COURT FILE NO.: 39226/16

DATE: 20180205

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: STEPHANIE CHRISTINE SHARMA, Applicant

AND:

YASHPAL SUBASH SHARMA, Respondent

BEFORE: Kurz J.

COUNSEL: Fareen L. Jamal and S. Golestani, Counsel for the Applicant

Yashpal Sharma, Self-represented

HEARD: January 26 & 29, 2018

ENDORSEMENT

OVERVIEW

[1] This is a motion for summary judgment brought by the Applicant mother, Stephanie Christine Sharma (“Stephanie” or “the mother”), against the Respondent father, Yashpal Subash Sharma (Yash” or “the father”).

[2] The mother, Stephanie, seeks the following relief against Yash through summary judgment:

a. Sole custody of the child of the marriage, Ela Gita Sharma, born October 10, 2013 (“Ela”);

b. An order that Ela’s primary residence be with the mother;

c. Child support of $2,019 per month, based on an imputed income of $250,000 per year of the father;

d. Spousal support of $4,287 per month based on the same $250,000 per year imputation;

e. Retroactive child and spousal support;

f. An equalization payment of $100,000.

[3] The father, Yash, opposes this motion and seeks an adjournment. Although he resides in Trinidad and Tobago (“TT”), he participated in this motion by telephone. The father argued for an adjournment on the first day of the motion, January 26, 2018. When the motion was not completed on January 26, 2018, it was put over to the following Monday, January 29, 2018.

[4] On each of those two dates I allowed the father to put forward an affidavit that had just been prepared (one dated January 24, 2018 and another January 29, 2018). The January 29, 2018 affidavit had been sent to the mother’s counsel, Ms. Jamal, just that morning. She did not see it until I referred to it in court. She did receive an earlier, unsworn version had been emailed to her over the weekend.

[5] Despite the prejudice to the mother, and the fact that the court had not received originals, I allowed both affidavits to be considered for the limited purpose of determining whether an adjournment should be granted. I did so because of the father’s self-represented status, the fact that he lives in another country, and the fact that this motion may determine his final rights regarding parenting and support.

[6] A key component in the father’s position, both seeking an adjournment of this motion and opposing the relief being sought is the fact that he resides in TT. That is the jurisdiction where the parties married. The father argued that he sought an adjournment of 30 days or more in order to marshal further evidence. He pointed out that he resides in another country and has no counsel. That is because he recently dismissed the Ontario lawyer who had been representing him as an agent in this proceeding, Selwyn Pieters. However he still has counsel in Trinidad, whom he had earlier placed in the record in this proceeding. He is still prosecuting his divorce proceeding in TT.

[7] That TT divorce proceeding has been stayed in favour of this proceeding. However Yash will shortly be arguing an appeal to overturn that stay. If successful, he says that he will not argue the custody and child support issues in Trinidad even though he placed them before the court. Instead, he says that he will attempt to deal with spousal support in TT instead of Ontario.

Adjournment Request

[8] The first issue for me to consider is whether to grant the father his adjournment. The issue of an adjournment is one of discretion in which the court balances the interests of each party and the administration of justice in the orderly processing of cases on their merits.[^1] The discretion must be exercised judicially and fairly.

[9] In Igbinosun v. Law Society of Upper Canada,[^2] the Ontario Court of Appeal set out a non-exhaustive list of factors that a court should consider in deciding whether to grant an adjournment. It stated at par. 37:

A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel, and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant's reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered. [Emphasis added]

[10] Here the father ticks off a number of the boxes cited by the Ontario Court of Appeal to refuse an adjournment. But the reasons for refusing an adjournment here can be summarized by two main grounds. One is the prejudice that the mother could suffer if this motion is not heard on a timely basis. It is possible that if this matter is delayed further, this court may lose jurisdiction to deal with the issue of spousal support. Further prejudice could arise if the TT court makes an order regarding custody, access or child support that contradicts or that the father will attempt to use to pre-empt an Ontario order.

[11] The second ground arises from the father’s blameworthy conduct as a litigant in Ontario. He has failed to pay any child support since separation. He has also failed to comply with his disclosure obligations under the Child Support Guidelines (“CSG”) and previous court orders. Instead he has used constant delay for tactical advantage. I expand on these two grounds below.

Prejudice and Jurisdiction

[12] I will deal first with the issue of this court’s potential partial loss of jurisdiction if this proceeding is adjourned long enough to allow the father to attempt to obtain a divorce in Trinidad. If that were to occur, this court will lose the jurisdiction to deal with, at the least, the issue of spousal support. This point was explicitly made by Justice Simmons of the Ontario Court of Appeal in Olmyansky v. Olmyansky.[^3]

[13] In Olmyansky, Simmons J.A. asked three questions that are especially apposite to the issues before the court. She found that:

1. An Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction.

2. An Ontario court does not have jurisdiction under the Family Law Act (“FLA”) to hear and determine a support claim made by a former spouse following a valid divorce in a foreign jurisdiction.[^4]

3. However an Ontario court does have jurisdiction under the FLA to hear and determine an equalization claim following a valid divorce in a foreign jurisdiction.

[14] I add that in Rothgiesser v. Rothgiesser,[^5] the Ontario Court of Appeal ruled that a court can only grant final corollary relief under the Divorce Act after it had granted a divorce. However there is no claim for a divorce order in this motion for summary judgment. That means that I can only grant the relief claimed in this motion under provincial legislation, the Children’s Law Reform Act (“CLRA”) for custody and access and the FLA for support and property. I note that the mother pleaded for relief under those two statutes in her application. Accordingly I have jurisdiction to grant relief under that legislation.

[15] However under s. 36 (1) of the FLA, a proceeding under that act is stayed in the face of a divorce proceeding unless the court orders otherwise. Section 27 of the CLRA contains a similar provision. As I set out below, in granting relief, I lift those stays.

[16] Here if I grant the adjournment requested the father will use the time to continue with his appellate attempt to obtain a divorce in Trinidad. If successful, he would oust the jurisdiction of this court to consider and if appropriate, grant relief regarding spousal support. As I set out below, despite his protestations to the contrary, he may also attempt to deal with custody and access in Trinidad, where the child does not reside. I do not find any of that that would be fair and equitable in the circumstances. It would all be prejudicial to the mother (see Karkulowski v. Karkulowski,[^6] at para. 70).

[17] While the parties married in Trinidad they did not reside together there for any length of time. Ela was born in Oakville, Ontario. Her primary residence throughout her life has been with the mother in Oakville. While she visited her father in Trinidad from time to time while the parties were together, on stays of between 16 and 120 days, she never changed her primary Oakville residence.

[18] Since the parties separated on or about November 13, 2015, Ela’s primary residence has always been with the mother in Oakville. While the father brought a Hague Convention application to force Ela’s return to Trinidad in December, 2015, he withdrew it in March, 2016. However he sought custody in his Trinidadian divorce proceeding.

[19] While his lawyer has written a letter to this court stating that he is not pursuing the custody issue in TT, he has not acceded to my request that he provide evidence that he has actually withdrawn that and the child support issue from the TT courts.

[20] I note as well that in this short term marriage much of the mother’s spousal support claim arises out of her role as Ela’s parent and primary caregiver. As the authors of the Spousal Support Advisory Guidelines (“SSAG”), Professors Carol Rogerson and Rollie Thompson, write at paras. 3.3.4 of the SSAG:

On the theoretical front, marriages with dependent children raise strong compensatory claims based on the economic disadvantages flowing from assumption of primary responsibility for child care, not only during the marriage, but also after separation. We have identified this aspect of the compensatory principle as it operates in cases involving dependent children as the parental partnership principle, and have drawn on this concept in structuring the with child support formula. For marriages with dependent children, length of marriage is not the most important determinant of support outcomes as compared to post-separation child-care responsibilities.

[21] Because of the unusual cross-jurisdictional issues raised by this case, Justice Jennifer Woollcombe of this court and Justice Ramkerrysingh of the High Court of Justice Family Division of the Republic of Trinidad and Tobago held a rare “joint judicial hearing” to determine the appropriate jurisdiction for this proceeding. Justice Ramkerrysingh determined on November 30, 2017 that the Trindadian proceeding should be stayed.

[22] That decision was the result of a lengthy proceeding that covered five hearing dates. At para. 5 of her decision, Justice Ramkerrysingh stated that the joint judicial session was “collaborative and ended in the spirit of co-operation”. She added that:

5. … It was also understood and acknowledged by both courts that the child and property issues would best be heard in Canada.

6. … it would be wholly unfair to permit the husband’s petition to proceed.

7. … the most pressing issues to be dealt with are spousal and child maintenance and access. Any maintenance and custody/access applications would reasonably be more holistically ventilated in Canada, where issue relating to child and health care, living arrangements, and adequate and appropriate maintenance calculations could appropriately be made, monitored and managed. There is no dispute that custody is to be vested in the wife, who on the face of the evidence, has no intention of returning to Trinidad. So it must be apparent that the preferred court to deal with the issues related to [Ela], is the Ontario Court.

8. … In my view, unless exceptional circumstances prevail, a court should refrain from exercising its jurisdiction in cases where it is more appropriate for the matter to be determined where the child lives. The fact that one party was first to launch formal court proceedings is not determinative of the issue; it is merely one factor to be considered on a balance of convenience.

9. Is it fair for the husband to proceed with his petition, when all that can possibly be achieved is a decree nisi? Pursuing the Trinidad proceedings at this stage, will only be to upstage the Canadian petition in a show of judicial strength, that in the end serves neither party, nor does it assist the child.

17 … All the issues relating to the child and any application that the wife may wish to proceed with for maintenance for herself would be exceedingly cumbersome to be dealt with in this jurisdiction, given the residence of the wife and [Ela] in Canada. Moreover, [once] the foreign decree is granted she would be precluded from pursuing maintenance or other ancillary relief for herself under the Divorce Act. On the other hand, the wife’s petition in Canada would enable the dissolution of marriage, which both parties are desirous of having and the wife’s ancillary matters to be heard.

18. I fail to see what can be gained by pronouncing a decree in favour of the husband here, suspending the proceedings to await the outcome of the Canadian proceedings relating to the child, of which this court can play no useful role, before orders can be made with respect to section 47 of the MPPA[^7] The only advantage would be to appease the husband’s emotional pride by having his petition based on the wife’s behaviour, determined over the wife’s petition, which can only be filed on the fact of separation for one year since Canada is a “no-fault” jurisdiction… This is, of course purely speculative, but that apart, I can see no other benefit for either party resulting from the husband’s petition being heard at this time.

19 …the husband has accepted that the ancillary matters cannot be dealt with here. The husband has now retained attorneys in Canada. He has been allowed to fully participate in those proceedings …

[Emphasis added]

[23] Having reviewed Justice Ramkerrysingh’s carefully considered decision I am in complete agreement with its findings. They apply in this jurisdiction as much as they do in TT. They demonstrate the justice of proceeding with the relief sought by the mother in Ontario. Tellingly, they also demonstrate that the father actually accepted Justice Ramkerrysingh’s findings at the time.

[24] Nonetheless, the father subsequently filed an appeal of Justice Ramkerrysingh’s order. It is not clear why he has done so in light of the concessions that he made before her and the findings that she subsequently made. However his litigation strategy must be considered in light of the factors regarding delay and refusal to fully participate in this proceeding that are set out below. It can only be seen that this appeal is intended to delay the resolution of the issues now before this court and to prejudice the mother by putting her at a litigation disadvantage. That is particularly the case with regard to spousal support, where her Ontario claim will be lost in the event of a TT divorce judgment. Further, her claims regarding custody, access and child support could be muddled with potentially competing claims.

[25] While Yash’s TT lawyer has written to this court, stating that he is not pursuing a custody order in TT, he has not formally withdrawn that claim. He has had months since Justice Ramkerrysingh’s decision to do so. While Yash’s lawyer now says that he is not pursuing custody, he could change his mind, as he has in the past. He could change lawyers in order to seek a TT custody order more to his liking if he wins his appeal. As a result, the mother could conceivably have to contend with a foreign custody and support order while seeking another here.

[26] The father’s appeal is scheduled to be heard on February 19, 2018. During argument of this motion, he stated that the appeal date has actually been moved up to February 5, 2018. At that time he will ask to lift the stay and proceed for a divorce. However a letter from Ms. Sharma’s TT lawyer shows that February 5, 2018 may be only be the date of a preliminary motion in the appeal. It appears to be a procedural motion that relates to the contents of Mr. Sharma’s appeal materials, including the inclusion of a form relating to his claim for custody.

Blameworthy Conduct

[27] The second reason that I am proceeding with this motion at this time is the father’s blameworthy conduct in this proceeding. The term “blameworthy conduct” was used by Justice Bastarache, writing for the majority of the Supreme Court of Canada in D.B.S. v. S.R.G.,[^8] to denote “… anything that privileges the payor parent's own interests over his/her children's right to an appropriate amount of support.”[^9] That kind of conduct can include failure to pay support and failure to provide appropriate disclosure. While blameworthy conduct was determined to be a relevant factor in the determination of retroactive child support in B.D.S., there is no reason to avoid its consideration in the broader context of a request for an adjournment in circumstances such as these.

[28] Here, the father’s protests to the contrary, he has had plenty of time to honour his obligations and put his best foot forward in this motion. He has just chosen not to do so. While he blames his failure to do so on a variety of excuses, including his TT residence, the fact that he is no longer assisted by Mr. Pieters (he chose to dismiss him for what he describes as financial reasons), and not having had sufficient time to prepare his materials, I do not accept his excuses.

[29] In saying that, I note that I allowed Mr. Sharma to file two very late and lengthy affidavits, which I considered in regard to his adjournment request. I also considered the history of this proceeding, as reflected in the court’s record and correspondence between Ms. Jamal’s office and the father. In particular:

a. The father has yet to pay a nickel in child support despite numerous written requests by the mother’s counsel that he do so. Those requests came both in the pleadings in this application and in requests made to him and his counsel. The father variously blames his finances, logistics and even currency conversion rules for his failure to offer any financial support for the child he claims to be fighting for. But he has been able to afford and arrange to fly to Ontario 11 times to see Ela in her short life. The most recent time that he was in Ontario was January of this year. Whatever his income or logistical/conversion concerns, he could have given the mother some money when he was here to see Ela.

b. Similarly he has not offered a shred of income disclosure despite requests and even orders that he do so.

c. On July 26, 2017 Woollcombe J. participated in an interjurisdictional conference call with Justice Ramkerrysingh, the parties and their counsel whose results are described above. Woollcombe J.’s endorsement states that the father was given a month to retain Ontario counsel, who was to organize a conference with Woollcomble J. That counsel was also to file the father’s answer here and provide the requested disclosure, including a sworn financial statement. Woollcombe J. added that some support should be paid forthwith.

d. When the father had done none of the things that Woollcombe J. had instructed him to do, a judicial conference call was held on September 25, 2017. Although the father and his TT counsel, Ms. Persaud, were given details of the call, neither participated. Woollcombe J. stated that she had been advised that the father had been in Ontario twice since her previous endorsement, and saw the child each time. Woollcombe J. nonetheless gave the father two further weeks to file his answer. Justice Woollcombe pointed out near the end of her endorsement that:

The proceedings here are taking longer than expected because of the choices made by the respondent to date.

e. Almost two months later, or six weeks late, on November 16, 2017, the father was still seeking an extension of the time to file his answer and financial statement. Woollcombe J. again granted the request, this time for one week. She dismissed the mother’s request for an uncontested trial and ordered instead a case conference. The father did finally file his answer and financial statement on November 17, 2017.

f. The case conference ordered by Woollcombe J. when she granted the father the final filing extension was held before Fitzpatrick J. on January 5, 2018. None of the father, his TT counsel or his Ontario agent, Mr. Pieters, participated. They also failed to file a brief. Fitzpatrick J found that the father and his agent had been given appropriate notice. That finding is understandable in light of the fact that the father was able to take advantage of the filing extension that Woollcombe had granted to him at the same time that she fixed the conference date. While the father did not attend before Fitzpatrick J., it turns out that he flew into Ontario later that day.

g. In his January 5, 2018 endorsement, Fitzpatrick J. wrote that:

[t]his matter has been delayed by the conduct of the Respondent and all reasonable efforts to make accommodations to encourage (certainly facilitate) his participation.

h. Fitzpatrick J. gave the mother leave to bring this summary judgment motion on January 26, 2018. He set out a schedule for each party to file their materials. He granted and validated service by email. The mother honoured Fitzpatrick J.’s schedule. The father failed to do so. As Fitzpatrick J. directed, his endorsement was emailed to the father and both of his counsel that day, January 5, 2018, three weeks before this motion was heard.

i. In the affidavit that he emailed to the court on January 29, 2018, the father as much as admitted to the strategic and defiant nature of his litigation strategy and refusal to pay child support. For example he wrote:

39. I was always under the impression that the Canadian proceedings are a duplication of the Trinidad proceedings. That is why I was going to file the statements contained in the Reply and Financial Statements in the Trinidad court.

40. Stephanie will not lose any jurisdiction if the matter is heard in Trinidad. Trinidad is the proper jurisdiction for the matter, not Ontario.

41. … I have not paid support to Stephanie because I cannot support something that I am excluded from. I have tried to explain this to Stephanie but it falls on deaf ears. When Stephanie stole Ela away from me, she also stole away my parenting of Ela and I have been fighting against that ever since it happened.

42. Until Stephanie and I have an agreed framework of joint custody for Ela, I am unable to support or contribute to anything she does.

43. I am willing to provide full disclosure of my financial documents to the Court of correct and appropriate jurisdiction in this matter. Stephanie and I are both citizens of the republic of Trinidad and Tobago … In my divorce petition [in TT] I have offered the outline terms for joint custody of Ela …as this is the only substantial issue of our divorce. The other issues which Stephanie is seeking corollary relief on are not applicable because they are based on false sworn statements presented by Stephanie to mislead and misrepresent the facts to Courts in both Trinidad and Canada. …I do not owe Stephanie anything …

44. … The reason for my non-participation [before Bloom J. on April 19, 2017] was due to the fact that I had initiated these same proceedings in Trinidad where I live first (before Stephanie filed anything in Canada, and I did not wish to attorn to or participate in duplicate hearings, mainly for cost reasons. The correct jurisdiction for my divorce application is Trinidad and I am within my rights to petition for divorce here so that I can have the custody and access I am asking for as in [par.] 6 above. On Friday 26^th^ January, 2018 I conceded the matters regarding Ela to be determined in Canada because I was offered this by Justice [Kurz]…

[30] For the reasons set out above, it is clear that the father could have had the materials available to better respond to this motion, but, as he has throughout this proceeding, chose not to do so. Instead he has acted as if he were not bound by the laws and rules of this jurisdiction. This behaviour was tactical and aimed to thwart the mother’s claims in Ontario.

[31] Further, as set out below, the father had a positive obligation under s. 21 of the Child Support Guidelines (“CSG”) to provide a wide range of financial disclosure. Under CSG s. 22:

Failure to comply

22. (1) Where a parent or spouse fails to comply with section 21, the other spouse, an applicant under section 33 of the Act or an order assignee may apply,

(a) to have the application for an order for the support of a child set down for a hearing, or move for judgment ...

[32] It would be unfair to allow a litigant who has willfully and consistently failed to meet his obligations as a party to a proceeding for purely tactical reasons to profit from such conduct. The mother is entitled to her motion, as properly scheduled by the court with notice to the father. Accordingly I proceed with the determination of this motion.

Law Regarding Motions for Summary Judgment

[33] Under r. 16 (1) of the Family Law Rules (“FLR”), either party may bring a motion for summary judgment for a final order without the requirement of a trial. That motion can be brought on all of part of any claim made or defence presented in the case. The test for such a motion is whether the evidence discloses a genuine issue requiring a trial of a claim or defence.[^10]

[34] The term "no genuine issue for trial" has been variously interpreted to reflect the notion that the responding party cannot possibly succeed, even if granted the right to a full trial. Among the terms that have been used to describe the test are the following:

a. "no chance of success", or

b. "plain and obvious that the action cannot succeed", or

c. "manifestly devoid of merit"[^11], or

d. “the outcome is a foregone conclusion”[^12], or

e. no realistic possibility of an outcome other than that sought by the applicant.[^13]

[35] The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.[^14]

[36] Each party to a motion for summary judgment has an obligation to “’put its best foot forward’ with respect to the existence or non-existence of material facts that have to be tried”.[^15]

[37] The onus for proving that there is no genuine issue for trial rests with the moving party.

[38] In response to the evidence of the moving party, the responding party may not rest on mere allegations or denials but shall set out in affidavit or other evidence, specific facts showing that there is a genuine issue for trial.[^16] In the oft-repeated maxim of Justice Coulter Osborne of the OCA, the responding party to a motion for summary judgment must “lead trump or risk losing”.[^17]

[39] In other words, once the moving party discharges the burden of showing that there is no genuine issue for trial, the onus shifts to the responding party to provide evidence of specific facts showing that there is a genuine issue requiring a trial.[^18] An adverse inference may be drawn from a failure to support the allegations or denials in a party’s pleadings.[^19]

[40] On a motion for summary judgment, the court is required to take a hard look at the merits of the case. If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order.[^20] If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly.[^21]

[41] If the court does not make a final order, or makes an order for a trial of an issue, the court may also specify what facts are not in dispute. It may further state the issues and give directions about how and when the case will go to trial, and impose conditions, if appropriate.[^22]

[42] In determining whether there is a genuine issue for trial, the court shall consider the evidence submitted by the parties. In addition, it may use its expanded powers under subrule 16 (6.1), which reads as follows:

Powers

In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[43] In exercising its expanded powers, the court may hear oral evidence from one or more of the parties, with or without time limits, in the form of a mini-trial.[^23]

[44] In Hryniak v. Mauldin[^24], the Supreme Court of Canada set out the process to be followed in applying the expanded civil summary judgment rules:

1. The court will first consider whether there is a genuine issue for trial based only on the evidence before the court. This decision is made without exercising the court’s expanded powers.

2. But if there appears to be a genuine issue for trial, the court shall then determine whether the need for a trial can be avoided using those expanded powers. That decision is a discretionary one. But the court shall not exercise its discretion if doing so would be against the interests of justice.

3. The exercise of the expanded powers will not be against the interests of justice if it would lead to a fair and just result; one that serves the goals of timeliness, affordability and proportionality in light of the litigation as a whole.[^25]

[45] These new rules expand the number of cases in which there will be no genuine issue requiring a trial. They do so by permitting motion judges to weigh evidence, evaluate credibility and draw reasonable inferences.[^26] I have considered the principles articulated in paras. 44 - 78 of Hryniak.

[46] In keeping with the principles set out in Hryniak, the court must also consider subrules 2 (2) - (5) to ensure that a case is dealt with justly. It does so by ensuring that the procedure is fair to all parties, saves time and expense and that the case is dealt with in ways that are appropriate to its importance and complexity.

[47] The case law dealing with summary judgment under the Rules of Civil Procedure also apply to such motions under FLR r. 16.[^27] In fact, as Justice Michael G. Emery of the SCJ stated in Afolabi v. Fala [^28], reflecting on the application of the Hryniak principles to family law before the expansion of judicial powers under r. 16:

If anything, family law in Ontario cries out for the summary disposition of issues in appropriate circumstances as much as in any other area of law. This accessibility to timely, affordable justice is as important to the parties in conflict as it is to the confidence of citizens in our court system that cases will be adjudicated efficiently and effectively according to law.

[48] One further note regarding summary judgment: subrule 16 (6) is mandatory when it states:

If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[49] Karakatsanis J. called for summary judgment rules to be interpreted broadly, “… favouring proportionality and fair access to the affordable, timely and just adjudication of claims.”[^29]

Application of Summary Judgment Rules to the Facts of this Case

The Mother is Entitled to Sole Custody

[50] In his argument, the father has claimed that the sole issue for him is custody. From his description of the issue it appears that he sees the access issue as part of the custody issue.

[51] The mother has been the child’s primary caregiver since birth. I have no doubt that when the parties were together the father was involved with the child. But she was born here in Ontario and has lived here for almost all of her life. She has not left Oakville since 2015. Ela is habitually resident in Canada per s. 22(1)(a) of the CLRA. The mother has met all of the child’s physical and emotional needs. There is no evidence of her want of care of the child.

[52] In addition, the mother has not restricted the father’s access in Ontario. She has even taken the child out of school and allowed the father to stay in her home to exercise access. But her concern is that the father will remove the child to TT. Given the level of rancour and the father’s insistence on TT as the appropriate jurisdiction, her position is not unreasonable.

[53] The father is bound and determined to make TT the venue for his divorce proceedings. The only substantive advantage to that position is to prevent the mother’s spousal support claim (and perhaps gain a litigation advantage re support, access and child support). Further, as Justice Ramkerrysingh has pointed out, Yash also attempted to take advantage of TT’s fault based divorce regime; one contrary to Canadian no-fault principles. That could only increase the rancour for no appreciable gain. He spends much of the space in his materials berating the mother, not for her parenting abilities, but her behaviour towards him in the marriage. He is not able to get past the circumstances of the separation.

[54] This fact points to an important factor relevant to custody. From this court’s perspective, the father has failed to show the ability to put the child’s needs to the forefront. He would rather not pay support for his child than to feel that he has attorned to this jurisdiction. He would rather try to prove the mother’s fault for the end of their marriage than work cooperatively to resolve parenting issues.

[55] In Kaplanis v. Kaplanis,[^30] the Ontario Court of Appeal set out the six following principles that apply to the consideration of a claim for joint custody:

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. Joint custody cannot be ordered in the hope that it will improve their communication.

3. Just because both parents are fit parents does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

[56] In Giri v. Wentges,[^31] Ontario Court of Appeal emphasized that joint custody requires both a mutual commitment to cooperation and an ability to place the child’s interests first. The court states:

[10] Second, as this court has repeatedly held, joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child. Clearly, as set out above, there is no genuine issue as to whether these parents at this time are capable of engaging in a joint custody arrangement, They live thousands of miles apart and are unable to effectively communicate. The father would rather be right, in his mind, than support his child. He would rather argue marital fault that cooperate. That kind of behaviour is not the behaviour that allows for joint custody. In light of the status quo and the fact that the child appears to be doing well in the mother’s sole care, there is no genuine issue for trial as to whether the mother’s sole custody and primary residence is in the child’s bests. It is and it is so ordered on a final basis pursuant to par. 28 (1) of the CLRA. I lift the stay under CLRA s. 27 regarding the mother’s CLRA claims.

[57] That being said, the mother shall consult the father on all major decisions regarding the child‘s health, education and religion, and shall consider his views before making any such decision. However in the event that they do not agree, her decision is final, subject to further court order.

The Father’s Access

[58] With regard to access, there is also no genuine issue that the father should be entitled to liberal access, both electronically (though email, text, Skype, and other agreed upon means of communication) and in person. Further there is no issue that the father is entitled to in person access in Ontario.

[59] In light of the fact that the mother is entitled to sole custody of the child and TT is a signatory of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction,[^32] the father may exercise unsupervised access to the child in Ontario. However, he may not remove the child from Oakville, Ontario during his access without the mother’s written consent or further court order. During any access visit he shall surrender his passport to the mother until the visit is completed. Thus far, the parties have been able to agree upon dates, times and duration of access in Canada. If they are unable to do at this time, I may be spoken to in that regard.

[60] Having said the above there is a triable issue as to whether the father’s access should be exercised in TT. The issues are twofold: both in terms of whether the child will be returned to Canada if access were exercised in TT in light of the concerns set out above, and whether the child who is only four years old and has never been away from her mother for any appreciable length of time, is ready for access in TT.

[61] I do not at this time believe that the issue can be resolved with the use of my enhanced powers. There is simply insufficient evidence to allow me to make that determination. It will require further evidence and a trial at a future date.

Child Support

[62] In light of the final custody order above, there is no genuine issue for trial as to the father’s obligation to pay the mother child support. The mother asks me to impute income to the father of $250,000 per year based on his limited disclosure.

[63] The Child Support Guidelines (“CSG”) sets out a regime for the determination of child support that requires and depends on full and timely disclosure. The mother argues that I should base the support on an imputed income for the father as allowed by CSG ss. 19(1) (f) and 23.

[64] The beginning point of the analysis of the father’s child support obligations is CSG s.21, which sets out the disclosure obligations of the parties. In this case, the father, because he resides outside of Canada and the United States, had 60 days to provide his disclosure to the mother. Since he is self-employed (he controls his own medical equipment and optical companies, which are presumably but not certainly corporations),[^33] he must provide the following documentation to the mother:

(a) a copy of every personal income tax return filed by the parent or spouse including any materials that were filed with the return for each of the three most recent taxation years;

(b) a copy of every notice of assessment and reassessment issued to the parent or spouse for each of the three most recent taxation years;

(c) where the parent or spouse is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime, or, where such a statement is not provided by the employer, a letter from the parent’s or spouse’s employer setting out that information including the parent’s or spouse’s rate of annual salary or remuneration;

(d) where the parent or spouse is self-employed, for the three most recent taxation years,

(i) the financial statements of the parent’s or spouse’s business or professional practice, other than a partnership, and

(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent or spouse does not deal at arm’s length;

(e) where the parent or spouse is a partner in a partnership, confirmation of the parent’s or spouse’s income and draw from, and capital in, the partnership for its three most recent taxation years;

(f) where the parent or spouse controls a corporation, for its three most recent taxation years,

(i) the financial statements of the corporation and its subsidiaries, and

(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length;

[65] CSG s. 19 (1) (f) allows the court to impute income to a payor in certain circumstances, including a failure to provide income information when legally obligated to do so. It reads as follows:

Imputing income

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

[66] CSG s. 23 allows both an adverse inference and an imputation of income based on a failure to disclose. It states:

Adverse inference

23. Where the court proceeds to a hearing on the basis of an application under clause 22 (1) (a) [based on failure to provide disclosure required by CSG s. 21], the court may draw an adverse inference against the parent or spouse who failed to comply and impute income to that parent or spouse in such amount as it considers appropriate.

[67] Although the father’s failure to provide the required disclosure allows the court to draw an adverse inference and impute income, there nonetheless has to be an evidentiary basis for the imputation. As Gillese J.A. wrote for the Ontario Court of Appeal in Drygala v. Pauli:

[44] Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.[^34]

[68] Here the following evidence supports an imputation to Yash:

a. He transferred $110,300 to Stephanie during the years that they were in a marital relationship. He would not have made the payments if he did not have the money. The fact that the transfer of funds was a regular feature of their relationship, rather than a one-time event, was telling.[^35]

b. Yet Yash is claiming a current income of only about $13,684 per year and slightly less in the years that he transferred the $110,300 to Stephanie. He could not earn that little and afford to pay her that much.

c. He has also never explained where the money to make those payments came from. It was open to him to do so.

d. Stephanie claims (albeit without corroboration) that Yash and/or his companies made a great deal of money in various contracts, including one allegedly worth $917,298 Can. with the TT government. Again Yash could have put his best foot forward by disclosing his business records. For strategic reasons he chose not to do so.

e. Stephanie claims that Yash ran $46,756.87 in business expenses through her credit card and then later paid it all back to her. He does not deny this.

f. Stephanie has proof of one post-separation contract worth about $14,000 Canadian.

g. Yash’s lifestyle includes a great deal of international travel to places like Guyana, Spain, England and Canada. He has travelled to Canada 11 times. She says that he pays for family members to travel with him. His lifestyle also includes a maid to cook and clean for him and a smoking habit of cigarettes and marijuana;

[69] Yash has offered little evidence to countermand these points, other to argue that these facts are exaggerated or de-contextualized. He claims to live a very modest lifestyle on very little income. That claim is simply not tenable, based even on the limited evidence before me. Even more importantly, it has been open to Yash to provide more complete evidence of his income and assets but has chosen not to do so.

[70] I can say without reference to my enhanced powers that there is no genuine issue for trial as to whether income should be imputed to Yash. I say this because the limited evidence provided by the mother in itself gainsays Yash’s claims about his income.

[71] Further the evidence available to consider Yash’s income is limited because of his refusal to provide the disclosure required by the CSG, requested by the mother or ordered by this court. Because of Yash’s obligation to put his best foot forward, his breached obligations to provide fuller disclosure, and the operation of CSG s. 23, the court has to assume that such disclosure would not assist Yash. Or more to the point, that he is hiding income.

[72] In Jassa v Davidson, [^36] O’Connell J. of the Ontario Court of Justice faced an issue similar to the one before this court. The evidence about the father’s income was limited by his failure to provide proper disclosure. At a summary judgment motion O’Connell J. found that she could draw an adverse inference from CSG s. 23 and impute income to the recalcitrant payor. She stated:

… I have no hesitation in finding that as a result of the almost complete failure to comply with his legal and court ordered obligation to provide financial disclosure for more than one year, there is no genuine issue for trial regarding the determination of Mr. Davidson's income for child support purposes. Pursuant to section 23 of the Child Support Guidelines, Mr. Davidson's clear breach of his disclosure obligations permits me to draw an adverse inference and to impute income on the evidence available. Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion and non-compliance must have some consequences. [References omitted]

[73] In light of Yash’s recalcitrance, I adopt O’Connell J.’s reasoning to the facts of this case. It is open to me to assume that if there were evidence more favourable to Yash, it would have been presented to the court. Since he is unwilling to produce any meaningful disclosure, there is no reason to believe that a trial judge will have more evidence of Yash’s income than I have before me.

[74] What this court does know is that Yash was able to provide $20,325.99 to the mother during the first year of their marriage (2013), $18,974.11 the second (2014), and $70,000 the third (2015). During the second and third years of their marriage, Yash claimed in his TT income tax return to have an income of only the equivalent of $11,373 Can. in 2014 (the second year) and $12,510 Can. in 2015 (the third year) Not only are those figures clearly incorrect, they demonstrate the need to impute income to Yash. I note that I can do so under CSG ss. 19(1)(f) (non-disclosure) and the basket clause in 19(1), “… which circumstances include…” That provision does not limit the circumstances in which income can be imputed in the appropriate circumstances.

[75] Yash gave the money to Stephanie without reference to any support guideline or payment obligation. Not knowing the applicable TT tax rate and even assuming without finding that its tax rate is lower than Canadian tax rates, say at 25%, he would still have had to have earned over $147,000 to have earned $110,300 after tax. Averaged over three years per SCG s. 17 that figure is $49,166 per year, just to have the funds to pay to Stephanie. If Yash was sharing as much as half of his income with her, he would then be making approximately $100,000 per year.

[76] A $100,000 per year imputation is a conservative figure in light of the facts above. It makes sense in light of Yash’s standard of living and is supportable because of the CSG s. 23 adverse inference and the right to impute income under CSG ss. 19(1) and 23.

[77] Based on the imputed figure of $100,000 per month, Yash should have paid Stephanie $880/month in table support since December 1, 2015. His failure to provide disclosure or make any support payments are, as set out above, blameworthy conduct[^37] that allow the court to make a child support order retroactive to December 1, 2015. For the months of December, 2015 – January, 2018 he should have paid $880/month for 25 months, or $22,000. He shall pay that amount within 90 days.

[78] Prospectively, the father shall pay $880.00 per month on an ongoing basis commencing on February 1, 2018 and continuing on the first day of each month until further order.

Spousal Support

[79] Turning to spousal support, Stephanie also asks me to rely on the same facts set out above to impute income to Yash for spousal support purposes. I note that s. 6.1 of the SSAG states:

"[t]he starting point for the determination of income under the Spousal Support Advisory Guidelines is the definition of income under the Federal Child Support Guidelines".

[80] I agree. In light of Stephanie’s role as primary caregiver of the child and the economic disadvantage she suffered because of her childcare role (for example, she did not return to full time work until late, 2016), as well as the imputation of income of $100,000 per year to Yash, I find that Stephanie is entitled to spousal support. That entitlement has a compensatory aspect.[^38] She would certainly be entitled to at least $1.00 in support since December 1, 2015. I make that finding of entitlement

[81] For now, in order to ensure that this court does not lose jurisdiction to make a spousal support order to which Stephanie is entitled, I order on a final basis that Yash pay to her $1.00 in lump sum spousal support, payable forthwith.

[82] I note that Stephanie claims that she earned the following amounts in the following years since separation:

Year Stephanie’s Income

2015 $1,961 (note support only payable for December, 2015)

2016 $36,674

2017 $59,064

[83] I do not have any DivorceMate calculations based on Yash’s imputed income and the incomes set out above. I ask Stephanie’s counsel and Yash to prepare and provide to me within 48 hours their DivorceMate calculations based on those figures. I reserve my decision on whether I can grant summary judgment on the quantum and duration of periodic spousal support until I review those calculations.

[84] Further I note that under s. 37 (2) of the FLA, a motion to change spousal support may be brought if “…evidence not available at the hearing has become available”. I grant leave for either party to bring a motion to change under FLR r. 15 to review this $1.00 lump sum figure if and when such further evidence becomes available. Either party may bring their review without requiring proof of a material change in circumstances. The review may go back to the date of separation. I do this in large measure because most of the evidence that could assist me in this regard has been withheld by the father. I place no limit on the evidence that must be produced in order to allow for a review. The evidence may relate to the incomes of either party or the duration of support.

[85] In regard to both child and spousal support, my order comes under FLA s. 33. I lift the stay under s. 36.

Equalization

[86] As I told counsel, there is very little evidence before me that will allow the court to determine what, if any, equalization is owing to the mother. There is a genuine issue in that regard and thus I dismiss the claim for summary judgment on the equalization issue.

Costs

[87] I will deal with the costs of this motion after I have had a chance to complete the spousal support portion of this motion.

(Original signed by)

Kurz J.

Date: February 5, 2018

[^1]: See Khimji v. Dhanani Estate, [2014] O.J. No. 320 (OCA)

[^2]: 2009 ONCA 484

[^3]: 2007 ONCA 427, [2007] O.J. 2298 (OCA)

[^5]: 2000 1153 (ON CA), [2000] O.J. No. 33 (OCA)

[^6]: [2014] O.J. No. 914 (SCJ-FC)

[^7]: the Trinidad and Tobago Matrimonial Proceedings and Property Act

[^8]: [2014] 2 S.C.R. 231

[^9]: at para. 106

[^10]: FLR subrule 16(6) (note: all references to rules and subrules refer to the FLR)

[^11]: see Bedard v. Huard, 2000 22563 (ON SC), [2000] O.J. No. 969 (S.C.J.) at para. 7, citing Iaboni et al v. Fowles-Brown, 2000 22875 (ON SC), [2000] O.J. No. 479, (S.C.J.)

[^12]: Catholic Children’s Aid Society of Toronto v. O. (L.M.), 1996 7271 (ON SC), [1996] O.J. No. 3018 (O.C.(G.D.)) at para. 80

[^13]: Children's Aid Society of Toronto v. S.D. [2016] O.J. No. 228 (O.C.J.) at par. 9-10

[^14]: subrule 16 (4)

[^15]: Ramdial v. Davis (Litigation Guardian of), 2015 ONCA 726, [2015] O.J. No. 5630 (O.C.A.) at para. 27

[^16]: subrule 16 (4.1)

[^17]:106150 Ontario Ltd. v. Ontario Jockey Club, 1995 1686 (ON CA), [1995] O.J. No. 132 (O.C.A.), at para. 35, the principle was reaffirmed in Ramdial v. Davis (Litigation Guardian of), at para. 28.

[^18]: Ramdial v. Davis (Litigation Guardian of), at para. 30

[^19]: Pearson v. Poulin 2016 CarswellOnt 11368 at para. 40

[^20]: subrule 16 (6)

[^21]: subrule 16 (8)

[^22]: subrule 16 (9)

[^23]: subrule 16 (6.2)

[^24]: 2014 SCC 7

[^25]: Hryniak at para. 66

[^26]: Hryniak at para. 44

[^27]: Ramdial v. Davis (Litigation Guardian of), at para. 29

[^28]: 2014 ONSC 1713 (S.C.J.)

[^29]: at para. 5

[^30]: 2005 1625 (ON CA), [2005] O.J. No. 275 (OCA

[^31]: 2009 ONCA 606

[^32]: See https://www.hcch.net/en/instruments/conventions/status-table/acceptances/?mid=671

[^33]: His inadequate disclosure fails to set out the details or provide the relevant documentation to make the determination of exactly what form his business or businesses take

[^34]: 2002 41868 (ON CA), [2002] O.J. No. 3731 (OCA)

[^35]:In saying this, I do not accept Stephanie’s analysis, which would have me deal with these payments as if they were all child support. She would then have me work my way backward to determine the income that would be required to pay that much in child support. That argument ignores the fact that there were likely other purposes for which the father chose to transfer the money to the mother, including a desire to support her as well as Ela, and perhaps even to simply gift her money.

[^36]: [2014] O.J. No. 6136 (OCJ)

[^37]: See D.B.S. v. S.R.G. above

[^38]: See SSAG s. 3.3.4 above