Ostapchuk v. Benyk, 2021 ONSC 3637

COURT FILE NO.: FS-98-FP242436-0001 and 0002

DATE: 20210518

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

James Ostapchuk

Applicant

– and –

Svitlana Benyk

Respondent

Elizabeth Rayson and Nan Zheng, for the Applicant

Galyna Pribytkova, for the Respondent

HEARD: February 11, 2021

kiteley j.

[1] This is a motion by Mr. Ostapchuk for an order pursuant to rule 25(19) of the Family Law Rules to set aside or vary six paragraphs of the final order dated June 4, 2018.

Orders at trial (July 31, 2001) and in Court of Appeal (May 9, 2003)

[2] The parties married in November 1991 and separated in December 1997. Anastasia was born June 12, 1993 and Samantha was born March 31, 1995. They were four years old and two years old at the time of the separation. This motion is about child support.

[3] After a four-day trial, I released reasons for decision dated July 31, 2011. I made orders as follows: sale of the matrimonial home, division of the proceeds of sale and Ms. Benyk to pay an equalization payment of $34,178; Mr. Ostapchuk to pay lump sum spousal support in the amount of $11,500; commencing August 1, 2001 Mr. Ostapchuk to pay child support for two children in the amount of $557 per month based on income of $39,977 for Mr. Ostapchuk and income of Ms. Benyk in the amount of $30,000; for purposes of s.7 expenses, the income of Mr. Ostapchuk was $33,293 per year and the income of Ms. Benyk was $36,684 per year; the s.7 expenses consisted of $900 for Ukrainian dance fees, plus $650 for school fees for a total of $1550 per annum; Mr. Ostapchuk’s share was 47.8 % or $737.44 per year or $61.45 per month for a total monthly child support payment of $618.45; Ms. Benyk was ordered to pay costs of the trial. The post-judgment interest rate was 6%.

[4] The parties each appealed from different aspects of the decision. [2003 57399] For purposes of this motion, the relevant outcome is that the Court of Appeal changed the ratio of s. 7 expenses to 57% for Mr. Ostapchuk and 43% for Ms. Benyk.

Ms. Benyk’s Motion to Change Final Order heard June 4, 2018

[5] Ms. Benyk filed a form 23C affidavit for uncontested hearing and a form 13 financial statement. She also gave oral evidence.

[6] Following the uncontested hearing, the final order [2018 ONSC 3485] provided as follows.

1. For the year 2013 to 2018, the court imputed income to Mr. Ostapchuk of $78,661.33 per year.

2. Starting June 1, 2018, Mr. Ostapchuk shall pay $733.00 per month for Samantha.

3. Mr. Ostapchuk shall pay arrears of child support for the two children in the amount of $49,710 for the period from January 1, 2011 until May 31, 2018 and prejudgment interest on those arrears in the amount of $6,155.01.

4. Mr. Ostapchuk shall pay arrears of special and extraordinary expenses for the two children for the period August 2001 until May 31, 2018 in the amount of $45,780.79 including prejudgment interest.

5. Mr. Ostapchuk shall pay $138,023.05 consisting of $49,710, $6155.01, $45,780.79 and arrears in the amount of $36,377.25 as of May 4, 2018 according to the Statement of Arrears of the Director of the Family Responsibility Office.

6. Mr. Ostapchuk shall pay $138,023.05 by July 15, 2018.

7. Mr. Ostapchuk was ordered to pay costs for the motion to change in the amount of $19,000 by July 15, 2018.

8. Support Deduction Order to issue.

9. Parties could agree to opt out of the Family Responsibility Office.

10. The order bears interest at the rate of 3%.

11. For as long as child support is paid, Mr. Ostapchuk and Ms. Benyk must provide updated income disclosure to the other party each year, within 30 days of the anniversary of the order, in accordance with section 24.1 of the Child Support Guidelines.

[7] The threshold issue was whether the income of Mr. Ostapchuk had increased since the final order dated July 31, 2001. If so, child support table amount and s.7 expenses would increase.

[8] In paragraph 11 of the final order, the parties were required to provide updated income disclosure each year. Mr. Ostapchuk did not do so. There was no evidence that Ms. Benyk had provided annual disclosure but his disclosure was essential to the change in table child support. As indicated below, Mr. Ostapchuk did not respond to Ms. Benyk’s Motion to Change and did not provide disclosure. Mr. Ostapchuk was involved in litigation with his former girlfriend, OW. Mesbur J. made an order requiring that Mr. Ostapchuk produce the financial disclosure he had made in the OW case and the income report that OW had obtained. Based on that disclosure, Ms. Benyk asked that (a) for the years 2011 and 2012, Mr. Ostapchuk’s income be found to be reflected in the disclosure, namely $148,222 and $50,297 respectively, and (b) for the years 2013 to 2018, that Mr. Ostapchuk’s income be imputed to be $78,661 per year.

[9] Based on those incomes, Ms. Benyk asked for an increase in table child support for two children for the period January 2011 to April 2015; and for one child (Samantha) for the period May 2015 to May 2018.

[10] Based on the evidence and the calculations made by Ms. Benyk and her lawyer, in the decision I also implicitly made these findings:

(a) fixing the amount owed by Mr. Ostapchuk for s. 7 expenses for the period 2001 to and including 2007 at the ratio set by the Court of Appeal in the amount of 57%; and for the period 2011 to and including 2016 that incorporated a rate for his contribution that reflected my findings as to his income and my findings as to Ms. Benyk’s income. In 2011 Mr. Ostapchuk’s share was 94%; in 2013, his share was 95%; in 2014, his share was 91%; in 2015 his share was 71%; and in 2016 his share was 64%;

(b) fixing pre-judgment interest commencing in December 2001 at rates applicable in December of each year.

Motions brought by Mr. Ostapchuk since June 4, 2018

[11] The steps taken by Mr. Ostapchuk are unclear. I am relying on the CaseLines documents and it may be that documents filed before CaseLines was introduced are not available.

[12] It appears that Mr. Ostapchuk initiated a Rule 15 Motion to Change Final Order but I do not have that form 15 Motion.

[13] I do have a copy of Mr. Ostapchuk’s notice of motion dated October 23, 2020 returnable January 12, 2021 and I have a copy of his amended notice of motion dated December 28, 2020. In paragraph 2 of his amended notice of motion Mr. Ostapchuk has asked for an order as follows:

Paragraphs 2,3,5,6 and 7 of the order dated June 4, 2018 be set aside per Rule 25(10) of the Family Law Rules.

[14] The reference to rule 25(10) was incorrect. It is agreed that the reference was to rule 25(19).

[15] In the remaining 5 paragraphs of the notice of motion, Mr. Ostapchuk has asked for an order varying paragraphs 3,4,5,6 and 7.

[16] Two different approaches were adopted by Mr. Ostapchuk. On the one hand he has brought this motion pursuant to rule 25(19) and on the other hand, he has left open his Motion to Change Final Order based on a material change in his income since the final order dated June 4, 2018. The only issue before me on February 11, 2021 was his motion pursuant to rule 25(19).

[17] At that hearing on February 11, 2021, I declined to allow Mr. Ostapchuk’s counsel to refer to three affidavits. In order to address that issue, I will list all of the documents (except affidavits of service) that were in the CaseLines file at the time of the hearing.

1. Mr. Ostapchuk’s form 13 financial statement sworn January 31, 2020 that bears court file #98-FP-242426-0001. This and other documents include the suffix -0001 which I assume is in error. That is the suffix attached to Ms. Benyk’s Motion to Change Final Order. I assume that he filed his Motion to Change Final Order on that date with the suffix -0002;

2. Ms. Benyk’s form 13 financial statement sworn May 11, 2020;

3. affidavit of Mr. Ostapchuk sworn October 7, 2020 updating the form 13 financial statement sworn January 31, 2020;

4. affidavit of Mr. Ostapchuk sworn October 9, 2020 in response to Ms. Benyk’s Request for Information dated August 27, 2020;

5. affidavit of Anastasia sworn October 21, 2020; attached as Exhibit B is an affidavit of Ms. Benyk sworn October 6, 2020 in response to Mr. Ostapchuk’s Request for Information dated September 14, 2020;

6. affidavit of Mr. Ostapchuk sworn October 23, 2020;

7. affidavit of Ms. Benyk sworn November 20, 2020;

8. affidavit of Samantha sworn November 20, 2020;

9. notice of motion dated October 23, 2020 returnable January 12, 2021;

10. affidavit of Mr. Ostapchuk sworn December 22, 2020;

11. affidavit of Anastasia sworn December 22, 2020;

12. affidavit of Mr. Ostapchuk sworn December 22, 2020 updating his form 13 financial statement sworn January 31, 2020;

13. factum of Mr. Ostapchuk dated December 22, 2020;

14. amended notice of motion dated December 28, 2020 returnable January 12, 2021;

15. affidavit of Ms. Benyk sworn January 5, 2021 updating her financial statement sworn May 11, 2020;

16. affidavit of Samantha sworn January 5, 2021;

17. affidavit of AML (friend of Samantha) sworn January 5, 2021;

18. affidavit of Ms. Benyk sworn January 5, 2021;

19. affidavit of Anastasia sworn January 6, 2021;

20. factum of Ms. Benyk dated January 6, 2021;

21. Mr. Ostapchuk’s Compendium for hearing on January 12, 2021;

22. affidavit of Ms. Benyk sworn January 12, 2021;

23. affidavit of Mr. Ostapchuk sworn January 21, 2021;

24. affidavit of Anastasia sworn January 29, 2021;

25. affidavit of Mr. Ostapchuk sworn February 1, 2021;

26. affidavit of Ms. Benyk sworn February 3, 2021;

27. affidavit of Mr. Ostapchuk sworn February 9, 2021;

28. affidavit of Ms. Benyk sworn February 10, 2021; and

29. transcript of the hearing on June 4, 2018.

[18] When the motion came before Justice Czutrin for the hearing on January 12, 2021 the record included documents listed above at 1-22. Czutrin J. made an order adjourning the motion to be heard by me. After the attendance before Czutrin J., and before the case conference on January 22, Mr. Ostapchuk served and filed an affidavit sworn January 21, 2021 (document 23).

[19] On January 22, I held a case conference with counsel and the parties. I scheduled the hearing of the motion before me on February 11, 2021. In the endorsement dated January 22, I noted the following:

(a) The motion before me was pursuant to rule 25(19).

(b) Mr. Ostapchuk had served and filed the January 21 affidavit, the day before the case conference. At the request of Ms. Pribytkova, her client was given an opportunity to respond by January 29, 2021.

(c) Other than that responding affidavit, counsel agreed that the record was complete. I directed counsel to ensure that all documents were filed in the court portal (which is used for data entry purposes) and in CaseLines (which is used for document management purposes) and I directed counsel to file a joint confirmation form by February 4, 2021 listing all of the material relied on in the motion.

(d) I noted that the parties might agree on an amendment to two paragraphs of the order dated June 12, 2018 [sic June 4]which Ms. Benyk conceded contained two errors.

(e) Ms. Pribytkova confirmed that she had a copy of the transcript of the hearing on June 4, 2018. I directed Ms. Pribytkova to provide a copy of the transcript to Mr. Ostapchuk’s counsel.

[20] Counsel did file a confirmation form dated February 4, but it was not submitted jointly. Although it was agreed on January 22 that the record was complete, and the only evidence to be filed was an affidavit of Ms. Benyk responding to Mr. Ostapchuk’s January 21, 2021 affidavit, Mr. Ostapchuk filed the affidavits listed as 24, 25 and 27 to which Ms. Benyk responded in affidavits listed as 26 and 28.

[21] Ms. Benyk did not deliver an affidavit responding to Mr. Ostapchuk’s January 21st affidavit, which was the only affidavit that I had allowed.

[22] At the outset of the hearing on February 11, 2021, I observed that the confirmation form was not joint, that even the one filed on behalf of Mr. Ostapchuk by February 4 was incomplete, and that neither of the facta made reference to much of the evidence because they had been delivered on December 22, 2020 and January 6, 2021 respectively. I advised counsel that I would not be considering anything delivered after January 22, 2021, specifically the affidavits filed by Mr. Ostapchuk at 24, 25 and 27 and Ms. Benyk’s responding affidavits at 26 and 28.

[23] Ms. Rayson voiced her opposition and in closing submissions she, respectfully, took the position that Mr. Ostapchuk had been denied procedural fairness because he had not been permitted to rely on evidence that had not been included in the February 4 confirmation form.

[24] After the conclusion of the hearing, I again reviewed the affidavits filed after January 22 which I summarize as follows:

(a) affidavit of Anastasia sworn January 29, 2021: she recently found a business card related to the GTA business; she recently found copies of her driver’s license cards issued in 2010 indicating her address in 2009 was at her father’s home and in 2010 in her mother’s home; confirming that her mother owns a condominium in Ukraine which was purchased in 2015; reporting on speaking with her mother’s brother and sister-in-law over Facebook Messenger on January 24 and 25, 2021 and reporting what they said to Anastasia (a) as to the amount that her mother and her sister had recovered from the car accidents and (b) her mother’s ownership of the condominium and purchase price in 2015. Her father had arranged for a translation of the Facebook Messenger conversation which was attached.

[25] The business card and driver’s license were confirmatory of evidence that she had given in her prior affidavit. Assuming that the Facebook Messenger communication could be described as “speaking with someone”, it is all hearsay and the translation was not prepared by a certified translator. There is no basis for the court to rely on that affidavit sworn 7 days after the lawyers agreed that the record was complete.

(b) affidavit of Mr. Ostapchuk sworn February 1, 2021: Mr. Ostapchuk referred to the history of the relationship including that he married Ms. Benyk in 1991 in a “duress situation” because she was in Canada illegally; the income he had at the time of the original trial in 2001 and shortly thereafter; the start of his handyman business in 2006; he paid the full amount of child support until Anastasia left her mother’s and resided with him for 3 years; in the past four years he had had severe gout attacks and other issues and he had applied for ODSP; he had a sever gout attack in March of 2020; he carries bad debt from two customers; FRO suspended his driver’s license and passport on March 10, 2020 and consequently he has not been able to work since FRO suspended his license; description of some of the circumstances involved with his former girlfriend OW including this evidence:

8. . . . After the OW trial (in January 2017), I instantly had a new refinanced mortgage of $550,000 to cover my debts and funds for living. The mortgage is with a private lender as the major banks would not deal with me because the arrears with FRO were [affecting] my credit report, thus leaving me with a very high interest rate as well to date.

He is using loans from his mothers’ retirements funds to pay his living and legal fees; paragraph 10 about Ms. Benyk and her mother and Anastasia which is not readily understandable; reporting about Anastasia’s “conversation” with her uncle in the Ukraine and what he purported to confirm; pointing out that nothing has been taken into account for Samantha’s income and expressing his “belief” that Samantha was receiving more income than what was stated when Ms. Benyk obtained the OSAP loans for Samantha; “numerous comments he wished to make” about the transcript of the hearing on June 4, 2018; evidence about the vehicles that Ms. Benyk drove and where they came from; asserting that Ms. Benyk “has made a successful career as a con artist”; his belief about how much money DV gave to Ms. Benyk; again referring to what he refers to as false charges Ms. Benyk made to the police in 1997; additional comments about the transcript.

[26] The excerpt from paragraph 8 will be relevant below in the analysis of the legal issues in this motion. The balance of that affidavit includes his version of the history of the relationship and his belief about what happened about events that are irrelevant, for example about DV. It is the case that he received the transcript of the uncontested trial after January 22, 2021 and comment might be reasonable. But there is no explanation for why he had not obtained the transcript himself at the outset of his motion. His affidavit consists of hearsay, conjecture and speculation. Virtually all of it is inadmissible. There is no basis for the court to rely on that affidavit sworn 9 days after the lawyers agreed that the record was complete.

(c) Affidavit of Mr. Ostapchuk sworn February 9, 2021: he reports that he has “recently been able to procure Svitlana’s properties she owns in Ukraine” that show she owns two condominiums. He attached documents obtained “through the Ukrainian property registry system” translated by the same uncertified translator.

[27] Mr. Ostapchuk had raised an issue that Ms. Benyk owned a condominium in the Ukraine. Ms. Benyk had responded in her affidavit confirming that she had made a down payment on a condominium that, at the time of the hearing in June 2018 was not built and did not affect her income. To the extent that this document purports to confirm ownership, it simply confirms the existing evidence. I note that in her responding affidavit sworn February 10, 2021 Ms. Benyk deposed that she does not own a second condominium and she explained the difference between her partonomic [sic: patronymic] name as opposed to the partonomic [sic: patronymic] names on the land titles search. There is no basis for the court to rely on that affidavit sworn 20 days after the lawyers agreed that the record was complete.

[28] Rule 2(2) to (5) of the Family Law Rules requires the Court to manage cases to promote the “primary objective” of dealing with cases justly. On January 22, 2021, I reflected the agreement of counsel that the record was complete except for Ms. Benyk’s affidavit in response to Mr. Ostapchuk’s January 21st affidavit which she did not do.

[29] In my view, Mr. Ostapchuk was not denied procedural fairness because he filed evidence after January 22 for which he did not have leave, some of which refers to earlier evidence and is repetitive, and which contains hearsay and speculation, all of which he delivered without any explanation as to why it was provided after January 22, 2021.

Mr. Ostapchuk’s motion pursuant to Rule 25(19)

[30] The applicable rule is as follows:

CHANGING ORDER – FRAUD, MISTAKE, LACK OF NOTICE

(19) The court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[31] As indicated above, the threshold issue at the hearing of the Motion to Change on June 4, 2018 was whether Mr. Ostapchuk’s income had increased. If so, then the issue was whether the table amount and s.7 child support should be increased.

[32] In paragraph 21 of his affidavit sworn December 22, 2020 and the chart accompanying it, Mr. Ostapchuk deposed that he did not dispute the income attributed to him in the June 4 order. In other words, he has accepted that his income for purposes of the Motion to Change Final Order was $148,222 for 2011, $50,297 for 2012, and imputed at $78,661 for the years 2013 to and including 2018. Furthermore, nowhere in his evidence does he dispute that the order was made retroactive.

[33] As described in his affidavit sworn October 23, 2020, Mr. Ostapchuk’s challenges to the order are as follows:

(a) Anastasia lived with him for the period 2007 to 2010 and child support for her for that three-year period should be deducted from the total owed and should have ended as of September 1, 2011 and Ms. Benyk’s evidence to the contrary constitutes misrepresentation;

(b) child support for Samantha should have been terminated effective June 1, 2013 and Ms. Benyk’s evidence to the contrary constitutes misrepresentation;

(c) Ms. Benyk did not disclose her own financial circumstances, namely that she had income from an incorporated sole proprietorship registered in Anastasia’s name from 2015-2018. Ms. Benyk’s failure to disclosure that income was a misrepresentation that affected the ratio for s.7 expenses;

(d) with respect to (a) and (b), Mr. Ostapchuk asks that the court replace the ordered amounts with the corrected amounts; and

(e) with respect to (c) Mr. Ostapchuk asks that the court set aside the amount ordered for s.7 special and extraordinary expenses and hold a trial for purposes of hearing evidence as to Ms. Benyk’s income and how that affects the ratio.

[34] In his draft order, he proposed the following:

1. Paragraphs 2,3,5,6 and 7 of the Order of Justice Kiteley made June 4, 2018 are hereby set aside per Rule 25(19) of the Family Law Rules;

2. Paragraph 3 of the Order of Justice Kiteley made June 4, 2018 be varied to state that the Applicant’s child support obligations to the child, being Anastasia Ostapchuk (born June 12, 1993) and Samantha (born March 31, 1995) are terminated as of September 1st, 2011, and the Applicant shall pay arrears of child support for one child, Samantha Ostapchuk born March 31, 1995, being $15,170.24 for the period from January 1, 2011 until May 31, 2018 with no prejudgment interest.

3. Paragraph 4 of the order of Justice Kiteley made June 4, 2018 be set aside, and an Order for a new hearing on the matter of the Applicant’s proportionate share of the arrears of Section 7 expenses for the children.

4. Paragraph 5 of the Order of Justice Kiteley made June 4, 2018 be varied to state that the total amount of child support arrears are in the amount to be determined; and that the amount of arrears according to the Director of the Family Responsibility Office as of May 4, 2018 in the amount of $36,377.25, are varied to be $13,319.25.

5. Paragraph 6 of the Order of Justice Kiteley made June 4, 2018 be varied to state that the total payment to Svitlana Benyk is to be paid by a date to be determined;

6. Paragraph 7 of the Order of Justice Kiteley made June 4, 2018 be varied to state that the costs are to be set aside, as no costs are payable by the Applicant, or that they be set aside and determined by the Motions Judge at the Long Motion returnable February 11, 2021; and

7. Costs as against the Respondent for this Motion in the amount of_________.

[35] Mr. Ostapchuk takes the position that Ms. Benyk has committed fraud in her misrepresentations and her failure to disclose her income.

[36] Mr. Ostapchuk relies on subrule 25(19)(a). He admits that he was served with the initial Motion to Change Final Order. He acknowledges that he was not present at the hearing. He does not specifically refer to subrules 25(19)(d) and (e). However, before considering his submissions on the allegation of fraud, I consider the evidence as to the extent to which he participated in the case.

Analysis

A. No notice subrule 25(19)(d)

[37] Ms. Benyk brought a Motion to Change Final Order FS-96-FO242436-0001 in which she asked for an order requiring Mr. Ostapchuk to retroactively and prospectively increase the child support table amount and s.7 expenses and an order fixing the arrears. The Motion to Change was issued on August 25, 2014 and served on October 16, 2014. Mr. Ostapchuk attended the hearing before the Dispute Resolution Officer on December 2, 2014.

[38] Mr. Ostapchuk was at that time involved in litigation with his common law spouse, OW. Ms. Benyk brought a motion returnable January 6, 2015 which was served on Mr. Ostapchuk. Mesbur J. made an order permitting counsel for Ms. Benyk to rely on the income report that Mr. Ostapchuk’s common law wife had obtained and intended to use in her family law proceedings. According to the form 23C affidavit, Mesbur J. held that because Mr. Ostapchuk did not respond to the Motion to Change, Ms. Benyk was allowed to look for an alternate source of documents and information about Mr. Ostapchuk’s income. Mr. Ostapchuk attended the motion and, according to Ms. Benyk’s form 23C, did not object to the order. Mesbur J. also made an order that Mr. Ostapchuk file a form 13 financial statement by February 2, 2015 and she adjourned the DRO hearing to February 3, 2015.

[39] Mr. Ostapchuk did not attend before the Dispute Resolution Officer on February 3, 2015. In the note made that day, the DRO confirmed that Mr. Ostapchuk did not show up, did not comply with the order of Mesbur J. to file a form 13 financial statement, and Ms. Benyk could proceed to an uncontested trial.

[40] Notices of Change of Representation were filed by him or on his behalf in 2015 and 2016. At the time of the hearing on June 4, 2018, he did not have a lawyer of record.

[41] The evidence is that the trial of the OW action started in January 2017 and settled during the hearing.

[42] On April 27, 2018, there was a case conference in the Motion to Change heard by Mesbur J. Ms. Pribytkova provided proof of service on Mr. Ostapchuk of the Notice of Case Conference, the case conference brief and form 13 financial statement sworn April 18, 2018. Mr. Ostapchuk did not attend. Mesbur J. made an order that the matter proceed to an uncontested trial.

[43] Counsel for Ms. Benyk provided proof of service on Mr. Ostapchuk of a copy of Form 23C affidavit for uncontested Trial.

[44] Counsel for Ms. Benyk did not serve Mr. Ostapchuk with a notice of hearing that the trial would take place on June 4, 2018.

[45] Mr. Ostapchuk did not file a Response to Motion to Change. He did not provide any financial information in response to Ms. Benyk’s Motion to Change. He did not comply with the order made by Mesbur J. to file a form 13 financial statement by February 2, 2015. He did not attend the case conference on April 27, 2018.

[46] Pursuant to rule 15(9) and (10), if Mr. Ostapchuk did not agree to the change or wanted to ask the court to make an additional or a different change to the final order, he was required to serve and file a response to motion to change (Form 15B) with all required attachments no late than 30 days after service.

[47] Pursuant to rule 15(14), having failed to serve and file a response Form 15B, Mr. Ostapchuk was subject to the consequences set out in subrule 1(8.4): he was not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order), he was not entitled to participate in the case in any way, the court may deal with the case in his absence, and a date may be set for an uncontested trial of the case.

[48] As a result of his failure to participate in the case, Mr. Ostapchuk was not entitled to notice of the date of the uncontested trial. Mr. Ostapchuk did not rely on subrule 25(19(d). In any event, it does not apply.

B. With notice but unable to be present subrule 25(19)(e)

[49] Subrule 25(19)(e) contemplates Mr. Ostapchuk having been given notice but he did not attend “because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.”

[50] Mr. Ostapchuk did not attend the case conference on April 27, 2018. However, he was served with a copy of the form 23C Affidavit for Uncontested Trial. Having received the form 23C, Mr. Ostapchuk could have contacted the court office to determine if a hearing date had been set. There is no evidence that he did.

[51] In his affidavit sworn January 21, 2021, Mr. Ostapchuk finally provided “the fulsome explanation of why I was not present at the Uncontested Trial before Justice Kiteley on June 12th [sic] 2018”. These are excerpts from his affidavit:

3. At the trial and subsequent Court of Appeal appearance, I was represented by ML and Svitlana was represented by R.K. . . .

4. Subsequently, in 2014, Svitlana initiated a Motion to Change. . . I acknowledge I was served with the initial Motion to Change in 2014.

5. In 2018, Svitlana obtained the order dated June 12th [sic] 2018. .

6. For the reasons that follow I was not aware that an uncontested trial resulting in an Order had been made, until I received a correspondence from the FRO in July 2018 indicating that I had significant arrears. After I received the correspondence, I immediately called the FRO, and that is when they showed me the Order of Justice Kiteley dated June 12th [sic] 2018.

7. Beginning in October 2016, I was represented by DL in the proceeding, which was between myself and OW at the time. That matter concluded in a trial in 2017 that ended in minutes of settlement. Her lawyer was also R.K. I met DL. . . . [and he agreed to act for me]

8. Prior to October 2016, I was represented by AB in both this proceeding against Svitlana for her Motion to Change, and the proceeding against OW. In October 2016, I was with AB in his office when he called RK. RK informed AB that I would not hear from Svitlana, as Svitlana had received a very favourable settlement in her automobile personal injury claim that gave her $800,000. . . . she only shows $400,000 on her Financial Statement showing her investments. Attached as Exhibit F is the relevant page from her Financial Statement sworn May 11, 2020.

9. DL instructed me to pick up all of the files for both proceedings from AB’s office and I dropped them off in person to DL that same day. Attached as Exhibit G is a copy of the email from [AB law firm] confirming that they gave their files for both proceedings to me. [Note that the email is dated January 30, 2020 and does not confirm that Mr. Ostapchuk picked up files in October 2016.]

10. DL verbally told me at the time, when I retained him to represent me in proceeding against OW and Ms. Benyk, that he would be representing me with respect to any child support issues at that time for the children I had with Ms. Benyk. At that time, child support was still accruing under the final order arising from the 2001 Kiteley trial decision.

11. In 2017, I attempted refinancing on my home. At the time, Western Lending indicated that there were child support arrears in both the proceeding against Svitlana, as well as OW. DL corresponded with Western Lending on my behalf, would also be representing me in the Motion to Change that Svitlana initiated. In an email DL wrote to Western Lending, in the first paragraph he wrote, “I am counsel for Mr. Ostapchuk in this matter. I have been requested to provide you comments with respect to this issue of Mr. Ostapchuk’s previous wife’s amounts owing her from FRO in the amount that is about $21,500.” . . .

12. There are several correspondences I have, where I asked DL of the status of the matter of Svitlana’s Motion to Change. Each time, he would assure me that there was nothing significant to report. Therefore, when I would receive packages that had been sent to me by Svitlana’s counsel, I would call DL, and he would instruct me not to open it, and send it to his office instead. Trusting him, I willingly did so. Since RK had also represented my previous common law partner OW, and these packages came from the same firm, I thought that these would have to do with OW’s proceedings. Attached as Exhibit K are copies of the packages that I would receive, that I would then send to DL without opening. [Note that the exhibit is two images of a text message dated May 4, 2018 of an unopened envelope in which the writing is unclear but appears to contain the word “urgent” in capital letters.]

13. Therefore, I did not at the time, have anything in my possession, regarding this matter. Anything that I would have received in the mail from Svitlana’s counsel, I would not open, and would instead send to DL.

14. As previously mentioned, I was not aware that Svitlana had obtained the order of Justice Kiteley dated June 12th [sic] 2018 until I had contacted FRO. I immediately attempted to contact DL. . .

15. I then engaged the services of AJ to represent me in my civil suit against DL. The Statement of Claim was issued in 2020.. . .

16. In June 2019, I then retained Ms. Zheng to initiate a Motion to Change. . . .

17. Ms. Zheng retained the services of a process server to attempt to make copies of the Court file. . . . emphasis added

[52] In paragraph 19 above, Mr. Ostapchuk referred to the Statement of Claim issued March 9, 2020 in which, amongst other things, Mr. Ostapchuk alleged that he retained DL but DL “never took the necessary steps to record himself as the solicitor of record” in Ms. Benyk’s Motion to Change.

[53] As indicated in paragraph 8 of his affidavit sworn February 1, 2021 quoted in paragraph 25 above, and in paragraph 13 of the affidavit sworn January 21, 2021 quoted in paragraph 51 above, Mr. Ostapchuk knew early in 2017 that FRO asserted arrears because it affected his credit and meant he had to borrow from a private lender at high interest rates.

[54] In paragraph 10 of his affidavit sworn October 23, 2020, Mr. Ostapchuk deposed as follows:

I was not present during the proceeding, and was deprived of my chance to respond to Svitlana’s proceeding, due to DL. I am seeking to set aside the Order of Justice Kiteley dated June 12th [sic June 4] 2018 under Rule 25(10) [sic rule 25(19)] of the Family Law Rules due to the fact that I believe a fraud has been committed by Svitlana Benyk upon this Honourable Court, for the allegations she made in her Affidavit for the Uncontested Trial.

[55] The evidence on which Mr. Ostapchuk relies to explain why he was not present at the hearing consists of the allegation that DL did not represent him properly. I do not accept that evidence for these reasons.

[56] First, Mr. Ostapchuk’s explanation that he relied on DL. including his advice not to open envelopes from lawyers, defies reason. It demonstrates that he takes no responsibility for important legal matters affecting him.

[57] Second, in this motion, Mr. Ostapchuk does not dispute the incomes on which the order dated June 4, 2018 was made, including the imputed income which was twice the income on which the 2001 order was made. Having failed to provide annual disclosure as required pursuant to paragraph 11 of the 2001 order, he managed to avoid paying the amounts to which his children were entitled and has the audacity to blame his lawyer.

[58] Third, Mr. Ostapchuk was well aware that FRO was pursuing him for arrears at least by early 2017 when he had to refinance to pay OW.

[59] On this record for purposes of dealing with this motion pursuant to rule 25(19), I find that Mr. Ostapchuk wilfully ignored proceedings that he was aware had been commenced in 2014 and, in 2016 were still outstanding because in October 2016, he retained DL to act for him in that case. Mr. Ostapchuk does not rely on subrule 25(19)(e). However, the circumstances do not disclose “a reason satisfactory to the court” to explain his absence. In fact, the circumstances disclose that his absence was unreasonable.

C. Obtained by fraud subrule 25(19)(a)

[60] Fraud within rule 25(19)(a) does not have a special meaning outside the common law. A moving party must clearly prove that the other party knowingly or recklessly made a false statement with knowledge of the falsehood, and did so with wrongful intent. Hatuka v Segal 2017 ONSC 5623 at para. 28.

[61] Mr. Ostapchuk takes the position that “grave injustices would be permitted “ if the 2018 order is allowed to stand. He focuses on the three issues described in his affidavit sworn October 23rd referred to above in paragraph 33.

(1) Anastasia

[62] Mr. Ostapchuk takes the position that there are two disputed periods: from August 2009 to May 2010 and from January 2011 to April 2015.

[63] Following the separation, Anastasia lived with her mother.

[64] In her form 23C affidavit for uncontested trial, Ms. Benyk did not make reference to Anastasia living with her father. Ms. Benyk relied on the Statement of Arrears provided by the Family Responsibility Office that covered the period August 1, 2002 to May 2, 2018. Ms. Benyk asked for an order that incorporated that amount owing, namely $36,377.25.

[65] In the transcript of her evidence at the uncontested trial, Ms. Benyk said at page 26 that there were a few times when Anastasia was living at her father’s place and she spoke of an occasion where she went to Mr. Ostapchuk’s home because Anastasia did not want to live with him anymore. At page 28, I asked for the dates when Anastasia lived with her father. What followed includes statements from Ms. Benyk and from her counsel that it was 2008 to 2010. Ms. Benyk had had two car accidents. At page 29, she said that her “head was all messed up” meaning that she could not remember. Both she and her counsel referred to “maybe January 2011”.

[66] In her cross-examination held on November 5, 2020, Ms. Benyk was asked about Anastasia having lived with her father and she said she had. Mr. Ostapchuk took the position that that meant that Ms. Benyk had acknowledged that she had sworn a “false affidavit” in her form 23C. I do not agree with that submission. In her cross-examination Ms. Benyk simply acknowledged that Anastasia had lived with her for a period of time.

[67] Ms. Benyk delivered an affidavit sworn November 20, 2020 in which she deposed as follows:

38. The second error was made by me in forgetting that Anastasia lived with the Applicant from August 2007 until August 2009, and thereby relying upon the FRO arrears for two children during that period. I started the Motion that resulted in the Order of Justice Kiteley in 2014. I was suffering from the brain injury after my two car accidents, and spent six months in Hamilton Hospital in 2015. Only after I saw the affidavit of Anastasia of October 21, 2020 and spoke to my daughter Samantha, I remembered that Anastasia indeed lived with the Applicant during those two years, but not three years, as she states in her Affidavit. . . .

39. Attached to the Affidavit of Uncontested Trial of May 25, 2018, and now attached to this Affidavit as Exhibit “G” is the FRO arrears statement.

40. The Applicant father was ordered to pay child support for two children in the amount of $618.45 based on his income of $39,977.54, in according to the Judgment of Justice Kiteley, dated July 31, 2001. $557.00 out of $618.45 was table child support.

41. The child support for one child during the 2007-2009 24 months period should have been $307.00 according to the 2006 Table.

42. As a result, an amount of $311.45 x 24 = $7,474.80 should have been credited to the father’s FRO account for the period from August 2007 until August 2009.

[68] Ms. Benyk disclosed the two years and, when her attention was drawn to it, she agreed that Mr. Ostapchuk should have a credit against the arrears.

[69] Contrary to assertions by Mr. Ostapchuk and by Anastasia, in her evidence, Ms. Benyk did not mislead the court as to the fact that Anastasia had lived with her father for at least two years. Furthermore, in the oral reasons for decision I indicated that Samantha (wrongly referred to as the younger child) had lived with her father from approximately August 2008 to January 2011 and Ms. Benyk did not claim support during that period. The calculation error was in not reducing the FRO statement of arrears.

[70] The issue in this motion is whether Anastasia lived with her father for three years and therefore he is entitled to a credit of one more year. In relation to the issue about where Anastasia has lived, there has been significant evidence from Anastasia and from her father. Ms. Benyk has provided her responding evidence as well as evidence from Samantha and Samantha’s friend AML. From all of that evidence, one thing is clear: the parents do not agree. Mr. Ostapchuk and Anastasia insist that it was three years while Ms. Benyk and Samantha insist it was two years. That is a matter for a trial judge to hear the evidence and decide. It cannot be decided on the extensive affidavit evidence in this motion.

[71] If Mr. Ostapchuk had participated in the case, he would have raised the issue in his evidence and in cross-examination of Ms. Benyk. There is no fraud.

[72] The second period is from January 2011 to April 2015. Ms. Benyk gave no evidence at the uncontested trial specifically on this period but there was no need. In the affidavits that have been filed, there is evidence of the conflict between Anastasia and her father on the one hand and Ms. Benyk on the other hand. Whether a child “resides” with a parent for purposes of child support is often complicated. Anastasia takes great offence at the evidence from her mother and her sister about how she was managing her life from 2007 when she ran away to her father’s house and 2015. Again this was a matter for a trial judge to hear the evidence and decide. It cannot be decided on the extensive affidavit evidence on this motion.

[73] If Mr. Ostapchuk had participated in the case, he would have raised the issue in his evidence and in cross-examination of Ms. Benyk. There is no fraud.

(2) Samantha

[74] In her form 23C affidavit, Ms. Benyk had asserted a claim for retroactive child support for Samantha for the years January 1, 2011 until May 2018.

[75] In paragraphs 19 to 22 of his affidavit sworn October 23, 2020, Mr. Ostapchuk took the position that in Ms. Benyk’s form 23C affidavit she purposely asserted that Samantha resided with her after Samantha enrolled at McMaster. He deposed that after her 18th birthday, Samantha lived in Hamilton, not with her mother. He also deposed that she did not complete her degree at McMaster University and after enrolling in Humber College starting 2017, she had not completed her two year program. He also deposed that Samantha had enrolled in Oxford College in January 2020. He challenged Ms. Benyk’s evidence and took the position that child support should have been terminated in June 2013 when Samantha turned 18.

[76] Although included in his draft order, Mr. Ostapchuk’s factum does not address this issue. His counsel made no submissions. From that I conclude that Mr. Ostapchuk does not challenge the decision dated June 4, 2018 in respect of Samantha.

(3) Ms. Benyk’s income

[77] This issue relates to the calculation of the s.7 ratio. The Court of Appeal had corrected the trial decision and ordered Mr. Ostapchuk to pay s. 7 expenses at 57%. The Family Responsibility Office had not been informed of that change and had continued to record the percentage specified in the trial decision dated July 31, 2001. In her form 23C, Ms. Benyk calculated the amount owing as a result of that correction.

[78] In her form 23C, Ms. Benyk also provided a table calculating the amount owed for s.7 expenses that listed her income and the income of Mr. Ostapchuk. As indicated above in paragraph 10, that left Mr. Ostapchuk paying most of the s. 7 expenses for the period 2011 to 2016.

[79] In paragraph 23 of his affidavit sworn October 23, 2020, Mr. Ostapchuk deposed that he has “reason to believe that Svitlana was not forthcoming about her true income in her Uncontested Trial”.

[80] In paragraph 10 of his factum, Mr. Ostapchuk took the position that “Svitlana was not being truthful in her Uncontested Trial about her own finances”. In paragraph 18 of the factum, Mr. Ostapchuk took the position that he had “credible evidence to show that Svitlana intentionally misled the Court about having a corporation for the relevant years she was seeking contribution for Section 7 expenses. As such Jimmy submits that Svitlana did not meet her obligations to make full and frank disclosure before the Court.” He relies on paragraphs 25-35 of his affidavit sworn December 22, 2020.

[81] There are two corporations at issue. The first is a corporation called “GTA Labour” and the second is a corporation called “Z Best Temp.” Ms. Benyk did not refer to either of these corporations in her form 23C or in her evidence at the hearing. In her evidence in this motion, she has explained why she did not consider it relevant, including her evidence that GTA Labour was established for Anastasia’s use; an assertion that Anastasia vigorously denies.

[82] In this motion, there is considerable conflicting evidence from Mr. Ostapchuk, Anastasia and Ms. Benyk.

[83] Mr. Ostapchuk has not provided “credible evidence to show that Svitlana intentionally misled the court”.

[84] Again this was a matter for a trial judge to hear the evidence and decide. It cannot be decided on the extensive affidavit evidence on this motion.

[85] If Mr. Ostapchuk had participated in the case, he would have raised the issue in his evidence and in cross-examination of Ms. Benyk. There is no fraud.

(4) Conclusion on fraud

[86] The threshold for proving fraud on a balance of probabilities is high. Mr. Ostapchuk’s evidence consists of drawing unsupported inferences, his belief and Anastasia’s belief the Ms. Benyk deliberately misrepresented the facts, and his insistence that “a grave injustice” will occur if the decision is not rectified.

[87] I do not agree. Had he participated in the case in 2018, these issues would have been raised. For reasons that are not valid, he chose not to participate. He cannot assert a right to raise them now based on his belief that fraud has occurred.

C. Contains a mistake subrule 25(19)(b)

[88] During the questioning on November 5, 2020, Ms. Benyk discovered two errors. The first error was made by Ms. Benyk’s counsel and is found on page 6 of the form 23C. In adding up the arrears of child support from 2011 until 2018, the amount should have been $39,710.00 not $49,710.00. That was simply a calculation error. The interest calculated on the amount of arrears was correct because it was calculated specifically and separately on every outstanding amount each month.

[89] The second error was with respect to Anastasia living with her father for two years. Ms. Benyk has acknowledged that error and it will be corrected.

[90] In paragraphs 36 to 47 of her affidavit sworn November 20, 2020, Ms. Benyk pointed out these errors:

44. From the FRO statement, it looks like no interest was charged for the arrears of child support.

45. Plus, there was an accidental double charge with respect to section 7 expenses. The Order of Justice Kiteley covered the Ukrainian dance and school expenses in her Honour’s order of 2001. The Applicant was ordered to pay $61.45 per month for those expenses. The Applicant has to be credited for 5 months for 2002 (the date the Order was registered with FRO) and for 12 months for each 2002-2006, 7 months for 2007, 5 months for 2009, and 12 months for 2010, in the total amount of $5,469.05. Again, no interest was charged by FRO for non-payment of $61.45.

46. As is evident from the FRO statement, no interest was charged on any child support arrears from August 1, 2002 until and including 2010, even though being ordered at 6% by Justice Kiteley on July 31, 2001. This needs to be calculated as arrears for August 1, 2002 until December 2010. Attached as Exhibit “I” is a table showing the arrears of interest in accordance with Justice Kiteley’s 2001 order. The total of outstanding interest arrears is $8,151.66.

47. As a result, due to the above errors, [Ms. Benyk] agrees that the following amendments should be made:

In paragraph 3 of the order, change the number from $49,710.00 to $39,710.00;

In paragraph 5 of the order, change the number from $36,377.25 to $31,585.06 and, as a result of those changes

In paragraph 6 of the order, change the amount from $138,023.05 to $123,230.86.

[91] In paragraph 2 of her affidavit sworn January 12, 2021, Ms. Benyk corrected one of her corrections. Having reviewed again her affidavit sworn November 20, 2020 and her form 23C affidavit for uncontested trial, she deposed that she had over-credited Mr. Ostapchuk to the extent of $5,469.05 for arrears of s.7 special and extraordinary expenses. In paragraph 3 of that affidavit, she clarified that the corrections were as follows:

In paragraph 3 of the order, change the number from $49,710 to $39,710;

In paragraph 5 of the order, change the number from $36,377.25 to $37,054.11 and, as a result of those changes

In paragraph 6 of the order, change the amount from $138,023.05 to $128,699.91.

[92] Mr. Ostapchuk did not respond to that affidavit and I accept the correction of the correction.

Deadline for payment

[93] In paragraph 6 of the order dated June 4, 2018, Mr. Ostapchuk was required to pay the total arrears by July 15, 2018, or approximately 5 weeks from the date of the order.

[94] In his draft order for this motion, Mr. Ostapchuk has asked that that be varied so as to be paid “by a date to be determined”. I see no basis on the record to do so. The payment will be required within approximately 5 weeks from the date of release of this decision.

Costs of Ms. Benyk’s Motion to Change Final Order

[95] In his proposed order, Mr. Ostapchuk has asked that the costs order in the amount of $19,000 be varied to state that the costs are set aside as no costs are payable by the Applicant; or that they be set aside and determined by the Motions Judge.

[96] Given the result of this motion on the substantive issues, there is no basis to alter the costs in paragraph 7 of the order dated June 4, 2018.

Next Steps

[97] The only issue remaining is whether Mr. Ostapchuk pursues his Motion to Change Final Order based on his alleged a material change in his circumstances, namely his income. This is not before me. I do however make this observation. As indicated above, Mr. Ostapchuk does not challenge the income in the June 4, 2018 decision, including the imputed income of $78,661.33 for the years 2013 to 2018. In his affidavit sworn December 22, 2020, he provided his Notice of Assessment for 2018 that showed a line 150 income in the amount of $79,552 which could not be relied on as a material reduction in his income. He also provided his Notice of Assessment for 2019 which showed a line 15000 income of ($21,510) which, on its face would be a material change in circumstances. However, in his form 13 financial statement sworn January 29, 2020 he provided a Statement of Business or Professional Activities for the year 2019 in which he reported gross business income in the amount of $119,563.66. He took generous deductions that CRA allowed to reduce his income to a negative ($21,510) but that does not mean such deductions would be permitted in a Motion to Change Final Order. I am optimistic that he will consider whether he is likely to achieve much by pursuing other litigation.

Costs

[98] Ms. Benyk has been successful in resisting Mr. Ostapchuk’s motion pursuant to rule 25(19) and, pursuant to rule 24(1), she is presumptively entitled to costs of this motion. Furthermore, she has succeeded in defeating his claim based on an allegation of fraud and that may justify an order for costs on a full indemnity basis. It will be necessary for the parties to make written submissions, including with respect to whether offers to settle were made.

ORDER TO GO AS FOLLOWS:

[99] Except with respect to the corrections proposed by Ms. Benyk, the motion is dismissed.

[100] The order dated June 4, 2018 shall be amended as follows:

in paragraph 3: change $49,710.00 to $39,710.00;

in paragraph 5: change $36,377.25 to $37,054.11;

in paragraph 6: change $138,023.05 to $128,699.91.

[101] The parties shall make written submissions as to costs not exceeding 3 pages plus costs outline and offer(s) to settle on the following schedule:

(a) Ms. Benyk no later than May 28, 2021;

(b) Mr. Ostapchuk no later than June 11, 2021.

[102] This order takes effect immediately and without the order being signed and entered.

[103] Counsel for Ms. Benyk may forward through the Assistant Trial Co-ordinator an unapproved draft order incorporating paragraphs 99 to 102 to my attention for signing.

Kiteley J.

Released: May 18, 2021

COURT FILE NO.: FS-98-FP242436-0001 and 0002

DATE: 20210518

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

James Ostapchuk

Applicant

– and –

Svitlana Benyk

Respondent

REASONS FOR JUDGMENT

Kiteley, J.

Released: May 18, 2021