Court Information

Court of Appeal for Ontario

Date: May 1, 2018

Docket: M49029 (C64766)

Motions Judge: Brown J.A.

Parties

Between

Brittany Beaver Respondent (Moving Party)

and

Kenneth Hill Appellant (Responding Party)

Counsel

Andrew Lokan, for the responding party

Martha McCarthy, for the moving party

Heard and released orally: April 30, 2018

Endorsement

THE ISSUE

[1] The issue before me on this motion is a narrow one. The applicant, Brittany Beaver ("Mother"), filed an affidavit in support of her motion in this court for advance funding in respect of the appeal of the respondent, Kenneth Hill ("Father"), from the order of Chappel J. dismissing his challenge to the jurisdiction of Ontario courts to adjudicate Mother's claims against him for custody, child support, and spousal support.

[2] Father wants to cross-examine Mother on her affidavit; she opposes.

BACKGROUND FACTS

[3] Mother and Father had a relationship from 2008 until 2013, when they separated. Their child was born in 2009.

[4] Mother, Father and child are Haudenosaunee. Father lives on the Six Nations Reserve, along the Grand River, near Brantford; Mother and child live off it.

[5] In late 2015, Mother brought an application for, inter alia, custody, child support and spousal support. Father opposed by seeking an order declaring that Ontario courts lack jurisdiction to determine any support obligations he might have to Mother and his child. Chappel J. dismissed his motion by order dated December 8, 2017.

[6] Father has appealed. His appeal is scheduled to be heard by this court in the last week of June.

[7] No interim support or custody order has been made as of this date. Father has been making ex gratia monthly payments to Mother of $10,000.

[8] Mother has brought a motion in this court seeking an order that Father pay her advance costs for the appeal in the amount of $100,000, together with certain relief in respect of the contents of the appeal record. In support of her motion, Mother filed an April 4, 2018 affidavit which, in part, describes her financial situation.

[9] According to Mother's April 4, 2018 Financial Statement, her annual income is slightly less than $20,000. According to Father's February 3, 2016 Financial Statement, his annual net income was $2.109 million.

[10] Pursuant to the April 20, 2018 order of Fairburn J.A., Mother's motion for advance costs will be heard in a few days, on May 2, 2018. Her order directed that if the parties could not agree on whether Mother could be cross-examined, that issue would be argued today. Time for any cross-examination has been scheduled for tomorrow. Father's counsel anticipates the cross-examination will not exceed 90 minutes in length.

[11] Father has served Mother with a notice of examination, which requires Mother to bring to the examination "full copies of your retainer agreements(s) with counsel, records of all amounts paid to counsel, and all communications…relating to payment arrangements with counsel." In para. 16 of his Supplementary Submissions, Father identifies the areas on which he wants his counsel to cross-examine Mother: (i) her retainer agreement with her counsel; (ii) payments she has made to counsel; (iii) efforts she has made to obtain legal funding from other sources; (iv) the amount she is prepared to contribute to fund her response to the appeal; and (v) the basis for her request for $100,000 in advance costs.

[12] Counsel confirmed that, as of today, neither the federal nor provincial government has expressed an intention to participate in Father's appeal, notwithstanding the service of two Notices of Constitutional Question.

THE POSITIONS OF THE PARTIES

[13] Father submits he is entitled, as of right, to cross-examine Mother on the affidavit she filed in support of her motion for advance costs.

[14] Mother's position regarding Father's request to cross-examine her is set out, in part, in her counsel's letter of April 13, 2018: (i) Father was provided with her financial disclosure years ago and never challenged her evidence; (ii) Mother's limited financial means "have been, as they should be, non-controversial"; (iii) "there is no legitimate debate that [Father] is far, far wealthier than [Mother] and that there is no level playing field between the parties in this case"; and (iv) the "proposed cross-examination would be contrary to the primary objective and the principles established to deal with family law cases."

[15] Mother also submits that Father should not be granted relief from this court while in breach of a court order.

[16] The order in question is that made by Sloan J. on January 2, 2018 (the "Disclosure Order"). On its face, the Disclosure Order states that it was made on a Form 14B basis, pursuant to Rule 14 of the Family Law Rules, O. Reg. 114/99. It requires Father within 14 days to serve a full and properly completed Financial Statement and to produce specified documents about his finances. As well, para. 2 of the order states: "If the [Father] claims he cannot provide any piece of disclosure requested, the [Father] shall, within the same 14 days, explain by affidavit why he cannot provide that information and estimate when he shall be in a position to provide it."

[17] Father moved before this court to stay the Disclosure Order. Roberts J.A. dismissed his motion on March 26, 2018. To date, Father has not made the ordered disclosure. Nor has he served an affidavit to explain why he cannot provide disclosure, as required by para. 2 of the Disclosure Order. Instead, Father has moved to vary the scope of and timelines in the Disclosure Order. That motion will be returnable sometime during the week of May 22, 2018.

ANALYSIS

[18] Two competing principles are at play in respect of Father's request for an order compelling Mother to attend tomorrow for cross-examination on her affidavit.

[19] On the one hand, there is a prima facie right of a party to cross-examine an affiant. However, the court retains an inherent power to control its own process. Consequently, in cases where it appears to be in the interests of justice, a court may refuse to permit such cross-examination or restrict its scope: Re Ferguson and Imax Systems Corp., 47 O.R. (2d) 225 (Div. Ct.), at pp. 235-236; leave to appeal to SCC refused, 19664 (February 28, 1986).

[20] On the other hand, a court may decline to entertain a request by a party to invoke its assistance where the party is not in compliance with an order of the court: Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346, at paras. 4 and 6.

[21] In the present case, Father has not complied with the Disclosure Order. He has not made any documentary production, nor has he served an affidavit explaining why he cannot or when he will. While Father is seeking to vary the Disclosure Order, that does not change the fact that he has not complied with it and that Roberts J.A. refused to stay its operation.

[22] Full and prompt financial disclosure is a key element of this province's family law regime. The failure to comply with court-ordered disclosure is a most serious matter.

[23] In such circumstances, I am not prepared to accede to Father's request for an order compelling Mother to attend for cross-examination on her affidavit.

[24] In dismissing Father's request for an order compelling Mother's attendance for cross-examination, I make no comment on the adequacy of the evidence Mother has put forward in her affidavit or the evidentiary implications of Mother's refusal to be cross-examined on her affidavit. Those are issues that fall within the purview of the judge who will hear Mother's motion for advance costs in a few days.

[25] The costs of today's motion and attendance are reserved to the judge hearing the advance costs motion.

"David Brown J.A."