect to child support, and for the appointment of the Office of the Children's Lawyer (“OCL”). The mother has brought a cross-motion to strike the father's pleadings because he has failed to pay outstanding costs Orders and there are significant child support arrears. She does not consent to, but will not oppose, the father's request to have the OCL involved.

[2] The mother made a preliminary objection that the father's motion should not be heard because of his history of Order non-compliance. I indicated that I wished to hear fulsome submissions from both parties with respect to their motions.

[3] The father contends that he has suffered business and health-related challenges which, since the support Orders were made, have impacted his ability to comply with them. It is noted, for example, that Kaufman J. made a $7,960 costs Order on August 9, 2017 and granted the father payment terms over time. It is presumed, and I accept, that implicit in that award is that the father had the means to pay. That Order was not appealed. No costs have been paid pursuant to it. The same may be said with respect to the Order of McDermot J. dated December 3, 2017 dealing with the father contributing $750 to the costs of the parties’ divorce.

[4] The costs awards outstanding total $8,710, without taking into account interest.

[5] The father was ordered (as already noted) to pay child support. The Director’s statement provided to the court sworn September 13, 2018 indicates that the outstanding arrears as of that day are $15,470.82.

[6] The father claims that he has experienced health challenges, has had to close down his business and is being pursued by creditors. He also claims that he is exploring a career change to earn a more stable income. His affidavit does not detail what that has involved before the date he started his motion in August 2018 except that he enrolled in an insurance broker course in August 2017. The status of his efforts in that regard was not disclosed to the court notwithstanding that over a year has passed since then.

[7] There are several issues with respect to the father's credibility, as follows:

(a) he swore a financial statement in May 2014 that he earned no income, yet a month or so later he made a mortgage application and represented that he earned a $150,000 income. Either the father lied to the court then or he misrepresented to the lender his real income. His counsel told the court when his motion was argued on September 14, 2018 that the father misrepresented his income to the lender;

(b) attached to the mother's affidavit were Instagram photos of a Rolex, motorcycle, and condominium posted to what is unchallenged was the father's Instagram account. For each of these postings the father says that the asset was not his (i.e. the Rolex) or was a purchased and sold for a profit (the motorcycle) or the condominium in respect to which a friend congratulated him on the “nice digs” was a showpiece of his workmanship. Individually these isolated representations may be innocent but, collectively viewed, they raise serious questions about the father's credibility, particularly when viewed in light of his earlier misrepresentation to his mortgage lender as noted at (a) above. Also, why would a person be posting on an Instagram account pictures representing a certain lifestyle when, as the father has represented to this court, he does not enjoy that lifestyle at all?;

(c) the mother has pointed out three inconsistent explanations, for example, of the father’s source of funding for the Shallot Court property that he purchased so soon after the parties signed Minutes of Settlement in 2014. None of those explanations is reconcilable; and

(d) the mother's analysis of the funds flowing through the father's bank account in 2015 and 2016, when viewed in light of his declared taxable income for those years and the income misrepresentation that he made in 2014, reveal a habit of financial deception. This is compounded by the unchallenged evidence of the mother that, for example, payment of the child support arrears as a result of the 2016 Order did not originate from any disclosed bank account, as did other payments which he made.

[8] It is clear to this court that the father is not credible when dealing with his financial affairs. The Director’s statement demonstrates a regrettable lack of a consistent support payments history. Additionally, the mother contends that there remains outstanding disclosure although that issue was addressed by Kaufman J. in August 2017 when he observed that the father “barely” avoided having his pleadings struck then.

[9] In Van v. Palombi, 2017 ONSC 2492, the Divisional Court identified the three prong test applicable to striking pleadings,

[30] The legal principle governing the exercise of judicial discretion to strike a party’s pleadings is a three-pronged test as follows: (1) Is there a triggering event justifying the striking of pleadings?; (2) Is it appropriate to strike the pleadings in the circumstances of the case?; (3) Are there other remedies in lieu of striking pleadings that might suffice?

[31] These three-pronged principles are well established in the case law. (See Kovachis v. Kovachis, 2013 ONCA 663, 367 DLR (4th) 189; Chiaramonte v. Chiaramonte, 2013 ONCA 641, 370 D. L. R. (4th) 328; Purcaru v. Purcaru, 2010 ONCA 92, 265 O.A.C. 121 at paras. 47-48; King v. Mongrain (2009), 2009 ONCA 486, 66 R. F. L. (6th) 267 (Ont. C.A.); Haunert-Faga v. Faga (2005), 2005 ONCA 39324, 203 O.A.C. 388 (C.A.); and Marcoccia v. Marcoccia (2009), 2008 ONCA 866, 50 R. F. L. (6th) 1 (Ont. C.A.).

[10] In my view, the triggering event in the case before this court, like Van, is the wilful non-compliance with costs awards and payment of support given the father's unpersuasive explanations about his income, in particular his Instagram postings. In Van, the court dealt with the exercise of the court's discretion once a triggering event was found to exist.

[35] The jurisprudence indicates that even in the event of a court finding a “triggering event”, justifying the striking of pleadings, it is still within the discretion of the court to decide to strike or not on all of the circumstances of the case. Furthermore, the striking of pleadings and the denial of trial participation which follows as a result, should only be done in exceptional circumstances and where no other remedy would suffice. The third step of the test is the examination of other remedies that might be appropriate in lieu of striking pleadings, a step that the motion judge fails to mention.

[36] The rationale for such a cautious and restrained test was explained in the case of Kovachis v. Kovachis, supra, at paragraph 25. The consequence of an order striking the pleadings of a party effectively prohibits that person from participating in any way at the trial of the matter. Without that participation there is a risk that the court will not have all necessary and accurate information to reach a just result. If the judgment provides for continuing obligations or relationships that can only be varied on changed circumstances, as often happens in family law judgments, then injustice may be perpetuated.

[11] The Divisional Court in Van allowed the father's appeal, in part, from an Order striking his pleadings by permitting him to participate in the trial on the limited issues of custody and access, and then only on a limited basis. In my view, the appropriate remedy in the case before me is to give the father an opportunity to comply with his outstanding cost and support obligations after which he may renew his motion to vary the support Order, but failing which his pleadings on the non-parenting issues should be struck.

[12] The following Order is made,

1. An Order appointing the OCL in the prescribed form is granted.
2. The father shall have until October 26, 2018 to pay in full the outstanding costs awards made by Kaufman J. and McDermot J. in the amount of the $8,710, with accrued interest to the date of payment, and child support arrears of $15,470.82.
3. If the father complies with #2. of this Order then he may renew his motion to vary the support Orders made by McGee J. and me retroactive to September 1, 2018.
4. If the father fails to fully comply with #2. above by the October 26, 2018 deadline then his pleadings on the non-parenting issues in these proceedings shall be deemed to have been struck and the mother is granted leave to proceed by way of Form 23C for an uncontested trial Order on all non-parenting issues between the parties.
5. The balance of relief requested in each party's Notice of Motion is dismissed.

[13] The parties are encouraged to resolve the issue of costs arising from their motions. If they are unable to do so, the following directions are made:

(a) the mother shall provide her written submissions by September 28, 2018; (b) the father shall provide his submissions by October 10, 2018; and (c) reply (if any) by the mother by October 17, 2018.

[14] All submissions are to be double-spaced and in the case of (a) and (b) above limited to four double-spaced pages: the reply is limited to two double-spaced pages. Submissions shall be filed in the Continuing Record. Offer to Settle, Bills of Costs and any Authorities upon which a party may wish to rely shall be filed with the court by the deadlines set out above but shall not form part of the Continuing Record. Counsel are requested to advise the judicial secretary once their submissions have been filed by a contacting nurit.suzana@ontario.ca.

[15] One last point.

[16] As was pointed out to counsel, the Continuing Record does not correspond to the Index in the Endorsement Record. There are, for example, two volume 2’s of the Continuing Record, the most recent volume 2 dating after the pleadings contained in volume 5. This oversight should be immediately remedied by counsel collaborating with the court offices.

Justice David A. Jarvis Date: September 17, 2018