Marahar v. Marahar, 2011 ONCJ 638

Brampton Registry No. 1766-09 DATE: 08·II·2011 CITATION: Marahar v. Marahar, 2011 ONCJ 638 ONTARIO COURT OF JUSTICE BETWEEN: HARPINDER MARAHAR Applicant — AND — GURPREET MARAHAR Respondent Before Justice Patrick W. Dunn Heard on 3 February 2011 Ruling on Applicant’s Motion dated 14 January 2011, released on 8 February 2011 Balwant Sekhon ..................................................................................................... for the applicant Murray Teitel ..................................................................................................... for the respondent P.W.

DUNN, J.: [ 1 ] On 28 October 2010, this court gave final orders regarding these parties. Inter alia , they provided in paragraph 5: The applicant Harpinder Marahar shall forthwith pay to the respondent Gurpreet Marahar her costs in the amount of $4,000.

In any event, these costs must be paid in full before the applicant Harpinder Marahar may file or bring any further proceedings in this court… [ 2 ] Paragraph 6 stated: Pursuant to Rule 24(12) of the Family Law Rules , the applicant Harpinder Marahar shall pay to the respondent Gurpreet Marahar $10,000.00 to cover part of her expenses in carrying this case… The administration of this court is prohibited from accepting any further filings from the applicant Harpinder Marahar until the respondent’s lawyer (Mr.

Teitel) files a receipt with the administration to acknowledge receipt of these funds. [ 3 ] The applicant filed a motion, dated 14 January 2011, without notice to the respondent (nor to the respondent’s lawyer, Mr. Teitel) seeking: 1. An order permitting the applicant Harpinder Marahar to: (

a) bring a motion for a Refraining Order before 30 Janaury 2011, and (

b) to bring a subsequent Motion to Change the Final Order of Justice Dunn dated 28 October 2010. [ 4 ] This motion was presented to the court in a 14B Motion, which was considered in chambers by Justice Pawagi. On 17 January 2011, Her Honour granted part of the motion as follows: The applicant father has leave to bring a refraining motion on notice to the Director, Family Responsibility Office, on 25 January 2011 at

10:00 a.m. in courtroom 201. The balance of the motion is to be dealt with on notice to the respondent mother, date to be determined. Mr. Teitel did not know about the applicant’s motion nor this endorsement. [ 5 ] The respondent had no objection to the applicant bringing a refraining motion.

She was, however, in opposition to the court entertaining in any way the applicant’s second request, to be permitted to bring a subsequent motion to change the final orders of 28 October 2010 until the costs are paid in paragraph 5 and 6 of the orders of 28 October 2010. [ 6 ] On 25 January 2011, the applicant father with Ms. Sekhon appeared before Justice Pawagi without the knowledge of Mr. Teitel.

Her Honour’s endorsement was: Adjourned to 3 February 2011 for the applicant father’s motion (on notice to the respondent mother) to set aside that portion of Justice Dunn’s order dated 28 October 2010 requiring him to pay costs in full before filing further material in this proceeding. [ 7 ] Mr. Teitel learned of Justice Pawagi’s endorsement of 25 January 2011 and he received the applicant’s motion on 28 January 2011. [ 8 ] Today, argument was heard on whether the applicant’s motion dated 14 January 2011 should have been accepted by court administration in view of the wording of paragraphs 5 and 6 in the orders.

The argument went further; since the motion became part of the court process, what should happen to it now? Ms. Sekhon argued that the motion should have been received, and that it was correct and fair to the applicant for Justice Pawagi to have placed the motion before the court for deliberation. Mr. Teitel was of the opposite view. He believed the motion should not have been accepted in the first place for filing by court administration.

Once the motion got filed and was part of the court system, I do not believe Justice Pawagi had any other recourse than to give a date for a hearing, and before myself as the former case manager. [ 9 ] To be clear, the immediate issue was not whether the applicant should be permitted to bring a motion to change without the costs being paid. The issue before the court was whether the applicant should even have been permitted in the first place to serve and file any motion before costs are paid. As Mr.

Teitel emphasized, the respondent has no opposition to the applicant bringing a motion to change provided he first pays the costs in paragraphs 5 and 6 of the orders. [ 10 ] In his argument, Mr.

Teitel relied on the plain meaning of the words in paragraph 6: The administration of this court is prohibited from accepting any further filings from the applicant Harpinder Marahar until the respondent’s lawyer files a receipt with the administration to acknowledge receipt of these funds. [ 11 ] The purpose of this order was to thwart the applicant from returning to court until he meets his earlier legal obligations set out in the 28 October 2010 orders regarding the $14,000. costs. The applicant’s motion surely is “a further filing from the applicant”.

In similar manner, pursuant to paragraph 5, the applicant was required to pay the respondent’s costs of $4,000. “ before the applicant Harpinder Marahar may file or bring any further proceedings in this court”. [ 12 ] Ms. Sekhon contended that the applicant could not afford to pay these sums. Mr. Teitel maintained that he could. Mr. Teitel filed a statutory declaration by the applicant sworn 5 November 2008 (Exhibit A to the affidavit of Mandeep Kaur Randhawa, sworn 3 February 2011). In the statutory declaration, Mr.

Marahar swore that “I have my own house…My annual income is approximately $80,000.” The issue of the applicant’s ability to pay the costs, or not pay the costs, is in a real sense, not germane. The court ordered the applicant to pay the sums before proceeding with a motion to change, and that was an order that the applicant did not obey. [ 13 ] Ms. Sekhon remonstrated that the applicant was losing his right to argue that the 28 October 2010 orders should be varied, if he is first obliged to pay the cost orders. [ 14 ] It is hard to have sympathy for this applicant.

The parties had their first case conference before myself on 16 March 2010. The applicant only sought access and a restraining order in his application. The respondent requested in her Answer, custody, child support, s.7 special expenses and spousal support. The applicant was self-represented and Mr. Teitel was present as counsel for the respondent. On that occasion, I recommended strongly to the applicant that he obtain a lawyer, because the issues were complicated. A temporary order was granted for the respondent to have custody.

No order for access was given then, because the applicant needed legal assistance to understand the concepts of custody and access. There was the pivotal order for the applicant to do financial disclosure, to be served and filed by 21 April 2010. The case was adjourned to 6 May 2011 for the applicant to obtain a lawyer, and to do financial disclosure. In my opinion, the financial disclosure sought was straightforward, and the applicant had an accountant to assist him.

However, if the applicant was opposed to any part of the financial disclosure order of 16 March 2010, he could have appealed it. [ 15 ] My endorsement of 6 May 2010, stated: Mr. Teitel even wrote to the applicant on 23 April 2010 reminding him of the court orders on 16 March 2010 and of the seriousness in disobeying court orders.

[ 16 ] On 6 May 2010, the parties and Mr. Teitel were present. The applicant had not obtained a lawyer, and he did not produce any of the financial disclosure ordered on 16 March 2010. [ 17 ] My endorsement of 6 May 2010, stated: The applicant [on 6 May 2010] explained that he did nothing, because he did not have a copy of the 16 March 2010 orders, and he said he did not know what was required of him. I do not accept these excuses, because the applicant could have asked Mr. Teitel what to do, after he received Mr.

Teitel’s letter, and the applicant could have obtained legal advice at this courthouse from duty counsel, and he could have requested a copy of the 16 March 2010 orders from court administration. Also, he did not serve and file a Response to the claims for child and spousal support which the respondent brought in her Answer to the applicant’s application, and he neglected to file a financial statement in reply to the respondent’s Answer. [ 18 ] The applicant sought an adjournment.

He claimed he had given instructions to his accountant to produce some financial disclosure, and time was needed to gather the documents. The applicant also wanted the issues in the case left to the parties’ mutual friends to resolve. This request for an adjournment was opposed by Mr. Teitel, arguing that the respondent was entitled, according to the Rules, to have her claims dealt with in an expedient manner. The applicant’s excuses for not producing the financial disclosure were not acceptable, because he had ample time between 16 March 2010 and 6 May 2010 to obtain the documents and he did not do so.

If the request for an adjournment was for the applicant to obtain a lawyer, he had already been given that opportunity on 16 March 2010, indeed he had been urged by the court to do so, but he declined. [ 19 ] Temporary orders were given on 6 May 2010 for the respondent to pay child support, spousal support, contribute to the special expenses, and leave was granted to the respondent to question the applicant’s accountant and to obtain information about the applicant’s finances from various agencies such as banks. The applicant could have appealed the orders of 6 May 2010, but he did not do so. [ 20 ] Ms.

Sekhon argued that the awards to the respondent on 6 May 2010 were made without full disclosure of the applicant’s finances. Indeed, that is what happened; however, the applicant had been given the opportunity to produce the required financial disclosure. Rule 19(10) provides for the eventuality of a litigant not complying with a disclosure order. If a party does not obey an order to file material, his or her case may be dismissed. A recalcitrant party is not necessarily entitled by the Rules to any second chance. [ 21 ] Ms.

Sekhon submitted that the applicant’s only error was that he did not produce the financial disclosure as ordered on 16 March 2010. Actually, he was more non-compliant than that. He did not file a financial statement after he was served with the respondent’s Answer that requested support, as Rule 13(

b) requires. He also failed to serve and file a Reply to the respondent’s claims for support. (The latter, although very well advised because of the seriousness of the respondent’s claim, was permissive only as stipulated in Rule 10(6).) A litigant who fails to comply at the earliest opportunity to even the first financial disclosure order may find himself in a precarious position, as Mr. Marahar learned. [ 22 ] In the 6 May 2010 orders, there were the same cost orders as in the final orders of 28 October 2010.

Even in the orders of 6 May 2010, administration was prohibited from accepting any further filings from the applicant until the $4,000. and $10,000. were paid. The case was then adjourned to 28 October 2010 for an uncontested trial. The reason for the adjournment was for the respondent to obtain the financial disclosure from agencies in order to request final child support, spousal support and s.7 orders on the return date. [ 23 ] On 28 October 2010, Mr. Teitel appeared. The applicant did not attend but sent a brother-in-law. Final orders were given.

Again, there was no appeal by the applicant from the final orders of 28 October 2010. [ 24 ] Ms. Sekhon acknowledged that the applicant did not obey the financial disclosure order of 16 March 2010, but she complained that the court system, with only two court appearances on 16 March 2010 and 6 May 2010, deprived the applicant of the opportunity of placing his full financial situation before the court.

The respondent’s position was that if the applicant had complied with the financial disclosure court order, he would not be in his present predicament, where the Director, Family Responsibility Office, is requiring him to file a motion to change by 11 February 2011 or otherwise lose his automobile licence. [ 25 ] The applicant argued that the dispatch with which this case progressed was unfair to him.

On the other hand, it is arguable on the respondent’s behalf, that she too is entitled to fairness, namely to have her requests dealt with by the court at the very earliest opportunity. [ 26 ] In furtherance to that, I find that Mr.

Teitel was appropriately following the Rules of court that allow a litigant to request that a case proceed with orders when the opposing party does not follow court orders. [ 27 ] On 6 May 2010, I observed in my endorsement: This applicant is making the same mistake many litigants make – that is to do nothing except to appear in court and hope the problems go away. [ 28 ] In the result, I find that administration should not have accepted the applicant’s motion.

The applicant’s motion dated 14 January 2011, specifically paragraph 1(b) (for leave to bring a motion to change the final orders of 28 October 2010), is dismissed. The applicant must comply with paragraphs 5 and 6 in the final orders of 28 October 2010, before he may file or bring any further proceedings in this court. [ 29 ] Mr. Teitel requested the opportunity to ask for costs arising out of paragraph 1(

b) of the applicant’s motion dated 14

January 2011, and related court appearances. Leave is granted to the respondent to file a Request for Costs by fax to the Judicial Secretary at 905-456-4839 and to serve the applicant or Ms. Sekhon or both, which must be filed by 25 February 2011. [ 30 ] The person or persons against whom costs are requested, is/are required to serve Mr. Teitel and file with the Judicial Secretary as aforesaid, an Answer by 18 March 2010 at the latest. [ 31 ] Mr.

Teitel then is required to serve the person or persons against whom the costs were requested and to file with the Judicial Secretary as aforesaid, a Reply to the Answer by 8 April 2011. Released: 8 February 2011 ____________________________ Justice P.W. Dunn