Court File and Parties
Newmarket Court File No.: FC-22-634-00 Date: 2023-02-10 Superior Court of Justice – Ontario – Family Court
Re: D.N., Applicant And: A.N., Respondent
Before: The Honourable Mr. Justice G.A. MacPherson
Counsel: A. Abramian / B. Tseitlin, Counsel for the Applicant S.L. Liquornik, Counsel for the Respondent
Heard: February 8, 2023
Ruling on Motion
Relief Requested
[1] The Applicant brings a motion requesting the following relief:
(a) that the Respondent’s pleadings be struck for failure to comply with the Orders of Justice Bruhn dated October 7, 2020 and Justice Jarvis dated November 21, 2022; and
(b) an Order adding L.N. and Leman Construction Inc. as parties to the herein proceedings.
[2] L.N. and Leman Construction Inc. were served personally on January 23, 2023.
[3] At the commencement of the motion the court indicated that the request to add L.N. and Leman Construction Inc. as parties to the herein proceedings would be adjourned as they are considering retaining counsel, Mr. Polisuk. The added parties proposed are entitled to retain and instruct counsel prior to the hearing of the motion and they shall be afforded that opportunity.
[4] At the commencement of the motion, I asked if the parties were ready to proceed on the issue of striking pleadings. Both parties indicated they were ready. Mr. Liquornik, in his submissions, indicated that he thought an adjournment of the motion should have occurred, but he was under the impression that the court wanted the matter to proceed. The court indicated that an adjournment request might have been considered had it been requested at the commencement of the motion.
Brief Background
[5] The parties commenced cohabitation in 2013 and were married on June 11, 2015.
[6] The Applicant states that the parties separated on May 1, 2021 although they continued to reside in the same residence. On July 5, 2021 the Respondent moved out of the matrimonial home.
[7] There are two children of the relationship namely, P.N. born in 2019; and D.N. born in 2020.
[8] The child, D.N., is diagnosed with autism spectrum disorder. D.N. is non-verbal and requires significant support. As a result of his needs, the Applicant states that she is unable to look for employment.
[9] With the exception of a two-hour visit in June 2022, the Respondent has not seen the children since February 2022.
Court Orders Relevant to the Issue on Motion
October 7, 2022 Order of Justice Bruhn
[10] On October 7, 2022 the parties consented to the Order of Justice Bruhn. Included in the Order was the following provision:
a) The Respondent shall provide responses/documentation where applicable to the Applicant’s Request for Information dated August 17, 2022 within 45 days.
[11] The Request for Information dated August 17, 2022 requested the following disclosure:
(a) 2019, 2020 and 2021 year-end Financial Statements for Leman Construction Inc.;
(b) 2019, 2020 and 2021 T2 Corporate Income Tax Returns for Leman Construction Inc.;
(c) general ledgers for Leman Construction Inc. from January 1, 2019 to date;
(d) statements for all personal accounts held solely or jointly with a third party from January 1, 2019 to date;
(e) statements for all personal credit facilities from January 1, 2019 to date;
(f) statements for all accounts and credit facilities as at June 11, 2015;
(g) proof of advancement in the form of a bank statement confirming the loan in the amount of $26,000 from L.N.;
(h) a copy of the bill of sale confirming the name of the purchaser for the Rolex watch claimed to be a gift received during the marriage together with proof of payment;
(i) Tetiana Bonk’s 2021 Income Tax Return;
(j) documentary confirmation of Tetiana Bonk’s contribution of approximately $3,000 per month towards the Respondent’s household expenses;
(k) a description of employment responsibilities at Leman Construction Inc.; and
(l) medical/legal report confirming the Respondent’s injury in January 2022, diagnosis, treatment, prognosis and the impact of the injury on the Respondent’s ability to fulfill his employment obligations.
November 21, 2022 Order of Justice Jarvis
[12] Justice Jarvis made the following Orders:
a) that the Respondent make monthly mortgage payments and maintenance fee payments with respect to the matrimonial home on the due date of each payment until further Order of the Court;
b) commencing November 2022 and every month thereafter, the Respondent is mandated to make the monthly lease payments for the Applicant’s 2018 Volkswagen Tiguan and to keep the payments in good standing until the expiry of the lease period or further Order of the Court;
c) the monthly mortgage payments and maintenance fees for the matrimonial home and the lease on the Applicant’s automobile shall be enforced as a support Order;
d) the Respondent’s motion date (for parenting time) is vacated;
e) the Respondent shall pay to the applicant all-inclusive costs of her motion fixed in the amount of $1,200 to be enforced as a support Order; and
f) approval of the Order by the Respondent was dispensed with.
Compliance
[13] As stated, the Respondent was personally served with today’s Notice of Motion on January 20, 2023 and he was served through counsel on the same date. The Respondent did not file an affidavit.
[14] On February 7, 2023 the Respondent’s mother, Ms. M.N., signed an affidavit for today’s motion.
[15] In her affidavit, Ms. M.N. provides a letter dated January 24, 2023 from valuator, Bonnie Prussky, indicating Mr. N retained AP Valuations Limited to determine the fair market value of Leman Construction Inc. as of the date of marriage and the date of separation and to provide Mr. N.’s income for support purposes. It is noteworthy that the letter filed by Ms. Prussky does not indicate which “Mr. N”, the Respondent or his father, retained the valuators.
[16] A list of documents sent to the valuators accompanies the letter and it includes:
- Leman Construction Inc.:
a) articles of incorporation;
b) financial statements for 2014, 2015, 2019, 2020, and 2021;
c) adjusting journal entries for 2014, 2015, 2019, 2020, and 2021;
d) trial balance for the years 2014, 2015, 2019, 2020, and 2021;
e) general ledgers for the years 2015, 2019, 2020, and 2021;
f) corporate tax returns for the years 2014, 2015, 2019, 2020, and 2021;
g) H.S.T. notice of assessment for 2019;
h) notice of Assessment for 2020; and
i) T-4 summaries and T-4 slips for 2019, 2020, and 2021.
- A.N.:
a) personal income tax returns for the years 2020 and 2021; and
b) notices of assessment for the years 2019, 2020 and 2021.
- D.N.:
a) personal income tax return for 2019.
[17] In addition to financial disclosure, aforementioned, there was much medical documentation provided to the court in the affidavit served and filed by the Respondent’s mother. The aforementioned disclosure was also provided to the Applicant.
Non-Compliance
[18] After reviewing the disclosure provided and the Order of Justice Bruhn dated October 7, 2022, I conclude that the Respondent failed to comply with the following portions of her Order:
a) statements for all personal accounts held solely or jointly with a third party from January 1, 20219 to date;
b) statements for all personal credit facilities from January 1, 2019 to date;
c) statements for all accounts and credit facilities as at June 11, 2015;
d) proof of advancement in the form of bank statement confirming the loan in the amount of $26,000 from L.N.;
e) a copy of the bill of sale confirming the name of the purchaser for the Rolex watch claimed to be a gift received during the marriage together with proof of payment;
f) Tetiana Bonk’s 2021 Income Tax Return;
g) documentary confirmation of Tetiana Bonk’s contribution of approximately $3,000 per month towards the Respondent’s household expenses;
h) a description of the Respondent’s employment responsibilities at Leman Construction Inc.; and
i) a medical/legal report confirming the Respondent’s injury in January 2022, diagnosis, treatment, prognosis and the impact of the injury on the Respondent’s ability to fulfill his employment obligations.
[19] After reviewing the disclosure provided and the Order of Justice Jarvis dated November 21, 2022, I conclude that the Respondent failed to comply with the following portions of his Order:
a) that the Respondent make monthly mortgage payments and maintenance fee payments with respect to the matrimonial home on the due date of each payment until further Order of the Court;
b) commencing November 2022 and every month thereafter, the Respondent was mandated to make the monthly lease payments for the Applicant’s 2018 Volkswagen Tiguan and to keep the payments in good standing until the expiry of the lease period or further Order of the Court; and
c) the Respondent was to pay to the Applicant all-inclusive costs of her motion fixed in the amount of $1,200 to be enforced as a support Order.
Law
[20] 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.
[21] “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]
[22] 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]
[23] 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]
Analysis
[24] The Respondent’s mother provided much medical evidence that the Respondent has mental health related challenges and a back injury. The argument made by counsel for the Respondent, as I understand it, is that as a result of his medical challenges, the Respondent is/was unable to comply with court Orders.
Back Injury
[25] Dr. Roitberg provided a letter (that appears incomplete) dated December 14, 2022 in which she indicates the Respondent has complained of lower back pain that started 9 months previous, so in or about March 2022. An MRI completed in July 2022 showed a right lateral recess narrowing at the L5 – S1 secondary to a focal right paracentral disc protrusion compressing the traversing right S1 nerve root. There was no evidence filed to suggest that the Respondent was unable to comply with court Orders as a result of his back injury.
Mental Health – Ms. Cohan
[26] Mariia Cohan, a registered psychotherapist, provided a letter dated February 6, 2023. She states that it was requested by and issued to the Respondent. She states that in June 2020 the Respondent first contacted her for psychological support. There were 15 sessions between June 2020 and September 2020. There were three sessions in May 2021. There were four sessions between May and June 2022.
[27] Ms. Cohan identified that the Respondent reported the following symptoms: marital issues, prolonged periods of low mood, heightened anxiety, panic attacks, fatigue, heightened irritability and anger, decreased ability to focus, disturbed sleep, substance use, suicidal ideation and behaviours, and difficulty with social interaction and interpersonal relationships.
[28] Ms. Cohan administered the Beck Anxiety Inventory (BIA) on June 22, 2020 and the Respondent fell in the severely anxious range.
[29] Ms. Cohan administered the Beck Depression Inventory (BDI) on June 22, 2020 and the Respondent fell in the moderately depressed range.
[30] There is no evidence before the court that these inventories were administered since June 2020.
[31] Ms. Cohan identified the following barriers to the Respondent’s treatment: a) possible undiagnosed mental illness, b) lack of consistency of attendance for treatment, and c) high levels of stress related to marital relationship.
[32] In her summary Ms. Cohan states that the Respondent’s symptoms have a substantial impact on his level of functioning. However, she does not state that the Respondent has diminished capacity as a result of these symptoms and she does not state that the Respondent is unable to comply with court Orders as a result of his mental health challenges.
Mental Health – Dr. Rootenberg
[33] Dr. Rootenberg is a medical practitioner with a psychiatric specialty and he provided two letters to the court. It is noteworthy that Dr. Rootenberg has not been qualified as an expert in this proceeding and I was not directed to a signed acknowledgement of an expert’s duty.
[34] Dr. Rootenberg provided his first letter dated November 16, 2022. In that letter he stated that he had a single telephone call with the Respondent, the Respondent’s father and the Respondent’s girlfriend. At the time of the letter, Dr. Rootenberg had not met with the Respondent nor did he review his medical records. Based on that single conversation, Dr. Rootenberg diagnosed the Respondent as suffering from severe anxiety and depression with the symptoms debilitating and increasingly acute.
[35] Dr. Rootenberg provided his second letter dated January 21, 2023. In his letter he states that he met with the Respondent on December 22, 2022 and on January 12, 2023. He also obtained information from the Respondent’s primary care physician, Dr. Inna Roitberg. When his report was completed he did not have the Respondent’s medical records from MacKenzie Health and other medical centres. Dr. Rootenberg noted that the Respondent, at the time of the assessment, was receiving no treatment and was taking no medication.
[36] In his letter, Dr. Rootenberg noted what the Respondent reported. The Respondent reported that he was never admitted to a psychiatric facility. He reported attending the emergency department in March 2022 due to anxiety and panic symptoms. He reported attending hospital emergency departments on other occasions but did not know when. The Respondent reported suicidal thoughts and self-harming behaviour including, in October 2022, when he cut his wrist. When meeting with Dr. Rootenberg on January 12, 2023, the Respondent denied any thoughts of harm and his thought processes were noted as being quite concrete. There were no hallucinations and no psychotic symptoms.
[37] The Respondent reported that his anxiety and depressed mood has a detrimental impact on his daily functioning. Specifically, the Respondent told Dr. Rootenberg that he does not do any grocery shopping, cooking, cleaning and is quite isolated spending most of his time at home. Dr. Rootenberg concluded that the Respondent was unable to participate in litigation at this time including reviewing any required documentation and meaningfully interacting at length with counsel. Dr. Rootenberg diagnosed the Respondent with major depressive disorder and anxiety disorder with panic features.
[38] There was no discussion, in Dr. Rootenberg’s letter, to explain why, with this diagnosis, the Respondent was able to complete international travel to Cuba from November 21, 2022 through November 29, 2022. International travel can be difficult. Passports and documentation are required. Security line-ups and luggage issues can be stressful. How could someone with the Respondent’s reported level of anxiety and depression, who is unable to participate in litigation and unable to review any required documentation and who was not receiving any treatment, travel internationally?
[39] Similarly, there was no discussion in Dr. Rootenberg’s letter about the Respondent’s ability to become engaged and then throw an engagement party on January 8, 2023 despite his inability to participate in litigation and inability to review any required documentation.
[40] The Respondent’s father, who provided collateral information to Dr. Rootenberg, swore an affidavit on November 17, 2022 stating that the Respondent,
“is currently unable to leave home due to crippling anxiety and depression. He is often in bed and despondent.” “Sometimes he speaks in a disjointed manner. It is a struggle to get him to leave the house.” “In my view, A. is unable to meet with Mr. Liquornik at this time and I do not see how he can meaningfully assist his counsel to prepare a financial statement and an affidavit, given his condition.”
[41] The Respondent’s father does not explain how, given this information, the Respondent was able to go to Cuba four days later from November 21, 2022 through November 29, 2022. Dr. Rootenberg considered the views of collaterals, including the Respondent’s parents and girlfriend, yet his report does not address this glaring inconsistency. Perhaps he was not advised?
[42] I accept that the Respondent has mental health issues. However, I am not convinced, on the evidence before me, that the Respondent, as a result of any diminished capacity, is unable to comply with court Orders or to participate in the litigation process. The picture painted by the Respondent and his parents is inconsistent with the Respondent’s behaviour. The Respondent would have the court believe that he is unable to provide disclosure due to anxiety and depression, but, he can travel internationally, get engaged and throw an engagement party. The court is unable to reconcile this apparent contradiction.
[43] It is noteworthy that, despite the diagnosis, the Respondent has not been hospitalized as a result of mental health issues. Until January 2023 the Respondent was not receiving treatment. The Respondent’s recent and current treatment is Paxil at a dose of only 10 mg.
[44] There was discussion about a possible a motion naming the Respondent as a special party. If the Respondent continues to advance the position that he is incapable of complying with court Orders then this motion is necessary because this litigation must move to finality. It is noteworthy that Rule 2 of the Family Law Rules defines a “special party” as follows:
“special party” means a party, other than a child party, who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992 in respect of an issue in the case and who, as a result, requires legal representation.
[45] Section 6 of the Substitute Decisions Act states that a person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[46] The evidence currently filed with the court does not support a finding that the Respondent is a special party. As Dr. Rootenberg is completing an assessment to determine the Respondent’s capacity to instruct counsel, this Ruling should be sent to him so that the inconsistencies between diagnosis and actions can be addressed.
Conclusion
[47] The Respondent has not satisfied me that his mental health challenges result in diminished capacity such that it precludes him from complying with a court Order.
[48] Rather, I conclude, on the evidence before me, that the Respondent’s non-compliance is willful and ongoing. Indeed, since early on in this litigation, the Respondent has elected not to provide financial disclosure, stopped making lease payments on the Applicant’s car, stopped making the mortgage payments and maintenance costs, and did not pay his cost Order. The Respondent did not attend the last conference.
[49] It is noteworthy that the corporate Minute Book was not filed with the court although all deponents indicate a 50 % share structure between the Respondent and his father. Even if the Respondent’s mental health challenges preclude him from working, he is a 50% owner of Leman Construction Inc. The corporation continues operating. As a 50% owner he is likely entitled to 50% of the corporate profits whether he is working or not.
[50] The retained earnings of Leman Construction Inc., if any, are unknown. However, the corporation has, according to the affidavit sworn by M.N., historically had sufficient resources to support the Applicant, Respondent, E.N., P.N., D.N., M.N. and L.N.
[51] Striking pleadings is a remedy of last resort. I have elected not to do so for three reasons:
(a) at the last minute some disclosure in relation to the corporation has been provided;
(b) the Family Responsibility Office is authorized to enforce the Order of Justice Jarvis; and
(c) the Respondent is given one final opportunity to comply with the court Orders outstanding and he shall have 30 days to do so.
[52] There was no evidence before the court that the Family Responsibility Office was unable to provide notice of the Support Deduction Order to Leman Construction Inc., or that Leman Construction Inc. disregarded the Support Deduction Order.
Order
For all of these reasons Order to issue on the following terms:
The Respondent has not fully complied with the Order of Justice Bruhn dated October 7, 2022.
The Respondent has not fully complied with the Order of Justice Jarvis dated November 21, 2022.
The Respondent shall, within 30 days, comply with all outstanding court Orders as set out in this Ruling at paragraphs 18 and 19.
The Respondent shall immediately provide to the Applicant an updated copy of the Corporate Minute Book for Leman Construction Inc.
The Respondent shall not transfer or encumber any of his assets including his shares in Leman Construction Inc.
The Respondent shall not authorize any dividends to be paid from Leman Construction Inc.
The Respondent shall not authorize the release of any retained earnings from Leman Construction Inc.
The Trial Coordinator shall schedule the Applicant’s motion to add L.N. and Leman Construction Inc. as parties to the proceeding and it shall be heard no earlier than 30 days hence. The Applicant’s motion to strike the Respondent’s pleadings shall be reconsidered on that date if the Respondent has not complied with all court Orders.
A Ukrainian interpreter is required for the motion to add L.N. and Leman Construction Inc. as parties and the court shall provide same.
The Applicant shall forward a copy of this Ruling to Dr. Rootenberg.
Leave for questioning of the parties is granted.
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, 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, 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: February 10, 2023
[^1]: Levely v. Levely, 2013 ONSC 1026 (S.C.J.) at p. 12 [^2]: Kovachis v. Kovachis, 2013 ONCA 663 at para 33 [^3]: At para 28 [^4]: Mullin v. Sherlock, 2018 ONCA 1063 (C.A.) at para 44