Niranjan v Rajaghatta, 2023 ONSC 3755

Court File and Parties

COURT FILE NO.: FC-16-2651 DATE: 2023/06/23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hema Niranjan, Applicant -and- Niranjan Rajaghatta, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: John E. Summers, for the Applicant Respondent, Self - Represented

HEARD: June 21, 2023

Endorsement

Overview

1Case Management conference held today.

2The Respondent requested this conference.

3The history of this matter is set out in previous endorsements – see the endorsements of Jensen J. dated January 26, 2023, and Hooper J. dated March 30, 2023, in DC-16-2651; and MacEachern J. endorsements dated September 25, 2018, and September 17, 2020, in FC-16-2651.

4The Respondent seeks leave to bring a motion seeking the relief set out in his Notice of Motion dated June 10, 2023.

5I reproduce the relief sought in the Respondent’s June 10, 2023, Notice of Motion, here:

1. An order recognizing that the Respondent is a victim of crime and “family violence” and/or “domestic abuse” since 2015, as defined in s.2 (1) (g) of the Divorce Act, the Attorney General of Ontario, the Department of Justice (family violence definition), Victim’s Bill of Rights Act and other acts and regulations enacted to protect victims of crime.
2. An order that the Applicant has no cause of action and is abusing the court process since 2016.
3. An order that the Respondent is entitled to protection, restitution, compensation and other relief as required by the respective applicable sections of the Family Law Act, Canadian Victim’s Bill of Rights Act, the Ontario Victim’s Bill of Rights, the Criminal Code of Canada, Canadian Charter of Rights and other applicable statutes, regulations, rules.
4. An order recognizing that the Applicant is in violation of the following statutes since July 2015: a. s.21 (1) (a) of the Family Law Act b. 3 counts of theft, s.322 – Theft of the Criminal Code and/or c. 3 counts of theft, s.328 – Theft by joint owner of the Criminal Code d. 3 counts of joint-possession, s.4 (3) (b) – Joint-Possession of the Criminal Code e. 3 counts of possession, s.354 (1) – Possession of the Criminal Code f. 1 count of possession of property obtained from the proceeds of crime, s.355.4/355.2 g. 1 or more counts of s.341 – Fraudulent Concealment h. 1 or more counts of s.361 (1) – False pretence with intent to induce i. 3 or more counts of s.131 – Perjury j. 4 counts of s.339 - Criminal Breach of trust k. 1 or more counts of s.139 (2) – Perversion of the course of justice, obstruction of justice.
5. An order recognizing that the Applicant does not come to court with “clean hands” as a consequence of her violations of various laws in outlined in para 4.
6. An order recognizing that the Applicant has admitted (Request to Admit of July 2021) that her petition/Form 8 is in violation of s.341, s.361 (1) of the CC and hence in violation of CC s.139 (2) . Perversion of the course of justice.
7. An order to set aside the order of Justice MacEachern, dated Nov 21, 2021.
8. An order declaring that the Applicant’s cause of action is “ex turpi” and the doctrine “ex turpi causa” applies to her asset equalization claims and all other claims.
9. An order that the public policy “No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act” applies in this case and specifically to the Applicant’s crimes and her claims related to those crimes.
10. Order costs for the Respondent.
11. Such other orders that the Respondent may request and the court may permit.

6The Applicant believes that today’s conference is not required. In my November 21, 2021 endorsement, I gave the Applicant leave to bring a motion seeking relief related to the Respondent’s alleged failure to provide required disclosure. Per the November 21, 2021 endorsement, the Applicant scheduled a motion to strike the Respondent’s pleadings. Her motion was adjourned because there was a consent order to stay the November 21, 2021 order pending the hearing of the Respondent’s motion for leave to appeal that decision, scheduled for June 9, 2023. On June 9, 2023, the Divisional Court dismissed the Respondent’s motion for leave to appeal. The Applicant now plans to return her motion to strike as the next step in this proceeding.

7I decline to grant the Applicant’s request that I make an order today, requiring the Respondent to provide the required disclosure within 15 days, failing which his pleadings shall automatically be struck. The issue of whether the Respondent’s alleged non-compliance justifies striking his pleadings should be determined on a motion. I do note that there are already orders requiring the Respondent to provide the outstanding disclosure and that these disclosure orders date back to 2018 and earlier.

8When I asked if the Respondent acknowledges that he has not provided the previously ordered disclosure, he advised that his position is that the disclosure order made on September 25, 2018, was improperly made and should be set aside. When I advised the Respondent that he had already appealed the September 25, 2018 order, and his appeal was dismissed, he announced that he had only appealed the part of the order that required the matrimonial home to be sold and that he still intended to appeal the disclosure order. When I advised the Respondent that he was long past the appeal time to do so, he announced that he was entitled to seek an extension of time to file an appeal of the disclosure orders made on September 25, 2018, and would be doing so.

9I have explained to the Respondent that orders are valid and binding on him and must be complied with unless and until they are set aside or stayed by a further court order. At this point, the disclosure orders have not been stayed nor successfully set aside on appeal or otherwise. The Respondent is required to comply with these court orders, failing which the Applicant may seek remedies under the Family Law Rules, including Rule 1(8). In fact, the Respondent is on notice from the Applicant and by this court (see my endorsement of September 25, 2018) that his pleadings may be struck due to his non-compliance.

10The Respondent also acknowledges that he has not paid several recent costs orders against him. These include costs of $500 (Jensen J. March 30, 2023), $3,333.50 (Hooper J. March 30, 2023), and $5,000 (Divisional Court June 9, 2023 2023 ONSC 3364). When I raised these unpaid costs with the Respondent, he announced that he also intends to appeal these decisions. It is not clear to me that he has filed appeals of these decisions, which means that the cost orders are not stayed (see Rule 38(34)), but I leave this for the parties to address, if applicable, on the Applicant’s motion seeking relief for the Respondent’s alleged non-compliance.

11It is glaringly apparent to me that the Respondent’s view is that he should not be required to comply with any existing orders, including disclosure and cost orders, until the court determines his claims that the Applicant is guilty of various offences against him (while the Applicant was criminally charged, these charges were withdrawn by the Crown) and other alleged wrongdoings. The Respondent reasons that he is a victim of domestic violence because of the Applicant’s fraud, theft, and other alleged misdeeds. Therefore, she should be prevented from taking any steps in this proceeding until the court determines his allegations. This position is without foundation and merit. The Respondent has prevented the Applicant from moving forward in this matter since my decision on September 25, 2018, by appeal, after appeal, after appeal, and motion, after motion, after motion.

Respondent’s Request for Leave to Bring a Motion is Denied

12I am not granting leave for the Respondent to bring a motion seeking the relief set out in his Notice of Motion dated June 10, 2023.

13I decline to grant leave for the Respondent to bring the above motion for the following reasons:

a. The relief sought is frivolous and vexatious, and an abuse of process, on its face. b. After the Respondent’s appeal of my September 25, 2018 decision was dismissed, the case management conference of November 21, 2021 was convened to determine the next steps to move this matter to final resolution. On November 21, 2021, I granted leave to the Applicant to bring a motion seeking relief related to the Respondent’s alleged failure to provide required disclosure. This is consistent with my September 25, 2018 decision where I ordered detailed disclosure from the Respondent to move this matter forward. The Respondent’s appeal of the November 21, 2021 endorsement has been dismissed. For this matter to move to a final resolution on the substantive issues set out in the parties’ respective pleadings, the Respondent must provide the required disclosure. The Applicant’s position is that the Respondent has not provided the required disclosure, so his pleading should be struck. A motion to determine this issue is the next step in this proceeding, as I have ordered under my case management function, considering all of the circumstances in this matter including the primary objective of the Family Law Rules (Rule 2). There is nothing before me upon which that direction should be changed. c. This court does not have jurisdiction, within this family law proceeding, to make findings under the Criminal Code. d. The vast majority of the relief sought by the Respondent is not properly the subject of an interim motion. e. The vast majority of the relief sought by the Respondent is beyond the scope of the relief sought in his pleadings, which frame these proceedings. f. The Respondent has already appealed my decision of November 21, 2021, and his appeal has been dismissed by the Divisional Court.

Costs

14For oral reasons given, I award costs payable by the Respondent to the Applicant for today’s appearance fixed at $1,000.

15I dismiss the Respondent’s request that costs be ordered against the Applicant of $3,000 for today’s appearance. The Respondent is not entitled to costs for today’s appearance and his request for such is without any merit.

Accordingly, I make the following orders under the Family Law Rules:

16The Applicant may proceed with her motion seeking relief related to the Respondent’s alleged failure to provide required disclosure, for which leave was granted in my endorsement of November 21, 2021, to be scheduled by the Applicant in accordance with the Rules, for a half-day motion.

17The Applicant is also granted leave to bring a motion seeking to have the Respondent declared a vexatious litigant and restricting his ability to bring future court proceedings.

18The Respondent’s request for leave to bring a motion seeking the relief set out in his Notice of Motion dated June 10, 2023, is dismissed.

19The Respondent shall pay the Applicant cost of today’s appearance fixed at $1,000, payable forthwith.

20Post-judgement interest in accordance with the Courts of Justice Act, R.S.O. 1990, c.C.43, shall be payable on the above.