2014 ONSC 7568, 2014 ONSC 7568

CITATION : Henderson v. Henderson, 2014 ONSC 7568 COURT FILE NO.: FS-00-41034-01 DATE: 2014 02 05 CORRECTED: 2017 02 28 SUPERIOR COURT OF JUSTICE - ONTARIO RE: SCOTT HENDERSON, APPLICANT AND: SUZANNE HENDERSON, RESPONDENT BEFORE: BARNES J. COUNSEL: S. Shore, Counsel for the Applicant L. Ben-Eliezer, Counsel for the Respondent CORRECTED ENDORSEMENT INTRODUCTION [ 1 ] The Applicant (Mr. Henderson) seeks an order requiring the Respondent (Ms.

Henderson) to release funds held under a Mareva Injunction, and for an extension of time to pay costs ordered by Justice Dawson on November 22, 2013. [ 2 ] On January 15, 2009, the Applicant’s (Mr. Henderson) pleadings were struck by van Rensburg J. (as she then was). In a judgment of the same date, van Ransburg J. made orders dealing with child support; special and/or extraordinary expenses of the children; spousal support; child support arrears and costs. [ 3 ] Van Rensburg J. ordered that Mr.

Henderson could seek a variation of the support payable only upon purging all existing contempts, providing the answers to his undertakings, providing complete income disclosure and successfully moving to reopen his pleadings. This Order was not appealed. [ 4 ] After the January 15, 2009 Order, Mr. Henderson moved to California. In 2011, the Respondent (Ms. Henderson) registered this Ontario Order in California, so as to enforce it against Mr. Henderson. Ms. Henderson was successful. Mr. Henderson then moved to Arizona. [ 5 ] In 2012, Ms.

Henderson sought to register van Ransburg J.’s Order of January 15, 2009 in Arizona, so as to enforce it against Mr. Henderson. The Order has not yet been registered. [ 6 ] On May 7, 2013, Mr. Henderson brought a motion in this court seeking the following relief: (

a) an order purging all contempts and declaring Mr. Henderson in compliance with all the outstanding court orders; (

b) purging an order for arrest (the Applicant is currently subject to a Warrant of Committal and Arrest which was issued in June 2003 by this Court, for failing to comply with court orders to produce disclosure and for behaviour amounting to contempt of Court. Mr.

Henderson’s pleadings were struck in 2003); (

c) an order permitting Mr. Henderson to bring a motion to vary; (

d) an order for the retroactive adjustment of child and spousal support; (

e) an order fixing the amount of arrears and ongoing support in accordance with the relevant guidelines. [ 7 ] On May 7, 2013, Snowie J. struck Mr. Henderson’s motions noting that it was “a complete abuse of process of this Court and a transparent effort on his part to delay enforcement of this Court’s Orders in Arizona.” [ 8 ] Snowie J. ordered that Mr. Henderson was prevented from taking any “fresh step” until he: (

a) pays all support arrears; (

b) answers all of his undertakings; (

c) purges all of his contempts; (

d) provides complete income disclosure, and (

e) reopens his pleadings. [ 9 ] The May 7, 2013 Order was not appealed. [ 10 ] Mr. Henderson brought another motion on March 6, 2014. This motion sought relief similar to the May 7, 2013 motion, including an Order to vary the January 15, 2009 Order of van Ransburg J. On November 22, 2013, Ms. Henderson brought a motion to quash this motion on the basis of an abuse of process. On November 22, 2013, Dawson J. ordered Ms. Henderson’s motion to quash to be heard as a long motion on February 12, 2014. As a condition of Mr.

Henderson’s motion proceeding, Dawson J. ordered him to pay outstanding Ontario Cost Orders of $36,945.54 and $20,000.00 as security for costs. These payments to be made by January 15, 2014. If Mr. Henderson failed to comply, his motion could not proceed and would be quashed. [ 11 ] On January 14, 2014, Mr. Henderson brought a motion requesting an Order that Ms. Henderson sign documentation necessary to release funds held under the Mareva injunction; an Order extending the time for Mr. Henderson to pay the costs as set out in the November 22, 2013 order of Dawson J and in the alternative, an Order allowing Mr.

Henderson to proceed with his motions scheduled for February 12, 2014, without having to pay the costs contemplated by the Dawson J. order pursuant to Rule 25(19) of the Family Law Rules. [ 12 ] On January 14, 2014, Herold J. ordered a transcript of the November 22, 2013 proceedings before Dawson J. This was to determine the context/circumstances under which Dawson J.’s order was made. Specifically, was it the intent of Dawson J. to order Ms. Henderson to cooperate with Mr. Henderson in getting the Mareva injunction in Hong Kong lifted? The January 14, 2014 motion is now before me.

The issue to be decided: ISSUES/ANALYSIS

A) Did the November 22, 2013 Order of Dawson J. require Ms. Henderson to cooperate in the lifting of the Mareva Injunction? [ 13 ] Upon a complete review of the transcript of the November 22, 2013 proceedings, I find the following: (

a) On November 22, 2013 Mr. Henderson was waiting for a decision from Hong Kong on the Mareva injunction; (

b) Justice Dawson inquired why funds could not be obtained from the home Mr. Henderson had purchased for 1.5 million dollars (

c) Justice Dawson was advised that Mr. Henderson’s wages were being held in Hong Kong

(

d) Counsel for Mr. Henderson asked Justice Dawson to include in his endorsement that Ms. Henderson agree to cooperate with the lifting of the Mareva injunction. Justice Dawson responded “Okay.” Counsel for Ms. Henderson, Mr. Fanjoy, agreed to cooperate. (

e) It is clear from the transcript that all parties, including Justice Dawson, were operating under the impression that Mr. Henderson’s wages were captured by the Mareva injunction in Hong Kong and that there will be sufficient money in that account to satisfy the preconditions set by Justice Dawson. [ 14 ] When Justice Dawson’s November 22, 2013 endorsement is reviewed in its entirety, I conclude: (

a) The learned judge was under the full expectation that the Mareva injunction tied up all of Mr. Henderson’s worldwide assets. (

b) Dawson J. was aware of Mr. Henderson’s position that the Mareva injunction prevented him from paying support or purging the contempts. (

c) Despite references to Mr. Henderson’s position on the impacts of the Mareva injunction on his ability to pay support and purge his contempts, Dawson J. makes no reference to Ms. Henderson’s pledge to try to have the Mareva injunction lifted; Dawson J. makes no reference to the apparent agreement of the parties to cooperate on the lifting of the Mareva injunction and the learned judge makes no connection between the lifting of the Mareva injunction and the satisfaction of the conditions precedent he set. (

d) Dawson J. made reference to the fact that Mr. Henderson had purchased a 1.5 million dollar house. [ 15 ] Upon an insular review of the endorsement of Justice Dawson, it is clear and unambiguous that it was the intention of Justice Dawson to set conditions precedent, without any reference to or any link to a particular method by which the conditions precedent were to be satisfied. I reach the same conclusion when the entirety of Dawson J.’s reasons are read in conjunction with the entirety of the transcript of the proceedings of November 22, 2013.

It is clear that while Dawson J. contemplated and was aware that the parties had agreed to cooperate, he made a conscious decision not to mandate such cooperation by court order. Thus, the Respondent was under no court ordered obligation to cooperate in the lifting of the Mareva injunction.

B) Variation of Mareva Order [ 16 ] On October 31, 2013, a court in Hong Kong made an interim order varying the Mareva injunction to allow Mr. Henderson to comply with the January 15, 2009 support order of van Ransburg J., for support payment of $9,774 Canadian dollars per month. The balance was to go to Mr. Henderson for his use. [ 17 ] I am satisfied that counsel for Mr. Henderson was unaware at the time of the motions before Dawson J. that a court in Hong Kong had already made an Order granting Mr.

Henderson access to his wages through variation of the Mareva Injunction. [ 18 ] It is clear that the representation made to the Court by Mr. Henderson’s counsel was based on erroneous information. The truthful information was that the variation of the Mareva Injunction rendered the need for cooperation moot. [ 19 ] In any event, there was no court mandated order to the parties to cooperate; even if such an order were made it would not stand because it was based on wrong information. [ 20 ] Ms.

Henderson is not bound by any agreement that was clearly predicated on false information at the time it was made. [ 21 ] Mr. Henderson submits that as a result of the overdraft in his account, there is only $38,218.94 U.S. Dollars and $574 Hong Kong dollars in his Hong Kong account.

C) History of Non-Compliance

[ 22 ] A review of the record shows that Mr. Henderson has a history of noncompliance with the court order which includes: (

a) November 2003 Outstanding Warrant for his arrest for noncompliance with Court Orders and Contempt; (

b) Failure to pay any support from January 2009 to date in violation of the Order of van Ransburg J. (

c) Bringing a motion to seek relief without satisfying conditions precedent set by the Order of January 15, 2009. (This is the motion of May 7, 2013). (

d) Noncompliance with Order of Snowie J. dated May 7, 2013 by commencing the February 12, 2014 (March 6, 2014) motion.

D) History of Asserting Fraud and Other Strategies to Frustrate Ontario Orders (

a) Move to California after the Ontario January 15, 2009 Order; (

b) Assertion in California Court that Ms. Henderson secured January 15, 2009 Order on the basis of fraud; (

c) Assertion in Hong Kong that Ms. Henderson secured January 15, 2009 order on the basis of fraud; (

d) Assertions to Dawson J. on November 22, 2013 that January 15, 2009 order was obtained on the basis of fraud.

E) Non-Compliance with the November 22, 2013 Order of Dawson J. [ 23 ] Dawson J. has ruled that Mr. Henderson’s motion scheduled for February 12, 2014 may proceed on condition that the costs of $36,400 are paid and the security for costs of $20,000 are paid into court. [ 24 ] Dawson J.’s order is clear and unambiguous. If Mr. Henderson fails to comply with the conditions precedent prior to January 15, 2014, Mr. Henderson’s motion for direction is struck/quashed. [ 25 ] This Court has the authority to strike/quash Mr. Henderson’s February 12, 2014 motions if the court is satisfied that Mr.

Henderson “has demonstrated a blatant disregard of the court.” See Purcaru v. Purcaru , 2010 ONCA 92 . [ 26 ] Within the parameters of the motion before me, I must confine my analysis to the circumstances surrounding the noncompliance of Dawson J.’s November 22, 2013 order. Dawson J. has already decided, subject to the conditions he has outlined, that the motion for directions should proceed. [ 27 ] It is difficult to accept that Mr. Henderson was unaware that the Hong Kong Court had varied the Mareva Injunction at the time of the argument before Dawson J. I am satisfied that Counsel for Mr.

Henderson was unaware. [ 28 ] In addition, it is highly suspicious that Mr. Henderson was unaware of the said deficit in his Hong Kong account during the motion before Dawson J. Dawson J. was left with the impression that there would be enough funds in the Hong Kong account, once the injunction was lifted. [ 29 ] It is clear Mr. Henderson is in breach of Justice Dawson’s order. [ 30 ] It is clear from the record that there was a misunderstanding between counsel as to the correct

interpretation of Justice Dawson’s

Order and therefore, the Order of Dawson J. of November 22, 2013 is varied as follows:

a) The existing long motion scheduled for February 12, 2013 is stayed until June 30, 2014 subject to further conditions below;

b) The following conditions must be satisfied before the motions can be rescheduled/reinstated: (

i) Mr. Henderson shall pay the accumulated support amount from August 2013 to January 2014 by March 30, 2014. This amount is $58,464.00 to be paid to Ms. Henderson; (ii) Mr. Henderson shall, effective immediately, pay the monthly support to Ms. Henderson in the amount of $9,744 monthly; (iii) Mr. Henderson shall pay the costs order of $36,954 and security of $20,000.00 prior to June 30, 2014; (iv) Mr. Henderson and/or Ms. Henderson may set a date for reinstatement of the February 12, 2014 motion, upon satisfaction of the conditions precedent on any date in communication with the trial coordinator; (

v) The motion date for reinstatement of the February 12, 2014 motion shall only proceed upon an appearance before Justice Barnes, to confirm that the conditions precedent have been met by Mr. Henderson. (vi) Mr. Henderson shall produce his pay stubs from Cathay Pacific for April through July 2013, December 2013 and January 2014. (vii) Mr. Henderson shall bring no further motion until the conditions precedent have been satisfied; (viii) All new motions by Mr.

Henderson shall only proceed and be listed after an Order from Justice Barnes confirming that all conditions precedent have been satisfied. (ix) Barnes J. is not seized of all future motions in this case except those brought by Mr. Henderson prior to the completion of the conditions precedent outlined in this order or motions that seek to determine whether the conditions precedent have been satisfied. (

x) Should Mr. Henderson fail to comply with conditions b(

i) to (vii), Mr. Henderson’s motion returnable February 12, 2014 is permanently stayed with prejudice. [ 31 ] The parties may submit a cost outline, no more than 2 pages in length, within 20 days of this order. BARNES J. RELEASED : February 5, 2014 CORRECTED: February 28, 2017

CITATION : Henderson v Henderson, 2017 ONSC 1339 COURT FILE NO.: FS-00-41034-01 DATE: 2014 02 05 CORRECTED : 2017 02 28 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Scott Henderson and Suzanne Henderson BEFORE: BARNES J. COUNSEL: S. Shore , for the Plaintiff/Applicant L. Ben-Eliezer, Counsel, for the Respondent CORRECTED ENDORSEMENT Barnes J. DATE: 2014 02 05 CORRECTED : 2017 02 28