Mishayev v. Mishayev, 2021 ONSC 2041

NEWMARKET COURT FILE NO.: FC-18-56373-00

DATE: 20210318

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Linda Mishayev Applicant

– AND –

Dani Mishayev Respondent

Reesa Heft, Counsel for the Applicant

Stacey Mintsopoulos, Counsel for the Respondent

HEARD: March 10, 2021

RULING ON MOTION

JARVIS J.

1The respondent (“the father”) has brought a motion involving parenting of the parties’ children and to retroactively vary a support Order made February 5, 2019. The applicant (“the mother”) contends that the motion should be dismissed for non-compliance with Orders of this court and lack of merit.

Background

2The parties married on July 28, 2003 and separated on January 29, 2018. There are three children of the marriage ranging in ages from 8 to 15 years old. They reside with their mother. On February 9, 2019 this Court dealt with a motion by the mother for a broad range of relief and made a comprehensive disclosure, preservation and support Order affecting the father and his father who were in business together. The relevant background facts and evidence will not be repeated here except as may be contextually required.¹

3The father was ordered, among other things, to pay uncharacterized child and spousal support of $7,500 a month. As of December 31, 2020 he owed $189,630.90 in arrears, now (according to his affidavit) almost $200,000 (he was ordered on April 2, 2020 to surrender his Canadian passport and has a Default Hearing scheduled for April 16, 2021 by the Director, Family Responsibility Office).

4The father was also ordered to pay mortgage payments on a $675,000 mortgage on the matrimonial home. There is credible evidence that the father forged the mother’s signature to the mortgage (he admits signing but under a misapprehension about having the mother’s authority, which she denies: the father subsequently recanted that he signed the wife’s name to the mortgage documents). The father did not comply with this term of the Order either, resulting in the matrimonial home being foreclosed. As a result, the home was sold at a loss: there were no surplus funds. The mother and the parties’ children were compelled to move to live with her parents. The mother’s current sources of income are Ontario Works, child benefits and her parents.

5On March 4, 2019 the father was ordered to pay $18,750.28 in costs to the mother relating to the February 9th motion, $10,000 of which was deemed to be a support Order. Nothing has been paid.

6In September 2019 the father remarried, a fact which he does not deny. This took place at a high-end hotel in downtown Toronto overlooking Lake Ontario.² A video-recording of the event³ obtained by the mother shows an elaborate setting attended by well over one hundred guests and the father and his new partner being loudly greeted as they stepped under a Chuppah.⁴ The father and the mother in this case are not divorced: nor has a Jewish divorce been obtained. This wedding event was preceded by an engagement party the previous month, not denied by the father.

7On September 25, 2020 MacPherson J. awarded the mother temporary sole custody of the parties’ three children. No Order was made dealing with access. The Order also requested the involvement of the Office of the Children’s Lawyer (“OCL”) and awarded the mother $5,500 costs. Nothing has been paid for these costs.

8The mother provided the OCL with the required intake forms: the father did not. The OCL declined involvement.

9None of the Orders has been appealed or varied.

10The mother has a motion scheduled for June 16, 2021 to deal with parenting and to strike the father’s pleadings.

Discussion

11Family Law Rule 1(8) provides as follows:

(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. O. Reg. 322/13, s. 1.

12When the court ruled on support in February 2019 the following observations were made,

[14] The wife alleged, and the husband denied, that he told her on many occasions that he would adopt what may be described as a scorched earth policy - he would hide his money, declare bankruptcy, and ensure that the wife ended up with nothing. In the year since the parties separated, all the evidence suggests that there is merit to the wife’s allegations. The change in this family’s financial circumstances has been catastrophic. Given what the husband represented to the court were the perilous financial circumstances of MSI [a family company] and him personally, so perilous in fact that proposals in bankruptcy had already been made, in the case of MSI on October 30, 2018, and in his case, would be made within a month, the husband knew, or ought reasonably to have known, that paying a creditor and the bank over $80,000, meant that none of those funds would be available for his lawful, and primary responsibility, to support his family, a responsibility which the husband now claims he is unable to discharge. But he is the architect of that failure. The email exchanges between the husband and [a named employee of one or more of the businesses in which the father was involved] amplify, they don’t diminish, this court’s suspicions about the integrity of the husband’s evidence and his conduct.

[15] Consistent with these concerns is the husband’s claim that the wife should be responsible for any income tax exposure for the MSI dividend income recorded in MSI’s books⁵….The husband has a clear, unconditional obligation to support the wife and their children.

13In her March 5, 2020 affidavit, the wife referenced a significant cash component to the business formerly operated by the father (and presumably his father) before the parties separated. For a period of time the mother had access to the company’s video monitoring system until the father learned about that and changed the password. Exhibit “H” to the wife’s affidavit is a video time-stamped April 4, 2018 (the parties separated on January 29, 2018 but the father did not leave the matrimonial home until March 26, 2018). The video shows a person entering what appears to be the door front reception area of the business and being greeted by the father. The unidentified person begins to count out three piles of what the wife alleges is cash. This takes around two minutes at the end of which the father takes and pockets one of the piles whereupon he and the other person exit the front door. No paperwork is evidenced: no receipt was provided. The father did not respond to the mother’s evidence about this, but I doubt that what was being counted out and pocketed was Monopoly or Canadian Tire money.

14Context is important. The unchallenged evidence is that the father’s business had a significant cash component and was very successful until the parties separated, shortly after which the business and the father made assignments in bankruptcy. He mortgaged the balance of equity in the matrimonial home without the mother’s knowledge (although this is disputed), he preferred to pay $30,000 to an unnamed creditor in preference to paying support for his family⁶ because (as he admitted in his January 10, 2019 affidavit) he feared that his equity in the home could be used for child support, he drives a Range Rover (alleged by the mother but not denied by the father). He has refused to divulge the address to his current residence with his new wife (and their child), acknowledging in his submissions that he no longer lives with his parents. The father claims that his “entire wedding was paid for by my partner’s family”.⁷ The sad irony is that the apparently unrequited generosity of third parties enhancing the father and his lifestyle has been accepted by him with no sharing of that with his children and their mother: to complete the Monopoly analogy, he appears to this court to enjoy a Boardwalk lifestyle, his family, Baltic. That, as the mother says, the children wish to have nothing to do with their father is hardly surprising.

15Rarely has this court seen a motion so thoroughly devoid of merit as this: serial non-compliance with court Orders and what appears to be a bigamous marriage wholly inconsistent with penurious circumstances. The only exception is the court’s concern about the parties’ youngest child. The father now wishes the appointment of the OCL. Why now? The forthcoming Default Hearing? An excerpt from a May 6, 2018 file note from the Jewish Child & Family Services recorded that the father told the assigned worker that “he is not going to be involved with the kids…and not to call him”.⁸ MacPherson J. noted on September 25, 2019 that despite his direction that the parties remain at court to be informed of his decision, the father left before the event that day was completed. The father failed to file an Intake Form when the OCL was appointed and provided no explanation to this court why he disobeyed MacPherson J. or chose not to cooperate with the Order appointing the OCL. If the mother wishes the OCL’s involvement at this time the court will entertain that request but not from the father.

Disposition

16Accordingly, the following is ordered:

(a) The father’s motion is dismissed;

(b) On or before April 9, 2021 the father shall pay to the mother the costs, with interest as prescribed, of the Orders made on March 4, 2019 and September 25, 2020, failing which he shall be prohibited from scheduling any future event in these proceedings without leave;

(c) The father shall disclose to the mother the following information by April 9, 2021:

(i) The address where he resides with his new wife and child;

(ii) The officiant of the September 2021 wedding ceremony;

(iii) The name or names of the persons booking the hotel;

(iv) The total cost of the hotel and wedding celebration and the identity or identities of the person or persons who paid.

(d) Leave is granted to the mother to bring a 14B motion for contempt of court on six days notice to the father in the event of his failure to comply with any part of subparagraph (c)(i) to (iv) above. A date will be set thereafter for any hearing, a consequence of which could be the father’s incarceration for an indefinite period;

(e) Leave is granted to the mother to bring a 14B motion on six days’ notice to the father for an Order questioning the non-parties involved with the organization, planning and payment of the father’s remarriage.

17The following directions as to costs shall apply:

(a) The mother shall deliver her submissions by March 31, 2021;

(b) The father shall deliver his submissions by April 9, 2021;

(c) Reply (if any) by the mother by April 16, 2021;

(d) All submissions shall be single page, double-spaced. In the case of (a), (b) and (c) the limit shall be four pages; reply shall be two pages. These submissions shall be filed in the Continuing Record;

(e) Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall be filed by the above deadlines but shall not form part of the Continuing Record;

(f) Counsel are to advise the judicial assistant when they have filed their material.

Footnotes

1. 12019 ONSC 6586.
2. 2The name of the hotel was identified in the wife’s affidavit but need not be repeated here.
3. 3Exhibit “F” to the affidavit of the mother sworn March 5, 2021.
4. 4A canopy beneath which Jewish marriage ceremonies are performed.
5. 5As noted in the February 2019 Ruling the mother was a homemaker but shown in the corporate records as a minority shareholder of the family business, the father being the majority shareholder. After the parties separated, she received a $250,000 T5 statement from the business in respect to which CRA demanded a tax payment of $76,000. The evidence was unchallenged that the mother was never paid $250,000 and did not have the means to pay CRA.
6. 6He also paid $50,000 to a bank.
7. 7Paragraph 5 to the father’s affidavit sworn on March 15, 2021.
8. 8Supra #3, Exhibit “M”.