COURT FILE NO.: FS- 14-396512
DATE: 20220114
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tony Troiano
Applicant
– and –
Dana Theriault (a.k.a. Troiano)
Respondent
No one appearing for the self-represented Applicant
Donna Wowk, for the Respondent
HEARD: January 13, 2022
PINTO J.
REASONS FOR DECISION
[1] The respondent wife/mother brings a motion seeking relief related to the applicant Mr. Troiano's purported breach of terms of the Final Order of Justice Lococo dated September 27, 2021 ("Lococo Order"). The relief being sought is that, if Mr. Troiano does not comply with the Lococo Order within 72 hours by paying child support and spousal support arrears, and other amounts owing, a monetary penalty will be imposed upon him, among other consequences.
[2] The self-represented applicant did not file any motion materials or attend the motion although duly served with the respondent’s motion materials and confirmation of motion materials.
[3] Ms. Wowk's last communication with the applicant was when she sent him an e-mail attaching the respondent's factum on January 10. He did not respond to the e-mail. However, later that afternoon, he sent the respondent a text message that read:
"Tell your lawyers to back off
I have given you enough money already.
I would take care of your health
And I will take care of [S, the parties' child]"
[4] A few days earlier, on January 7, 2022, when the respondent picked up the parties' 11-year old daughter, S, from the applicant's residence, the child was wearing a sweatshirt given to her by the applicant which, on its front, stated:
I get my attitude from my freaking awesome dad
He has a backbone made of steel
And a heart made of gold
He has anger issues & serious dislike for stupid people
You hurt me and they'll never find your body
(Yes, he bought me this shirt)
[5] I find the applicant's text message and the message that he placed, or caused to be placed, on the daughter's sweatshirt indicative of the applicant's attitude in this proceeding.
[6] The lengthy history of this proceeding was fully set out in the moving respondent's affidavit. The applicant is a wealthy businessman. There is a lengthy history of him breaching court orders and agreements in this proceeding.
[7] The parties entered into Final Minutes of Settlement dated November 24, 2020 on the eve of the case proceeding to an Arbitration. The legal proceeding had been ongoing since 2014. The Final Minutes of Settlement were converted into the Lococo Order.
[8] I find the applicant is in breach of the Lococo Order for the following reasons:
(a) He has not paid child support since January 2021 in breach of paragraph 5 of the Lococo Order.
(b) He has not paid spousal support since January 2021 in breach of paragraph 8 of the Lococo Order.
(c) He has not put into place any of the forms of security for his child and spousal support obligations in breach of paragraph 10 of the Lococo Order.
(d) He has not prepared a Trust Agreement in breach of paragraph 11 of the Lococo Order.
(e) The Final Minutes of Settlement and Lococo Order include a provision whereby the applicant is required to pay a penalty of $10,000 plus interest of 5% compounded daily should he breach the term which deals with payment of $4,490,000 to the respondent as per a payment schedule. I find, based on the affidavit of the respondent, that the applicant is in breach of paragraph 2 of the Lococo Order because, instead of making a payment of $2.0 million by December 22, 2020, he made the payment on December 29, 2020.
(f) The applicant also breached paragraphs 5 and 8 of the Lococo Order as he did not provide child or spousal support in December 2021.
[9] The respondent was diagnosed with very serious health issues in October 2020.
[10] I find that the applicant has flagrantly breached his obligations under the Lococo order. I also find that the applicant's text message on January 10, 2022 to the respondent and the slogan on the daughter's sweatshirt demonstrate his attitude towards his support payment obligations, which he consented to when he signed the Minutes of Settlement, and which were converted into the Lococo Order.
[11] Rule 1(8), 1(8.1) of the Family Law Rules provide:
Failure to obey order
(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.
Failure to follow rules
(8.1) If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8) (g). O. Reg. 322/13, s. 1.
[12] I note that Rule 1(8) provides the court with broad discretion to impose an appropriate order when a party breaches an order and the list of options is non-exhaustive.
[13] In Ferguson v. Charlton, 2008, ONCJ 1, at para 64, the Court set out the following three-part test to determine whether to apply Rule 1(8) of the Family Law Rules:
(a) The Court must ask whether there is a triggering event that would allow it to apply the Rule. The triggering event would be non-compliance with a court order.
(b) If the triggering event exists, the Court should ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under the Rule or by ordering that the Rule does not apply. The Court's decision whether or not to exercise its discretion ought to take into account all relevant history in the course of the litigation, and more specifically, the conduct of the non-complying party.
(c) In the event the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with a very broad discretion as to the appropriate remedy pursuant to the provisions of the Rule: See also Van v. Palombi, 2017 ONSC 2492 (Div. Court) at para 30.
[14] I find the triggering event to be that the applicant has breached the Lococo Order. He has provided no explanation whatsoever of why he has not complied with the Lococo Order and has effectively thumbed his nose at the Order and this motion. His attitude to the respondent, despite being in breach of an important court order that was the culmination of many years of litigation, is "I have paid you enough money." Such behaviour should be strongly denounced by the court, including via the imposition of a monetary penalty (over and above what was agreed to in the Minutes of Settlement and in the Lococo Order), and full-indemnity costs.
[15] In Granofsky v. Lambersky, 2019 ONSC 3251, Justice Diamond held that the Court has jurisdiction under the Family Law Rules to order a fine or monetary payment as part of its role to control and enforce its own process and that such a remedy places a price on non-compliance with court orders and disclosure obligation commensurate with that process. Justice Diamond ordered that the respondent pay a monetary penalty of $500 per day for each day of non-compliance to the applicant in that case.
[16] I note that, in Granofsky, the nature of the breaches had to do with ongoing failure to disclose and failure to confirm that the applicant in that case was named as the irrevocable beneficiary under a life insurance policy. Here, the applicant has breached important obligations to pay child support, spousal support and not put in place security to ensure ongoing compliance with his support obligation. I find that the breach in this case is arguably more serious than in Granofsky. I also take note of the 3 years that have passed since Granofsky and the wealthy circumstances of Mr. Troiano, as presented to me in the respondent's motion materials. In all the circumstances, I find that $1,000 per day is the appropriate monetary penalty which shall be engaged if the applicant fails to rectify his breaches within 72 hours of the release of my within order.
[17] The respondent requested $7,500 in costs on a full indemnity basis. As was stated by McSweeney J., in Corlett v. Corlett, 2021 ONSC 6406, at paras. 7 and 8:
[7] The Family Law Rules direct that the court "shall" decide costs on a full indemnity basis, and order immediate payment of costs, where it finds that a party has acted in bad faith: Rule 24(8).
[8] The meaning of "bad faith" behaviour in the family law context was considered by my colleague Kurz J. in Cameron v. Cameron, 2018 ONSC 6823, at paras. 45 and 46:
45 [d]eliberate disobedience of a court order can be bad faith if that disobedience is intended to achieve an ulterior motive (Fatahi-Ghandehari v. Wilson, [2018] O.J. No. 460 at par. 39) or inflict financial harm (S.(C) v. S.(C), 2007 20279 (ON SC), [2007] O.J. No. 2164 (S.C.J.)); and
46 As Pazaratz J. of this court's Family Court wrote in Jackson v. Mayerle, 2016 ONSC 1556: '... Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. … Bad faith requires some element of conscious wrongdoing.' As Pazaratz J. put it at paras. 58-59: 'Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation...'
[18] I find that the applicant acted in bad faith and flouted the Lococo Order to demonstrate that he does not consider himself bound by any legal decision, and that only he will determine whether and when to pay support. I find the circumstances sufficiently egregious that full indemnity costs are warranted. Considerable work was done to put the within motion together to demonstrate the applicant’s history of breaches and explain the basis of the within relief being sought.
[19] An Order shall go as follows:
(1) The Applicant, Tony Troiano, is in breach of the terms of the final consent order of Justice Lococo dated September 27, 2021 (as set out in the Respondent’s Amended Notice of Motion):
(2) The Applicant shall rectify his breaches of the September 27, 2021 order within 72 hours including:
(a) Paying to the Respondent the arrears of child support accumulated since January 2021 to date totaling $83,723.01 comprised of $82,500 arrears and interest at 3% in accordance with the September 27, 2021 order;
(b) Paying to the Respondent the arrears of spousal support accumulated since January 2021 to date totaling $139,538.36 comprised of $137,500 in arrears and interest at 3% in accordance with the September 27, 2021 order;
(c) Providing the Respondent with proof of life insurance in the amount of $1 million or registering a charge in accordance with Paragraph 10 of the Final Order as security for his child and spousal support obligations; and,
(d) Paying to the Respondent $10,009.59 pursuant to Paragraph 14 of the Final Order plus interest of $312.63.
(3) In the event the Applicant fails to rectify his breaches of the September 27, 2021 order within 72 hours, he shall pay a monetary penalty of $1,000.00 per day for each day of non-compliance to the Respondent.
(4) The Applicant shall not be entitled to any relief from this Court until he rectifies his breaches of the September 27, 2021 order.
(5) The Applicant shall pay costs of this motion to the Respondent in the amount of $8,625.86 including HST by January 30, 2022.
Pinto J
Released: January 14, 2022
COURT FILE NO.: FS- 14-396512
DATE: 20220114
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tony Troiano
Applicant
– and –
Dana Theriault (a.k.a. Troiano)
Respondent
REASONS FOR JUDGMENT
Pinto J.
Released: January 14, 2022