Jansen v. DiCecco, 2023 ONCJ 212

CITATION: Jansen v. DiCecco, 2023 ONCJ 212

DATE: May 23, 2023

COURT FILE NO. D199/00

ONTARIO COURT OF JUSTICE

B E T W E E N:

JANET JANSEN

JONATHAN KORMAN, for the APPLICANT

APPLICANT

• and -

DAVID DICECCO

RESPONDENT

ACTING IN PERSON

HEARD: MAY 16, 2023

JUSTICE S.B. SHERR

ENDORSEMENT

Part One – Introduction

[1] Within her amended motion to change child support, the applicant has brought a motion to strike the respondent’s response to motion to change and proceed to an uncontested trial. She also seeks further financial disclosure from the respondent and $5,000 for her costs of this motion.

[2] The respondent asks that the applicant’s motion be dismissed.

[3] The court relied on the affidavits set out in the mother’s notice of motion, including her affidavits sworn on April 12, 2023 and May 11, 2023. The respondent did not serve responding material. He made submissions on the motion.

Part Two – Brief background facts

[4] The parties have a child who is now 23 years old.

[5] The respondent is a businessman and owns and operates a landscaping business.[^1]

[6] On July 31, 2003, on consent, Justice Harvey Brownstone ordered that the respondent pay the applicant child support of $700 each month, based on an imputed annual income of $89,100. The respondent was also ordered to pay $305 each month towards the child’s special expenses, pursuant to section 7 of the Child Support Guidelines. Child support arrears were fixed at $6,200.

[7] The applicant issued a motion to change child support on June 19, 2019. She sought an order increasing child support based on an imputed annual income to the respondent of $250,000, starting on December 1, 2018, and asked to fix support arrears at $263,412 as of December 1, 2018, based on a retroactive recalculation of the respondent’s income and support obligations back to 2003.

[8] The respondent brought a response to motion to change seeking to terminate child support.

[9] On January 16, 2020, the parties consented to an order that the respondent provide the applicant with disclosure of his personal and corporate tax returns for the years 2015 to 2019.

[10] On September 18, 2020, the case management judge, Justice Roselyn Zisman, endorsed that the bulk of the financial disclosure had been provided – only three items were outstanding. Justice Zisman made a further financial disclosure order that the respondent provide a copy of any mortgage or credit card application since 2015.

[11] On July 29, 2021, Justice Zisman ordered costs of $400 against the applicant for a wasted court attendance. In her endorsement, Justice Zisman expressed concern about how long the motion to change had been outstanding and the need to move it to a trial.

[12] On September 23, 2021, the applicant amended her motion to change.

[13] On September 27, 2021, after a contested motion, Justice Zisman terminated child support.

[14] On October 22, 2021, Justice Zisman released written reasons and ordered the applicant to pay the respondent his costs thrown away of $7,500, arising out of the applicant’s late amendment of her motion to change.

[15] On December 15, 2021, Justice Zisman ordered the respondent to provide further disclosure as set out in the applicant’s case conference brief. Justice Zisman endorsed that if any of the disclosure was not available, the respondent was to outline in an affidavit what efforts were made to obtain it.

[16] On March 31, 2022, Justice Zisman gave the respondent until May 16, 2022 to serve the applicant with his credit card statements from 2016 onwards[^2], his corporate tax returns from 2013 to 2015 and his corporate financial statements for 2020 and 2021.

[17] On October 31, 2022, Justice Zisman dismissed a motion brought by the respondent to dismiss the applicant’s motion to change. She ordered that the applicant should submit any further disclosure requests by November 7, 2022 and that the respondent should respond to the request by December 7, 2022. On November 15, 2022, on consent, Justice Zisman extended the timelines.

[18] The applicant sought her costs of the October 31, 2022 motion. The respondent responded by seeking his costs of a June 29, 2022 settlement conference that had been held before Justice Zisman. Justice Zisman released written reasons on December 14, 2022 and determined that each party should bear their own costs of these appearances. She found that while the applicant was successful on the October 31, 2022 motion, she had acted unreasonably and had wasted time on the June 29, 2022 settlement conference.

[19] On November 18, 2022, the applicant submitted a disclosure request to the respondent pursuant to the October 31, 2022 order. The respondent has not responded to this request.

[20] The respondent’s counsel was removed from the record, on her motion, on December 28, 2022. The respondent has acted on his own behalf since then.

[21] On January 13, 2023, a date was set for this disclosure and enforcement motion.

[22] On March 15, 2023, the motion was adjourned at the applicant’s request. New filing timelines were ordered.

Part Three – The enforcement motion

3.1 Positions of the parties

[23] The applicant claims that the respondent has breached the December 15, 2021 disclosure order of Justice Zisman. She listed at paragraph 32 of her April 12, 2023 affidavit what she believes is the outstanding disclosure from that order.

[24] The applicant also claims that the respondent has breached the October 31, 2022 order of Justice Zisman by refusing to respond to her written request for additional disclosure.

[25] The applicant claims that this is part of a pattern by the respondent to obfuscate his financial affairs. It is her position that the respondent made material misrepresentations that resulted in the incorrect amount of child support being ordered in July 2003. The applicant claims that the respondent is:

a) Hiding income.

b) Earning unreported cash income.

c) Placing assets and operating businesses in the names of third parties to avoid his child support obligations.

d) The beneficial owner of at least three pieces of land that he has not disclosed.

f) Improperly running significant sums of personal expenses through his businesses.

g) Operating an illegal waste disposal business to hide his income.

h) Subleasing land he owns.

[26] The applicant claimed that the respondent split his income with his former spouse for many years before they separated.

[27] The respondent used his time for submissions to insult the applicant and her counsel. He claimed that “they were money-grubbing scabs as humans” and that “their disgusting words of his lifestyle made him sick to the bone”.

[28] The respondent did not deny that the disclosure listed by the applicant remained outstanding, although he disputes that he is required to provide disclosure back to 2003. He did not deny that he has not responded to the applicant’s disclosure request made on November 18, 2022. He asked that the case be sent to trial in two years. He asked that the applicant’s motion be dismissed.

3.2 Legal considerations

[29] Subrule 1 (8) of the Family Law Rules (all references to rules in this decision are to the Family Law Rules) sets out that if a person fails to obey an order in a case, the court may make any order it considers necessary for a just determination of the matter, including:

a) An order for costs;

b) An order dismissing a claim;

c) An order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit or any other document filed by a party;

d) An order that all or part of a document that was required to be provided but was not, may not be used in the case:

e) If the failure to obey was by a party, an order that the party is not entitled to any further order from the court, unless the court orders otherwise;

f) An order postponing the trial or any other step in the case; and

g) On motion, a contempt order.

[30] In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice. See: Purcaru v. Purcaru, 2010 ONCA 92, at para. 47.

[31] The decision-making framework for addressing a breach of a financial disclosure order was set out in paragraphs 44 to 49 of Mullin v. Sherlock, 2018 ONCA 1063 as follows:

Decision-making Framework

[44] First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.

[45] Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:

 the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;

 the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;

 the extensiveness of existing disclosure;

 the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and

 any other relevant factors.

[46] Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception.

[47] If the judge decides to strike, as in the case under appeal, Rule 1(8.4) becomes applicable. As mentioned, this subsection provides that certain consequences apply unless a court orders otherwise. Accordingly, a party is not entitled to participate in a case in any way unless the court orders otherwise. This provision gives the judge the ability to frame the procedural consequences to a party in default. In making this determination, consideration should be given to whether the consequence is responsive to the breach and whether it achieves a just outcome.

[48] If the judge decides to strike, Rule 1(8)(c) does not refer to striking “pleadings”. Instead, it specifically distinguishes amongst striking out an application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party. Rule 1(8.4) addresses the consequences if an order is made striking an application, answer, motion to change or response to a motion to change. Ideally, when making an order under this subsection, the judge should specify what is being struck.

[49] The decisions to strike a document and to determine the parameters of trial participation are discretionary in nature, and as stated by Lang J.A. in Purcaru, at para. 50, are “entitled to deference on appeal when exercised on proper principles. The exercise of discretion will be

[32] In Roberts v. Roberts, 2015 ONCA 450, the court stated that the most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled. Financial disclosure is automatic. The court indicated that the power to strike pleadings is to be used sparingly and only in exceptional cases. However, where necessary and appropriate, where a litigant chooses to ignore court orders and fails to follow the basic principles of family law litigation and no lesser remedy is available to redress the party’s failure, the court has the discretion to strike the claim.

[33] It would be superfluous to order that a party comply with an existing order. To order compliance does not add to or take away from the initial order. If there has been a breach, the appropriate step is to seek a remedy under subrule 1 (8). See: Varcoe v. Varcoe, 2014 ONSC 328.

[34] In exercising its discretion under subrule 1 (8), the court should consider the primary purpose of the rules set out in rule 2 – to deal with cases justly.

3.3 Analysis

[35] The respondent has breached the December 15, 2021 order of Justice Zisman.

[36] There is a dispute as to whether that disclosure order extends the respondent’s disclosure obligations back to 2003. However, there is no issue that the order required disclosure back to 2014 and that significant disclosure ordered back to 2014 remains outstanding. This is outlined in the applicant’s April 12, 2023 affidavit.

[37] The respondent failed to provide an affidavit, as ordered, explaining why he has been unable to produce any of the outstanding disclosure.

[38] The respondent provided no justification for breaching the order, although he appeared to place some blame on his former counsel.

[39] The respondent has also breached the October 31, 2022 order of Justice Zisman. The applicant made her additional disclosure requests within the timeline ordered. The respondent has chosen to ignore the requests.

[40] The court must next determine the appropriate remedy for the breaches of the two orders. The available remedies are set out in subrule 1 (8).

[41] The court has considered the following:

a) The outstanding disclosure back to 2014 is important and significant.

b) The respondent has acted unreasonably by breaching the December 21, 2021 disclosure order and by failing to respond to the applicant’s additional disclosure requests as ordered by Justice Zisman on October 31, 2022.

c) The respondent has provided partial financial disclosure.

d) The applicant obtained a financial disclosure order on January 16, 2020 that appears to have been substantially complied with.

e) The applicant waited until the December 21, 2021 court appearance to seek more extensive financial disclosure from the court.

f) The applicant has been sanctioned with costs for delaying the case or for wasting court appearances on three occasions. One of the costs orders was for $7,500.

g) This is the first enforcement motion brought by the applicant.

h) These are not extraordinary circumstances that warrant striking the respondent’s response to motion to change, particularly on a first enforcement motion.

i) This case has been before the court for almost four years and requires a resolution.

j) The court has other options pursuant to subrule 1 (8) to sanction the respondent’s breaches of court orders short of striking his response to motion to change.

k) The trial judge also has the option of drawing an adverse inference against the respondent for his failure to comply with court orders. The self-employed have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade (2002) 2002 CanLII 2806 (ON SC), 31 R.F.L. 5th 88 (SCJ). This includes the obligation to present information in a user-friendly fashion. A recipient should not have to incur the expense to understand it. See: Reyes v. Rollo, 2001 CanLII 28260 (SCJ).

[42] The court finds that it would not be just in these circumstances to strike the respondent’s response to motion to change. Instead, the court will sanction his breaches of court orders by making a costs order.

[43] The respondent is also cautioned that there is a very good chance that the trial judge will draw an adverse inference against him, and impute an annual income to him that he will be very unhappy with if he remains in non-compliance with court orders at trial.

Part Four – The mother’s request for further financial disclosure

4.1 Legal considerations

[44] The obligation to make full and frank financial disclosure in a family law case is an immediate and ongoing obligation. See: Colucci v. Colucci, 2021 SCC 24, at paragraph 42.

[45] At paragraph 44, in Aiello v. Aiello, 2023 ONSC 2176, Justice M.D. Faieta wrote about the importance of disclosure orders being proportional as follows:

Any demands for financial disclosure beyond the specific items that are required to be produced under the Child Support Guidelines and the Family Law Rules must be relevant and proportional to the issues in the case: Mawhinney v. Ferreira, 2023 ONSC 1357, at para. 12. In weighing whether a request for disclosure is proportional, consideration should be given to the burden that the request places on the disclosing party in terms of time and expense of producing the requested disclosure: Kovachis v. Kovachis, 2013 ONCA 663, at para. 34. Also see Boyd v. Fields, [2006] O.J. No. 5762, at paras. 11-14.

4.2 Analysis

[46] The applicant listed 101 line items of disclosure that she seeks from the respondent in her notice of motion. Some of these categories are for discrete items. However, many of these line items are for voluminous disclosure, such as requests for all business and personal bank statements and credit card statements going back to 2003.

[47] The applicant’s disclosure requests mirror the information sought by a forensic accountant she retained to assess the respondent’s income.[^3]

[48] The disclosure sought by the applicant falls into two categories. The first category is for expanded disclosure going back to January 1, 2014 and the second category is for extensive disclosure going back to 2003. The court’s treatment of these categories will be different.

[49] The applicant has established an evidentiary basis for ordering more extensive disclosure than has already been ordered for the period going back to January 1, 2014.

[50] The court agrees with the applicant that the respondent has not provided a clear picture of his financial affairs. He has not explained how he has accumulated his wealth based on his stated annual income.

[51] The applicant has provided compelling evidence that the respondent has not fully divulged his assets, is likely earning cash income and may have interests in businesses and properties that are registered in the names of persons with whom he does not have an arm’s length relationship. He may be earning undisclosed rental income and may have a waste disposal business.

[52] The respondent maintains that his income has not exceeded the $89,100 imputed to him in 2003. However, in 2012, the respondent consented to his income being imputed annually at $150,000 in a proceeding with his ex-spouse in the Superior Court of Justice in Newmarket (the Newmarket case)

[53] At times, the respondent has failed to provide the salient portions of the disclosure ordered. For instance, on September 18, 2020, he was ordered to provide his complete mortgage and credit card applications since 2015. The respondent disclosed the terms and conditions of the mortgage applications but he did not disclose the financial statements and affidavits that he would have been required to provide to the lenders about his income and assets. These glaring omissions support the applicant’s narrative that the respondent may be hiding income.

[54] The respondent provided no evidence on this motion refuting the applicant’s allegations.

[55] The respondent’s breaches of the disclosure orders inform the court that his financial affairs should be more closely scrutinized.

[56] Much of the disclosure sought by the applicant are questions posed by her forensic accountant in response to the disclosure that has already been provided by the respondent. Most of these questions are reasonable, important, proportional and should be answered.

[57] Some of the disclosure requests by the applicant duplicate what the respondent has already been ordered to provide starting in 2014. It is unnecessary to order the outstanding disclosure to be produced again.

[58] Some of the applicant’s disclosure requests in this first category were overreaching and disproportional and will not be ordered. However, this order will require the respondent to make substantial additional disclosure for this category starting on January 1, 2014. This disclosure should be more than sufficient for the applicant to either properly assess the respondent’s income or to establish an evidentiary basis for the imputation of substantial hidden income.

[59] The respondent will be ordered to provide the applicant with the disclosure set out in Schedule A to this endorsement within 90 days.[^4] The court recognizes that this is a tight time-frame. This order will require the respondent’s immediate attention. However, this is the respondent’s own fault. If he had not ignored the applicant’s November 18, 2022 disclosure request, he would have had much more time to gather this information.

[60] The second category concerns disclosure requests going back from before January 1, 2014 to 2003. This category will be treated differently.

[61] Just because a party chooses to seek a child support adjustment going back 20 years does not mean that they will automatically be entitled to detailed financial disclosure for the entire period claimed. A 20-year disclosure request will usually not be considered proportional and reasonable.

[62] In this case, the interests of justice to do not warrant ordering the extensive disclosure sought by the mother for the period from 2003 to the end of 2013 for the following reasons:

a) When she issued her motion to change, she asserted that the respondent had been earning at least $250,000 annually and had been hiding income since before 2003.[^5] She should have brought a disclosure request for this category a long time ago.

b) Justice Zisman has found that the applicant bears a lot of the responsibility for the inordinate delay in this case and has made three costs orders against her.

c) Justice Zisman tried several times to move this case on to trial but the applicant was unprepared or changed lawyers. Justice Zisman noted that the applicant has had four lawyers in this proceeding.

d) This case has already consumed an inordinate amount of court resources and needs to be tried and completed. Making the disclosure order sought by the applicant would significantly delay this case, as the court would need to give the respondent additional time to locate and produce available documents going back that far.

e) There is a good chance, given the long passage of time, that much of the disclosure sought by the applicant is no longer available nor readily accessible.

f) The applicant’s theory is that the respondent is operating multiple business operations, many in cash. If this is true, most of the disclosure sought by the applicant will not clarify the respondent’s income from 2003 to the end of 2013. In fact, it would probably lead to more disclosure requests to make sense of what disclosure was provided. This would further delay the case.

g) If the applicant is able to establish that the respondent hid significant income between 2014 and 2023, either through the disclosure provided, or from an adverse inference being drawn arising from his failure to provide complete and comprehensible disclosure, there is a logical inference that the respondent was also hiding income between 2003 and 2013. She will not need extensive disclosure for the years 2003 to 2013 to establish this.

[63] However, certain disclosure for this category should be provided. The applicant attached excerpts from the respondent’s financial statement sworn in 2010 in the Newmarket case. In that financial statement, the respondent set out his net worth as of April 2005 - his date of marriage. Taken at face value, the respondent’s net worth increased by about $618,000 during a 32-month period from August 1, 2002 (based on his financial statement sworn in this case) and April 2005, without accounting for any increase in real estate or the value of his other businesses. This increase clearly cannot be supported based upon the respondent’s imputed annual income of $89,100 during that time.

[64] Similarly, the applicant points out that the respondent’s current disclosed net worth of just over 2.6 million dollars cannot be explained by his imputed annual income.[^6] This increase in net worth is despite the respondent having had to equalize his net family property in the Newmarket case. There may be a logical explanation for how the respondent accumulated his wealth, but he will need to provide this explanation, with supporting documentation, if he does not want substantial income imputed to him at trial.

[65] The court will order that the respondent provide an accounting to the applicant broken down by year, and supported by documentation, that clearly shows how his net worth was accumulated. How did his net worth go up $618,000 in the 32 months between 2002 and 2005, not accounting for real estate and business values? How did his net worth increase to 2.6 million dollars by March 2022? And how did his net worth increase from $890,000 on September 6, 2019 to 2.6 million dollars in only 2.5 years?

[66] The accounting to be produced by the respondent is to include the following:

a) A chart setting out his annual income each year since 2003.

b) A chart setting out by year since 2003:

i) The amount of any gift or loan received.

ii) The name of the source of the gift or loan.

iii) The dates of any payment of the loans.

c) Copies of all loan agreements since 2003.

d) All documentation showing the receipt of gifts or loans since 2003.

e) All documentation showing the payment of loans since 2003.

f) A chart setting out investment income earned annually since 2003, together with supporting documentation. This is likely available from his income tax returns.

g) The amount of his equalization of net family property payment to his ex-spouse in the Newmarket case.

[67] The respondent will have 90 days to produce this disclosure failing which it is probable that the trial judge will draw an adverse inference against him.

[68] The court puts the respondent on notice that if he fails to substantially comply with this order, or provide the outstanding disclosure back to January 1, 2014 that was ordered by Justice Zisman on December 31, 2021, the court may, at the next court appearance, enforce these orders, pursuant to clause 1 (8) (c) of the rules, by making an order that all or part of a document that was required to be provided but was not, may not be used in the case at trial.

[69] To be clear, this order, to the extent that it may be necessary, varies the order of Justice Zisman, dated December 21, 2021, regarding the disclosure required from the respondent from 2003 to the end of 2013.

Part Six – Costs

[70] The court has already determined that costs are the appropriate enforcement remedy pursuant to subrule 1 (8) to address the respondent’s breaches of the December 21, 2021 and October 31, 2022 orders of Justice Zisman.

[71] The applicant seeks costs of $5,000.

[72] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:

a) to partially indemnify successful litigants;

b) to encourage settlement;

c) to discourage and sanction inappropriate behaviour by litigants and;

d) to ensure that cases are dealt with justly under subrule 2 (2).

[73] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

[74] In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.

[75] The court will order the respondent to pay the applicant’s costs of $5,000, inclusive of fees, disbursement and HST, for the following reasons:

a) The respondent has acted unreasonably by breaching Justice Zisman’s orders.

b) The respondent’s actions have delayed the case and increased the applicant’s costs.

c) The respondent’s actions are making the case more difficult and complex.

d) The respondent’s actions should be sanctioned.

e) Overall, the applicant was much more successful than the respondent on the motion.

f) The applicant’s costs claim very reasonable and proportionate.

g) The respondent should have reasonably expected to pay this level of costs if the applicant was successful on her motion.

[76] The costs shall be payable forthwith.

Part Seven – Conclusion

[77] An order shall go on the following terms:

a) The respondent shall provide the applicant with the disclosure set out in Schedule A to this endorsement within 90 days.

b) The respondent shall serve and file an updated sworn Financial Statement, together with all attachments required by the rules within 90 days.

c) The respondent shall provide an accounting to the applicant within 90 days, broken down by year, and supported by documentation, that clearly shows how his assets have accumulated since 2003.

d) The accounting is to include the following:

i) A chart setting out the respondent’s annual income each year since 2003.

ii) A chart setting out by year since 2003:

1. The amount of any gift or loan received.

2. The name of the source of the gift or loan.

3. The dates of any payment of the loans.

iii) Copies of all loan agreements since 2003.

iv) All documentation showing the receipt of gifts or loans since 2003.

v) All documentation showing the payment of loans since 2003.

vi) A chart setting out investment income earned annually by the respondent, together with supporting documentation since 2003.

vii) The amount of his equalization of net family property payment to his ex-spouse in the Newmarket case.

e) The documentation should be provided to the applicant in a comprehensible format. An index of the disclosure should be provided and the documentation should be tabbed and organized. Pages are to be numbered.

f) If the respondent is unable to obtain any of the documentation ordered herein, or any of the documentation previously ordered and outstanding, he is to serve and file an affidavit within 90 days, setting out the specific efforts he has made to obtain each of the outstanding items of disclosure and why he has been unable to produce it.

g) This order, to the extent that it may be necessary, varies the order of Justice Zisman, dated December 21, 2021, regarding the disclosure required from the respondent from 2003 to the end of 2013.

h) The respondent shall pay the applicant’s costs of this motion, fixed in the amount of $5,000, inclusive of fees, disbursements and HST. The costs are payable forthwith.

[78] The return date of October 26, 2023 at 2 p.m. shall be for the trial management conference. The parties are to do the following:

a) Serve and file Trial Management Briefs as required by the rules.

b) Set out who their witnesses will be at trial accompanied by a brief summary of what each witness will testify about.

c) Attach a trial plan setting out when they expect each witness to testify and how long is required for their examinations.

d) Prepare an index of all documents they intend to rely upon at trial and the length of each document.

[79] If either party intends to call an expert witness regarding the valuation of the respondent’s income, they must follow the requirements for litigation experts set out in rule 20.2.

[80] The case will be placed on the first trial sitting following the trial management conference. The parties should not expect to obtain any further adjournments.

Released: May 23, 2023

Justice Stanley B. Sherr

Schedule A

(A) Disclosure Regarding Greenside Drive Property Maintenance Ltd. (“Greenside”):

(1) Greenside’s annual financial statements for fiscal years 2018, 2019, 2020, and 2021.

(2) Complete copies of Muir and Spidalieri accountants’ working paper files for 2014 – 2021.

(3) Detailed General Ledger (GL) showing each transaction in all GL accounts from 2014 to the present and ongoing to trial.

(4) Annual Detailed Disbursement Journal, featuring all disbursements from 2014 to the present and ongoing to trial.

(5) Annual General Journal featuring all adjusting entries made in General Ledger accounts from 2014 to the present and ongoing to trial.

(6) Annual Summaries of Remuneration Paid (T4SUM) should be disclosed for all calendar years from 2014 – 2021 inclusive.

(7) List of all accounts receivable as at the end of each fiscal year end from 2014 – 2021 inclusive.

(8) List of all accounts payable as at the end of each fiscal year end from 2014 – 2021 inclusive.

(9) Details of what is included in the Due from Related Company account as at each of the fiscal year ends 2014 – 2021 inclusive.

(10) Details of what is included in the Loan Receivable account as at each of the fiscal year ends 2014 and 2015.

(11) Documentary proof relating to the lien note payable by Greenside in 2016 and 2017 as noted in its Financial Statements for those respective tax years.

(12) List of items included in Capital Assets account as at each of the fiscal year ends 2014 – 2021 inclusive.

(13) Details of what is included in the Lien Note Payable account as at each of the fiscal year ends 2016 and 2017, and later years if applicable.

(14) Explanation required as to why Goodwill was the same figure in 2014-2016, ($51,141) but dropped to $46,027 in 2017.

(15) A list of what was in Inventory as at each fiscal year end 2014-2017 inclusive, to determine what items are in inventory.

(16) An explanation as to why Inventory could be the same figure as at the 2014 and 2015, and then again the same figure as at the 2016 and 2017 year.

(17) A copy of all of Greensides’ historical and present leases of all of its facilities.

(18) A copy of all pages in the corporate minute book required to determine shareholders, directors, officers, borrowing resolutions, minutes, etc.

(19) A copy of the “private agreement” referred to in the 2015 Greenside Financial Statement prepared by Bernice Muir, regarding the Respondent acquiring sole ownership of Greenside from Stacey Krembil, and documentary proof of the amount paid to Stacey Krembil.

(B) Disclosure Regarding the Respondent’s Corporation 2000444 Ontario Inc (“2000444”):

(20) Annual financial statements for fiscal years 2019, 2020, and 2021.

(21) Complete copies of Muir and Spidalieri accountants’ working paper files for 2015 – 2018.

(22) Detailed General Ledgers (GL) showing each transaction in all GL accounts from 2014 to the present and ongoing to trial.

(23) Annual Detailed Disbursement Journal, featuring all disbursements from 2014 to the present and ongoing to trial.

(24) Annual General Journal featuring all adjusting entries made in General Ledger accounts from 2014 to the present and ongoing to trial.

(25) The full names, addresses, and contact telephone numbers for any and all subcontractors whose names appear in the Subcontractor account in the Detailed General Ledger from 2014 to the present and ongoing to trial.

(26) Annual Summaries of Remuneration Paid (T4SUM) for all calendar years from 2014 – 2018 inclusive.

(27) List of all Accounts Receivable as at the end of each fiscal year end from 2015 – 2021 inclusive.

(28) List of all Accounts Payable as at the end of each fiscal year end from 2015 – 2021 inclusive.

(29) List of items included in Capital Assets account as at each of the fiscal year ends 2015 – 2021 inclusive.

(30) Details of what is included in the Lien Note Payable account as at each of the fiscal year ends 2015 – 2021 inclusive, and later years if applicable.

(31) A list of what was in Inventory as at each fiscal year end 2014-2017 inclusive.

(32) An explanation as to why Inventory should be the same figure as at the 2017 and 2018.

(33) Copies of all of 20004444’s historical and present leases of all of its facilities.

(34) A copy of all pages in the corporate minute book required to identify all shareholders, directors, officers, borrowing resolutions, minutes, etc.

(35) Documentary proof demonstrating when the Respondent first had an interest in the garden center, also known as the numbered company 2000444, and when the Respondent became the sole owner of same.

(C) Disclosure Regarding the Respondent Personally

(36) The Respondent’s 2021 and 2022 personal Income Tax Returns and Notices of Assessment.

(37) A list of all land owned by the Respondent, in his name, or by any other entity for his benefit from January 1, 2014, to trial.

(38) The financial disclosure statements or affidavits that were part of any mortgage or credit card application since January 1, 2014.

(39) Documentary proof relating to the amounts owed by Greenside to the Respondent from 2014-2017 as noted in its Financial Statements for those respective tax years.

(40) Documentary proof of all shareholder loans made by any corporation to the Respondent from 2014 to the present.

(41) All trust documents for all trusts in which the Respondent, all corporations in which the Respondent has an interest, and all non-arm’s length parties hold an interest for the benefit of the Respondent, from 2014 to the present.

(42) Documentary proof, including bank and/or credit card statements, of all payments of all expenses related to all land leased by the Respondent and any corporation in which he has or has had an interest, from 2014 to the present.

(43) Documentary proof, including bank statements showing deposits of all rental income paid to the Respondent and all corporations in which the Respondent has or has had a beneficial interest, from 2014, to the present.

(44) For all of the income tax years between 2014 and 2022 inclusive, documentary proof and a detailed accounting/description of all worldwide gross income that the Respondent and any corporation owned by the Respondent or in which the Respondent has an interest, and all non-arm’s length third parties for the benefit of the Respondent, did not report to Canada Revenue Agency in his personal T1 income tax returns.

(45) A complete and current Equifax credit report of the Respondent.

(D) Other Business Interests

(46) Documentary proof of all farming income of the Respondent and all corporations in which the Respondent has an interest, including all T2042 Statements of Farming and Agriculture Activities from all entities in which the Respondent has an interest, from 2014 to the present and ongoing to trial.

(47) Documentary proof of any and all income earned and benefits received by the Respondent, or any corporation or entity in which the Respondent has a beneficial interest, from January 1, 2014, to date, in respect of:

i. Renting commercial equipment and machinery

ii. Renting bins, commercial bins, and dumpsters

iii. Garbage and junk removal

iv. Firewood production and sales

v. The sales of soil; mulches, aggregates; salt and sand; natural rock and pavers

vi. Demolition and construction

vii. Leases/rentals of parking space for motor vehicles

viii. Tree farming

ix. Tree and/or wood harvesting

(48) All business licenses, and other licences to engage in specific business activities, acquired in the Respondent’s name or by all corporations and other entities for the Respondent’s benefit or in which the Respondent has a beneficial interest, including but not limited to all Paving Contractor licences.

(49) Documentary proof of payment for commercial equipment storage by Greenside, and any other corporation or business entity in which the Respondent has or has had an interest, from January 1, 2014, to the present.

(50) Documentary proof of payment for waste disposal by Greenside, and any other corporation or business entity in which the Respondent has or has had an interest, from January 1, 2014, to the present.

(51) Documentary proof of all of the Respondent’s, or any corporation or entity in which the Respondent has an interest’s expenses in respect of the storage, ownership, and maintenance of any and all boats.

(52) Lists of all assets, debts, and liabilities for all businesses/corporations in which the Respondent has or has had an interest, from 2014 to the present.

(53) Copies of account statements for all investment accounts of all corporations which the Respondent has an interest for the period of January 1, 2014, to date. This includes online and e-accounts anywhere in the world.

(54) All statements of the Respondent’s shareholder loan accounts regarding all corporations owned personally or beneficially by the Respondent from January 1, 2014, to the present.

(55) Documentary proof of all transactions and loans made by any of the Respondent’s corporations, trusts in which the Respondent has a beneficial interest, or any other non-arm’s length party for the Respondent’s benefit, to all of the Respondent’s family members and other non-arm’s length individuals, from January 1, 2014, to the present.

(56) Summary and documentary proof of all payments made against the balance owing on all of the Respondent’s mortgages, loans, and line of credits, by any corporation owned by the Respondent or in which he has a beneficial interest from January 1, 2014, to the present.

(57) A complete and current Equifax credit report for all corporations in which the Respondent has an interest.

(E) Specific Business Activities

(58) Documentary proof of any and all of the Respondent’s property or business interests involving Edgepoint Wealth Management Ltd./Edgepoint Investment Group Ltd. (and all subsidiaries thereof) from January 1, 2014, to date.

(59) Documentary proof and details of any and all business activities and income earned and benefits received by the Respondent, or any corporation or entity in which the Respondent has a beneficial interest, from January 1, 2014, to date, at Puck’s Farm.

(60) Documentary proof of any and all of the Respondent’s and any corporation in which he has an interest’s property, business interests, provision of materials, and donations involving LongRun (later known as Chiefswood Stables) from 2014 to date.

(61) Documentary proof of any of the Respondent’s or any corporation or entity in which he has or has had an interest’s property or business interests involving GreenAcres Farm, located on 17th side road in Schomberg from 2014 to date.

(62) All lease and/or rental agreements made by or to the Respondent or any other corporation, trust, or entity in which the Respondent has a beneficial interest from 2014 until trial, including but not limited to leases to or from:

i. George Vassallo

ii. Cladio Cunti

iii. Maria Cunti

iv. Carlo Cunti

v. Emery Woodworking

vi. Mary-Kathryn Vassallo-Macrae

vii. All tenants on the Puck’s Farm property which the Respondent has sublet portions of the property to.

(63) Documentary proof of any and all property, trusts or business interests involving Robert Krembil, that the Respondent and all corporations and non-arm’s length parties hold an interest for the benefit of the Respondent, from 2014 to date.

(64) Documentary proof of any property, trusts or business interests involving Emery Woodworking from 2014 to date.

(65) Documentary proof of any and all of the Respondent’s, or any corporation or entity in which the Respondent has an interest’s property, trusts or business interests involving George Vassallo, Mary-Kathryn Vassallo-Macrae, and JMCN Holdings from 2014 to date.

(66) Documentary proof of any and all of the Respondent’s, or any corporation or entity in which the Respondent has an interest’s property, trusts or business interests involving Claudio Cunti from 2014 to date.

(67) Documentary proof of any of the Respondent’s property, trusts, or business interests involving Maria Cunti from 2014 to date.

(68) Documentary proof of any of the Respondent’s property, trusts, or business interests involving Carlo Cunti from 2014 to date.

(69) Documentary proof of any and all of the Respondent’s property, business interests, and personal involvement in the Cymbria Corporation from January 1, 2014, to date.

[^1]: The applicant asserts that the respondent runs many businesses.

[^2]: Justice Zisman endorsed that prior year statements were not available.

[^3]: The letter from the accountant setting out his disclosure requests is contained in Exhibit A to the applicant’s April 12, 2023 affidavit.

[^4]: The court has excluded the requests made that duplicate what has already been ordered and remains outstanding as set out in Schedule A. It would be superfluous to order this disclosure again.

[^5]: This is set out in her December 6, 2028 affidavit in support of her motion to change in Tab 4, Volume 3 of the Continuing Record.

[^6]: This net worth is set out in the last Financial Statement filed by the respondent sworn on March 9, 2022. The court notes that in his previous Financial Statement, sworn on September 6, 2019, the respondent deposed that his net worth was only $890,000.