Court File and Parties

Ontario Court of Justice

Date: 2015-03-25

Court File No.: Halton F373/12

Between:

Renee M. Henderson Applicant

— And —

Dion R. McClean Respondent

Before: Justice V. Starr

Heard on: March 19, 2015

Reasons for Judgment released on: March 25, 2015

Counsel:

• Susan O'Rourke, counsel for the applicant
• Dion R. McClean, on his own behalf

STARR, J.

NATURE OF THE MOTION

[1] This is the Court's decision and reasons with respect to a motion brought by the Applicant for financial disclosure from the Respondent.

[2] At the conclusion of hearing of the motion I advised the parties that I needed time to review the evidence and submissions and to craft the appropriate order. I made an oral finding that the Respondent has not complied with his disclosure obligations, has behaved unreasonably, and gave brief oral reasons for those findings. I did not intend to write a detailed decision, just the terms of the order. For reasons that will become clear in this decision, having had an opportunity to review the record and evidence, and consider the submissions and case law, I find it necessary to make additional findings and to give additional reasons.

BACKGROUND

[3] The Applicant and the Respondent have two children of the marriage, Denver McClean, born January 1, 2008 and Reece McClean, born April 17, 2009.

[4] The Respondent is a lawyer called to the Bar in 2002. His area of practice includes family law. He represents himself in these proceedings.

[5] The Applicant brought an Application which was filed with the Court on August 29, 2012.

[6] On October 2, 2013, Justice Zisman made a final order on consent that, among other things, directed that:

(a) The Respondent pay child support to the Applicant in the amount of $966.00 a month commencing September 1, 2013. This final order was based upon an imputed annual income to the Respondent of $65,000.00 for 2013; and,

(b) By no later than June 1st of each year, commencing on June 1, 2014, the Respondent shall provide a copy of his income tax return, as filed for the previous calendar year, to the Applicant and his Notice of Assessment upon receipt. The parties shall then determine the appropriate table amount of the Respondent's child support obligation for the applicable calendar year in accordance with the Ontario Child Support Guidelines using the income of the Respondent (emphasis mine).

[7] In mid-June 2014, after the Respondent failed to provide the Applicant with a copy of his 2014 income tax return, she requested it of him. His response was that she would get it when he filed it.

[8] On June 20, 2014, the Applicant brought a Motion to Change. Between then and the hearing of this motion there have been a total of eleven court attendances.

[9] The Respondent has asked for and been given several indulgences and extensions of deadlines. For example:

(a) On June 24, 2014, Justice Zisman granted both parties permission to serve and file their respective financial statements without their Notices of Assessment;

(b) On July 11, 2014, Justice Zisman granted the Respondent an extension until August 8, 2014 to serve and file his materials in response to the Motion to Change;

(c) On August 19, 2014, Justice Zisman granted the Respondent a further extension to serve and file his responding materials; and

(d) On September 30, 2014, I granted orders requested by the Respondent which allowed the Respondent to file his financial statement without attaching his 2013 Notice of Assessment. Of particular note, I ordered that the Respondent serve his 2013 Notice of Assessment within seven days of his receipt of same upon the Applicant.

[10] On several occasions the Respondent has failed to serve and file materials in contravention of the Family Law Rules and/or orders made by this Court. For example:

(a) On September 30, 2014, I noted that the Applicant's Mother's Settlement Conference Brief was served and filed on time whereas the Respondent's brief was not and was in fact delivered to the Court shortly before the matter was scheduled to proceed. On that same date, I advised both parties that, subject to valid excuse, in future, I was not likely to accept material presented to the Court at the last minute to read and as a result, sincere effort should be made to ensure that materials are served and filed in accordance with the Family Law Rules.

(b) On October 28, 2014, a case conference took place before me. I ordered that the Respondent ensure that all payments of child support are made directly to the Family Responsibility Office as the order of Justice Zisman directs, with no direct payments being made to the Applicant. He had been making direct payments which resulted, on occasion, in late payment of support.

(c) For the next attendance of substance, February 12, 2015, the Applicant had again served and filed a brief in advance of the attendance, including an updated sworn Financial Statement. The Respondent did not do so in accordance with the Rules.

[11] On February 12, 2015, I conducted a two-hour case conference with the parties and made an order, as it relates to financial disclosure, among other things, as follows:

(a) The Applicant shall serve her notice of motion and materials for use on the motion dealing with financial disclosure only on or before March 12, 2015 and the Respondent shall serve his Notice of Motion and support materials on the issue of disclosure only on or before March 16, 2015. The Applicant shall be entitled to file a reply affidavit, if any, by the end of the day on March 17, 2015;

(b) The parties to exchange disclosure requests; this is to be done by February 23, 2015;

(c) The parties to answer any and all disclosure requests that are reasonable and relevant to either party's position and the issues. This is to be done by March 6, 2015.

[12] The Applicant received the Respondent's Request for Information on February 25, 2015, two days after the date it was to be provided.

[13] The Applicant provided her Answer to the Respondent's Request for Information on March 12, 2015 in accordance with my Order.

[14] The Applicant served her motion materials in accordance with the timelines set out in my order.

[15] The Respondent did not serve and file his Response to the Applicant's Request for Information in accordance with the deadline stipulated in my order.

[16] The Respondent also failed to serve and file any responding materials to the Applicant's motion for disclosure in accordance with the deadline stipulated in my order.

[17] Instead of complying with my order with respect to responding to the Applicant's request for disclosure and instead of complying with the deadline in my order for service and filing of his materials in response to this motion, he sent a copy to the Applicant the afternoon before the hearing of this motion (March 18, 2015) and walked a copy into Court on March 19, 2015 asking for leave to file it. The Respondent explained that the materials were late due to some difficulty in obtaining the material from the firm he works for and other commitments.

[18] Because of the late service, counsel for the Applicant had not had a chance to review the responding materials. She opposed the Respondent's request to file them at the hearing.

[19] I denied his request for several reasons:

(a) His repeated disregard for timelines set out in the orders of this Court and in the Family Law Rules;

(b) His many previous requests for and the Court's granting of extensions;

(c) The Court has indulged him on so many occasions when he has failed to follow the Rules; and

(d) The unfairness of the situation – his failure to follow the order resulted in the Applicant having to bring this motion and, if I allowed him to file responding materials at this late juncture, there would be prejudice to the Applicant as her counsel would not have had a meaningful opportunity to review his materials in advance of arguing the motion.

[20] In the Court's view, allowing him to once again circumvent the Rules and breach a court order, without consequence and to the disadvantage of the Applicant, would not foster continued respect for this Court and the Rules that govern it. I say this thinking not only of the public, but of the Applicant. She has a busy life too with two children to care for and is of very modest financial means. Despite these factors, which no doubt at times make it very challenging for her to do so, she demonstrates respect for the legal process, Rules, and for the authority of this Court, by trying to settle issues and avoid motions, following the Rules, abiding by court orders and, at every turn, treating this Court with the utmost of respect. What would it say to her if I, at her expense, again indulged the Respondent?

[21] I did, however, allow him to show me the financial records he had brought with him to the Court and allowed him standing to make submissions and answer my questions. At the conclusion of the motion, the Applicant's counsel again renewed her objection to my consideration of the documents in deciding the motion. I pointed out to her that the information would, in my view, help me craft a more meaningful disclosure order and I offered her a choice: I would disregard the "evidence" that the Respondent gave from the floor, ignore the information in the documents, and make exactly the order the Applicant seeks in her notice of motion; or, with her permission, I would consider and use what I had heard and seen at my discretion and as an aid to help me craft a more detailed, precise and meaningful disclosure order. She agreed that I should do the latter.

RELEVANCE OF THE DISCLOSURE - THE FINANCIAL ISSUES AND POSITIONS OF THE PARTIES

[22] In the Motion to Change the Applicant seeks compliance by the Respondent with his disclosure obligations pursuant to the final order of Justice Zisman (i.e. providing a copy of his 2013 income tax return and Notice of Assessment) so that there can be a determination of the Respondent's 2014 income pursuant to the Child Support Guidelines and setting the level of child support he is to pay for 2014. In addition, she seeks an order determining the Respondent's child support obligation for the period of January 1, 2013 up to and including September 1, 2013 as this issue, she claims, was an issue before the Court but not determined by Justice Zisman when she disposed of the matter on a final basis in October 2013. Her request is made pursuant to Rule 25(19) of the Family Law Rules.

[23] The Applicant's position is quite simple: She is entitled to and needs the financial disclosure she seeks from the Respondent so that she can determine if there has been a change in the Respondent's income for child support purposes. Because support is, at present, based upon imputed income to the Respondent and because he is self-employed and deducts expenses from his gross business income, the determination of his income pursuant to the Child Support Guidelines necessitates more expansive disclosure than the bare minimum set out in both Justice Zisman's order and section 25 of the Child Support Guidelines.

[24] The Applicant also takes the position that the Court should grant her leave, in the event that the Respondent fails to make the disclosure ordered on this motion, to bring a motion to strike the Respondent's pleadings. In support of this position, she submits that the Respondent: has not been timely or forthcoming with information and documentation; has provided incomplete or false information and documentation; and in some instances, has produced information and documentation in a manner that cannot be easily understood without further explanation. Further, the Respondent's failure to make timely, complete and full disclosure precludes the Applicant both from being able to assess the merits of pursuing the financial relief she seeks, from properly preparing her case and obtaining relief in a timely fashion, and puts her to the unnecessary expense associated with making repeated requests for disclosure both in and out of court and including this motion.

[25] The Respondent's position is also quite simple and it is this: I have complied with my disclosure obligation. If I have not provided a document it is because I do not have what she has asked for (i.e. financial statements for my business). Where what I have is an incomplete document, I have provided her with the portion that is material and relevant and what she really needs to see. Finally, he takes the position that the issue of support for any period prior to Justice Zisman's order is res judicata and, thus, he does not have an obligation to provide the documents that that the Applicant seeks for 2012 and earlier (i.e. a copy of his car loan agreement from 2010). He acknowledged, however, that no decision has been made yet regarding the res judicata issue and, thus, at this point, the Applicant's claim is still a live one and the disclosure relevant to it.

EVIDENCE OF THE APPLICANT

[26] The key points of the Applicant's evidence are summarized below.

[27] On June 13, 2014, the Applicant requested by email that the Respondent provide her with his income tax return and all attachments for 2013, proof of year-to-date income from all sources; and Notices of Assessment. He was supposed to have done so by June 1, 2014, according to the final order of Justice Zisman. His response was that she would get it when he filed it. To date, the Respondent has not provided all of this disclosure.

[28] On February 23, 2015, the Applicant requested financial disclosure from the Respondent in accordance with my Order of February 12, 2015 by serving a Request for Information.

[29] As of March 12, 2015 (the deadline for the Respondent to answer the Request for Information), the Applicant had not received the financial disclosure. In fact, her counsel did not receive it until March 18, 2015 and had not, by the time this hearing started, had a chance to review it.

[30] Since the Applicant brought the Motion to Change on June 20, 2014, the Respondent has only provided the following financial disclosure:

(a) A copy of page 3 of his Notice of Assessment for 2011;

(b) A copy of page 2 of his Notice of Assessment for 2012;

(c) A copy of page 3 of his Notice of Assessment for 2013 (he provided this in February 12, 2015 even though the Notice was dated October 6, 2014, and was to have been provided to the Applicant within seven days of receipt pursuant to my order);

(d) A copy of Three60 Legal's Vendor Ledger with handwritten title "Income Chart" and handwritten Total Income for 2013 $18,637.00;

(e) A copy of Account Inquiry Results with handwritten title "Legal Aid-Income Chart" (this is three pages with last page showing a handwritten note "Grand total 34,046.77");

(f) A copy of Information Return for Electronic Filing of an Individual's Income Tax and Benefit Return 2013 - 1 page;

(g) A copy of Statement of Business or Professional Activities; and

(h) A copy of a letter from Three60 Legal.

RESPONDENT'S EVIDENCE

[31] The Respondent's evidence with respect to disclosure can be gleaned from the documents that he has served and filed in the Continuing Record and which is summarized below.

[32] In his financial statement sworn August 26, 2014 he deposes that:

(a) He is self-employed and carrying on business under the name of Dion R. McClean;

(b) The gross annual income he was then currently receiving was from employment and amounted to gross $4,593 per month or a grand total income of $4500 or $55,000 annually;

(c) Attached to the financial statement are copies of his income tax returns and Notices of Assessment for the past three years. These were not attached.

(d) The attachments to his financial statement and the key pieces of information on them are these:

i. Page 3 of his 2011 Notice of Assessment, showing Line 150 income of $20,280; and,

ii. Page 2 of his 2012 Notice Assessment, showing Line 150 income of $6,178;

[33] In his September 30, 2014 financial statement, the Respondent deposed that:

(a) He is self-employed and carrying on business under the name of Dion R. McClean;

(b) The gross annual income he was then currently receiving was from employment and amounted to gross $3,883 per month or $46,000 annually;

(c) He has no expenses for housing; and

(d) He has monthly car loan payments of $920.00 and owns a 2010 Honda Pilot vehicle;

(e) That attached to the financial statement are copies of his income tax returns and Notices of Assessment for the past three years. These were not attached;

(f) The actual attachments to his financial statement and the key pieces of information on them is:

i. Page 3 of his 2011 Notice of Assessment, showing Line 150 income of $20,280;

ii. Page 2 of his 2012 Notice of Assessment, showing Line 150 income of $6,178;

iii. 2013 Information Return for Electronic Filing of An Individuals Income Tax and Benefit Return;

iv. Vendor Ledger for Three60 Legal for period of January 1, 2013 to December 31, 2013 which he explained on March 19, 2015 showed the total payments made to him by the Firm Three60 Legal during that period of $18,637.43;

v. Legal Aid Payment Summary/History for the period January 9, 2013 to December 13, 2013 showing various payments which total $34,046.77.

[34] The 2013 Information Return for Electronic Filing of An Individual's Income Tax and Benefit Return provided with his September 30, 2014 financial statement shows:

(a) Line 150 Income of $33,235.36;

(b) A Statement of Business and Professional Activities showing:

i. His gross business income for 2013 was $46,623.18;

ii. His total business expenses for 2013 were $13,397.82;

iii. His net business income for 2013 was $33,255.36;

iv. He did not claim any "Use of Home" amounts – (the blank schedule is also in the return);

v. He claimed "Use of Motor Vehicle" expenses of $5,392.81(this Schedule is in the return)

[35] In his October 8, 2014 affidavit (which had attached to it his affidavits of June 17, 2014 and July 7, 2014) the Respondent deposed that:

(a) I appreciate the importance of Court Orders and abide by them. I am a lawyer and officer of the Court;

(b) I do not have a bank account;

(c) My CIBC bank account has been frozen by the Canada Revenue Agency;

(d) As exhibits he then provided copies of the following disclosure items:

i. Letter for Three60 Legal dated October 7, 2014. That letter is written by Principal, Eb Reinbergs and in the letter he indicates that the Respondent is engaged with Three60Legal as an Associate and that his total earnings for 2014 to date is $22,297.21;

ii. Vendor Ledger for Three60Legal for the period of January 1, 2014 to September 19, 2014. This ledger shows a payment for invoices which total for end of the period of $40,934.64, totals beginning of the period - $18,637, and Transactions $22,297.21. The "transactions" amount is highlighted;

iii. Legal Aid Payment Summary/History for the period of January 15, 2014 to September 16, 2014 showing "Grand Total" of $11850.49.

THE MARCH 19 REPRESENTATIONS AND DOCUMENTARY DISCLOSURES TO THE COURT

[36] As I have noted above, at Court on March 19, 2015, the Respondent showed the Court the following documentation which he said he had given to the Applicant the day before and which her counsel said she had not yet had time to review and initially objected to me seeing:

(a) 2012 T1 General Condensed;

(b) 2013 T1 General;

(c) 2013 Information Return for Electronic Filing of an Individual's Tax and Benefit Return;

(d) Page 3 of his Notice of Assessment for 2013 (dated October 6, 2014) showing Line 150 Income of $33,236;

(e) Yet another copy of page 2 of his Notice of Assessment for 2012 showing Line 150 income of $6,178;

(f) A document entitled "Legal Aid Ontario 2014" showing a grand total amount of $13,243.53;

(g) A document entitled "Legal Aid Ontario 2015" showing a grand total $1,246.13;

(h) A document entitled "Three60 Legal Vendor Ledger for the period January 1, 2014 to December 31, 2014 showing a total for transactions of $35,550.46;

(i) A document entitled "Three60 Legal Vendor Ledger for the period January 1, 2015 to March 17, 2015 showing a total for transactions of $7,700;

[37] The following is my understanding of the information the Respondent advised from the floor on March 19, 2015 in some instances on his own initiative and in other instances in response to my questions of him:

(a) The tax returns that he has produced are complete copies of what was filed with CRA and include any slips or Schedules filed with the returns;

(b) In his view, the missing pages of the notices of Assessment are irrelevant as they do not contain information that the applicant needs or would find useful;

(c) He does not have his own accounting software for his sole proprietorship;

(d) He does not prepare or have financial statements for his sole proprietorship, so he does not have these to produce to the Applicant as she has requested;

(e) He is an Associate of the law Firm, Three60 Legal, not an employee;

(f) The Firm three60 Legal uses PCLaw as its accounting (bookkeeping) software;

(g) He is paid a percentage of the fees billed and collected by Three60 Legal for his work on a client matter;

(h) His fee split percentage of those fees billed and collected by the Firm does not change;

(i) When asked why he had not produced a copy of the agreement that reflects the percentage split of fees billed and collected, he said he had not done so because the Appellant had never asked for it;

(j) The way things work at the Firm is this: he provides the Firm with information about the work he has done for clients (i.e. hours, type of work performed etc.) to Three60 Legal and they bill the clients, including Legal Aid Ontario. They pay him his share by cheque;

(k) The Vendor Ledgers reflect the amounts that the Firm has paid him and he received from the Firm for the work billed and collected;

(l) Although the Ledgers refer to the Firm paying invoices, he has never prepared and given them an "invoice" and he has never seen the invoices referred to on the Ledger;

(m) The Legal Aid Summaries reflect the total amounts billed by the Firm to Legal Aid and paid by Legal Aid to the Firm for the work he has done. His share of these amounts is then paid to him by the Firm. The payments that the Firm has made to him on account of Legal Aid Fees is subsumed in the amounts shown in the Vendor Ledgers and are not amounts paid to him in addition to the amounts reflected in the Vendor Ledgers;

(n) He does not have a general bank account for his business, so he cannot provide the monthly bank reconciliations that the Applicant seeks;

(o) He did not have any bank accounts or credit cards during the periods that the Applicant seeks statements for, so he cannot provide them, save and except for a Bay Card (it was not clear if this was inactive or the account closed) and an account with CIBC which has been frozen by CRA;

(p) He is paid by cheque by Three60 Legal and he cashes this and any other cheques at places like MoneyMart.

THE LAW

The Disclosure Obligation

[38] The Respondent in this case has a positive duty to provide meaningful financial disclosure in order to ensure that the issues of child support can be effectively addressed. This obligation flows from a number of sources. First, he has a specific duty to do so pursuant to the Consent order of Justice Zisman dated October 2, 2013.

[39] Second, there is a general duty in all cases to disclose information that is relevant and material to the case, subject to any claims respecting privilege or other exclusionary rules of evidence (see R. v. Candir (2009), 2009 ONCA 915, 250 C.C.C. (3d) 139 (Ont. C.A.); R. c. J. (J.-L.), 2000 SCC 51, [2000] 2 S.C.R. 600 (S.C.C.). The general obligation to disclose information that is material and relevant to the case is reinforced by Rule 19 of the Family Law Rules, which requires a party, upon request by another party, to produce an Affidavit of Documents listing every document that is relevant to any issue in the case and is in the party's control or available to the party on request.

[40] In this case, the obligation to provide financial disclosure also flows from the Family Law Rules and, in particular, Rule 13 relating to Financial Statements. Rule 13(1) (a) and (b) direct that when a claim is made for child support, the person making the claim is required to serve and file a Financial Statement with all necessary attachments thereto, unless the only support claim is for the Table amount of child support under the applicable Child Support Guidelines and the pleading does not include a property claim or request for exclusive possession of the matrimonial home.

[41] Rule 13(6) requires parties who are obliged to serve Financial Statements to make "full and frank disclosure" of their financial situation. Both the case of Spettigue v. Varcoe 2011 CarswellOnt 12078 and that of Meade v. Meade, 2002CarswellOnt 2670 help to establish what is required of self-employed individuals in order to satisfy the requirement of full and frank disclosure. In both cases the Court held that self-employed individuals have a positive obligation to "put forward not only adequate, but comprehensive records of income and expenses." They are not required to provide audited Financial Statements, but must provide a package of disclosure from which information regarding the party's income can be reasonably gleaned without the necessity of carrying out cumbersome calculations and costly investigations and examinations.

[42] The other source of the Respondent's obligation to provide financial disclosure in this case is the Child Support Guidelines. Section 25 of the Child Support Guidelines set out the continuing minimum financial disclosure obligation that applies in cases like this one, where a support order has been made. That obligation is to continue to provide the disclosure that section 21 directs must be provided when a claim for child support or contribution to section 7 expenses is made.

[43] The relevant sections of the Child Support Guidelines are as follows:

Continuing obligation to provide income information

25. (1) Every parent or spouse against whom an order for the support of a child has been made must, on the written request of the other spouse or the person or agency entitled to payment under the order not more than once a year after the making of the order and as long as the child is a child within the meaning of this Regulation, provide that other spouse, or the person or agency entitled to payment under the order, with,

(a) The documents referred to in subsection 21 (1) for any of the three most recent taxation years for which the parent or spouse has not previously provided the documents;

Information requests

(4) Where a parent or spouse requests information from the other parent or spouse under any of subsections (1) to (3) and the income information of the requesting parent or spouse is used to determine the amount of the order for the support of a child, the requesting parent or spouse must include the documents and information referred to in subsection (1) with the request. O. Reg. 391/97, s. 25 (4) .

21. (1) A parent or spouse who is applying for an order for the support of a child and whose income information is necessary to determine the amount of the order must include with the application,

(a) a copy of every personal income tax return filed by the parent or spouse including any materials that were filed with the return for each of the three most recent taxation years;

(b) A copy of every notice of assessment and reassessment issued to the parent or spouse for each of the three most recent taxation years;

(d) Where the parent or spouse is self-employed, for the three most recent taxation years,

(i) The financial statements of the parent's or spouse's business or professional practice, other than a partnership, and

(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent or spouse does not deal at arm's length;

[44] The cases counsel for the Applicant referred me to, as well as the case of Favero v. Favero, 2013 ONSC 4216, 2013 CarswellOnt 8414, flush out the more expansive duties of a self-employed payor when providing disclosure

[45] In the case of Favero, Chappel J noted at paragraph 103:

103. Where a party raises questions regarding the reasonableness of business expenses, the burden of proof is on that party to establish that the expenses are unreasonable. There is a distinction between this onus and the onus on the party claiming the deductions to establish their income. The parent who relies on expenses to reduce their income cannot simply put forth numbers for alleged business expenses with no justification or evidence to support those numbers, and then put the other party to the expense of disclosure motions and questioning in an effort to obtain proof regarding the specifics and actual amounts of the expenses. Rather, that party has an obligation to explain the reasons for the expenses and how they were calculated, and must provide documentary proof of the expenses in an organized manner so that the court can make a proper determination as to the reasonableness of the expense from the standpoint of the child support calculation. This is particularly important in situations where the expenses reported on the party's income tax returns fluctuate from year to year. If the party fails to provide meaningful supporting documentation or other evidence in respect of those deductions, an adverse inference may be drawn by the court in making the income determination.

[46] I adopt and apply Justice Chappel's approach and reasoning. In my view, her reasoning is not limited to the deduction of business expenses. It equally applies to disclosure and claims relating to a self-employed payor's income. Recast this way, the obligation is this: A party who is self-employed cannot simply put forth numbers for alleged income and business expenses with no justification or evidence to support those numbers, and then put the other party to the expense of disclosure motions and questioning in an effort to obtain proof regarding the specifics and actual amounts of the income and expenses. Rather, in such cases he must explain his income and expenses including the reasons for the amounts claimed as income or expenses and how they were calculated.

[47] Second, in cases such as this one where the payor claims to be self-employed but the nature of his relationship with his clients has all the earmarks of a subcontract type arrangement as well as most of those associated with a traditional T4 employee/employer relationship (i.e. he has only one client to whom he offers his services), the self-employed payor cannot simply say, as he does here, he is self-employed and an Associate of a law firm and leave it at that. Rather, that party has an obligation to explain the nature of his relationship with his client, including clear and specific details about the financial arrangements and relationship.

[48] Third, such an individual cannot simply put forth documents, and in particular, documents that might be unique to the type of business the self-employed payor is engaged in and/or its accounting practices, such as the Respondent has done in this case by putting forward the Vendor Ledgers and Legal Aid Summaries, as evidence of income with no explanation of the document or information shown on it, and then put the Applicant to the expense of disclosure motions and questioning in an effort to obtain the information and explanation necessary to understand the nature of the document and what it shows.

[49] Fourth, the party making disclosure has an obligation to provide documentary proof (be it of income, expenses, the nature of his employment or other information ) in an organized manner so that the Applicant and the Court can make a proper determination of the Respondent's income and as to the reasonableness of the expense from the standpoint of the child support calculation.

[50] Finally, providing this more expansive and meaningful disclosure is particularly important in situations where a party's income for child support purposes is not based upon Line 150 of the previous year's income tax return but, rather, based upon additional income imputed to that party. In cases where the financial needs and wellbeing of children are at stake the duty to provide meaningful, timely and understandable disclosure is heightened. A party whose disclosure has fallen short in any one of the ways I have identified, has failed to comply with his financial disclosure obligations.

[51] This approach and reasoning is also consistent with the approach and reasoning applied by Justice Chappel in Spettigue v. Varcoe, 2011 CarswellOnt 12078 and Justice Kitely in Meade v Meade, 2002 CarswellOnt 2670.

[52] In Spettigue v. Varcoe, Justice Chappel states at paragraph 19:

Where a party has complied with their minimum financial disclosure obligations set out in the Family Law Rules and the Child Support Guidelines as described above, a more detailed and in depth analysis of their financial situation may nonetheless be required in cases where questions arise as to whether the income reported by a party is an accurate reflection of their true income. As child support is the right of the child, who is typically not a party in child support proceedings, it is incumbent upon the court to err on the side of more extensive disclosure if this is necessary to ensure that the child receives the full protection of the law and the most fulsome benefit of support from their parents. This approach is consistent with the principle articulated by the Supreme Court of Canada in S. (D.B.) v. G. (S.R.) 5 that any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.

[53] In Meade v Meade, Kitely J states at paragraph 81:

.... It is inherent in the circumstances of those who are self-employed or who have irregular income and expenses, that they have a positive obligation to put forward not only adequate, but comprehensive records of income and expenses. That does not mean audited statements. But it does mean a package from which the recipient spouse can draw conclusions and the amount of child support can be established. Where disclosure is inadequate and inferences are to be drawn, they should be favourable to the spouse who is confronted with the challenge of making sense out of financial disclosure, and against the spouse whose records are so inadequate or whose response to the obligation to produce is so unhelpful that cumbersome calculations and intensive and costly investigations or examinations are necessary. Nardea v. Nardea (heard March 5, 1998); MacLeod v. MacLeod, [1998] O.J. No. 3076 (Ont. Gen. Div.); Reyes v. Rollo, 2001 CarswellOnt 4541 (Ont. S.C.J.).

Remedies for Non-compliance with Disclosure Obligations

[54] In Spettigue v. Varcoe Justice Chappel summarizes some of the remedies for noncompliance with disclosure obligations in this way:

20 The remedies for failing to comply with the financial disclosure obligations in a child support case derive from a number of sources. The Family Law Rules set out the following mechanisms by which the court may sanction a party for failure to meet their disclosure obligations or to comply with a court order for disclosure of financial information:

1. Rule 1(8) provides that the court may deal with a failure to follow the Family Law Rules, or a failure to comply with an order in the case or a related case, by "making any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate." This broad discretion includes making an order for costs, or an order dismissing a claim made by a party who has "wilfully failed to follow the rules or obey the order." These two particular sanctions set out in the Rule are not exhaustive. The court has relied on this Rule as a mechanism for maintaining the dignity of the court and the integrity of the Family Law Rules.

2. Rule 13(16) provides that if a party has not served and filed a Financial Statement and the information required as part of the Financial Statement, the court may order the party to serve and file the document or information. In the event that such an order is necessary, the court is directed to make an order for costs against that party. The court is not given discretion in this regard. In the event that the party does not obey a court order to serve and file a Financial Statement or the information required to be attached to the Financial Statement, the court has a broad discretion to grant relief. This discretion includes dismissing the party's case, striking out any document filed by the party, making a contempt order, and directing that the party may not rely on any information that should have appeared in the Financial Statement.

[55] Section 25(7) of the Child Support Guidelines also establish sanctions for failure to comply with the financial disclosure requirements set out in section 25 of the Guidelines. These sanctions include costs and an order requiring the production of the required documents.

ANALYSIS

Notices of Assessment

[56] The Applicant asks for a copy of all pages of the Respondent's 2012 and 2013 Notice of Assessments and any Re-Assessment for these years from Canada Revenue Agency.

[57] She is entitled to this disclosure. The final order of Justice Zisman makes it clear that the Respondent is to deliver a copy of his Notice of Assessment upon receipt and my order of September 30, 2014 directs that this be provided within 7 days of his receipt. The Family Law Rules, the Child Support Guidelines and the case law are also very clear, that the obligation is to provide a copy of these documents and to do so expeditiously. A copy means a complete copy, not the pages a party feels the opposing party should get.

[58] In this case, not only did the Respondent wait until March 18, 2015 to deliver a copy of his 2013 Notice of Assessment to the Applicant (a Notice of Assessment issued by CRA on October 6, 2014), but when he did deliver it, he delivered only one of three pages. He also delivered only partial copies of his 2011 and 2012 Notices of Assessment. Further, when asked why he did not provide a full copy, he said there is nothing on the other pages that is relevant or that the Applicant needs to see.

[59] Clearly he has breached the order of Justice Zisman and myself and failed to comply with his disclosure obligation under the Family Law Rules and under the Child Support Guidelines by not providing full copies and by not providing his 2013 Notice of Assessment "upon" or "within 7 days" of receipt. While it may very well be that the missing pages in this case contain nothing of any value or relevance, it is not up to the Respondent to decide this for the Applicant. He is required to provide a full copy of these Notices of Assessment and I have so ordered below.

Income Tax Returns

[60] The Applicant asks for an order that the Respondent provide to her "a copy of the Respondent's complete 2012 and 2013 income tax returns, including his Statement of Business /Professional Activities and all documentation that verifies the information reported in the return with respect to income and expenses, in the event he filed the return electronically." The Respondent says that he has provided this. The Applicant does not accept that what he has provided is a true copy of what was filed with CRA.

[61] To illustrate why the Applicant takes this position, I use what the Respondent provided for 2013. In this regard, I note the following derived from both the Applicant's submissions and my own review of the documents:

(a) Two different documents were provided document entitled "2013 Information Return for Electronic Filing of An Individuals Income Tax and Benefit Return" prepared by H&R Block and given with the September 30, 2014 financial statement with a second copy as part of the March 19, 2015 disclosure and a T1 General 2013 provided as part of the March 18, 2013 disclosure. These documents are not the same. For example, the pages in some instances have totally different content. Also, one has 4 pages that are not numbered plus an additional 6 pages that are numbered and the other has one page that is not numbered and 6 that are. No explanation is given for the discrepancy;

(b) On at least one of these, one series of pages is numbered "1 of 1", "2 of 2" and so forth up to "5 of 5" and then the last page is numbered "6 of 6" suggesting that these are not the same document or that pages are missing.

(c) Counsel for the Applicant argues that at least one of the returns provided with the March 18, 2015 disclosure refers to Schedules, and no corresponding Schedules are attached.

(d) The Respondent's Line 150 income shown on the 2013 return matches what is on his Notice of Assessment for 2013 and this amount matches his net business income claimed on the returns. One can easily see how the net business income was arrived at as all of the business expenses and deductions are shown on the return provided as well as the gross business income. The problem is that the gross business income does not match what is on the Three 60 Vendor Ledger or the Legal aid summary for 2013, even when one combines those two amounts.

[62] Based on discrepancies such as those just noted, counsel for the Applicant argues that the Applicant cannot be assured that she has a complete copy of what was filed and.

[63] Given that it is the Respondent who has the duty to provide a full copy and given the discrepancies I have noted above just on the face of the returns, the burden of proving that the documents are replicas of the full returns actually filed with CRA falls on the Respondent. Further, the Respondent has not provided an adequate explanation for the discrepancies. The Respondent has not met this burden. The Applicant is entitled to certainty and an explanation of the discrepancies if indeed, these are replicas.

[64] Such proof could come in the form of an affidavit from a representative of H & R Block, the company who prepared the 2013 return and in the form of an affidavit sworn by whoever prepared and filed the 2012 income tax return to the same effect, be that H & R Block, the Respondent or someone else on behalf of the Respondent. If these documents do not mirror what was filed with CRA, then the Applicant is entitled to receive either an exact replica of what was filed or to an explanation, given under oath by a professional with expertise in tax filings, as to why that document is not available and cannot be obtained.

Financial Statements and Payments to Non-Arm's Length Third Parties

[65] The Applicant seeks a copy of the Respondent's financial statements for his business for the years 2012, 2013, 2014 and 2015 and a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the Respondent does not deal at arm's length. The Respondent says he does not prepare and, thus, does not have financial statements to give to the Applicant; all he has is his Statement of Business and Professional Activities which are included in his income tax returns. With respect to money paid to persons with whom he does not deal at arm's length, he advised, from the floor of the Court, that he does not pay any money to anyone other than himself.

[66] The Applicant is entitled to this pursuant to the Child Support Guidelines. However, applying Kitely J's approach in Meade, that does not mean audited statements, but it does mean a package from which the Applicant can draw conclusions and the amount of child support can be established.

[67] In my view, the production of the Respondent's Statement of Business and Professional Activities for the taxation years 2011, 2012, 2013, along with complete copies of the income tax returns for each of those years, will suffice as a Statement of Income and Expenses.

[68] As April 30th, the time for filing his 2014 income tax return, is fast approaching and as the Respondent is required by law to file his income tax return by April 30, 2015 for 2014, it is reasonable to expect that he will have a Statement of Professional and Business Activities for 2014 ready by April 30, 2015 as he is required to file same with his income tax return. Requiring the Respondent to provide the Applicant with a full and complete copy of his 2014 income tax return including this statement and all other schedules, information slips etc. filed with the return by May 5, 2015, will satisfy, in part, his obligation for 2014 financial statements.

[69] With respect to financial statements for 2015, the Respondent is to either prepare and provide to the Applicant interim year-to-date financial statements or prepare and attach to a sworn affidavit a statement showing all income and expenses incurred from January 1, 2015 to April 30, 2015.

[70] The foregoing, coupled with a sworn statement setting out the particulars, including value of all assets, debts and liabilities of his sole proprietorship held in 2011, 2012, 2013, 2014 and 2015 and a sworn statement answering the Applicant's request for a statement showing a breakdown (for each of these same years, of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of persons or corporations with whom the Respondent does not deal at arm's length, will suffice, when coupled with the directive in the forgoing paragraph to fully satisfy the Respondent's obligation to provide financial statements for the years in question.

Bank Accounts, Credit Cards, Car Loan and Airline Tickets

[71] The Applicant asks for the following:

(a) Copies of all statements from the Respondent's personal bank or other financial institution accounts (including any joint bank accounts) for 2012, 2013, 2014 and 2015;

(b) Copies of the Respondent's Monthly Bank Reconciliation for his General Account from January 1, 2012 to the present with monthly bank statements, cheques and deposits (hard copy or copy of electronic records of same);

(c) Copies of all credit card statements from the Respondent's personal and business accounts for 2012, 2013, 2014 and 2015;

(d) A copy of the Respondent's application for a car loan from Honda Canada Finance in or about 2010;

(e) A copy of the invoice for the airline ticket and accommodation arrangements for the Respondent's travel from Thursday January 22, 2015 to Monday January 26, 2015, including the date such bookings and accommodations were made.

[72] The Respondent has agreed to provide the invoice for the airline tickets and accommodations and I have so ordered.

[73] The Respondent says that the car loan is not relevant as it relates to a period when he was employed with a different firm and predates the child support order by more than 2 years. While I tend to agree with the Respondent, I note that he does claim motor vehicle expenses on his tax returns and he does claim Capital Cost Allowance amounts. Given this, the request for documentation relating to the car is not unreasonable.

[74] The Respondent has provided an affidavit wherein he says that he does not have any bank accounts. He also advised the Court on March 19, 2015 that he does not have any credit card statements, except possibly an inactive one with The Bay. He also advised that he does not have any bank accounts, business or personal, save and except for one with CIBC that has been frozen by CRA.

[75] His statements in this regard are all in the present tense and, thus, do not fully address the Applicant's request for such information for the years 2012, 2013, 2014 and 2015. The solution to this issue is threefold: First, the Respondent can provide a sworn statement to the Applicant that specifically addresses her requests for each of the years in question. For example, he can say, "In 2012 I did not have any bank accounts, personal or business, or credit cards, in my name alone, with any third person jointly, or held in someone else's name in trust for me". Second, if the Respondent does have a bank account with CIBC or a credit card such as for The Bay, then he should provide copies of the statements for these accounts for each of the years in question or show that are either closed or inactive. Third, I suggested and the Respondent agreed to provide a credit report from one of the credit reporting services which dates back to 2012.

Additional Income and Expense Disclosure

[76] The Applicant asks for various other forms of disclosure which have as their objective, obtaining an understanding and clear picture of the Respondent's income (including the reasonableness of his deduction of business expenses) for child support purposes.

[77] I have already found that the Respondent has failed to comply with the minimum disclosure requirements as set out in the Order of Justice Zisman, the Family Law Rules, and the Child Support Guidelines, but his failure to comply with his disclosure obligations goes well beyond that. I find that the disclosure that has been provided by the Respondent is not adequate to allow either the Court or the Applicant to ascertain a true picture of his financial situation in order to give effect of the right of his children to have their financial needs met by the Respondent. I have made this finding based upon the issues I have already identified with the Respondent's disclosure and based upon the factors and considerations set out below.

[78] I begin with inconsistencies in his disclosure, inconsistencies that make it very difficult to trust the accuracy of his disclosure and to understand it. The most significant of these are as follows:

(1) On his sworn financial statements he deposes that he is self-employed and operating his business under the name of Dion Ron McClean, but then lists his monthly income under the section entitled "employment" rather than under the section entitled "self-employment";

(2) In the income section of his August 26, 2014, sworn financial statement he deposes that his monthly income from self-employment is $4,593. He shows no other amounts in that section, but then in the totals for that entire section he shows monthly income that is less - $4500 monthly or $55,000 annually. He gives no explanation for the discrepancy;

[79] With respect to the Three60 Legal Vendor Ledgers:

(1) The documents show an invoice date and number, the invoice being paid, its number and the date of the payment, as well as the cheque number. They also sow "totals for vendor: McClean, Dion", "totals – Beginning of Period", "transactions", and "totals – End of Period". No explanation is given as to what these mean;

(2) The Vendor Ledgers provided prior to March 18, 2015 also show corresponding amounts for each of the "totals". For example, there are amounts listed for "totals – beginning of the period", "Transactions" and for totals – End of period". On the Vendor Ledgers provided with the March 18, 2015 disclosure, the only totals for which amounts are listed is for "Transactions" on earlier ones there are amounts for each of the three types of totals. Again, no explanation is given for what these are or mean and why there is a difference between the earlier ledgers and the ones given on March 18, 2015.

[80] The Legal Aid Summary Statements are also not the same. The ones attached to the August 26, 2014 financial statement say "GRAND TOTAL" and all of the others say "GRAND TOTAL – (Total Amt.)". The discrepancy suggests that these may not be print-outs directly from the LAO Portal, but, rather, documents prepared manually by the Firm of which the Respondent is an associate or the Respondent himself. It may be that Legal Aid changed the wording on the portal. The point is, how is the Applicant to know if the Respondent simply attaches these and gives no further information or explanation as to what they are and how they were created?

[81] As I noted above, the amounts shown for gross business income on the 2013 return do not match the amounts that the Vendor Statement and Legal Aid Summary show were paid to the Respondent in 2013, either individually or together, suggesting an error somewhere or unreported expenses or income. The chart below illustrates this.

Source	2013
"Transactions" or Payments made to him by the Firm	$18,637.43
Payments made by Legal Aid	$34,046.77
"Transactions" or Payments made to him by the Firm plus LAO payments to him	$42,704.43
Notice of Assessment	$33,235.00
Income Tax Return – Line 150	$33,235.36
Income Tax Return – Gross Business income	$46,623.18
Income Tax Return – business expenses including deduction for use of vehicle and CCA	$13,387.82
Income Tax Return – net Business income	$33,235.36

[82] The Respondent offers no explanation for the irregularities and discrepancies in this disclosure.

[83] The order I make below is more expansive than the order the Applicant requested. As authority for exercising my discretion to make a more expansive order, I rely upon the rules and provisions noted above in the Law section as these clearly empower me to deal with the Respondent's non-compliance by ordering the production of necessary documents. In addition, however, I rely upon my duty to promote the primary objective set out in Rule 2 and specifically upon the powers conferred upon me by Rules 1(6) and 1(8) to make such order as the Court considers appropriate and necessary for a just determination of the matter, on any conditions that the Court considers appropriate. In my view, too much time and money has been spent on the disclosure issues and, further, as I advised the parties at the hearing of the motion, a more expansive and specific order is needed in order to get the Applicant the type of information that she needs to understand and determine the Respondent's income for child support purposes.

LEAVE TO BRING MOTION TO STRIKE PLEADINGS

[84] At the hearing of the motion, the Applicant asked the Court to consider making an order that allows the Applicant to bring a motion to strike the Respondent's pleadings in the event that he fails to comply with my order. For the reasons set out below, I grant that request.

[85] In the Court's view, the game it is beginning to look like the Respondent is playing is one of "Hide and Seek". While there was a time when such a litigation strategy was commonly used, such games and litigation strategy has not been tolerated in family law for decades; fly in the face of the spirit and primary objective of the Family Law Rules and Child Support Guidelines; and certainly have no place in cases where the right of a child to be supported financially is at issue.

[86] What makes the Respondent's disclosure transgressions particularly egregious is that he is both an Officer of the Court and a family law lawyer. As a family lawyer, he has a duty to promote the prime directive set out in Rule 2 of the Family Law Rules; and, both the Court and the Applicant are entitled to assume that he knows the Rules, the law (legislation and jurisprudence), the extent of his disclosure obligations, and that a litigation strategy of "Hide and Seek" is unacceptable.

[87] As a member of the Bar and as an Officer of the Court, he has a heightened obligation (one clearly set out in the Rules of Professional Conduct), and the Court is entitled to expect him to be honest, forthcoming, candid, to behave in a way that fosters respect for the profession and the law, not to mislead the Court, the Applicant or her counsel and not to engage in sharp practice. While I make no finding at this time that he has engaged in sharp practice, acted in bad faith or acted in a manner that contravenes the Rules of Professional Conduct, his behaviour thus far appears to be moving in that direction.

[88] I find that the Respondent has acted unreasonably by failing to make timely, complete and full disclosure and by repeatedly failing to follow orders and the Family Law Rules. I further find that, in so doing, he has prevented the Applicant both from being able to assess the merits of pursing the financial relief she seeks; from properly preparing her case and obtaining relief in a timely fashion; and has put her to the unnecessary expense associated with making repeated requests for disclosure both in and out of court, including this motion.

[89] This is not the first time that the Court has found the Respondent's behaviour to have fallen below what is expected of him, that he has wasted the Applicant's and the Court's time. On August 29, 2015, Justice Zisman noted in her Endorsement as follows:

I wish to note that despite Mr. McClean not following the orders that were made and deliberately misleading representations to the Court on August 12, 2014, regarding his ability to obtain the children's passports immediately (that day) nevertheless the passports have been filed and are being released and all original documents returned to Ms. Henderson. It is unfortunate that Mr. McClean has wasted the Court's time and Ms. Henderson's time.

[90] Taking all of the foregoing into account, as well as the history of the Respondent's repeated failure during my time as the case management judge to abide by requirements and timelines set out in the Family Law Rules and in my orders, and his arrival at the hearing of this motion, yet again, with materials that would result in an ambush of the Applicant, I am of the view that the order that the Applicant has asked for is necessary, appropriate and just.

ORDER

[91] On consent, the Respondent shall provide to the Applicant, within 30 days, the following:

(a) A copy of the Respondent's Application for a car loan from Honda Canada Finance in or about 2010;

(b) A copy of the invoice for the airline ticket and accommodation arrangements for the Respondent's travels from Thursday January 22, 2015 to Monday January 26, 2015, including the date such booking and accommodation was made;

(c) A credit report obtained from Equifax, TransUnion, or such similar reputable company.

[92] On a contested basis, the Respondent shall provide to the Applicant the following:

(a) By April 27, 2015, complete copies of his Notices of Assessment and any Notices of Reassessment for 2011, 2012, and 2013;

(b) By April 27, 2015, a complete copy of his 2011 income tax return together with all schedules, information slips, Statements of Professional and Business Activities and any other attachments filed with his return for 2011;

(c) By May 5, 2015, a complete copy of his 2014 income tax return together with all schedules, information slips, Statements of Professional and Business Activities and any other attachments filed with his return for 2014; and he shall provide the Applicant with his Notice of Assessment for 2014 within 5 days of receipt;

(d) By April 27, 2015, copies of all credit card statements from the Respondent's personal and business accounts for 2012, 2013, 2014 and 2015, and, if he did not have any during any of those periods, a specific sworn statement to that effect;

(e) By April 27, 2015, copies of all statements from the Respondent's personal bank or other financial institution accounts (including any joint bank accounts) for 2012, 2013, 2014 and 2015; and, if he did not have any during any of those periods, a specific sworn statement to that effect;

(f) By April 27, 2015, copies of the Respondent's monthly bank reconciliation for his General Account from January 1, 2012 to the present with monthly bank statements, cheques and deposits (hard copy or copy of electronic records of same); and, if he did not have a General Account at any time during any of those periods, a specific sworn statement to that effect;

(g) By April 27, 2015, a copy of the Respondent's invoices from January 1, 2014 to December 31, 2014, showing the total hours worked and the rate charged for services rendered through his business/professional practice; and, if he did not issue any invoices during any of those periods, a specific sworn statement to that effect;

(h) By April 27, 2015, A copy of the Respondent's invoices from January 1, 2015 to the present, showing the total hours worked and the rate charged for services rendered through his business/professional practice; and, if he did not have any during any of those periods, a specific sworn statement to that effect;

(i) By April 27, 2015, and with respect to financial statements for 2015, the Respondent is to either prepare and provide to the Applicant interim year-to-date financial statements or prepare and attach to a sworn affidavit a statement showing all business income and business expense incurred from January 1, 2015 to April 30, 2015. The year-to-date list of expenses shall include, as attachments, copies of all documents in the Respondent's possession or control or upon which he relies to substantiate the business expenses he shows his sole proprietorship as having;

(j) By April 27, 2015, the Respondent shall provide to the Applicant a statement sworn by him setting out the particulars, including value, of all assets, debts and liabilities of his sole proprietorship held in 2012, 2013, 2014 and 2015;

(k) By April 27, 2015, the Respondent shall provide to the Applicant a statement sworn by him which answers the Applicant's request for a statement showing a breakdown (for each of these same years, of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the Respondent does not deal at arm's length in each of the years, 2013, 2014 and 2015;

(l) By April 27, 2015, the Respondent is to provide the Applicant with a copy of all documentation that he has in his possession or control or relies upon to support the amounts he claims as business expenses or deductions from his gross business income as shown on his Statement of Professional and Businesses Activities filed with his income tax returns for the tax years, 2012, 2013, 2014.

[93] By April 27, 2015:

(a) An affidavit from a representative of H & R Block attaching a complete copy of what was prepared by H&R Block for the Respondent's tax filing for 2013 and certifying that the attached copy is identical to what was filed by them on behalf of the Respondent for the 2013 taxation year. If they only prepared it but did not file the document with CRA, the affiant is to depose to this;

(b) An affidavit from a representative of whichever company or individual who prepared and filed the Respondent's 2012 income tax return, attaching a complete copy of what was prepared by the company or the individual for the Respondent's tax filing for 2012 and certifying that the attached copy is identical to what was filed by them on behalf of the Respondent for the 2012 taxation year. If the company or individual only prepared it but did not file the document with CRA, the affiant is to depose to this;

(c) If the Respondent is the person who filed his income tax return for 2012 and 2013 and/or if the Respondent is the one who prepared his 2012 and 2013 income tax returns, he shall submit an affidavit sworn by him attaching a complete copy of what was prepared by him and/or filed by him with CRA for the 2012 and 2013 taxation and certifying that the attached copy is identical to what was filed by them for each of these taxation years;

(d) If the Respondent or H&R or any other company or individual who prepared and filed his income tax return for 2012 and 2013 cannot reproduce a replica of what was prepared and filed for the Respondent for 2012 and 2013 taxation years then the Respondent shall submit a report/letter from a professional with expertise in income tax filing requirements, such as a representative from H&R Block or accountant or lawyer with expertise in Tax Law, advising why a replica cannot be produced and as well, explaining all of the discrepancies identified in this decision as problems with the 2012 and 2013 income tax return;

[94] By April 27, 2015, the Respondent will provide to the Applicant a letter written by a Principal at the Firm Three60 Legal that provides the following information and documentation:

(a) A description and a copy of any contract, memorandum or other document setting out the terms of the Firm's engagement of the Respondent and setting out any fee-splitting arrangement, arrangements for bonuses or additional remuneration;

(b) A statement indicating whether the Respondent is permitted to offer his services as a lawyer with any other law firm including under his own name, operating as a sole practitioner;

(c) A statement and documentation setting out all amounts paid to the Respondent by the firm in 2012, 2013, 2014 and to date in 2015;

(d) A copy of the Vendor Ledger for the Respondent for 2012, 2013, 2014 and 2015 year to date;

(e) A copy of the invoices referred to in the Vendor Ledger for 2012, 2013, 2014 and 2015 year to date referred to on the Ledger as the and upon which the Firm bases the payments reflected thereon as having been made by the firm of the Respondent;

(f) A statement identifying whether any work done by the Respondent with respect to a Certificate issued by Legal Aid is billed by the Firm or the Respondent and if by the Firm, whether fees collect on this account are paid by Legal Aid to the firm or the Respondent, what portions of any payments made by LAO for work performed by the Respondent and billed is paid to the Respondent or retained by him as opposed to the firm, and whether such amounts are included in the totals found in the Vendor Ledger or are payments made in addition to those amounts;

(g) A statement and documentary proof of the Respondent's total billable and non-billable hours for 2012, 2013, 2014 and 2015 to date;

(h) A statement and documentary proof of the Respondent's gross billings as well as the amounts collected on account of those billings for 2012, 2013, 2014 and 2015;

(i) A statement setting out any billable hours of billable fees or billed and collected fees targets for the Respondent set by the Firm in 2012, 2013, 2014 and 2015;

(j) The Respondent's hourly, block fee, premium or other billing rate in 2012, 2013, 2014 and 2015;

(k) By April 27, 2015, an affidavit sworn by the Respondent in which he identifies all of his sources of income in 2012, 2013, 2014 and 2015 year to date and the total amounts he received in each of those years from each of these sources.

[95] Should the Respondent fail to provide any of the forgoing or should he fail to do so within the timelines set out in this Order, without leave of the Court obtained in advance and on notice to the Applicant, the Applicant has leave to bring a motion, on notice to the Respondent, to have his pleadings struck, or to avail herself of any other remedies for non-compliance that may be available.

[96] If either party seeks costs of this motion, the party seeking costs is to forthwith notify the other party of this and the amount he or she seeks. Thereafter, Ms. O'Rourke and the Respondent are to try and resolve the issue by June 1, 2015, through negotiations. If they cannot, they shall attend at Court on the next scheduled date thereafter, each with a bill of costs provided to the other and sent to the Court via the Judicial Secretary, Pam Jazvac, no later than 4:30 p.m. two days prior to the scheduled court date, and both parties are to come to Court prepared to make oral submissions with respect to the quantum of costs.

[97] This matter is adjourned to May 8, 2015 at 9:00 a.m. to deal with the issue of costs and for settlement as directed in my order of February 12, 2015.

[98] Due to the fact that the Applicant will not receive the bulk of the disclosure ordered herein until April 27, 2015, she has leave to serve her settlement conference brief by 5 p.m. on May 6, 2015 and to file it with the court by 5 p.m. on May 7, 2015.

Released: March 25, 2015

Signed: "Justice Victoria Starr"