Court File and Parties

COURT FILE NO.: FS-13-19119 DATE: 20210721

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: OLENA KHOLOD, Applicant AND: LORENZO COSCARELLI, Respondent

BEFORE: Penny J.

COUNSEL: Olena Kholod on her own behalf Lorenzo Coscarelli on his own behalf

HEARD: by videoconference at Toronto: July 20, 2021

ENDORSEMENT

[1] This is a motion by Olena Kholod for an order, among other things, requiring Lorenzo Coscarelli:

(a) to pay increased temporary child support pending trial;

(b) to pay his share of section 7 expenses;

(c) to provide a current, updated financial statement with supporting 2019 and 2020 CRA information;

(d) to obtain life insurance to secure his support obligations (this relief was not pursued in oral submissions); and

(e) requiring him to remove his name from the auto insurance policy or pay his share of the expense of same.

[2] There are three children of the marriage. Mr. Coscarelli has been paying $1,650 per month for child support based on an interim, consent order from 2016 that was made expressly without prejudice. Ms. Kholod lost her job in December 2020. She does not qualify for unemployment insurance, has no income besides the child support and is accumulating debt to make ends meet. Based on his reported income in 2018 of $190,000, Mr. Coscarelli would have been paying $3,282 plus contributing at least 50% of the cost of section 7 expenses.

[3] Justice Kimmel’s order of March 24, 2021 permitted Ms. Kholod to deliver an amended application and required Mr. Coscarelli to file his answer within 30 days. Both parties were required to file updated financial statements. Ms. Kholod served her amended application and filed evidence updating her financial statement. Mr. Coscarelli has neither filed an answer nor an updated financial statement with supporting documentation. Kimmel J. also granted leave to Ms. Kholod to bring this motion for increased child support. There is a joint trial management/settlement conference scheduled for September 10, 2021 at 10:00 AM.

[4] Mr. Coscarelli takes issue with the jurisdiction of the Court to make any orders against him on the basis that he does not consider himself to be subject to any law or statute, is not a “person”, “parent”, “spouse”, “payor”, “respondent” and does not fall within any of the other defined terms under the family law legislation that governs this proceeding. This issue was raised before Kimmel J. as well. Kimmel J. held:

The court has assumed and exercised jurisdiction throughout these proceedings. Lorenzo participated in them prior to this case conference without objection, although he says that was in error. The court has and will continue to assume and exercise jurisdiction over this proceeding. Lorenzo was advised that if he wishes to challenge the court’s jurisdiction he will need to bring forward that challenge through a motion or other appropriate mechanism.

[5] Mr. Coscarelli brought no motion on the issue of jurisdiction. He concedes that he has filed no answer to Ms. Kholod’s application and made no financial disclosure in accordance with Kimmel J.’s order. His reason for not doing so is rooted in his jurisdictional claim: he does not recognize the authority of the Superior Court of Justice to make any orders against him at all. I explained that this position could have adverse consequences for him, such as default proceedings without notice. He steadfastly maintained that any consequent orders would also be inapplicable to him, for want of any jurisdiction.

[6] To the sentiment expressed in Kimmel J.’s endorsement, I would add that Mr. Coscarelli’s position has been universally rejected by every Court in Canada in which any similar argument has ever been advanced: see for example, Meads v. Meads, 2012 ABQB 571 (Rooke A.C.J.). Such claims have no foundation in fact or in law and are designed to frustrate the administration of justice and inflict unrecoverable expense and needless stress on the opposing party. I endorse the approach adopted by Myers J. in Jarvis v. Morlog, 2016 ONSC 4476 in which he found, at para. 3, that “not another moment of judicial resources or party expense should be invested” in such claims. They should be “nipped in the bud.”

[7] I give no effect whatsoever to Mr. Coscarelli’s jurisdictional argument and reject it in its entirety.

Answer

[8] The time has long past for the delivery of Mr. Coscarelli’s answer. Further, he has made it abundantly plain that he has no intention of filing an answer or updated financial information. He is, additionally, in express and knowing breach of Kimmel J.’s order. Rule 10(5) of the Family Law Rules provides that the consequences set out Rule 1(8.4)1, 2, 3, and 4 apply, with necessary changes if a respondent does not serve and file an answer. Those four subrules provide:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).

2. The party is not entitled to participate in the case in any way.

3. The court may deal with the case in the party’s absence.

4. A date may be set for an uncontested trial of the case.

[9] I find that the preconditions for the application of Rule 1(8.4)1, 2, 3, and 4 are met and order that the matter shall proceed as directed by that Rule.

Child Support

[10] The evidence before me is that the original child support order for payment of child support of $1,650 per month was made without prejudice. In any event, there have been material changes in circumstances including the birth of a third child, the loss of Ms. Kholod’s job and Mr. Coscarelli’s attempt to withdraw from the entire legal process which warrant a variation of that order.

[11] Mr. Coscarelli works for a bank. He has refused to provide any current income information. The last known gross annual income is from 2018: $190,000. Ms. Kholod asks for inputed income of over $3 million per year based on Mr. Coscarelli’s claim to lost income, based on having to respond to this case, in which he represented that he is losing over $1,600 per hour.

[12] I am not prepared to base any income imputation on Mr. Coscarelli’s fantasies about the value of his time or what he thinks he should be paid as compensation for being involved in legal proceedings. The best evidence before the Court is that cited above: annual gross income of $190,000.

[13] Mr. Coscarelli submitted that he should pay only limited child support on the basis that he has been denied access to the children. Mr. Coscarelli filed no evidence on this motion and, as noted above, has filed no answer to the application. Nor has Mr. Coscarelli ever sought to enforce any parenting rights in these proceedings. The evidence that is before me, in any event, suggests that Mr. Coscarelli has sought parenting time with the children on an inconsistent and sporadic basis. He admits that he now lives in the province of Québec. I therefore reject the argument that limitations on his parenting time justify absolving him of his obligation to support his children under Ontario law.

[14] Accordingly, I order that, effective August 1, 2021, Mr. Coscarelli shall pay to Ms. Kholod monthly the amount of $3, 282 as interim child support until trial.

Updated Financial Information

[15] Ms. Kholod asks that I order Mr. Coscarelli to produce his updated financial information. Justice Kimmel has already made such an order. It has not been complied with. There is no need or basis for making the same order again. Kimmel J.’s order remains in full force and effect, and binding on Mr. Coscarelli.

Section 7 Expenses

[16] Ms. Kholod asks for reimbursement of 50% of certain expenses incurred on behalf of the children. There is, however, only limited evidence of one dental expense of $460. Mr. Coscarelli shall pay $330 to Ms. Kholod on account of this expense forthwith. Ms. Kholod averted to other pending or actual expenses but offered no details or proof to support her claims. In the absence of specific evidence, I am not prepared to make any further order at this time. This is without prejudice to her right to make further claims, based on a proper record, in the future (but not before the settlement/trial management conference on September 10, 2021).

Car Insurance

[17] The final relief sought by Ms. Kholod was an order removing Mr. Coscarelli from the car insurance or requiring him to pay “his share” of the car insurance expense.

[18] The car in question is owned by Mr. Coscarelli. He did drive it occasionally during a period of reconciliation several years ago but does not do so now. I am in no position to order an unknown auto insurer to delete the owner as an insured. Further, Ms. Kholod has provided no details about the amount of the insurance, or what Mr. Coscarelli’s “share” should be. Therefore, again without prejudice to a future claim based on proper evidence (but not before the settlement/trial management conference on September 10, 2021), I decline to make any order regarding payment for car insurance.

Conclusion

[19] In conclusion, I order that:

(a) the preconditions for the application of Rule 1(8.4)1, 2, 3, and 4 are met and this matter shall proceed as directed by that Rule;

(b) commencing August 1, 2021, Mr. Coscarelli shall pay monthly interim child support in the amount of $3,282 until further order of the Court;

(c) Mr. Coscarelli shall pay $330 to Ms. Kholod on account of children’s dental expenses forthwith; and,

(d) the balance of the relief sought is denied.

[20] This endorsement shall be effective immediately without the necessity of the issuance and entry of a formal order, although either party may prepare an order for the court registrar to sign reflecting the terms of this endorsement (in the enumerated paragraph 19 above) should they wish to do so.

Penny J.

Date: July 21, 2021