Court File and Parties
Ontario Court of Justice
Date: July 25, 2017
Court File No.: Toronto DFO 13 10997
Between:
Rachel Rushanski-Rosenberg Applicant
— And —
Parry Rosenberg Respondent
Before: Justice E.B. Murray
Costs Decision released on: July 25, 2017
Counsel:
- Annie Noa Kenet — counsel for the applicant
- Angelina Macri — counsel for the respondent
Decision
MURRAY, E.B. J.:
[1] This case involves a motion by the Respondent (former husband) to change the terms of a separation agreement obligating him to pay spousal and child support, including special and extraordinary expenses. The Respondent says that although he formerly had a substantial income, his income has plummeted because he is unable to obtain employment.
[2] The motion was commenced in December 2014. Service was completed in April 2015. In the Applicant's response to the motion, sworn December 17, 2015, she requested full details and particulars of any corporate interests held by the Respondent and of the value of his interest in his mother's estate.
[3] The Applicant's lawyer pursued this request through letters, and then a motion before the case management judge, Justice Cohen, on April 7, 2016. An order was made for that disclosure. It was not until February 15, 2017 that the Respondent provided disclosure of his interest in 5 corporations, a minority interest of between 3-33%, all resulting from his inheritance from his mother. The other shareholders are beneficiaries of his mother's estate. This led to a request by the Applicant on February 28, 2017 for information about these corporations, including disclosure of any shareholder agreements, financial statements and corporate tax returns.
[4] The Respondent replied March 28, 2017 that he would not furnish this disclosure because of the privacy interests of other shareholders.
[5] The Applicant's solicitor pointed out that the Respondent himself was entitled under law to receive all the documents requested. Referencing DiLuca v. DiLuca, she argued that if a third party with information relevant to the case refused to disclose, that the Respondent had an obligation to bring a motion to access that information. She suggested a confidentiality agreement, if that was necessary to assist the Respondent in his dealings with other shareholders.
[6] The Respondent did not agree to disclose, prompting a 14B motion to Justice Cohen from the Applicant. Justice Cohen ruled that if disclosure was not agreed upon, the issue would have to be argued in court.
[7] The issue was before me on July 10, 2017. Counsel agreed on the terms of a confidentiality agreement and of a disclosure order. The only issue remaining was the costs of the motion for disclosure. The Applicant's lawyer submits that this motion asks for basic, garden-variety disclosure, and should not have been necessary. She asks for costs of $3,000.
[8] The Respondent's lawyer counters that the disclosure sought was irrelevant, as the issues in the case are child and spousal support and not property. She says that it is the Respondent's income, not his assets, that are relevant, and that his income from those assets is disclosed in his tax returns. She says that despite the fact that this disclosure is irrelevant, the Respondent agreed to provide it so that he could get on with his motion to change. She says that no costs should be ordered.
[9] The disclosure sought is not mandated by the Guidelines or the Rules. The Guidelines provide that a controlling shareholder has disclosure obligation; minority shareholders are not dealt with[1]. The Rules provide that a party with an interest in a privately held corporation shall provide certain disclosure in claims under Part I of the Act, but not in cases involving only support claims[2].
[10] Having said that, I do not find that the disclosure sought is irrelevant to cases in which child and spousal support is the issue.
Although income is a major factor in the assessment of spousal support, it is not the only factor. A party's resources are also relevant. The Family Law Act directs a court determining quantum and duration of spousal support to consider all the parties' circumstances, including his and her "assets and means", now and in the future[3].
A party's assets also have relevance to some issues in child support cases. In determining whether a proposed special expense is "reasonable" the court is directed to consider the "means" of the parents and the child[4].
Information available from the disclosure sought could be relevant in this case, for example, to assessing the Respondent's ability to use his assets to generate income.
[11] The request for disclosure was reasonable. It should not have taken 18 months for the Respondent to agree. The work by the Applicant's lawyer on the motion material was considerable, over 6 hours. Her rates are reasonable. I order that the Respondent pay to the Applicant the costs of the motion, fixed at $3,000 inclusive of H.S.T. This order is enforceable as support.
Released: July 25, 2017
Signed: Justice E.B. Murray
Footnotes
[1] S. 21(1)(f)
[2] R. 13 (3.3) 8.
[3] S. 33 (9) (a) & (b)
[4] S. 7 (1)