SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-10-36497

DATE: 20130724

RE: Mike Talisman, formerly known as Mohammad Talebshariati, Applicant

AND:

Diana Stryjak, also known as Diana Szczepanska, Respondent

BEFORE: The Honourable Madam Justice S. Healey

COUNSEL: Howard J. Feldman, Counsel for the Applicant

Diana Stryjak, self-represented

HEARD: July 24, 2013

ENDORSEMENT

[1] This is a motion and cross-motion for disclosure (see the handwritten endorsement of July 23, 2013 for the location of the motions in the continuing record).

[2] In her original notice of motion returnable March 13, 2013, the respondent sought a declaration that the applicant had failed to comply with his disclosure obligations under the Family Law Rules and as previously ordered by the court. In her argument, the only basis for seeking this relief was her allegation that the applicant had failed to produce a complete copy of Mr. Rosen’s file. Also, in her original notice of motion, the respondent sought an order that the applicant be required to produce a substantial amount of documentation, listed in a 32-page document marked as exhibit A and contained in Volume 1 of a compendium entitled “Respondent’s Disclosure for Motion March 13, 2013”. In her updated Notice of Motion returnable July 23, 2013, the respondent sought the same relief, but reduced the documents being sought to a two-page list found at Volume 6, tab 4 (4). In the latter motion, she asked for one additional item of relief, which was to be awarded costs of non-attendance for questioning, but she did not pursue that relief in argument.

[3] With respect to his motion, the applicant sought only the relief set out at paragraph 3 concerning disclosure.

[4] After hearing the submissions of Mr. Feldman, counsel for the applicant, and of Ms. Stryjak, this court orders:

(1) The relief sought by the respondent in paragraphs 1of her motions returnable March 13 and July 23 is dismissed.

[5] The reason that this aspect of the respondent’s motions has not been granted is that the order of Kaufman J. dated April 19, 2013 does not require the applicant to produce Mr. Rosen’s file. If the respondent is of the view that Mr. Rosen’s file is incomplete as produced, she has the option, as set out in the endorsement of Kaufman J., to bring a motion seeking relief against Mr. Rosen as a non-party on notice to him pursuant to Rule 19(11) of the Family Law Rules.

(2) Within 60 days of the date of this endorsement, the respondent shall produce to the applicant’s counsel the following:

(a) Proof of her down payment for 289 Elgin Mills Avenue (the “property”);

(b) proof of payment of realty taxes, insurance, utilities, and maintenance from 1998 to present for the property;

(c) proof of rent paid by the applicant to her from 1998 to present;

(d) trust ledgers, statement and reporting letter from the lawyer who acted on the mortgage transaction when it was increased;

(e) contracts and invoices for renovation, construction repairs, and improvements to the property totalling $20,000.00, together with names and contact information of any contractors who made repairs or improvements to the property;

(f) all photographs of the property, interior and exterior, in her possession;

(g) an accounting of the expenditure of the mortgage proceeds of approximately $130,000.00;

(h) all proof that she intends to rely on a trial to support her contention that she traveled to Poland on September 30, 2002;

(i) Immigration/Visa/Residence permit files regarding residence, work and citizenship authorization in the USA and Canada, including financial statements and undertakings given;

(j) Immigration/Visa/Residence permit files regarding sponsorship of persons to reside in Canada including financial statements and undertakings given;

(k) mortgage applications from 1990 to present;

(l) credit and financing applications from 1998 to present, including applications for business financing and motor vehicle financing;

(m) all bank records from January 1, 1998 to present for accounts in Canada, United States, Poland and Germany, including savings or investment accounts, whether held solely or jointly with one or more persons;

(n) all credit card and loan statements for accounts in Canada, United States, Poland and Germany from January 1, 1998 to present;

(o) all documentary proof that the respondent intends to rely on a trial to support her claim of lack of mental capacity or duress when she signed the 2002 and 2009 trust declarations;

(p) a complete copy of her insurer’s no-fault accident benefit file;

(q) her 2012 income tax return;

(r) proof of revenue and expenses for A.S. Driving School from its inception, with all supporting documentation;

(s) the name and contact information for her accountant, and bookkeeper if applicable;

(t) a signed authorization directed to her accountant to permit the applicant’s lawyer to obtain information and financial records concerning A.S. Driving School;

(u) the proof of loss claim with respect to the Volvo truck and all documentation from her insurer relating to that claim;

(v) list of personal property owned by her at commencement of cohabitation and date of separation;

(w) any appraisals or valuations of personal property that have been prepared;

(x) documentation supporting all assets, debts and expenses listed in her financial statement;

(y) list of vacations and travel from January 1, 1998 to present;

(z) a list of damages to the property, together with who caused them, when, and proof of the quote for repairs;

(aa) documents and proof supporting the allegation that the applicant diverted approximately $120,000.00 of the respondent's money;

(bb) any surveillance videos of the applicant on which the respondent tends to rely at trial;

(cc) a summary of the anticipated evidence of each of the respondent's witnesses.

[6] The reason that not all of the disclosure that was sought by the applicant has been allowed is that some of it is a duplication of other material sought, or will not be available, is too invasive, as in the case of medical documentation, or causes work for the respondent disproportionate to the amounts at issue in this file. However, the reason for ordering the extensive disclosure is that the respondent has made extensive claims touching upon virtually all aspects of the parties’ lives pre-cohabitation, during cohabitation, and post-cohabitation, from property claims to damages for exposing her to sexually transmitted diseases, although has provided no proof in support of that particular claim. The trial of this matter, as a result, was estimated by the applicant’s counsel to take 10-14 days. This is a case that cries out for amendments to Rule 16(1) of the Family Law Rules to bring it in line with Rule 20 of the Rules of Civil Procedure, in order that the court have broader powers to assess credibility, weigh evidence, and draw factual conclusions. On the state of the evidence currently produced by the respondent, a motion for summary judgment may well dispose of many of the parties’ claims and save considerable resources. The disclosure ordered should be viewed by the respondent as a strong indicator of the degree of proof required to be successful in her claims. If the evidence does not exist, she should reconsider her position and the potential devastation of a cost order being made against her after a lengthy and expensive trial.

(3) Within 60 days of the date of this endorsement, the applicant shall produce to the respondent:

(i) Mr. Zandi’s file provided that Mr. Zandi accepts the sum of $300.00 for its release, failing which the respondent is at liberty to bring a motion pursuant to Rule 19(11), subject to any argument with respect to solicitor and client privilege; and

(ii) A complete OHIP summary from 2008 to present.

(4) The respondent’s additional requests for disclosure from the applicant are dismissed.

[7] The reason that these requests are being denied is that the applicant’s material discloses that he has provided extensive documentation, which includes his income tax returns, his entire ODSP file, financial information to support his claims for payments with respect to the property; an explanation of his involvement with business interests, and rental payments.

(5) The balance of the relief requested in the motions is dismissed, with the exception of paras. 2 and 3 of the applicant’s motion at Volume 6, tab 1, as indicated in my endorsement of July 23, 2013.

(6) If the parties are unable to agree upon costs of these motions, they may make brief written submissions not to exceed three pages in length, to be submitted through the office of the judicial assistants in Newmarket. The applicant’s submissions are due by August 9 and the respondent’s by August 16, and reply, if necessary, by August 21.

Justice S. Healey

Date: July 24, 2013