SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 04FD-299927-FIS

DATE: 20190219

RE: Felicia Vacaru, Responding Party, Self-represented

AND:

Dan Purcaru, Moving Party, Self-represented

BEFORE: Kiteley J.

HEARD: February 14, 2019

ENDORSEMENT

[1] This case has a long history. In a final order dated May 6, 2009 following a trial, Paisley J. directed Mr. Purcaru to pay to his former wife the following: an equalization payment of $154,840; $140,000 as repayment of a CRA Debt; child support in the amount of $7,534 per month based on income of $350,000; arrears of child support of $518,481 plus interest of $36,300; arrears of spousal support of $240,506. In an order dated September 16, 2010, Paisley J. ordered Mr. Purcaru to pay costs of $439,583.73 plus costs of $2,825 on the motion to settle the order. That order directed that the costs be collected as child support by the Family Responsibility Office.

[2] Ms. Vacaru has spent years trying to enforce that judgment that was upheld by the Court of Appeal. [2010 ONCA 92]

[3] Ms. Vacaru brought a fraudulent conveyance action against Mr. Purcaru and his former girlfriend, Ms. Seliverstova. In a judgment after trial, Myers J. found in favour of Ms. Vacaru. [2015 ONSC 6679]

[4] Mr. Purcaru brought a Motion to Change the final order. In a decision dated March 7, 2016, Myers J. [2016 ONSC 1609] dismissed that motion as being frivolous, vexatious and an abuse of the process. That order also provided that Mr. Purcaru is,

“as against Felicia Vacaru, a vexatious litigant and is hereby barred from bringing any further proceeding against Felicia Vacaru until he complies with outstanding orders of this Court”.

[5] Those decisions are some of the almost 200 endorsements and orders made in this case.

[6] Ms. Vacaru continues to take steps to enforce the multiple judgments in her favour, including pursuing Mr. Purcaru in Romania.

Request for Garnishment

[7] In January, 2019, Ms. Vacaru filed a Form 29 Request for Garnishment along with a statement of money owed that totalled $1,654,171.22. She also filed a Form 28A request for Writ of Seizure and Sale. At her request, the court issued Form 29A Notice of Garnishment (lump-sum debt) against many financial institutions including the Royal Bank of Canada. Each Notice of Garnishment reflected a request to seize an amount not exceeding $1,654,171.22. Ms. Vacaru did not ask for ongoing seizure.

[8] Only the RBC responded. At the time of service on the RBC, Mr. Purcaru’s automatic ODSP and the 50% of his CPP-D deposits were removed by the RBC and have been remitted as required.

[9] Mr. Purcaru responded as follows:

(a) He issued a form 14 Notice of Motion returnable February 19, 2019 in which he asked for an order granting leave to dispute Form 29A Garnishment (lump sum) and an order “to allow a Motion to Change of the Uncontested Trial Order from May 6, 2009 pursuant significant changes in medical circumstances – disability – established by two government agencies – ODSP and CCP Disability.”

(b) He prepared an affidavit sworn February 6, 2019 in support as well as a Form 13 financial statement.

(c) He filed a form 29E Dispute (payor) in which he indicated that he received only “government support funds” that are “Protected by the law” and that the court staff who authorized the garnishee was mistaken.

(d) He issued a form 29H Notice of Garnishment Hearing returnable February 14, 2019.

(e) He filed an affidavit sworn February 7, 2019 in support of his Dispute. In that affidavit, he repeated much of what he had said in his February 6, 2019 affidavit.

(f) He filed a factum.

[10] Ms. Vacaru filed an affidavit sworn February 11, 2019 in which she outlined some of the history and she provided a copy of the vexatious litigant order dated March 7, 2016 made by Myers J.

[11] The RBC was not represented at this hearing.

[12] In his evidence Mr. Purcaru deposed that he is entitled to receive ODSP in the amount of $1437.50 per month. He is also entitled to receive $888.92 from CPP-Disability. According to his documents, the CPP-D entitlement is subtracted from the ODSP entitlement, leaving $548.58 per month. The Family Responsibility Office routinely garnishees 50% of his CPP-Disability on account of child support. In his RBC bank account, he routinely receives $548.58 from ODSP and $444.46 from CPP-Disability for a total of $993 per month.

[13] According to Mr. Purcaru, the Director, Family Responsibility Office insisted that he maintain a bank account so that he could produce records of the account from time to time. He has produced statements from the RBC that indicate that his ODSP and CPP-D are deposited into that account. Based on what he has provided, there are no other deposits. He pays rent of $650 per month and the balance he uses for food, cell phone, Netflix, transportation. The account statements reflect those deposits and withdrawals.

[14] At the outset, I indicated that I would deal with the garnishment Dispute and would not deal with the motion for leave to bring a Motion to Change if Ms. Vacaru asked that it be postponed. I heard Mr. Purcaru’s submissions on the Dispute which incorporated his view as to the history of the case and his desire to achieve “fairness” and “an equitable outcome”. I heard submissions from Ms. Vacaru on the Dispute issue. Mr. Purcaru was agreeable that his motion for leave to bring a Motion to Change be heard on another occasion. He indicated he had no intention of proceeding on Tuesday February 19, 2019. However, Ms. Vacaru spoke strongly in favour of immediately dismissing his motion for leave to bring a Motion to Change.

[15] I reviewed the Notice of Garnishment and the Statement of Monies Owed with Ms. Vacaru. I expressed a concern that there was an overlap between the enforcement steps taken by the Director, Family Responsibility Office on her behalf, namely by seizure of 50% of his CPP-D and then the balance pursuant to her Notice of Garnishment.

[16] In the material that he filed, Mr. Purcaru had not provided a detailed response to Ms. Vacaru’s Statement of Monies Owed. In his affidavit, he said only that the amount claimed was more than twice the most recent FRO statement of money owed. It is logical that the amounts would be different because FRO does not collect on property claims. Mr. Purcaru did insist that Ms. Vacaru had not accounted for all of the funds she had received from the sale of properties arising from the fraudulent conveyance action and other enforcement steps.

[17] The submissions were focused on the garnishee. I was not required to review the Statement of Monies Owed in detail because on any analysis, Mr. Purcaru likely owes hundreds of thousands of dollars. In dealing with the Dispute to Garnishment, I have not verified the total owed.

[18] At the conclusion of submissions, I reserved to prepare this decision.

Analysis

[19] In his factum, Mr. Purcaru relied on these cases: Vetro v Vetro 2017 ONSC 7294, Trick v. Trick, 2006 22916 (ONCA), Metropolitan Toronto (Municipality) v. O’Brien, 1995 7053 (ONSC), Bonus Finance Ltd. v. Smith; Crown Trust Co., Garnishee, 1971, 347 (ONSC. I referred also to McIntosh v. Lalonde (1998) 1998 19437 (ON SCDC), 165 D.L.R. (4th) 178 (Ont. Div. Ct.). Various sections of federal and provincial legislation are relevant including the Ontario Disability Support Program Act, 1997, Canada Pension Plan Act R.S.C., 1985, Family Orders and Agreements Enforcement Assistance Act, R.S.C. 1985, and Family Responsibility and Support Arrears Enforcement Act, 1996.

[20] On the record before me, I conclude as follows:

(a) The maximum garnishee from CPP-D is 50% and the Director, Family Responsibility Office has implemented that enforcement mechanism. The balance of Mr. Purcaru’s CPP-D in the amount of $444.46 is not available for enforcement of an outstanding support order.

(b) In the costs order, Paisley J. indicated that costs should be enforced as child support by the Family Responsibility Office. I have not been given a formal Support Deduction Order for the costs order or for the final order dated May 6, 2009. However, it must exist because the Director has been enforcing the order for child support. Ms. Vacaru is not entitled to garnishee funds on account of child support that the Director is enforcing through garnishee.

(c) Fifty percent of the ODSP payment may be eligible for garnishee. That would leave the possibility that 50% of $1437.50 is available. In this case, because of the set off of the CPP-D from the ODSP, that would mean that all of Mr. Purcaru’s remaining $548.58 might be eligible for garnishee. During submissions, I did not raise this with the parties. However, if the ODSP were to be garnisheed, it would be up to the Director, Family Responsibility Office to do so.

(d) The Request for Garnishment was for a lump sum of $1,654,171.22, not to collect ongoing payments. With respect to the Royal Bank of Canada account ending 0480, the Request for Garnishment served in January 2019 is exhausted.

(e) As indicated above, it was not necessary for me to examine the Statement of Monies Owed. I accept that Ms. Vacaru has acted in good faith and has done her best to create a full accounting. Her six page table reflects significant payments on July 30, 2011, August 1, 2012 and August 17, 2017 that she sets off against “lump-sum support payments”. The accounting of monies in and out as against support and property and interest claims has not been approved by this court. It is sufficiently detailed to be filed in support of a Request for Garnishment but not necessarily reliable as a statement of precisely what Mr. Purcaru owes. As indicated above, he nonetheless owes hundreds of thousands of dollars to his former wife.

Vexatious Litigant

[21] As indicated in paragraph 4 above, the order made by Myers J. dated March 7, 2016 provided that Mr. Purcaru is barred from bringing any further proceeding against Ms. Vacaru until he complied with outstanding orders of this Court. Myers J. did not indicate how much that totalled. In any event, interest has continued to accrue since his order.

[22] I allowed Mr. Purcaru to bring the Garnishment Dispute and I have dealt with it. In my view, the order of Myers J. did not prohibit him from responding to a proceeding initiated by Ms. Vacaru such as her Request for Garnishment.

Motion for Leave to bring Motion To Change Final Order

[23] I agree with Ms. Vacaru that Mr. Purcaru should not be permitted to bring a motion for leave to bring Motion to Change. Myers J. has already made a decision prohibiting it except under the condition that he comply with outstanding orders. For that reason, consistent with the primary objective set out in Family Law Rule 2(2), although the motion for leave to bring a Motion to Change was not fully argued on February 14, 2019, I dismiss it.

Events on February 19, 2019

[24] As indicated in paragraph 14 above, Mr. Purcaru advised me on February 14 that he did not intend to proceed with his motion on February 19, 2019. Justice Kristjanson made this endorsement dated February 19, 2019:

Mr. Purcaru served a motion returnable Feb. 19, 2019, seeking leave to proceed with the motion to change the uncontested trial order.

Justice Myers’ order of March 7, 2016 provides that Mr. Purcaru is a vexatious litigant as against the applicant, and is barred from bringing any further proceedings against Ms. Vacaru until he complies with outstanding orders of this court.

There are outstanding costs and family support, equalization and other orders amounting to $1,654,171.00. These amounts will need to be paid before proceeding with motions, as per the order of Justice Myers. Mr. Purcaru should file affidavit evidence with proof of payment before seeking to bring any further motions.

Mr. Purcaru did not attend today, although the Applicant did attend. Ms. Vacaru did not receive a confirmation form. As a result, no costs payable and this endorsement serves simply to remind the parties of Justice Myers’ order and the requirements to be met.

[25] Justice Kristjanson must have dealt with the matter in the absence of the file relating to the motion for leave to bring a Motion to Change because the file was in my possession for purposes of completing this endorsement. Given the amount to which Kristjanson referred, I assume that Ms. Vacaru provided her with a copy of the Statement of Monies Owed, or at least the six page table of monies owed. As indicated above, in view of the result of the Dispute to Garnishment, I did not need to verify the amounts that are owed and I am not satisfied that the Statement of Monies Owed is reliable as a pre-condition to the amount that Mr. Purcaru would be required to pay to meet the condition imposed by Myers J. In her endorsement, Kristjanson J. indicates that her endorsement is “simply to remind the parties of Justice Myers’ order and the requirements to be met”. I do not see that she made an order stipulating the amount required to be paid to comply with the March 7, 2016 order.

ORDER TO GO AS FOLLOWS:

[26] The notice of dispute to the garnishee is allowed with respect to the Royal Bank of Canada account ending 0480 in the name of Mr. Dan Purcaru. The funds seized by the royal Bank of Canada shall be returned to Dan Purcaru.

[27] Pursuant to the order by Myers J. dated March 7, 2016, Mr. Purcaru is, as against Felicia Vacaru, a vexatious litigant and is hereby barred from bringing any further proceeding against Felicia Vacaru until he complies with outstanding orders of this Court. As a result of that order, the motion that was returnable February 19, 2019 for an order to “allow a Motion to Change of the Uncontested Trial Order from May 6, 2009” is dismissed.

KITELEY J.

Date: FEBRUARY 2019