J.A. v. M.K., 2022 ONSC 3632

NEWMARKET COURT FILE NO.: FC-15-47776-01

DATE: 20220622

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: J.A., Applicant

AND:

M.K., Respondent

BEFORE: The Honourable Mr. Justice G.A. MacPherson

COUNSEL: A. Feldstein, Counsel for the Applicant

E. Karp, Counsel for the Respondent

HEARD: June 15, 2022

ruling on motion

Relief Requested

[1] The Applicant brings a motion requesting an Order to strike the pleadings of the Respondent for non-disclosure and non-compliance with court orders.

Summary of Decision:

[2] The Respondent’s pleadings are struck and the Applicant may proceed, 45 days hence, with an uncontested trial directed to my attention.

Brief Factual Background

[3] The parties were married on August 22, 1997. The parties separated on January 5, 2014 but reconciled in March 2016.

[4] The parties separated for the final time, without any reasonable prospect of reconciliation, on July 17, 2017.

[5] There are four children of the marriage, namely, S.A. born in 1995; S.A.K. born in 2002; D.I.K. born in 2008; and J.L.K.A. born in 2013.

[6] The Respondent is living in Israel and/or Russia and has done so since the separation in July 2017.

[7] On September 10, 2021, by way of final Order:

(a) the Applicant was granted sole decision-making authority for the children;

(b) the primary residence of the children was with the Applicant; and

(c) the Respondent’s consent to travel and government documentation for the children was dispensed with.

[8] The remaining issues in the litigation are, therefore, financial. Equalization, child support, spousal support and the apportionment and determination of section 7 expenses remain the major issues unresolved.

[9] The Respondent has various business interests abroad and the value of the various corporations in which he was a shareholder on the date of marriage and the date of separation is unknown.

[10] The Applicant hired Mr. Mandel to complete valuations but he is unable to complete the valuations as there are significant pieces of disclosure missing. It is noteworthy that Mr. Mandel found that two properties in Russia have a value of at least $3.7 million and potentially $16.9 million. There are many corporations and there are various properties within those corporations.

[11] The Respondent, post-separation, in or about January 2018, transferred four corporations into the name of the paternal grandmother. That is not disputed. These corporations are: VSN, Otdykh, Neshama, and Truma Ltd. The Respondent has no assets in Canada other than the real estate jointly owned with the Applicant.

[12] It is noteworthy that, in Russia, there are duplicate proceedings dealing with the properties of the parties. Both parties have retained counsel in Russia to deal with those matters.

Disclosure Order – September 10, 2021

[13] On September 10, 2021 Justice Bennett made an Order. In the Order he offered the following caveat:

There were many other requests as set out in the Applicant’s Request for Information dated June 15, 2021, and Requests for Information from the CBV as attached to their report dated June 1, 2021 and letter dated June 14, 2021 and which have not been included in this consent because the parties did not agree. As such, the Applicant will be bring [sic] this matter before the Court to be determined and without prejudice to the Applicant to seek further disclosure as she deems necessary.

[14] The disclosure Order of Justice Bennett was on consent and includes the following:

Within 45 days of this Order, the Respondent shall provide disclosure to Applicant on a best efforts basis and in accordance with the Requests for Information attached to the Order.

a) Schedule “A” – Request for Information of Applicant;

b) Schedule “B” – Request for Information from CBV with respect to income;

c) Schedule “C” – Request for Information from CBV with respect to business assets.

[15] Schedule A – Request for Information of Applicant is produced below:

1. All documentation in possession or control of the Respondent and support of the inheritance received by the Respondent during the marriage and as is reflected in the amount of $2,200,000.00 on his sworn financial statement, dated June 20, 2019 including but not limited to the following:

a) A Will and any other document reflecting the specific property/assets that were inherited by the Respondent during the marriage. If no Will exists then an Affidavit regarding same will be provided.

b) Documentation to reflect that this value existed at the date of separation (including but not limited to bank statements, property deeds and any other official documentation in support of this position, as applicable).

c) Clear tracing of said inheritance from the date of receipt to the date of separation by way of bank statements, property transfer documents and any other documents in support of this position, as applicable.

2. Bank and credit statements for all accounts in which the Respondent has/had an interest (beneficial or otherwise) at the date of separation, date of marriage and current, if in possession of the Respondent.

3. All monthly bank and credit card statements for the period of 2019 to current date for all accounts (that are not jointly held with the Applicant) in which the Respondent has/had an interest (beneficial or otherwise) and any other statements in control of the Respondent. The Respondent shall provide a direction to the Applicant to obtain all statements from 2014 to present.

4. Appraisals for all properties in which the Respondent had/has an interest for the period of 2015 to present. Appraisals that exist will be provided. Additional appraisals will be determined by the court.

5. All credit applications completed by the Respondent for the period of 2017 to present.

[16] Schedule B - Request for Information from CBV with respect to income. Information needed to determine K’s Guidelines Income from 2016 to 2020:

(a) K.’s Canadian personal income tax returns from 2017, 2019 and 2020;

(b) K.’s Canadian income tax Notices of Assessment from 2016 to 2020;

(c) K.’s Russian personal income tax returns from 2016 to 2020; The Russian equivalent to a Notice of Assessment.

(d) K.’s personal income tax returns from 2016 to 2020 from any jurisdictions other than Russia or Canada;

(e) Corporate income tax returns (to the extent that they exist), including income statements, for each of the following entities from 2016 to 2020 (need for certified translation to be determined by the Court) and subject to them being owned or controlled by the Respondent. If they are not owned or controlled by the Respondent, an Affidavit shall be provided advising of that fact and whether the Respondent has transferred his ownership in same within 3 years prior to the date of separation:

i. Sfera/Sfira,

ii. EC Extreme Fitness,

iii. Otdih,

iv. Ared,

v. Super rent,

vi. Khanin M.Y.,

vii. LLC Recreation Extreme Fitness,

viii. VSN,

ix. Fitness extreme,

x. EF,

xi. Truma,

xii. Neshama,

xiii. Khanina T.I.,

xiv. Omega 2000,

xv. Interstroy, and

xvi. Star.

(f) With respect to the corporations at subparagraph (e) an equivalent of a Notice of Assessment from Russia.

(g) Regarding such of the entities listed above, please provide the following:

i. A summary of the annual wages and salaries paid to K. and his family members,

ii. Details of any personal benefits derived by K. each year since 2016; and

(h) Corporate income tax returns from 2016 to 2020 from any jurisdictions other than Russia for any entities in which K. has ownership or control.

[17] Schedule C - Request for Information from CBV with respect to business assets.

Information needed to value K.’s debt and equity interests as at July 17, 2017:

A. For each entity listed in item (16 e) above:

1. Annual financial statements for the years ended December 31, 2013 to December 31, 2017 (inclusive), if they exist and if they do not exist the court shall determine if they shall be created and produced;

2. Interim financial statements from January 1, 2017 to July 17, 2017 (or up to June 30, 2017), if they exist and if they do not exist the court shall determine if they shall be created and produced;

3. Corporate income tax returns, including income statements, for the years 2016 and 2017. If the corporate income tax returns are not issued by the Federal Tax Service of Russia, please also provide confirmation the Federal Tax Service’s acceptance of each return, if they exist and if they do not exist the court shall determine if they shall be created and produced;

4. A description of the business operations, including the nature of goods/services provided and the number of employees, if the exist and if they do not exist the court shall determine if they shall be created and produced;

5. Real estate appraisals for all interest held in real properties, including the previously-noted properties 630091 and 630073, if they exist and if they do not exist the court shall determine if they shall be created and produced;

6. Bank and/or investment brokerage statements for any significant cash or investment account balances as at July 17, 2017;

7. A summary of the amounts of any shareholder loan balances receivable (or payable) as set July 17, 2017, if they exist and if they do not exist the court shall determine if they shall be created and produced;

8. A summary of the annual wages and salaries paid to K. from 2013 to 2017.

B. If K. has any debt or equity interest in any entities other than those previously noted, please also provide the above-noted items #1-8 for the other entities.

[18] The Order of Justice Bennett made further provision for the Respondent to provide an affidavit, within 60 days, if the disclosure referenced could not be obtained, setting out what efforts had been made to obtain the disclosure and what he is doing to further obtain same as well as the expected date for production.

Request to Strike Pleadings

[19] Prior to a discussion around the merits for the request to striking pleadings, it is important to note the following:

(a) the Applicant was a stay-at-home mother while the Respondent was the breadwinner for the family;

(b) following the parties’ separation in 2021, five years ago, the Respondent left the country, leaving the Applicant and the children, and he has not returned to Canada since;

(c) following the hearing of the long motion on February 28, 2020, the properties, 136 Arnold and 35 Cedarcrest were ordered to be sold. The motion was opposed by the Respondent. Following the hearing of the motion, the Respondent immediately stopped making mortgage payments on the properties that were ordered to be sold. The mortgage payments were approximately $10,000 per month. On April 21, 2020 the parties received an offer to purchase 136 Arnold for $3,910,000, $400,000 below asking. This offer was from a second potential purchaser. The Respondent would neither accept nor would he counter-offer on the offers received. I determined the Respondent was unreasonably withholding his consent to the sale and I dispensed with his consent;

(d) at the long motion heard February 28, 2020 the Applicant requested temporary child support and spousal support. The Respondent claimed in his sworn Financial Statement annual earnings of $44,000. As he could not possibly accumulate assets in Canada at over $10,000,000 and have each of his four children in private schools with annual costs of well over $100,000 on the income he reported, his income was imputed at $500,000 per annum. The Respondent did not make any child support or spousal support payments pursuant to the Order. Following yet another motion, the child and spousal support arrears (in the amount of $93,000) were paid out of the net sale proceeds of the aforementioned properties;

(e) the Respondent appealed my decision to sell the properties, as he is entitled to. However, he aborted it. Justice Backhouse made the following comments in her Endorsement:

“In sum, the husband has failed to comply fully with his court ordered support. He failed to pay for the carrying costs of the property and opposed its sale. After the sale was ordered it was necessary for the wife to return to court for an urgent motion for carriage of the sale. The court found the husband was withholding his consent unreasonably to the sale in an attempt to thwart the sale. Bringing this appeal in light of these circumstances has the hallmarks of a tactical strategy lacking bona fides and amounting to bad faith. In all the circumstances, the wife is entitled to the costs of the abortive appeal on a full indemnity basis which I fix in the amount of $20,000.”

(f) as stated, the Respondent, post-separation, in or about January 2018, transferred four corporations into the name of the paternal grandmother. That is not disputed. These corporations are: VSN, Otdykh, Neshama, and Truma Ltd.

Disclosure

[20] The disclosure Order of Justice Bennett was made on consent. It was made three years into the litigation. It was necessary. Despite his consent, the Respondent did not follow Justice Bennett’s Order.

[21] The disclosure was not provided within 45 days as ordered.

[22] The Applicant, six months later, advanced the current motion to strike pleadings. After her Notice of Motion and affidavit were served, the Respondent, in June of 2022, provided 749 pages of disclosure.

[23] Much of the disclosure provided was in the Russian language despite sections 125 (1) and 125 (2) of the Courts of Justice Act that all documents filed in court must be in English, French or, if in another language, accompanied by a certified translation. No translation was provided.

[24] Much of the disclosure was not provided.

[25] As an example, Justice Bennett ordered the following:

All monthly bank and credit card statements for the period of 2019 to current date for all accounts (that are not jointly held with the Applicant) in which the Respondent has/had an interest (beneficial or otherwise) and any other statements in control of the Respondent. The Respondent shall provide a direction to the Applicant to obtain all statements from 2014 to present.

[26] The following disclosure is outstanding:

(a) Scotiabank **7580: Bank statements for - January 2020 to March 2020; June 2020 to July 2020; December 2020 to June 2021;

(b) Scotiabank Investment Account **8179: Bank statements for 2019 to current date;

(c) Scotiabank Account **8286: Bank statements for 2019 to current date;

(d) Scotiabank Visa **6018: Bank statements for January 2019 to March 2019. June 2019 to December 2019. March 2020 to November 2020. November 2020 to current date;

(e) Scotiabank Visa **0025: Bank statements for 2019 to current date;

(f) American Express 3792**8018:. Bank statements from 2019 to current date;

(g) There was no direction to obtain statements for the period of 2014 to current date;

(h) Alpha Bank **1934: Bank statements for 2019 to current date;

(i) Alpha Bank **1936: Bank statement for 2019 to current date;

(j) Alpha Bank **4774: Bank statements for 2019 to current date and there was no direction to enable the Applicant to obtain statements from 2014 to present;

(k) VTB Bank **6858: Bank statements for April 2020 to current date;

(l) Corporate VTB bank statement for OTDIH **2965: There was no direction to obtain statements for the period of 2014 to present date. There are no bank statements from 2020 to current date;

(m) Sberbank 4276***1036: Bank statements for 2019 to current date (a Direction was provided for M.K. only, if the account pertains to a corporation a direction is required in the name of the corporation);

(n) IP K. Account Balance Sheet for 51 3(a): There was no directions to obtain statements for the period of 2014 to present for this Corporation;

(o) Leumi **3315/96 and 3315/16: Bank statements from 2019 to current date. There was no direction to obtain statements for the period of 2014 to present;

(p) Visa Account in Israel 4580***9337 (institution unknown): – Bank statements for 2019 to current date. There was no direction for 2014 to present;

(q) First International Bank of Israel **4022: Bank statements for 2019 to current date. There was no direction for 2014 to present;

(r) directions for all corporate banks statements in which the Respondent had/has an interest (the directions provided thus far were in M.K.’s name only for VTB, Alph-Bank, Sberbank and Scotia) for 2014 to present. Bank statements for all corporations in which the Respondent had/has an interest from 2019 to present are outstanding; and

(s) there was no affidavit setting out for each item what attempts have been made to obtain, what is being done to further obtain same and there was no expected date of production.

[27] Another example: Corporate Income Tax Returns (to the extent that they exist), including income statements, for each of the following entities from 2016 to 2020 (need for certified translation to be determined by the Court) and subject to them being owned or controlled by the Respondent. If they are not owned or controlled by the Respondent, an affidavit shall be provided advising of that fact and whether the Respondent has transferred his ownership in same within three years prior to the date of separation.

i) Sfera/sfira;

ii) EC Extreme Fitness;

iii) Otdih;

iv) Ared;

v) Super rent;

vi) Khanin M.Y,

vii) LLC Recreation Extreme Fitness;

viii) VSN;

ix) Fitness Extreme;

x) EF;

xi) Truma;

xii) Neshama;

xiii) Khanina T.I.;

xiv) Omega 2000;

xv) Interstroy; and

xvi) Star.

Outstanding: Missing documents for 2016 for EC Extreme, Truma and Neshama. Missing documents for 2019 to 2020 for Khanina T.I. Missing documents for 2016-2020 for Interstroy. Missing statements for 2016-2020 for Star.

No income statements were provided for any of the corporations despite the fact that corporate tax returns exist. No explanation was provided as to why they were not available nor was an affidavit provided setting out what efforts had been made to obtain said disclosure and what further efforts were being made to obtain same with the expected date of production.

[28] In his affidavit sworn June 2, 2022, in response to the outstanding disclosure, I summarize the Respondent’s explanations:

I can advise the following in relation to the individual companies the Applicant has requested information about:

a. Sfira Ltd.: this company is defunct, and no longer has a bank account from which to obtain records. Even if such records existed, I would not have the authority to access them, as I am no longer in a controlling position within the company, and would not be able to obtain records under Russian law.

b. EC Extreme Fitness Ltd.: this company is dissolved, and I have no access to financial records. Attached is a copy of the confirmation of dissolution.

c. Otdikh Ltd.: this company was gifted to me by my late father in 2005. This is the company noted above that the Applicant has previously claimed in Russia was transferred through a forged signature and sought equalization in Russia of this company. As addressed, the Russian court determined that the signature was genuine. The Applicant commissioned an appraisal of this company in Russia and received the appraisal in October 2020. She has not produced it in this litigation. It was appraised at 50MM rubles which is approximately $1MM. A copy of the pertinent appraisal is attached.

d. Ared Ltd.: this company is dissolved, and I have no access to financial records. Attached is a copy of the confirmation of dissolution.

e. Super Rent Ltd.: this company no longer carries on business and has no assets. Its bank account closed in 2018 and I do not have access to further banking records beyond what has already been produced.

f. Recreation Extreme Fitness Ltd.: the Applicant has already sought equalization of this property in Russia. In any event, it does not operate and has no income. The Applicant is in possession of the relevant tax returns from this company. The Applicant commissioned an appraisal of this company in Russia and received the appraisal in October 2020. She has not produced it in this litigation. It was appraised at 12MM rubles which is approximately $200,000 dollars. Attached is a copy of the appraisal for $200,000.00.

g. VSN Ltd.: my father owned a company known as BusinessStroy which owned some real estate in Russia. At the time of my father’s passing in 2013 I inherited the holdings of BusinessStroy. At the time, there were creditors seeking assets from BusinessStroy. As a result of creditors seeking these funds from BusinessStroy, I transferred this real estate to VSN Ltd. I then transferred the real estate now under the control of VSN Ltd. to my mother in 2018. The Creditors at that point moved before the court to invalidate the transfer. The court invalidated the transfer which would have had the effect of returning the building to BusinessStroy. In the end, my mother paid the creditors directly so as to avoid the property being transferred back, and the real estate listed in that arbitration award, stayed with my mother. In any event, this company was also dissolved. Attached is a copy of the confirmation of dissolution.

h. Fitness Extreme Ltd.: this business is not operational and has no assets or income.

i. EF Ltd.: this company is dissolved, and I have no access to financial records. Attached is a copy of the confirmation of dissolution.

j. Truma Ltd.: this company is facing a court-ordered appraisal for equalization in Russia. The Applicant has in her possession the documents that she filed in Russia in support for her claim of equalization on this corporation. The Applicant commissioned an appraisal of this company in Russia and received the appraisal in October 2020. She has not produced it in this litigation. It was appraised at 3.3MM rubles which is approximately $60,000 dollars.

k. Neshama Ltd.: The real estate owned by this company was purchased by my father and came to me through inheritance. The Applicant has again sought equalization of this in Russia, despite the proceeds being traceable to an inheritance. The Applicant commissioned an appraisal of this company in Russia and received the appraisal in October 2020. She has not produced it in this litigation. It was appraised at 1.3MM rubles which is approximately $20,000 dollars. Attached is a copy of the Applicant’s appraisal.

l. Khanina T.I.: this is my mother. Obtaining her personal tax information is beyond the scope of the Bennett Order, and is an unnecessary invasion of her personal finances without a court order.

m. Omega 2000 Ltd.: I am not a founder of this company and do not have access to any financial documents connected to it.

n. Interstroy Ltd.: this company was founded by my father, I inherited 25% of that corporation. I then sold to my mother in 2013 or 2014. Attached is a copy of the certificate of inheritance and the sale agreement. The sales proceeds were used to purchase the real estate that are owned by Truma and Neshama.

o. Star Ltd.: this company was inherited corporation is dissolved, and I have no access to financial records. Attached is a copy of the confirmation of its bankruptcy.

p. Tanur Ltd.: this company is dissolved, and I have no access to financial records. Attached is a copy of the confirmation of dissolution.

q. Versail Ltd.: this company is dissolved, and I have no access to financial records. Attached is a copy of the confirmation of dissolution.

r. A-15 Ltd.: this company is dissolved, and I have no access to financial records. Attached hereto is a copy of the confirmation of dissolution.

s. Extreme Style Ltd.: this company is dissolved, and I have no access to financial records. Attached is a copy of the confirmation of dissolution.

[29] Counsel for the Applicant argued that many of the companies were just recently dissolved, many in 2022. I do not know. When I reviewed the dissolution documents attached to the affidavit, they were in the Russian language.

[30] There were numerous other examples of non-compliance with the disclosure Order.

[31] The Respondent has various answers for the deficiencies. On the one hand he argues that he is not required to disclose something if he does not have it. As an example, although many of the corporations filed taxes, there are no foundational financial documents provided. Where are the ledgers, income statements and balance sheets? When asked during submissions, counsel for the Respondent said there were none. The argument appears to be that the Respondent keeps all transactions in his head and then completes his Income Tax Returns as there are no records kept.

[32] With respect to the authorizations not being provided, counsel for the Respondent stated that he was expecting the Applicant to prepare the authorizations to send to him.

[33] In terms of the missing bank statements, he states there are just a few that are missing. I have reproduced them at paragraph 26 of this Ruling and there are many that are missing.

Law

[34] Rule 1(8) of the Family Law Rules states:

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.

[35] “Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner. Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party. The frequency with which Family Law litigation degenerates into an abusive game of delay tactics, stonewalling, and dodging of judicial authority is a concern which must remain at the forefront of the judge’s mind in considering remedies for a party’s failure to participate as required in court proceedings or to comply with court orders. Family Law litigants who come to the court for assistance must come with a strong sense of assurance that the process will be an effective means of mending and stabling the family fabric, rather than a futile money pit of failed justice. The Court has a critical responsibility and role to play in ensuring that proceedings which are intended to protect families and lead to resolution of pressing and emotionally divisive issues are not hijacked by a party and transformed into a process for further victimizing the other party and the children in their care.”[^1]

[36] The Court of Appeal held that on a motion to strike in a family case due to non-compliance with a court order, the court must consider whether the default is wilful and whether an order to strike is the only appropriate remedy.[^2] Further, the Court in Kovachis held that if a party has made disclosure which is substantial in relation to the issues in the case, and although not entirely complete, the striking of pleadings is not the appropriate remedy.[^3]

[37] The following framework and considerations apply when assessing whether a party’s pleadings should be struck for failure to comply with Court Orders:

a. The judge must be satisfied that there has been non-compliance.

b. If there has been non-compliance, the court must assess the most appropriate remedy based on the particular facts of the case. In doing so, the court should consider the following:

i. The relevance of the non-disclosure, including its significance in hindering the resolution of the issues in dispute

ii.The context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance of non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness

iii. The extensiveness of existing disclosure

iv. The seriousness of efforts made to disclose and the explanations offered by a defaulting party for the inadequate or non disclosure; and

v.Any other relevant factors.[^4]

Discussion

[38] There is no dispute that there has been ongoing non-compliance on the Respondent’s part with respect to the disclosure Order of Justice Bennett. It is noteworthy that my previous Order for child and spousal support and for the sale of the matrimonial home were not followed. That is conceded.

[39] The Respondent’s failure to abide by Court Orders is reflective of a pattern that is wilful. For example, the Respondent consented to the disclosure Order of Justice Bennett while represented by counsel. Accordingly, the Respondent understood his obligations and still chose not to comply with the Orders. The Respondent’s non-compliance with providing disclosure relates to his equalization obligations, support obligations, his financial circumstances and his ability to pay support. It is for this reason that this matter cannot move forward to resolution.

[40] It is hard to imagine that the Respondent’s corporations, which were able to fund the purchase of assets in Canada alone of $10,000,000, have no foundational Financial Statements. How could one possibly complete Income Tax Returns for businesses without financial documentation? How do you keep track of payroll, expenses, income, and depreciation? It defies logic that these corporations have no documentation. If true, it is disingenuous for the Respondent to consent to a disclosure Order to provide financial documentation for these corporations and then, months after they were due, and after the Applicant was put to the expense of bringing a motion to strike pleadings, to suddenly state that there is no documentation.

[41] The Respondent has had ample time to provide disclosure of his assets and he has chosen not to. The Respondent has demonstrated no serious attempt to produce what is required and, rather, has engaged in various evasive tactics from the beginning of these proceedings. Much of the Respondent’s disclosure remains outstanding. Much of the provided disclosure is in Russian and I query whether that is disclosure at all.

[42] It is also noteworthy that two more motions are contemplated by the Respondent. The Respondent, during submissions, indicated his intention to next proceed with a motion, five years after this litigation commenced, to request an Order that Russia is the more appropriate forum conveniens. As the court stated to counsel during submissions, it is extremely unlikely the court will find Russia as the more appropriate forum to address the issues of spousal support, child support and the apportionment of section 7 expenses as the Applicant and all four children reside in Canada. When the Respondent made this submission, the words of Justice Backhouse were echoing through the court: “Bringing this appeal in light of these circumstances has the hallmarks of a tactical strategy lacking bona fides and amounting to bad faith.” Bringing a motion for forum conveniens, five years after the litigation commenced, with this set of facts, has all the hallmarks of a tactical strategy lacking bona fides and amounting to bad faith.

[43] Section 125 (1) and (2) of the Courts of Justice Act states as follows:

Official languages of the courts

125 (1) The official languages of the courts of Ontario are English and French.

Proceedings in English unless otherwise provided

(2) Except as otherwise provided with respect to the use of the French language,

(a) hearings in courts shall be conducted in the English language and evidence adduced in a language other than English shall be interpreted into the English language; and

(b) documents filed in courts shall be in the English language or shall be accompanied by a translation of the document into the English language certified by affidavit of the translator. R.S.O. 1990, c. C.43, s. 125.

[44] Despite the clear language, many of the exhibits filed for this motion were in Russian. In submissions, counsel for the Respondent indicated that the Respondent was opposed to providing certified translated copies of the Russian disclosure and that too would have to be determined by motion.

[45] The issue of document translation was considered by Lauwers J. (as he then was) in Davies v. Clarington (Municipality), 2010 ONSC 6103 (Ont. S.C.J.).

[46] In that case Justice Lauwers required the plaintiff to translate Polish-language documents into English. He stated:

In accordance with section 125 of the CJA and Rule 1.04(2) of the Rules, as a general rule a person producing a document as relevant should be obliged to provide a translation of it in the official language in which the proceedings are being conducted as part of the document discovery process.

[47] Justice Lauwers held that section 125 of the CourtsofJusticeAct, read together with Rule 34.09 of the Rules of Civil Procedure requires the provision of translation by the party that produces foreign-language documents prior to examinations for discovery.

[48] I accept Lauwers J.'s reasoning. In keeping with Rule 2(3) (a) and (b), of the Family Law Rules, which requires a procedure fair to all parties and that saves time and expense, it is necessary for all parties to rely on documents that are understandable, that the experts hired understand, and that the court, when ruling on motions such as this, can understand. Providing a translation results in all parties operating on a more or less level playing field, even if the litigants can understand Russian.

[49] It is noteworthy that, contrary to the page limits contained in the Notice to Profession, the Respondent filed 749 pages for this motion to strike.

Conclusion

[50] I struggled with this decision. Generally, I would give a party every opportunity to comply with a disclosure Order before striking pleadings as this is a remedy of last resort. However, I am not inclined to do so here.

[51] The Respondent did not comply with my Order dated March 6, 2020 in respect of the sale of 136 Arnold.

[52] The Respondent did not comply with my Order dated March 6, 2020 in respect of child support and spousal support.

[53] The Respondent has not complied with the Order of Bennett J. dated September 10, 2021 in respect of disclosure. I cannot conclude that a substantial quantity of disclosure has been provided. Much disclosure is missing. In terms of the disclosure that was provided, there are a lot of blanket denials that foundational documents exist. Much of what was disclosed, was in Russian without a translation.

[54] In terms of the authorizations that the parties consented to and that were reflected in the order of Justice Bennett, the Respondent did not provide them.

[55] The Respondent, post-separation, in or about January 2018, transferred four corporations into the name of the paternal grandmother.

[56] The Respondent’s pattern of litigation behaviour appears tactical, strategic and obstructionist. He does not appear to be interested in moving this matter to conclusion. Rather, it appears, he is focused on delaying the matter and causing financial difficulty for the Applicant. Indeed, the Respondent is considering a motion, five years after the commencement of litigation, to argue that the forums conveniens is in Russia.

[57] It has been five years since the litigation commenced. To put that in perspective, at the date of separation S., the oldest child, was 22 and in University. She is now 27. S., at the date of separation, was 15. She is now 20. D., at the time of separation, was 9. He is now 14. J., at the time of separation was 4. He is now 9. During this litigation time period the two older children were in post secondary education or contemplating it. Child and spousal support on a final basis is still not determined. The apportionment of section 7 expenses has not been determined. While the parenting issues are resolved, this family is unable to move forward without the remaining financial issues resolved.

[58] The Respondent’s pattern of delay and litigation obstruction ends today.

Order

1. The Respondent’s pleadings are struck.

2. The Applicant may proceed, 45 days hence, with an uncontested trial directed to my attention.

3. If the parties cannot agree on the issue of costs regarding this motion, I shall consider the request for costs. The Applicant shall serve on the Respondent and file electronically, through the Trial Coordinator, her written submissions, limited to three pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Respondent shall serve on the Applicant and file electronically, through the Trial Coordinator, his written submissions, limited to three pages exclusive of the Bill of Costs and Offers to Settle within 10 days thereafter. There shall be no right of Reply.

Justice G.A. MacPherson

Date: June 22, 2022

[^1]: Levely v. Levely, 2013 ONSC 1026 (S.C.J.) at p. 12 [^2]: Kovachis v. Kovashis, 2013 ONCA 663 at para 33 [^3]: At para 28 [^4]: Mullin v. Sherlock, 2018 ONCA 1063 (C.A.) at para 44