Court File and Parties

COURT FILE NO.: FS-15-20362-00 DATE: 20200429 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jyoti Lakhtakia, Applicant AND: Vineet Mehra, Respondent

BEFORE: C. Horkins J.

COUNSEL: Steven Benmor, for the Applicant Elena Mazinani, for the Respondent

HEARD at Toronto: April 24, 2020

REASONS FOR DECISION

Introduction

[1] COVID-19 has caused the suspension of regular Superior Court of Justice operations at this time. Notices to the Profession dated March 15 and April 2, 2020 allow only urgent matters to be heard.

[2] The Notices to the Profession direct that only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute, will be heard during this emergency period. Dealing with motions, the Notices state that urgent issues include matters relating to the safety and well-being of a child. An urgent issue may also include “dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order”.

[3] The respondent father has brought a motion relating to his financial circumstances that he claims is urgent. He seeks an order reducing child support and reducing or terminating the spousal support that he pays pursuant to Justice Stewart’s order dated October 30, 2017.

[4] The respondent states that this relief is required because he has suffered a “material change in circumstances in light of the COVID-19 Pandemic” that caused a 42% reduction in his income.

[5] On April 17, 2020, Justice Hood authorized this motion to be heard on the basis that the matter is “presumptively urgent”. However, Justice Hood stated that it was up to “the designated judge to make the ultimate determination” regarding urgency.

[6] As the designated judge, I heard the motion by telephone conference call on April 24, 2020. I had the benefit of evidence that was not before Justice Hood. It is clear on the record before me that this is not an urgent motion. My reasons follow.

Analysis

[7] The parties were married in 2008 and separated in 2014. This application has been ongoing since August 2015. The respondent has been paying $2086 a month for child and $3197 a month for spousal support since the October 30, 2017 order.

[8] Numerous orders have been issued and several conferences have taken place in this application. On October 22, 2019, a three-week trial set for November 12, 2019 was vacated by Justice Kristjanson because the respondent had yet to provide the disclosure that the applicant’s income expert required. The respondent was ordered to produce the outstanding disclosure by December 6, 2019. While the respondent insists that he has made best efforts to comply with the court-ordered disclosure, the applicant vehemently disagrees.

[9] The applicant brought a motion to strike the respondent’s Answer for failure to comply with Justice Kristjanson’s disclosure order. The motion to strike was set to be heard in March and was cancelled when the courts closed due to COVID-19.

[10] To support the current motion, the respondent produced a brief affidavit that attached a March 31, 2020 letter from the Chief Financial Officer of DOT Global Mobility Solutions. This letter states that “due to the COVID-19 Pandemic we are reducing your salary by 42% and canceling all benefits effective April 1 2020”. The 42% reduction results in an income that is the equivalent of CAN $95,837.

[11] The letter does not reveal that the respondent is a 90% shareholder of DOT Global Mobility Solutions. The applicant argues that as the controlling shareholder, it is the respondent who sets his own income. She is understandably suspicious. There is no evidence to explain why and how COVID-19 has impacted this business nor any consideration of how quickly the business might recover.

[12] The respondent also states in his first affidavit that his rental income from investment properties has all dried up because his tenants cannot pay the rent. He does not identify these rental properties or specify the number of tenants and offers no evidence of the rent that has been lost. In the respondent’s January 2019 and April 2020 financial statements discussed below, the properties and rental income are not even listed.

[13] Despite the 42% reduction in the respondent’s employment income and the alleged loss of rental income, the respondent has paid all child and spousal support that is owed. There are no arrears.

[14] After Justice Hood’s endorsement and before the hearing of this motion, the respondent produced a Form 13 financial statement and a second affidavit. His last financial statement was filed in January 2019. At that time, he reported a yearly income of $243,463.68.

[15] The respondent’s second affidavit reveals that his motion is a preemptive attempt to prevent what he fears might happen. He states that the motion is urgent because “if I cannot pay the support…the Applicant will proceed to suspend my passport and this will cripple me, as my job requires constant international travel”. It is the Family Responsibility Office (“FRO”) and not the applicant that can procced to suspend a passport. Further there is no evidence that FRO has taken any steps to suspend his passport. This is not surprising because he is not in default of the support order.

[16] The respondent provided a Form 13 financial statement and it shows that the respondent has savings that he can access, if necessary, to pay support. He owns real estate in Manesar, India and Ontario and has just over $48,000 in a bank account. Although the respondent says he is in “extreme financial need”, he has been paying the support and payments for two mortgages, on which he owes about $1.4M.

[17] I conclude that this is not an urgent motion. There is nothing “dire” about the respondent’s financial circumstances. While I appreciate that COVID-19 has created financial challenges for many people, the limited resources of the court during this pandemic must be reserved for the most urgent cases, as the Notices to the Profession direct (Ribeiro v. Wright, 2020 ONSC 1829; Thomas v. Wohleber, 2020 ONSC 1965).

[18] The respondent strongly believes that spousal support should be terminated given the short duration of the marriage, the applicant’s income and her level of self-sufficiency. Had this motion proceeded, he would be seeking termination of spousal support. This is an issue to be decided at trial, not on a motion for temporary relief. The respondent’s motion would require a determination of the ultimate issues in dispute.

[19] Temporary orders are meant to provide “a reasonably acceptable solution to a difficult problem until trial” (Sypher v. Sypher (1986), 2 R.F.L. (3d) 413 (Ont. C.A.); see also Chaitas v. Christopoulos (2004), 12 R.F.L. (6th) 43 (Ont. S.C.)). Variations of temporary orders are not encouraged and should not become the focus of the parties’ litigation. Parties must devote their attention and resources to achieving a final resolution.

[20] Extenuating circumstances should exist before a temporary order is varied. The jurisprudence describes necessary circumstances as being material, substantially important or compelling reasons: (McIsaac v. Pye, 2011 ONCJ 840; Bolotnov v. Moldavski, 2015 ONCJ 530 at paras. 22 and 24; Shotton v. Switzer, 2014 ONSC 843; Greve v. Brighton, 2011 ONSC 4996 at para. 24; Redmond v. Redmond, 2018 ONSC 4559 at paras. 15-16).

[21] There has been far too much conflict and litigation between these parties. No case should take five years to resolve. The parties must make every effort to resolve the outstanding disclosure issue and be ready to set a new trial date when the courts resume normal operations.

[22] Counsel agreed to provide a position on costs at the end of the motion. If successful, the respondent requested $2500, all-inclusive, and the applicant requested $7500, all inclusive. The applicant is entitled to reasonable costs given the outcome of this motion. I fix her costs at $3000, an amount that is fair and reasonable in the circumstances.

Conclusion

[23] In conclusion, I make the following orders:

(1) The respondent’s notice of motion dated April 16, 2020 is dismissed.

(2) The respondent shall pay the applicant costs of the motion fixed at $3000, all inclusive.

C. Horkins J. Date: April 29, 2020