Court File and Parties

COURT FILE NO.: FS-19-0106-00 DATE: March 3, 2020 HEARD: February 24, 2020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Natalya Oleksan Aleykina Applicant Caterina E. Gucciardi, for the Applicant

-and-

Vadym Vaskovskyy Respondent Scott McMahon, for the Respondent

Tausendfreund J.

Endorsement

1Each of the parties have brought a motion following a settlement conference sequentially heard June 17, July 15, August 14, August 20 and October 23, 2019. These motions address issues of custody, access of the parties’ three children, child support and equalization of net family properties, among other issues.

2The Applicant is age 42 and the Respondent age 46. They were married in the Ukraine on November 10, 2001. They have three children, Gregory, age 17, Peter, age 13 and Maria, age 4.

3The Applicant received a medical degree in the Ukraine in 2001. The Respondent emigrated to Canada in 2002 as a skilled entry person reflecting his background as a computer programmer. The Applicant and their eldest son Gregory followed in 2002. The Applicant initially qualified to practice medicine in Newfoundland where the parties resided for a number of years. The Respondent worked as a graphic designer earning about $65,000 annually in the years 2003-2009.

4Once the Applicant received her qualification to practice medicine, the Respondent’s focus on earning income is said to have declined, as he insisted on pursuing his talent as an artist. That and other issues led to the parties separating in 2009. They obtained a divorce in Newfoundland on July 27, 2011. The Divorce Judgment granted custody to the Applicant of the parties’ then 2 children, Gregory and Peter. Within a year, the parties reconciled and moved to Ontario. In 2012 and with her own personal funds, the Applicant purchased a home in the County of Prince Edward at 267 County Road 28. The property is registered in her name. They resided at that address in a common-law relationship. The youngest child Maria was born December 8, 2014.

5The Applicant was then licensed to practice medicine in the Province of Ontario. She located her family practice in Quinte West.

6In 2015, the parties expected the Respondent’s parents to arrive as immigrants from the Ukraine. Both parties had agreed to sponsor them. To provide a home for the Respondent’s parents, the parties purchased a property at 70 Morgan Road, Bloomfield, also in the County of Prince Edward (“70 Morgan Road”).

7The purchase price for the 70 Morgan Road was $147,000. It was registered in the Respondent’s name. He contributed $25,000 to the down payment. The balance of the $125,000 was advanced by the Applicant. This amount was secured against the property as a first mortgage, payable interest only in the amount of $515.49 on the 12th of each month commencing March 12, 2015 until February 11, 2020 when the mortgage then matured. The documents reflect that the Respondent took title not as a spouse. The Respondent and his parents have continued to reside in the home. No mortgage payments were ever made. I calculate the amount of interest arrears due by the Respondent to the Applicant on this mortgage to be $31,250 as of the mortgage maturity date of February 11, 2020.

8In January 2016, the parties agreed that title to 70 Morgan Road be transferred to the Applicant. The Respondent signed two certificates of independent legal advice with respect to this transaction, both dated January 6, 2016. The advice to the Respondent was given by a lawyer practicing in Picton Ontario. The document signed by both the lawyer and the Respondent states:

On this 6th day of January 2016, I was consulted by Vadym M. Vaskovskyy, in his presence alone, as to the effect of him executing an acknowledgment and direction related to documents in connection to a transfer of title for property for less than fair market value to his common-law spouse Natalya Aleykina.

I explained to him the nature of the Transfer Documents and advised him fully as to the detrimental effect that said transfer will have on him. He informed me, and I am satisfied that he fully understands the nature and effect of executing the transfer documents, that in executing the transfer documents he is acting freely and voluntarily and not under any undue influence exercised by Natalya Aleykina or by any other person.

I have given this advice to Vadym Vaskovskyy as his solicitor alone and in his interest only and without regard to or consideration for the interest of Natalya Aleykina, or of any other person.

9A second document is an acknowledgment, authorization and direction signed by the Respondent and addressed to his lawyer. It states in part:

I, Vadym Vaskovskyy, acknowledge that I purchased the property for approximately $147,000 and acknowledge my intention to transfer the property to Natalya Aleykina for $125,000, an amount that is below fair market value.

…I confirm that I am satisfied with the contents of the transfer documents and I am signing them voluntarily without undue influence or duress from Natalya Aleykina or any other party.

10The parties separated from their common law relationship the last time on September 13, 2018. On that date, an incident occurred between the child Gregory and his father. The Respondent was charged and found guilty on May 1, 2019 of assaulting Gregory. The Respondent was placed on probation for 1 year. The terms of that order included that the Respondent have no contact with the Applicant except pursuant to a family court order, in the presence of counsel or with the Applicant’s written consent and similar limited contact with his 2 oldest children. Gregory now wishes to have no contact with his father whose access with Peter and Maria presently unfolds at a Supervised Access Centre.

11There is no custodial order regarding the youngest child Maria. The Applicant has been and continues to be her primary care giver. I find that the Applicant shall be her custodial parent. This finding is not opposed by the Respondent.

12On an interim basis pending trial, the Respondent’s access with the 2 younger children, Peter and Maria, will continue in the existing manner on a supervised basis.

13This application was issued November 22, 2018. The Respondent was periodically represented by counsel and at other times he was self-represented.

14The first of 5 sequential settlement conferences was held on June 17, 2019, all before Justice Malcolm. The Respondent was represented by counsel. The Respondent’s settlement conference brief for that date includes the following:

a) A request by the Respondent that the court issue an order permitting him interim and temporary occupation of the 70 Morgan Road property so that he might accommodate his parents until the property claim is resolved.

b) Offer to settle by the Respondent:

There are numerous issues in this matter including custody, access, support and property. However, the most important issue is access to the father. His main goal is to settle the issues in a peaceful, mutually respectful manner for the best interests of the children. For that goal, the father is willing to withdraw all claims except:

• Access to the children
• Joint custody
• Property possession (property in Bloomfield)
• Spousal support.

15The pre-printed Settlement Conference Brief form includes the following:

“The other side can accept your offer. And if the other side does accept it, the accepted offer becomes a binding contract and can be turned into a court order that can be enforced against you.”

16The endorsement made by Justice Malcolm on June 17, 2019 includes the following:

Today the Respondent indicated his intention to withdraw his claim for spousal support and property…the case is adjourned to July 15/19 at 10:00 for a settlement conference continuation.

17The endorsement of July 15, 2019, on which date the Respondent was no longer represented by his former counsel, includes the following endorsement by Justice Malcolm:

On consent,

1. The Respondent’s claims for spousal support and property are withdrawn without costs.

18Justice Malcolm’s order issued on December 17, 2019 and included:

This court orders that:

On Consent:

The Respondent, Vadym Vaskovskyy’s claims for spousal support and property are withdrawn, without costs.

19On this motion, the Respondent includes a claim to set aside the above consent order of July 15, 2019. In support of this requested relief, the Respondent states that he consented to this order on the basis of the Applicant’s agreement that she “would not take steps to alienate the children from him in the course of their separation”. Not only is there no reference in the Endorsement Record of July 15, 2019 to such a promise, it is also denied by the Applicant that she ever made such a promise to him or that she ever took any steps to alienate the children from the Respondent. When the Respondent was asked in his cross-examination why he was now advancing such a claim, his response was that “he had changed his mind”.

20The Respondent takes the position on this motion that his abandonment or withdrawal of his claims is not an impediment to him to recommence these claims at a later date in this Application which he now seeks to accomplish.

21Rule 12(3) of the Family Law Rules state:

A party who withdraws all or part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer, reply or part, up to the date of withdrawal, unless the court orders or the parties agree otherwise.

22The Applicant gave her consent that the Respondent’s claims for spousal support and property may be withdrawn without costs. When the Respondent and his then counsel signed his settlement conference brief on June 11, 2019, the Respondent was not only represented by counsel but also signed this document below the written warning that his offer, once accepted, becomes a binding contract and can be turned into a court order that could be enforced against him.

23I find that the Respondent’s offer made at the settlement conference of July 15, 2019 was accepted by the Applicant and is binding on the Respondent as a matter of contract.

24The Respondent also relies on Rule 23.04(1) of the Rules of Civil Procedure which he states may apply to an application brought under the Family Law Rules. He refers to Rule 1(7) of the Family Law Rules which states:

If these Rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these Rules…by reference to the Rules of Civil Procedure.

25I note that Rule 23.04(1) of the Rules of Civil Procedure state:

The discontinuance of all or part of an action is not a defence to a subsequent action…

26The relief the Respondent seeks is not in a subsequent action but in the same Application. Not only do I find that Rule 12 of the Family Law Rules adequately addresses this issue which for that reason alone is a bar to the application of the Rules of Civil Procedure to this matter, but Rule 23.04.1 does not apply in any event, as this relief is sought within the same Application and not in a subsequent action.

27In his Answer, the Respondent details a list of claims he advances against the Applicant. Included are these claims:

• Spousal support
• Equalization of net family properties
• An order for division of property such that the property is divided so that both parties have an equal portion of net worth as of the date of separation pursuant to the doctrine of unjust enrichment and/or constructive trust.
• An interest in the Applicant’s property and assets pursuant to the doctrines of unjust enrichment, remedial and/or constructive trust.

28As I have held that the order of Justice Malcolm of July 15, 2019 stands, the Respondent’s list of claims he seeks in his Answer, as detailed above, is struck.

29The parties agree that a Parenting Capacity Assessment Report would be of benefit to the trial judge. Both parties further agree that such a report should be commissioned with both parties contributing equally to the required cost of the report and for the author’s expenses to testify at trial, if needed. The problem is that the Respondent apparently does not have the required funds for his share of these expenses. The Applicant has agreed to fund these expenses, provided she is reimbursed by the Respondent at some future date. Accordingly, I find that the Applicant assume these costs on an “upfront” basis with the Respondent to reimburse the Applicant for 50% of these funds, due at the rate of at least $50 per month on the first of each month commencing three months following the resolution of the balance of these issues in this Application, either by agreement or judgment. This obligation may be treated by the Applicant as a child support obligation and be enforceable under the Family Responsibility and Support Arrears Enforcement Act, 1986 as amended, if applicable.

30The Applicant seeks an order that the Respondent pay child support based on an imputed income of $50,000. There is insufficient evidence for me to make an order on such an amount. Based on the Respondent’s historic ability to earn income, I am satisfied he could earn an income of at least $25,000 per year. On an interim basis until trial, I find that the Respondent shall pay child support to the Applicant for the three children on an imputed income of $25,000. The issue of s.7 expenses are to be left for trial.

31Success to a small degree has been divided. This will reflect in my decision on costs. The Applicant shall be entitled to costs of this motion fixed at $7,500 payable forthwith.