SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 05-FD-305585-001
DATE: 20130717

RE: Valerie Yvette Siebert, Applicant

AND:

Fabien Romuald Siebert, Respondent

BEFORE: Czutrin J.

COUNSEL: Jaret Moldaver, for the Applicant
Sheila Holmes, for the Respondent

HEARD: June 25, 2013

ENDORSEMENT

[1] The Applicant brings this motion to compel the Respondent to make disclosure, strike the Respondent’s motion to change the child and spousal support provided for in the order of Horkins J., granted on consent of the parties that incorporated the Final Arbitral Award of Mr. Gerald P. Sadvari dated January 29, 2008.

[2] The order had many terms and including the requirement that the Respondent/father pay child support for the parties’ three children as of December 1, 2009 in the amount of $5,000 per month and for spousal support commencing the same date of $6,500 per month.

[3] The order provided that the father was to pay these amounts “until the completion of a review which shall commence in May 2011 if either party seeks this review … although it may be varied retroactively to the date of a material change justifying a new amount.”

[4] The order required the parties to “exchange all necessary financial documentation, including, but not limited to, tax returns, notices of assessment and reassessment for 2008 to 2010, updated corporate financial statements. The Respondent was to provide a sworn statement as to received cash, tips and barter from January 1, 2009 to the date of the swearing the document, as well as all other documents reasonably required to determine each party’s income.”

[5] The review was to be conducted by means agreed to by the parties and any level of payment awarded was to be “effective July 1, 2011 or as otherwise determined if there is evidence that a material change in circumstances occurred before that time.”

[6] The order also referenced the sharing of section seven expenses.

[7] On July 5, 2012, the father commenced “the review” by way of a motion (Form 15) seeking to change the support he was ordered to pay as of January 1, 2009 claiming annual income of $60,000 per annum. In effect he sought to change the order prior to the date of the order and to the date of the January 29, 2009 Arbitration Award.

[8] He also claimed that only two of the children remained dependents.

[9] His July 5, 2012, financial statement claimed that he had approximately $1.8 million in property including three real estate holdings worth approximately $1.4 million, $27,000 in various accounts in Canada, U.S.A and France, $68,000 in an RRSP. His debts claimed included an RBC secured line of credit of approximately $336,000 as against 222 Markham Street, a mortgage secured against 22 Robinson Street and $1.355 million owed to C.R.A., personal loans and personal debts of approximately $330,000.

[10] His 2011 income tax returns show a line 150 income of just under $150,000.

[11] The mother responded to the motion to change and asserts that the father’s income is $500,000 per annum and seeks child support of $6,000 per month for two children and spousal support of $11,127 per month effective December 1, 2012.

[12] Her response is dated April 2, 2013.

[13] The Arbitral Award imputed income of $500,000 to the father. The Arbitral Award awarded costs of $550,000 to the mother that was paid.

[14] The reasons given by Mr. Sadvari make clear that determining the father’s income was challenging.

[15] Until December 2012, the father complied with the support orders and as of the date I heard this motion he was in arrears of $76,517 as of July 1, 2013.

[16] There is no dispute about the terms of the order or the father’s ability to satisfy the order; however, he claims that he is under pressure from CRA for his considerable debt, the mother is delaying the matter, and that if he is successful he will never be able to recover any overpayment.

[17] The father concedes that the last of the requested disclosure of the mother’s expert was made as of June 28, 2013. (Counsel for the mother and his expert had at the time I heard the motion not reviewed the disclosure made.)

[18] The father delivered an expert report dated August 3, 2012 for the years 2009 through 2012.

[19] The mother’s expert’s request for disclosure was dated January 11, 2013.

[20] The parties and counsel appeared before Klowak J. for a case conference on April 8, 2013 and she made consent orders setting a timetable for disclosure and reports. It was contemplated that a settlement conference would be held in June and that if the case was not resolved a trial would be required.

[21] On June 10, 2013, the parties appeared before Croll J., but the mother sought an adjournment to address disclosure by way of motion.

[22] I have now targeted and set the trial to commence the week of February 10, 2014 and I will manage this case.

[23] Croll J. will be the Settlement Conference Judge.

[24] By August 12, 2013, the father is to pay up all arrears to and including August 1, 2013, and the funds held by the mother’s counsel may be released to be credited towards the arrears.

[25] By August 12, 2013, the mother’s counsel shall confirm whether they have received their expert’s requested disclosure.

[26] By the same date the mother’s counsel shall confirm the date by which the mother’s expert will have his critique or report ready concerning the father’s income covering the same period and there shall be an attendance arranged before me to see whether the arrears have been paid, the disclosure is complete and the expected date of the critique report. The counsel to arrange date before me in September to address these issues.

[27] If I am satisfied that there is delay on the mother’s part I will consider any remedies. If the father has not complied I will consider any remedies.

[28] For return I also need some satisfactory proof that if the father is successful the mother has the ability to satisfy any overpayment and will consider any orders that may be appropriate.

[29] For the return, I will expect the parties to come with a timetable and consider a meeting of the experts to narrow issues. Credibility, given the history, will no doubt remain a serious consideration and the experts’ underlying assumptions will be critical.

[30] Costs will be reserved as the parties work toward settlement or trial readiness and may be spoken to on return.

Czutrin J.

Released: July 17, 2013