COURT FILE NO.: FS-15-83320
DATE: 2018-09-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SARA FATAHI-GHANDEHARI
Self-represented
Applicant
- and -
STEWART WILSON
Paul Robson, for the Respondent
Respondent
HEARD: March 21, 2018,
at Brampton, Ontario
Price J.
Reasons For Order
OVERVIEW
[1] Stewart Wilson has persisted in his failure to make full financial disclosure, having been ordered to do so by Orders made by Miller J. on July 23, 2015, and by this Court on July 7, 2016. In a decision released on October 10, 2017, this Court found Mr. Wilson in contempt of both orders.
[2] After adjourning the proceeding multiple times, from October 10, 2017, to the present, to give to Mr. Wilson an opportunity to purge his contempt, this Court finds that he still has not done so. Fines imposed on him on November 16, 2017, in the amount of $2,000.00, which he paid, and on January 11, 2018, for $10,000.00, which he has not paid, failed to bring about his compliance. The court made an order on January 26, 2018, requiring Mr. Wilson to pay Ms. Fatahi-Ghandehari’s costs of the contempt proceeding, in the amount of $94,439.75, which he also did not pay.
[3] The court has heard submissions from the parties as to what further steps are appropriate and, in particular, whether Mr. Wilson should now be imprisoned and whether his pleadings should be struck. Ms. Fatahi-Ghandehari seeks both remedies, and others. Mr. Wilson has declined to make submissions on the issue.
[4] For the reasons that follow, I have concluded that Mr. Wilson’s pleadings shall be struck.
BACKGROUND FACTS
[5] The Respondent, Mr. Wilson, failed to comply with disclosure orders made by Miller J. on July 23, 2015, and by this Court on July 7, 2016. On October 10, 2011, this Court found Mr. Wilson in contempt of those orders and on November 16, it imposed a fine of $2,000.00 on him.
[6] The Court adjourned further sentencing for the contempt to November 23, 2017, to enable Mr. Wilson to purge his contempt and avoid further sanctions. On that date, the court found deficiencies in the disclosure Mr. Wilson had provided. It made a further disclosure order and further adjourned the sentencing to December 11, 2017, to give Mr. Wilson a last chance to comply.
[7] Mr. Wilson delivered further disclosure material. Ms. Fatahi-Ghandehari stated that she served responding material on Mr. Wilson but on December 11, 2017, he denied having received it. He requested a further adjournment to review and reply to it. Additionally, he moved to stay the contempt motion and set aside the finding of contempt made against him, relying on what he said was new evidence that would show that Ms. Fatahi-Ghandehari had perjured herself.
[8] The Court further adjourned the sentencing hearing to January 11, 2018, granted Ms. Fatahi-Ghandehari leave to respond to Mr. Wilson’s motion to stay the contempt motion and set aside the contempt finding, and granted Mr. Wilson leave to deliver a further affidavit for the purpose of addressing deficiencies in his disclosure and thereby purging his contempt.
[9] Ms. Fatahi-Ghandehari delivered affidavits sworn January 1 and 2, 2018, responding to Mr. Wilson’s motion to stay the contempt motion and set aside the contempt finding against him. Mr. Wilson delivered an affidavit sworn January 5, 2018, which did not address the deficiencies in his disclosure material but, instead, replied to Ms. Fatahi-Ghandehari’s response to his motion to stay the contempt motion and set aside the contempt finding against him.
[10] Additionally, Mr. Wilson sought leave to make a further motion to stay the contempt proceeding based on an application he said was pending before the Commercial Court in Toronto, arising from his bankruptcy, and sought leave to bring a motion to sever his claim for divorce from the claims for collateral relief.
[11] The Court refused Mr. Wilson’s request for leave to make a further motion to stay the contempt proceeding based on the pending proceeding in Toronto. Having reviewed the evidence that Mr. Wilson and Ms. Fatahi-Ghandehari filed in relation to Mr. Wilson’s motion to stay the contempt proceeding on the ground of Ms. Fatahi-Ghandehari’s alleged perjury, the Court dismissed that motion and imposed a further fine of $10,000.00 on Mr. Wilson for his contempt. The background facts were set out in the reasons this Court released October 10, 2017,[^1] and January 26, 2018,[^2] and are adopted for purposes of these reasons.
[12] The Court further adjourned the contempt proceeding to February 8, 2018, to give Mr. Wilson a further opportunity to purge his contempt, and reserved the costs of his motion to stay the contempt proceeding based on the pending application in Toronto, and invited written argument on costs and Costs Outlines.
[13] Mr. Wilson did not comply with this Court’s disclosure Order dated July 7, 2016, in the following respects:
Chartered Business Valuation
[14] Paragraph 2 of the Order provided:
- Mr. Wilson shall within 30 days (that is, by Aug. 7, 2016) retain a Chartered Business Valuator, the selection of which and terms of reference of whom shall be agreed upon by the parties and provide proof to the Applicant that he has done so. He shall initially pay the costs of the valuation, without prejudice to his right to seek re-apportionment of the costs in a costs order made at the end of the trial of the proceeding.
[15] Mr. Wilson retained a valuator, Matthew Krofchick, in November 2017, but failed to give notice to Ms. Fatahi-Ghandehari of his doing so, or give her an opportunity to agree on the selection of the valuator or on his/her terms of reference.
[16] Mr. Krofchick produced a valuation which failed to address a number of issues that would have been addressed, in my view, had Ms. Fatahi-Ghandehari been given input into his terms of reference. Had there been a dispute at that stage, either party could have applied to the court for directions. During the valuation, Mr. Krofchick wrote to Rudy Brugnerotto, the accountant whom Mr. Wilson had employed in 2013 and 2014. He asked Mr. Brugnerotto to ask the following questions, set out in an email dated January 22, 2018:
(a) Based on the profit and loss to December 2014, it appears as though revenues during the 6 months from May to December are significantly lower than they were in previous years. Why was that? What kind of annual revenues was the business expecting to generate going forward?
(b) On what basis are commissions paid? Who receives them? Why do they appear in both COGS and General Expenses?
(c) Why were credit card charges so much higher in 2012 than the (sic) were in later years?
(d) What kind of insurance is included in the cost of goods sold under insurance and licenses? Why is there an additional separate line for insurance expenses in the profit and loss for the period ending December 2014?
(e) What do the vehicle expenses represent? Is any of this a personal expense? If so, please provide a breakdown of the personal component.
(f) What do the rental expenses represent? Is any of this a personal expense? If so, please provide a breakdown of the personal component.
(g) What do the travel expenses represent? Is any of this a personal expense? If so, please provide a breakdown of the personal component.
(h) Is any portion of the expense for meals and entertainment personal?
(i) What is included in the expense for professional fees? Why are they so much lower in subsequent years compared to 2012?
(j) Why are accounting fees so much higher in the period ending December 2014, when they were $28,990, than they were in previous year? Does any of this have to do with legal/accounting fees relating to your current matrimonial proceeding? If so, please provide a breakdown of the portion of these and any other expenses that are directly related to your (sic) current matrimonial proceeding and not to normal, operating expenses for the business.
(k) Are any portion of the telephone expenses personal? If so, please provide a breakdown of the personal component.
(l) Does the business pay any amounts (salaries, commissions, benefits, etc.) to individuals with whom you don’t deal at arm’s length, like friends or relatives? If so, please provide a breakdown.
(m) Please provide a breakdown of your remuneration form Exotic Car Tours for each fiscal year.
(n) Please confirm that withdrawals made by Mr. Wilson’s former spouse were recorded in the Due to Shareholders account.
[17] Mr. Brugnerotto replied in an email on February 14, 2018, as follows:
Matthew Krofchick,
I was engaged by the company, Exotic Car Tours, only to prepare A Notice To Reader for 2013 and 2014, which I assume you are aware is a limited engagement, not a (sic) requiring analysis that would enable me to answer any of your questions.
Accordingly, I am unable to answer your questions.
Sincerely,
Rudy
[18] In an affidavit sworn February 6, 2018, Mr. Wilson states, at paragraph 14:
The valuator is not waiting for anything other than the input of 2246519’s Mr. Brugernotto. The valuator has stated to me that the Applicant was asking for answers to a lot of time consuming requests and that he needs more money if he is going to respond. I don’t have extra money. The valuator has been paid in excess of $6,000. Attached is Exhibit B showing all money paid to him to date.
[19] Mr. Wilson’s counsel stated at the hearing on March 21, 2018, that paragraph 14 contains an error and that it should read, “Mr. Brugnerotto has stated to me that the Applicant…”, not “The valuator has stated to me that the Applicant…” This discloses that the issue for Mr. Wilson is not the amount he is required to pay the valuator, but the information the valuator is requesting from Mr. Wilson’s accountant, which Mr. Wilson says he is not able to pay the accountant to provide.
[20] Mr. Wilson did not produce evidence of his impecuniosity.
Bank Authorizations
[21] The Order dated July 7, 2016, incorporated the terms of a Consent signed by the parties on that date. Paragraph 5 of the Consent provided as follows:
(5) The Respondent shall execute authorizations and Directions allowing the Applicant to obtain information from all five chartered banks (CIBC, RBC, BMO, TD, Scotiabank) regarding any accounts held by the Respondent in his sole name or jointly with a third party.
[22] On July 14, 2016, Mr. Wilson provided directions and authorizations directing and authorizing each of the banks to provide his banking records to Ms. Fatahi-Ghandehari’s then lawyer, Ursula Cebulak. On the following day, Ms. Cebulak notified Mr. Wilson’s lawyer that it was unfortunate that he had not contacted her in advance regarding the naming of her instead of her client, the Applicant, who was to be named under the terms of the Order. Ms. Cebulak, who was in the process of ceasing to represent Ms. Fatahi-Ghandehari, and who delivered a Notice of her Intention to Act in Person on July 18, 2016, asked Mr. Robson to provide replacement authorizations naming Ms. Fatahi-Ghandehari. He failed to do so, in spite of numerous requests from Ms. Fatahi-Ghandehari. To each of these, Mr. Robson simply replied that “Those authorizations were provided to your then counsel in accordance with Justice Price’s Order.”
[23] At the hearing on March 21, 2018, this Court made a further and final Order requiring Mr. Wilson to produce authorizations to Ms. Fatahi-Ghandehari within seven days, and to file evidence the following day that he had done so, together with copies of the authorizations. Since the hearing on March 21, 2018, Mr. Wilson did produce authorizations. The authorizations are deficient in the following respects:
The authorizations are missing personal information of Mr. Wilson.
The authorizations are not witnessed. They should be witnessed by his lawyer, and commissioned, as Ms. Fatahi-Ghandehari’s were, and as required by the banks. Some, but not all, of the authorizations that Mr. Wilson provided in 2016 were witnessed.
The authorizations contain an expiry date of April 30, 2018. The authorizations provided in 2016 were irrevocable, with no time-limits.
The authorizations do not cover accounts jointly held with other parties, which were required by the Order. Paragraph 5 of the consent portion of the July 7, 2016, Order stated, “The Respondent shall execute Authorizations and Directions allowing the Applicant to obtain information from all five chartered banks (CIBC, RBC, BMO, TD, Scotiabank) regarding any accounts held by the Respondent in his sole name or jointly with a third party.”
The authorization provides only the first six digits of Mr. Wilson’s Social Insurance Number, omitting the final three digits. The authorizations that Mr. Wilson provided previously, which were sent to Ms. Fatahi-Ghandehari’s then solicitor of record, Ursula Cebulak, contained his entire Social Insurance Number. Those authorizations named Ms. Cebulak, who was removed from the record as Ms. Fatahi-Ghandehari’s lawyer at that time, which led to the Court’s later Order requiring that new authorizations be provided.
[24] I find, based on Mr. Wilson’s past conduct, that the deficiencies in the recent authorizations were not accidental, but were calculated to create the impression of compliance, while rendering the authorizations ineffective in enabling Ms. Fatahi-Ghandehari to obtain from the banks the list of Mr. Wilson’s accounts. In particular, she was unable to use the authorizations to obtain statements from the banks identifying all accounts held by them in the name of Mr. Wilson, which would then have enabled her to demand the monthly statements for those accounts.
Bank statements
[25] Paragraph 6 of both the July 23, 2015, Order and the July 7, 2016, Order required production of Mr. Wilson’s statements for his TD Bank account #6346257. Account histories were provided for that account, but they omit the address of the account holder. Monthly statements for some bank accounts include copies of cheques and vouchers, but there is no way of determining whether the monthly statements for this account did so. Mr. Wilson has not provided any evidence from the bank that the monthly statements are not available.
[26] Ms. Fatahi-Ghandehari asserts that Mr. Wilson also failed to produce the monthly statements for Account #6263376 and #5019491 and the statements for 2553158 Ontario Inc.’s accounts, and his RRSP statements, and the cheques, transfers, wires, and money orders for Account #5242788, and those vouchers listed in paragraph 10 (f) of Ms. Fatahi-Ghandehari’s Submissions filed February 23, 2018. Those statements and vouchers were not specifically referred to in the Order dated July 7, 2016. There is therefore no basis for finding that Mr. Wilson’s failure to produce them was a contempt of that Order. While Mr. Wilson may be in default of his disclosure obligations derived otherwise, that issue is not directly before me and I decline to deal with it at this time.
The Niels Avenue property
[27] Paragraph 7(e) of the July 7, 2016, Order required Mr. Wilson to produce a summary and tracing of funds that were used to purchase the Niels Avenue property in Burlington, together with the trust ledger statement. Mr. Wilson has provided an affidavit stating where the funds for the purchase came from. He has also provided the solicitor’s trust ledger. Ms. Fatahi-Ghandehari asserts that there are discrepancies between the two, but that is a matter to be pursued through questioning or at trial. I find that Mr. Wilson has complied with paragraph 7(e) of the Order in that regard.
ISSUES
[28] The court must determine what measure or measures are appropriate in response to Mr. Wilson’s continuing contempt and his failure to purge his contempt, having given ample opportunity to do so. In particular, it must decide whether to strike Mr. Wilson’s pleadings, or imprison him, or both.
PARTIES’ POSITIONS
[29] Ms. Fatahi-Ghandehari asks for an order incarcerating Mr. Wilson and striking his Answer, in combination with a fine of $5,000.00, payable to her, payment of $2,000.00 per month as interim support, a no-dealings order against the Playhouse located at 9860 Highway 20 in Smithville, Ontario, and leave to issue a writ of temporary seizure against the following accounts at the TD Bank branch #3138:
a) Account #0391-5242799;
b) Account #6346257;
c) Account #6263376;
d) Account #5019491;
e) All the accounts of 2448083 Ontario Inc.
f) An order for the valuation of 3448083 Ontario Inc. and Straight Forward Auto Service Inc. at Mr. Wilson’s expense.
g) An order for the payment of $672,277.05 that Ms. Fatahi-Ghandehari says is owing to her as reimbursement of the inheritance funds she used to purchase the vehicles mentioned at paragraph 118 and 122 of the October 10, 2017 Order, and the $89,077.05 used to purchase a 2008 Audi R8 that was not mentioned in the Order.
[30] Mr. Wilson has submitted an affidavit in which he submits that he has complied with the disclosure orders, and argues that Ms. Fatahi-Ghandehari has failed to comply with her disclosure obligations, although these are not the subject of a motion that is currently before me. For the reasons stated above, I find that Mr. Wilson still has not complied with the disclosure orders or purged his contempt.
[31] Mr. Wilson declined to make submissions as to the penalty or consequence that should be imposed on him by reason of his contempt, and, in particular, whether either of both incarceration and/or striking Mr. Wilson’s pleadings were appropriate. His counsel sent a letter dated February 13, 2018, to this Court, stating as follows:
Dear Your Honour,
Pursuant to your request on February 8th, I respectfully decline to advance any submissions with regard to the choice presented to my client that choice being between the devil and the deep blue sea.
Any such submissions are premature and it would be irresponsible for me to advance any at this time as he is not facing the Cornellian dilemma discussed. Nor do I expect he will.
Respectfully,
Paul Robson
ANALYSIS AND EVIDENCE
a) Should an Order be made for Mr. Wilson’s incarceration?
Legislative framework
[32] Courts cannot find litigants in contempt for failure to comply with payment orders and therefore cannot incarcerate a person for failing to comply with such orders. However, courts may incarcerate a person who has been found in contempt, even when impecuniosity is alleged.
[33] Sections 26(4) and 31(1) of the Family Law Rules provide that a payment order cannot be enforced by a contempt order. They state:
26(4) An order other than a payment order may be enforced by,
(b) a contempt order (rule 31);
31(1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.
(5) If the court finds a person in contempt of the court, it may order that the person,
(a) be imprisoned for any period and on any conditions that are just;
(b) pay a fine in any amount that is appropriate;
(c) pay an amount to a party as a penalty;
(d) do anything else that the court decides is appropriate;
(e) not do what the court forbids;
(f) pay costs in an amount decided by the court; and
(g) obey any other order.[^3]
[Emphasis added.]
[34] Section 2 defines “payment order” as follows:
“payment order” means a temporary or final order, but not a provisional order, requiring a person to pay money to another, including:
(f) a fine for contempt of court,
(h) an order requiring a party to pay the fees and expenses of,
(i) an assessor, mediator or other expert named by the court,
(i) the costs and disbursements in a case;
[Emphasis added.]
Jurisprudence
[35] In Dickie v. Dickie, (2006), the Court of Appeal explained that the purpose of section 31(1) of the Family Law Rules, like rule 60.11 of the Rules of Civil Procedure, is "to ensure that people are not imprisoned because they have not satisfied monetary obligations".[^4] In dissent, Laskin J.A. agreed with Juriansz J.A.’s interpretation, stating, "We no longer imprison people for their failure to pay a civil debt".[^5] Both provisions have their origin in the Debtors Act, 1869, 32 & 33 Vict., c. 62.[^6]
[36] Similar restrictions constrain the court’s use of its contempt power under Rule 60.11(1) of the Rules of Civil Procedure.[^7] Yet, the Court of Appeal, in Manis v. Manis, (2001), rejected an argument that an order requiring a spouse to arrange alternate security for a mortgage to the Royal Bank and a line of credit, might have the effect of requiring him to pay money, not to his wife, as creditor, but to the Royal Bank, or to transfer his legal interest in his property to the bank.[^8]
[37] Laskin J.A., in his dissent in Dickie v. Dickie, (2006), that was later adopted by the Supreme Court of Canada, provides a framework for determining whether or not an order is “an order for the payment of money” pursuant to r. 60.11(1):
I accept that an irrevocable letter of credit is "money or money's worth," and that an order to post security for costs ordinarily is satisfied by the payment of money. However, to determine whether an order is an order for the payment of money under r. 60.11(1), one must consider to whom the money is being paid and the effect of the order for payment. Where money is ordered to be paid not to the creditor but into court — or its functional equivalent, to a solicitor to be held in trust — and where the effect of the order is not to create a fixed debt obligation but to secure a debt obligation, then the order is not an order for the payment of money under r. 60.11(1).[^9]
Applying the legal principles to the present case
(a) Is the Order in respect of which Mr. Wilson is in contempt an “Order for the payment of money” that precludes incarceration?
[38] This Court’s Order dated July 7, 2016, was to provide financial disclosure; the requirement to retain a Chartered Business Valuator and the valuator’s terms of reference were agreed to by the parties. Though the Order may have cost the impugned litigant money, it was not a “payment order” within the meaning of s. 2 of the Family Law Rules.
[39] In any event, this issue is moot, given that Mr. Wilson was already found in contempt. At the contempt hearing, his argument against his liability for failing to retain a Chartered Business Valuator was that the valuator would not be able to perform his task, not that Mr. Wilson was unable to pay him for performing it.
[40] If Mr. Wilson did not raise the issue of a “payment order”, or his impecuniosity, as a bar to a finding of contempt at the liability phase of the proceeding, he may not raise it after-the-fact as a bar to the penalty hearing for the contempt. This would amount to a collateral attack on the finding of contempt.
(a) Is Mr. Wilson impecunious?
[41] A party alleging impecuniosity bears the onus of establishing it on a balance of probabilities. The evidentiary threshold for impecuniosity is high.[^10] At the very least, the test requires a litigant to submit recent tax returns, complete banking records, and records attesting to income and expenses. Master Glustein’s comments in Coastline Corp. v. Canaccord Capital Corp., (2009), are apposite:
The evidentiary threshold for impecuniosity is high, and "bald statements unsupported by detail" are not sufficient. The threshold can only be reached by "tendering complete and accurate disclosure of the plaintiff's income, assets, expenses, liabilities and borrowing ability, with full supporting documentation for each category where available or an explanation where not available";
To meet the onus to establish impecuniosity, "at the very least, this would require an individual plaintiff to submit his most recent tax return, complete banking records and records attesting to income and expenses";
Because the plaintiff has the onus to establish impecuniosity, a defendant "can choose not to cross-examine if the plaintiff fails to lead sufficient evidence". The decision not to cross-examine does not convert insufficient evidence into sufficient evidence.[^11] [Citations omitted.]
[42] Mr. Wilson has not produced his most recent tax returns, complete banking records, or records attesting to his income and expenses. Indeed, this Court has found him in contempt for failing to produce a number of such records.
[43] Where parties transfer funds, or assets that could be the source of income, to related parties and thus are the author of their own misfortune/impecuniosity, those parties “cannot rely on their previous unlawful conduct in transferring the money to justify their current alleged inability to purge their contempt... Any alleged ‘impossibility’ to fulfill their undertakings to the court is ultimately a result of their own conduct and therefore their responsibility.”[^12]
[44] There is no dispute that Mr. Wilson transferred the exotic cars that were the source of his livelihood during the parties’ marriage to a joint venture that he operates with Jason Bradimore. He has not been forthcoming in the production of records that might disclose the income that he actually derives from that joint venture. He and Mr. Bradimore complain that the order which this Court made enjoining the disposition of the cars, and requiring them to be surrendered to the bailiff, prevent them from operating their business. Yet, I find, based on the evidence submitted by Ms. Fatahi-Ghandehari, including recent photographs taken of Mr. Wilson carrying on his business with the cars, that he has not complied with the Order, and continues to use the cars in the operation of the joint venture.
[45] Ms. Fatahi-Ghandehari’s claim to the cars, or to a trust interest in them, has yet to be determined. However, until those determinations are made, Mr. Wilson cannot claim impecuniosity resulting from the order enjoining him from dealing with the cars, arising from his own failure to make timely disclosure, as a justification for his failure to comply with his disclosure obligations and the orders in respect of which he has been found in contempt.
(b) The option of incarceration
[46] Judges deciding cases in the early 1990s did not hesitate to find parties in contempt and subsequently incarcerate them. In Pilpel v. Pilpel, (1992), Beaulieu J. committed a party to jail for 45 days for contempt of various court orders. He stated:
[59] In the case of Estrien v. Estrien (December 9, 1992), an unreported decision of the Ont. Ct. (General Division), Madam Justice Wilson followed Mr. Justice Blair's approach and found Mr. Estrien in flagrant breach of his own agreement.
[60] What is interesting in that case as well is that the argument that imprisoning Mr. Estrien for failure to pay support, being contrary to Cohen v. Cohen, was dealt with by Madam Justice Wilson in the following fashion. She indicated:
I find, however, that s. 12 of the Fraudulent Debtors Arrest Act is not applicable if terms are imposed to allow the husband to purge his contempt as contemplated by r. 60.11 of the Rules of Civil Procedure, particularly r. 60.11(5). I find that the reasons given by Blair J. in Surgeoner v. Surgeoner (1991), 6 C.P.C. (3d) 318 are applicable. The husband's conduct in this case is in flagrant disregard of court orders and his own agreement and borders on fraud. There must be power in this court, particularly in family law, to control its own process.
[61] In that matter, as in Justice Blair's case, the husband was given the opportunity to show cause why he should not be imprisoned, and adjournments were granted in order to give counsel time to prepare for same.
[62] On May 3, 1993, a motion was brought before Madam Justice Smith for contempt against a Mr. Merklinger in the case of Merklinger v. Merklinger (1992), 1992 7539 (ON SC), 43 R.F.L. (3d) 109 (Ont. Gen. Div.).
[63] In that matter Justice Walsh had already found Mr. Merklinger in contempt of an order of Justice Hudson and the judgment of Justice Jennings [1992 7539 (ON SC), 43 R.F.L. (3d) 109].
[64] Justice Walsh ordered that the contempt could be purged if Mr. Merklinger discharged all encumbrances of any kind placed on the goods and chattels by May 3, 1993. There was one encumbrance that was not discharged. He was therefore found not to have purged his contempt. He was sentenced to ninety days in jail.[^13]
[Emphasis added.]
[47] In Valente v. Valente, (2003), Planata R.S.J. imprisoned a party for 45 days (unless he purged his contempt prior to a stated date) for contempt resulting from “a conscious decision not to provide appropriate financial statements, nor to provide appropriate authorizations to his employer, and to the financial institutions.”[^14] Justice Ricchetti, in Blatherwick v. Blatherwick, (2016), incarcerated a party for 180 days for failure to comply with two terms of a judgment, namely, to cash in a life insurance policy and pay the cash surrender value to the wife, and not to transfer control of a Chinese company.[^15]
[48] Philip Epstein provides a helpful summary of Blatherwick and expresses his approval for the approach that Ricchetti J.’s took. He states:
Blatherwick v. Blatherwick, 2016 CarswellOnt 11988 (Ont. S.C.J.) - Ricchetti J. As the Ontario Court of Appeal noted in Korea Data Systems Co. v. Chiang, 2009 ONCA 3, 2009 CarswellOnt 28 (Ont. C.A.), custodial sentences for civil contempt are rare. Lengthy custodial sentences are even rarer. Canadian courts have tended to punish contempt of court leniently. Ordinarily, the mere conviction for contempt together with a modest fine suffices to obtain compliance and protect the court's authority. Ordinarily, incarceration is a sanction of last resort: see Robert J. Sharpe, Injunctions and Specific Performance, 3rd. ed. (Aurora, Ont.: Canada Law Book, 2000), at para. 6.120).
Although, incarceration is a sanction of last resort, Justice Ricchetti of the Superior Court of Justice has no doubt that incarceration must be the appropriate remedy in this particular case.
The husband was ordered to comply with two terms of a judgment, namely, to cash in a life insurance policy and pay the cash surrender value to the wife, and not to transfer control of a Chinese company. He failed to do either. (Leaving aside entirely the issue of whether the requirement to cash a life insurance policy is a requirement to pay money for which contempt may not be available. That issue seems to be settled in Dickie v. Dickie, 2007 SCC 8, 39 R.F.L. (6th) 30 (S.C.C.)). It is clear that the husband has had very considerable time to comply with the judgment and he has taken absolutely no steps to fulfill the terms of the judgment.
While the husband had no prior criminal record, was 66 years old and had some health issues, the incriminating factors clearly outweighed the mitigating factors and Justice Ricchetti did not regard the husband's feeble apology as a mitigating factor. It was clear to the Court that the husband had no intention of complying with the judgment.
Justice Ricchetti decides that only a lengthy period of incarceration will provide the deterrent and denunciation in the circumstances of this case. The husband is sentenced to 180 days of incarceration and with the specific direction that he is not to be released on electronic monitoring. This means that unless the husband complies with the judgment, he will serve the full 180 days. What will be an even more compelling message to the husband however, is that upon his release, no earlier than 90 days thereafter, the wife may bring a further application back before Justice Ricchetti for a further sentencing hearing. Justice Ricchetti retains jurisdiction and the ability to sentence the husband to a further penalty if he does not comply. Accordingly, it appears to me that if the husband chooses not to comply, every 90 days the husband will be serving six months in jail for the rest of his life. I have a very strong suspicion that this wake-up call will be effective. This is the quintessential demonstration of when incarceration for contempt should be the appropriate remedy.[^16]
[49] The fines that the Court has imposed on Mr. Wilson have not been effective in bringing out his full compliance with the disclosure orders. I am not satisfied that incarceration would be more likely to bring about his compliance. Mr. Wilson has concealed his means of livelihood, has weathered a bankruptcy, and has received financial support from his mother. He appears to be mounting a war of attrition against Ms. Fatahi-Ghandehari, and a series of incarceration orders would likely place her at a continuing financial and strategic disadvantage.
[50] Periodic and escalating orders for incarceration would result in periodic returns to court to re-assess Mr. Wilson’s compliance. The court has already ordered Mr. Wilson to pay costs of $94,439.75 in relation to this contempt proceeding. A series of escalating sentences of incarceration would entail additional costs in that proceeding, with no prospect that the costs will be paid.
b) Should Mr. Wilson’s pleadings be struck out?
Legislative Framework
[51] Rule 1(8) of the Family Law Rules governs compliance with orders made in a case, or in a related case. Subrules 1(8)(b) and (c) empower the court to dismiss a party’s claim or strike a party’s pleadings for non-compliance:
1.(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.
(8.1) If a person fails to follow these rules the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8)(g).
[Emphasis added.]
[52] Rule 2 provides guidance as to how the Family Law Rules as a whole should be interpreted. It provides, in part:
2(2) The primary objective of these rules is to enable the court to deal with cases justly.
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.
(5) The court shall promote the primary objective by active management of cases, which includes,
(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;
(b) encouraging and facilitating use of alternatives to the court process;
(c) helping the parties to settle all or part of the case;
(d) setting timetables or otherwise controlling the progress of the case;
(e) considering whether the likely benefits of taking a step justify the cost;
[Emphasis added.]
Jurisprudence
[53] In Marcoccia v. Marcoccia, (2008), the Court of Appeal for Ontario cautioned that a “remedy striking a pleading is a serious one and should only be used in unusual cases.”[^17] A court may nevertheless dismiss proceedings for non-compliance with court orders, including non-payment of support and failure to comply with disclosure orders.[^18]
[54] Rule 1(8) was amended in 2014. This amendment removed the requirement that a party’s failure to follow the Rules or obey a Court order have been ‘wilful’ in order for the Court to be able to dismiss the party’s claim. MacLeod-Beliveau J. held in Myers v. Myers, (2014):
The establishment of the failure to obey an order in a case will be sufficient to dismiss a claim. Rule 1(8) still provides that the court may deal with a failure to obey an order in a case by making any order that it considers necessary for a just determination of the matter, including striking out any Motion to Change.[^19]
[55] The jurisprudence under the former sub-rules 1(8) or 14(23) (Failure to Obey Order Made on Motion), is still applicable and sets out the relevant principles for the court to consider.[^20] In Ferguson v. Charlton, (2008), Spence J. of the Ontario Court of Justice set out the approach to be taken by the courts when deciding whether to dismiss a motion, Answer, or application for non-compliance:
First, the court must ask whether there a triggering event that would allow it to consider the wording of either subrule 1(8) or subrule 14(23). That triggering event would be non-compliance with a court order “in the case or a related case” [subrule 1(8)] or an order “made on motion” [subrule 14(23)].
Second, if the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8), or by ordering that subrule 14(23) does not apply. My review of the foregoing case law suggests that this discretion will only be granted in exceptional circumstances. In my view, the court’s decision whether or not to exercise its discretion in favour of a non-complying party, ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.
Third, in the event that the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with a very broad discretion as to the appropriate remedy pursuant to the provisions of either subrule 1(8) or subrule 14(23).[21]
[Emphasis added.]
[56] This court recently considered and adopted the three-part test from Ferguson in Dumont v. Lucescu, (2015), and Chiaramonte v. Chiaramonte, (2015).[^22]
Applying the legal principles to the facts of this case
[57] Mr. Wilson’s contempt, as set out in the Court’s reasons on October 10, 2017, is a “triggering event” that requires the Court to consider whether it is appropriate to exercise its discretion in his favour by not sanctioning him further. In determining whether or not to exercise this discretion in Mr. Wilson’s favour, I have taken into account the history of the litigation and, more specifically, Mr. Wilson’s conduct.
[58] The Court of Appeal, in reasons issued August 29, 2018, quashing four appeals that Mr. Wilson brought from the decisions of this Court, stated:
[10] The record amply shows that the appellant has made a procedural morass of this case. The record of non-compliance with customary practice and the rules is so egregious that there is no explanation that the appellant or Mr. Robson could provide that would excuse it. On this basis we refused the adjournment.
[11] Given the history of this proceeding, we would quash the appeal even if the order under appeal were final, in the exercise of our inherent jurisdiction to control the process of the court and to prevent its abuse: see Oelbaum v. Oelbaum, 2011 ONCA 300, 2011 ONCA300, 94R.F.L. (6th) 251. This jurisdiction is also recognized in s. 140(5) of the Courts of Justice Act.[^23]
[59] I agree with this assessment. I find that Mr. Wilson’s conduct in the proceeding has been calculated to frustrate Ms. Fatahi-Ghandehari’s efforts to assert her claims under the Family Law Act. He is not entitled to the exercise of the court’s discretion in his favour.
[60] The third stage of the three-part test requires the court to consider other remedies in lieu of striking pleadings that might suffice.[^24] I therefore turn to consider the Court’s broad discretion as to the appropriate remedy under Subrule 1(8).
[61] Mr. Wilson has persistently failed to disclose his financial information and has engaged in unreasonable, frivolous, and even vexatious behaviour and motions. I rely principally on that conduct, rather than on his failure to pay costs, as grounds for striking his pleadings. However, his failure to pay the costs ordered is a relevant factor. In Schaer v. Barrie Yacht Club, (2003), Eberhard J. stated:
Where a party fails to comply with an interlocutory order, the Court may dismiss or stay the party's proceedings or make any other order that is just. The rationale for Rule 60.12 is that there will be situations when "a party's position ought to be determined for procedural reasons arising from the failure of the party to abide by orders made by the court. If it was the case that the merits of the matter always had to be determined before such remedies could be imposed, there would be little room for the effective application of either of these rules." "If this court's rules are going to be taken seriously by anybody, they must be enforced." "A party should not be able to set up his own impecuniosity as a shield against costs sanctions. To allow that would mean that a Plaintiff could bring, resist, or appeal motions with no fear of consequences, and would emasculate the powers provided in rules 57.03(2) and 60.12." "Because of the importance of avoiding a situation in which litigants without means could ignore the rules of the court, the trial judge acted reasonably in refusing to take into account the impecuniosity of the Plaintiff.".[^25]
[Citations omitted, emphasis added.]
[62] Mr. Wilson has been given sufficient time to make some payments toward the $10,000.00 fine imposed on him and the costs order. The fact that he has made no payment toward these amounts is a factor I have considered before striking his pleadings, as Trimble J. did in Mubili v. Mubili, (2017), where he noted that any good faith efforts to pay would factor into his decision to allow an order preventing the impugned litigant from bringing further proceedings to remain in place.[^26]
[63] In Purcaru v. Purcaru, (2010), the Court of Appeal upheld the order of a trial judge who struck the husband’s pleadings and his financial statement and proceeded to a trial of the financial issues based solely on the evidence of the wife and her expert.[^27] Lang J.A. stated:
Nonetheless, the decision to strike pleadings and to determine the parameters of trial participation is a discretionary one that is entitled to deference on appeal when exercised on proper principles. The exercise of discretion will be upheld where the motion or trial judge fashions a remedy that is appropriate for the conduct at issue. In Sleiman v. Sleiman (2002), (ON CA), 2002 44930 (ON CA), 28 R.F.L. (5th) 447 at p. 448, a case involving a refusal to provide financial disclosure, this court upheld the motion judge’s determination that the appellant had demonstrated a “blatant disregard for the process and the orders of the court” as well as her decision precluding the appellant from contesting the wife’s financial claims. In Vacca v. Banks (2005), 6 C.P.C. (6th) 22, the plaintiff had repeatedly failed to comply with orders related to discovery and the progress of litigation. Ferrier J. for the Divisional Court, observed at p. 27 that the master’s remedy of the dismissal of the action may be an appropriate sanction to recognize the court’s “responsibility for the effective administration of justice.”[^28]
[Emphasis added.]
(i) The Onus
[64] As noted in Ferguson, once the court has found that Mr. Wilson breached the earlier orders of this court, the onus is on him to show why the court should exercise its discretion to find that Rule 1(8) does not apply and that his pleadings should not be struck.[^29]
(ii) Mr. Wilson’s alleged impecuniosity
[65] Impecuniosity is not a bar to striking a party’s pleadings. In Baksh v. Sun Media (Toronto) Corp., (2003), Master Dash stated the following:
In my view the court has granted sufficient indulgences to the plaintiff. The plaintiff's breaches have in my view now become contumelious. The final indulgence granted in my order of July 25, 2002 spoke of no ambiguity as to its mandatory nature: "If the costs and security for costs are not paid by October 31, 2002, the action will be dismissed by motion on notice." For orders of the court to have any meaning they must be enforced. I am not satisfied by cogent evidence that the plaintiff is impecunious. Even if I were so satisfied, a party should not be able to set up his own impecuniosity as a shield against costs sanctions. To allow that would mean that a plaintiff could bring, resist, or appeal motions with no fear of consequences, and would emasculate the powers provided in rules 57.03(2) and 60.12. In my view there is no other order in the circumstances of this case that is "more just" than a dismissal of the action. A continued stay would not serve the case management goal of avoiding undue delay.[^30]
[Emphasis added.]
[66] This passage from Baksh has been cited with approval on numerous occasions, including (but not limited to) the Prince Edward Island Supreme Court (Appeal Division)’s decision in Ross v. City of Charlottetown, (2008), Heeney R.S.J.’s decision in Hillier v. Hutchens, (2014), and Eberhard J.’s decision in Schaer v. Barrie Yacht Club, (2003).[^31] This Court followed Baksh in Doherty v. Clarkson Manors Inc., (2012).[^32]
[67] While the foregoing were civil and not family cases, Trimble J. applied Baksh in the family law context in Mubili v. Mubili, (2017).[^33] Although he does not explicitly reference Baksh, Trimble J. struck a party’s pleadings for failure to pay a costs order, even though there was an assertion of impecuniosity, in Pang v. Pang, (2014).[^34]
[68] As noted in Baksh, the Court may stay future proceedings by the contemnor until he satisfies the outstanding costs orders made the court as an alternative remedy to striking his pleadings outright. Fairburn J., as she then was, did this in Gupta v. Gupta, (2016), even though one of the parties asserted that he was impecunious.[^35] I find that, in the present case, there is no reasonable prospect that Mr. Wilson will comply with his remaining disclosure obligations and pay the costs he has caused Ms. Fatahi-Ghandehari to incur already in the contempt proceeding. I find that there is therefore no purpose to be served by imposing a stay.
[69] This case, including the parties’ family law proceeding in this court, the related civil action in Milton, Mr. Wilson’s bankruptcy proceeding in Toronto, the present contempt proceeding, and the numerous appeals, has already consumed judicial resources to an extent far out of proportion to the amounts at stake. It is unfair to expect Ms. Fatahi-Ghandehari to incur further costs in preparing for a trial with the uncertainty that it may be a contested proceeding, and it would be unreasonable to prolong the contested proceeding further in light of Mr. Wilson’s repeated failure to participate in the proceeding in a reasonable manner.
[70] As custody and access are not an issue in this case, it is not necessary for me to consider permitting Mr. Wilson to participate in the trial on the limited issues of custody and access alone and only on a limited basis. This would comply with the Divisional Court’s direction in Van v. Palombi.[^36]
[71] For the reasons stated above, and having considered the available options, I find that striking Mr. Wilson’s Answer and Financial Statement is the remedy most likely to achieve fairness to the parties. It is the remedy most likely to achieve a just outcome, at the least expense and time, in a way that is most appropriate to the importance and complexity of the case, and that applies appropriate court resources to the case while taking account of the need to give resources to other cases. An order will therefore issue as set out below.
COSTS
[72] Since the hearings up to and including November 16, 2017, which were dealt with the costs order made on January 26, 2018, Ms. Fatahi-Ghandehari has attended court on six further occasions, namely, November 23, and December 11, 2017, and January 11, February 8, February 28, and March 21, 2018. Those appearances included continuations of the sentencing hearing and hearing of three motions brought by Mr. Wilson, which delayed the sentencing hearing.
[73] The outcomes of the motions, which I found to be without merit and in some cases frivolous and vexatious, were favourable to Ms. Fatahi-Ghandehari, who is entitled to indemnification for her costs.
[74] The proceeding has become complex, as a result of the unreasonably and technical positions taken by Mr. Wilson and the need to repeatedly revisit the status of his compliance with the disclosure orders. Large volumes of material were delivered and relied on by both parties, as it was necessary for Ms. Fatahi-Ghandehari to address each of the arguments Mr. Wilson raised.
[75] The issues were important, as the disclosure Ms. Fatahi-Ghandehari sought was essential to enable her to prosecute her claims with any hope of success at trial. The outcome was the striking of Mr. Wilson’s pleadings, which this Court found to be the only remedy that would preserve the fairness of the proceeding.
[76] Mr. Siddiqui assisted Ms. Fatahi-Ghandehari with the penalty stage of the contempt motion. Mr. Siddiqui was called to the Bar in 2003. I accept Ms. Fatahi-Ghandehari’s assertion, in her Costs Outline, that he spent 43 hours at the hearings and in preparation for them. The attendances themselves occupied over 17 hours, according to the Courtroom 310 Court Reporter’s notes, as follows:
• November 16, 2017:
9:19 a.m. to 10:18 a.m. and 2:25 p.m. to 3:39 p.m.
Total time: 6.5 hours
• November 23, 2017
9:13am – 10:42am
Total time: 1.5 hours
• December 11, 2017
8:43am – 10:10am
Total time: 1.5 hours
• January 11, 2018
9:07am – 10:32am
Total time: 1.5 hours
• February 8, 2018
8:51am – 10:02am; and 12:36am-12:45am
Total time: 4 hours
• February 28, 2018
8:34am – 8:37am
Total time: 5 minutes
• March 21, 2018
8:54am – 10:56am
Total time: 2 hours
[77] Allowing an equal time for Mr. Siddiqui’s preparation, and partial time for his travel to and from court, I find the time claimed to be reasonable.
[78] As noted in this Court’s costs endorsement dated January 26, 2018, Mr. Siddiqui’s maximum partial indemnity rate, adjusted for inflation, last year, was $360.00. It is now 376.19. I find the hourly rate claimed for him to be reasonable.
[79] Based on the foregoing, an Order shall issue for Mr. Wilson to pay Ms. Fatahi-Ghandehari’s costs as set out below, based on the Costs Outlines she has filed, dated March 21, and April 5, 2018.
CONCLUSION AND ORDER
[80] For the foregoing reasons, I order that:
Mr. Wilson’s pleadings, including his Financial Statements, are struck out.
Ms. Fatahi-Ghandehari has leave to proceed to an uncontested hearing, on a date to be arranged with the Trial Office.
Mr. Wilson shall not be permitted to participate in the trial, either by calling evidence, cross-examining witnesses, or making arguments to the court.
Mr. Wilson shall pay Ms. Fatahi-Ghandehari’s costs of this motion, from November 23, 2017, to the present, and the costs reserved from the hearing to settle the Court’s costs endorsement of January 26, 2018, on a full recovery basis, fixed in the amount of $28,625.00 plus HST at 13%.
Price J.
Released: September 21, 2018
COURT FILE NO.: FS-15-83320
DATE: 2018-09-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SARA FATAHI-GHANDEHARI
Applicant
- and –
STEWART WILSON
Respondent
REASONS FOR ORDER
Price J.
Released: September 21, 2018
[^1]: Fatahi-Ghandehari v. Wilson, 2017 ONSC 6034. [^2]: Fatahi-Ghandehari v. Wilson, 2018 ONSC 669. [^3]: Family Law Rules, O. Reg. 114/99. [^4]: Dickie v. Dickie, 2006 576 (ON CA), [2006] 78 O.R. (3d) 1 (C.A.), per Juriansz J.A. at paras. 53, 55-56. [^5]: Dickie v. Dickie, per Laskin J.A. at para. 103. [^6]: Forrest v. Lacroix Estate, 2000 5728 (ON CA), [2000] 48 O.R. (3d) 619 (C.A.) at para. 36. [^7]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [^8]: Manis v. Manis, 2001 3851 (ON CA), [2001] 55 OR (3d) 758, per MacPherson J.A., at para. 26. [^9]: Dickie v. Dickie (C.A.) at para. 104; endorsed by the Supreme Court of Canada in Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346 at para. 7. [^10]: Hallum v. Canadian Memorial Chiropractic College, 1989 4354 (ON SC), [1989] 70 O.R. (2d) 119 (H. Ct. J.), [1989] OJ No 1399 per Doherty J., at para. 18; City Paving Co. Ltd v. Corporation of Port Colborne (City) (1985), 3 C.P.C. (2d) 316 (Ont. Master's Ch.). [^11]: Coastline Corp. v. Canaccord Capital Corp., 2009 21758 (ON SC), [2009] O.J. No. 1790 (Ont. Master) at para. 7. [^12]: Korea Data Systems Co. v. Chiang, 2007 12203 (ON SC), [2007] 31 C.B.R. (5th) 19 (Ont. Sup. Crt.) at para. 68; substantially affirmed in Chiang (Trustee of) v. Chiang, 2009 ONCA 3, 93 O.R. (3d) 483. [^13]: Pilpel v. Pilpel, [1993] 27 C.P.C. (3d) 157 (Ont. Gen. Div.) at paras. 59-64. [^14]: Valente v. Valente, [2003] O.J. No. 2083 (Sup. Crt.) at paras. 42, 49. Note also Planata R.S.J.’s comments at para. 45: “The frustrating situation in this case is that this Respondent must be made to understand his responsibility to adhere to court orders. I find that his actions have been flagrant, deliberate and without reason. While he himself may be of the view that his position is correct, a strong message must somehow be sent to him which will indicate to him that it is not. Throughout the course of this motion, I indicated to him that he would have every opportunity to argue the issue of the alleged missing contents before a judge at trial, and that if his position turned out to be one which is proven, that that would certainly be a matter which would be taken into account by any judge hearing this action. However, I also explained to him in the course of hearing the motion that in order to have the matter proceed to trial, he was required by law to provide the information, not only because of statutory authority, but certainly because of the authority of the order issued by Wright J.” [^15]: Blatherwick v. Blatherwick, 2016 ONSC 4630, 84 R.F.L. (7th) 134 at paras. 2, 31. [^16]: Philip Epstein, Epstein’s This Week in Family Law, October 10, 2016, FAMLNWS 2016-40. [^17]: Marcoccia v. Marcoccia, 2008 ONCA 866 at para. 3. [^18]: Brophy v. Brophy, 2004 25419 (ON CA), [2004] 180 O.A.C. 389, [2004] O.J. No 17 at para. 11; Vetro v. Vetro, 2013 ONCA 303 at para. 4. [^19]: Myers v. Myers, 2014 ONSC 1804 at paras. 27-28, [^20]: Myers at para 29. [^21]: Ferguson v. Charlton, 2008 ONCJ 1 at para. 64. [^22]: Dumont v. Lecescu, 2015 ONSC 494 at para. 41; Chiaramonte v. Chiaramonte, 2015 ONSC 179 at para. 48. [^23]: Wilson v. Fatahi-Ghandehari, 2018 ONCA 728. [^24]: Van v. Palombi, 2017 ONSC 2492 (Div. Ct.) at para. 30; Susko v. Susko, 2016 ONSC 7092 at para. 12; Dumont v. Lucescu at para. 41; Ferguson v. Charlton at para. 64. [^25]: Schaer v. Barrie Yacht Club, [2003] O.J. No. 4171 at paras. 15-18. [^26]: Mubili v. Mubili, 2017 ONSC 3053 at para. 28. [^27]: Purcaru v. Purcaru, 2010 ONCA 92at paras. 47-49, 65. [^28]: Purcaru at para. 50. [^29]: Ferguson at para. 59. [^30]: Baksh v. Sun Media (Toronto) Corp., 2003 64288 (ON SC), [2003] 63 O.R. (3d) 51 (Ont. Master) at para. 19. [^31]: Ross v. City of Charlottetown, 2008 PESCAD 6, 2008 PESCAD 06 at para. 19; Hillier v. Hutchens, 2014 ONSC 1579 at paras. 32-33; Schaer v. Barrie Yacht Club at paras. 15-16. [^32]: Doherty v. Clarkson Manors Inc., 2012 ONSC 5193 at paras. 14-15. [^33]: Mubili at para. 25. [^34]: Pang v. Pang, 2014 ONSC 4735 at paras. 3, 9-11. [^35]: Gupta v. Gupta, 2016 ONSC 6506 at paras. 38-40. Note that the judges in both Pang and Gupta found that there was misleading or insufficient evidence to make out impecuniosity – something that may serve to distinguish these cases from the case at bar if the impugned litigant has sufficient evidence of his impecuniosity. [^36]: Van v. Palombi at paras. 45-46.