SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-12-00018468
DATE: 20130322

RE: Thomas Burton English, Applicant

AND:

Audra Jennifer Dixon, Respondent

BEFORE: Czutrin J.

COUNSEL:
Lorna Yates, for the Applicant

Patrick Schmidt, for the Respondent

HEARD: March 8, 2013 (At a Case Conference)

ENDORSEMENT

[1] The issues I will address in this endorsement arose at a case conference.

[2] The Respondent seeks an order for disclosure.

[3] The Applicant seeks no order until the Respondent reviews the disclosure delivered in response to Conference Brief on Wednesday. By now counsel and the parties should have reviewed the disclosure. Perhaps they have already addressed the issue. Unresolved issues of disclosure is one of the key factors in delay, unproductive court attendances and getting to a point of serious settlement discussions or, if necessary, in the very few cases that need to go or in fact end up in trial.

[4] Disclosure issues must be considered immediately upon the separation of parties and good counsel, as they are here will no doubt inform their client what they should immediately start gathering, sorting and organizing to deliver to the other side even before being asked. Good counsel will know what they might want if they were asked if acting for the other party or spouse. The exchange and further requests should not wait for a formal request or the case conference. Case conferences should result in a clear and unambiguous and detailed disclosure order.

[5] The Respondent asks that the Expense portion of the Applicant’s Financial Statement be completed. The Applicant claims that his ability to pay is not an issue and therefore there is no need to complete as his expenses are irrelevant. The form requires the completion of the expense side and there should be no issue that this should be done and gaps completed as the person completing the form is better informed. It is likely good practice to keep some record of what many people fail to consider as to spending while in an intact family.

[6] Parties agreed that I should case manage (including making all orders not substantive) to the date of Settlement Conference. Custody, parenting and entitlement to spousal support are substantive issues but disclosure and requests such as completion of net family property statements and other issues related to having a case trial or settlement ready I find are the types of orders that are not substantive and come within Rule 2 objectives and Rule 17:

(4) The purposes of a case conference include,

(a) exploring the chances of settling the case;

(b) identifying the issues that are in dispute and those that are not in dispute;

(c) exploring ways to resolve the issues that are in dispute;

(d) ensuring disclosure of the relevant evidence;

(d.1) identifying any issues relating to any expert evidence or reports on which the parties intend to rely at trial;

(e) noting admissions that may simplify the case;

(f) setting the date for the next step in the case;

(g) setting a specific timetable for the steps to be taken in the case before it comes to trial;

(h) organizing a settlement conference, or holding one if appropriate; and

(i) giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument, if appropriate.

(8) At a case conference, settlement conference or trial management conference the judge may, if it is appropriate to do so,

(a) make an order for document disclosure (rule 19), questioning (rule 20) or filing of summaries of argument on a motion, set the times for events in the case or give directions for the next step or steps in the case;

(a.0.1) make an order respecting the use of expert witness evidence at trial or the service and filing of experts’ reports;

(a.1) order that the evidence of a witness at trial be given by affidavit;

(b) make an order requiring one or more parties to attend,

(i) a mandatory information program,

(ii) a case conference or settlement conference conducted by a person named under subrule 17 (9),

(iii) an intake meeting with a court-affiliated mediation service, or

(iv) a program offered through any other available community service or resource;

(b.1) if notice has been served, make a final order or any temporary order, including any of the following temporary orders to facilitate the preservation of the rights of the parties until a further agreement or order is made:

(i) an order relating to the designation of beneficiaries under a policy of life insurance, registered retirement savings plan, trust, pension, annuity or a similar financial instrument,

(ii) an order preserving assets generally or particularly,

(iii) an order prohibiting the concealment or destruction of documents or property,

(iv) an order requiring an accounting of funds under the control of one of the parties,

(v) an order preserving the health and medical insurance coverage for one of the parties and the children of the relationship, and

(vi) an order continuing the payment of periodic amounts required to preserve an asset or a benefit to one of the parties and the children;

(c) make an unopposed order or an order on consent; and

(d) on consent, refer any issue for alternative dispute resolution.

[7] The Applicant has retained an expert to provide an opinion as to his income for guideline purposes but did not intend to obtain valuations for his business interests or other assets. These parties were never married.

[8] The parties have agreed that they will address what the Applicant may remove from the Fallingbrook residence and how and when, failing which a motion may be brought.

[9] I set June 7, 2013, 10:00 A.M. to continue the Case Conference. Pending return of the case conference, no motions are to be brought unless an emergency (on my leave or if I am unavailable another judge) prior to that date.

[10] Costs are reserved.

[11] These parties are not married.

[12] They cohabited approximately 12 years.

[13] They have two children.

[14] The disputed issues of disclosure primarily relate to the value of the Applicant’s assets based on a claim of “constructive trust” or what has now become known as a claim based on “joint family venture” by the Respondent.

[15] The Respondent (mother) requests to have the Applicant produce valuation reports for his corporate/business interests, stock options, employee purchase plan and to have a Net Family Property Statement prepared to “evaluate the mother’s claim of unjust enrichment on the basis of a joint family venture” is resisted by the Applicant (father) based on proportionability and the fact that there is no equalization claim.

[16] If I do not order what the Respondent requests, the Applicant will ultimately be obliged to produce documentation that the Respondent may then use to engage an expert to provide an opinion as to the father’s increase in net worth for the period of the parties’ cohabitation.

[17] The father’s interest in and entitlement to “non publicly traded” businesses may be defined by his employment, shareholders or partnership agreement. If that is the case the valuation may not be complicated. He is to produce all such documents by April 12, 2013.

[18] He is obliged, whether for property or support claims to provide financial disclosure including some reliable evidence of his net worth. While he may argue that he is only obliged to provide “values” and not an expert valuation, failing to provide his own valuation will inevitably start the circle of requests for the source document disclosure to allow the Respondent to obtain her own expert reports, further disclosure requests resulting in the cost of two experts (may not be necessarily avoided), and so on.

[19] The father has already retained an expert to provide an income report (recently delivered) by and expert who is well known to me and counsel and has as one of his designations, Corporate Business Valuator (“CBV”).

[20] The Applicant can easily obtain real property valuations from date of commencement of the parties’ cohabitation to date separation. The parties might consider an initial joint retainer for the real property valuations and have any valuations exchanged and ready for the next scheduled event that I have set with the parties and counsel.

[21] The Applicant’s expert can gather the documentation that any CBV requires to provide valuation for his stock options and business interests. For example, as far as Salman Partners Inc., I was advised that there is an agreement as to the entitlement he may have at a time of termination or withdrawal. The expert is to gather the documentation necessary to value and provide a preliminary view from date of cohabitation and separation or choose to provide an opinion of value. He is also to gather the documentation to help prepare documentation as to the Applicant’s net worth for both dates as well. Without this being done there will be delay and the motions that I have referred to above.

[22] In Kerr v. Baranow, 2011 SCC 10, 2011 S.C.C. 10, [2011] 1 S.C.R. 209 commencing at para. 80, the court discusses “joint family venture” and how the remedy is determined:

The wealth created during the period of cohabitation will be treated as the fruit of their domestic and financial relationship, though not necessarily by the parties in equal shares.

[23] The Applicant has the significant assets and the information to determine “the wealth created during the period of cohabitation”. This does not create an equalization calculation, but is information to assist in settlement as the evidence required for trial.

[24] Therefore, once the valuation issues are provided, the Applicant and the Respondent will need to provide evidence as to the “wealth created” during the period of cohabitation and how, if at all, this should be shared consistent with the Kerr v. Baranow principles, if a joint venture is established. Therefore I am satisfied that the Applicant is to provide valuations on the relevant dates and complete a net family property statement as an aid to look at ranges for ultimate calculation of what may be an entitlement to satisfaction of a claim, if successful of the Respondent’s joint family venture claim. Unless his expert is unable to gather the information and provide a report such report should be ready for consideration at the next conference.

[25] With respect to the issue of disclosure, the Applicant is of the view that that no order as requested need to be made, as the disclosure has been made. The Respondent submits I should order the disclosure, it will be reviewed, and the Respondent will advise what remains outstanding. I am not in a position to determine what has and has not been disclosed.

[26] The Respondent is to advise the Applicant within 15 days what remains on his requested list of disclosure. If the parties then do not agree, I will consider any further order as a 14B motion on notice so that each party may respond.

[27] If there remain disclosure issues that will affect the productive nature of the Case Conference, then costs will be a factor for the need for a 14b motion and whether the next attendance is not as productive as it might have been because of the remaining disclosure issues.

[28] The Applicant is obliged to complete the entirety of the Financial Statement and do so by May 3, 2013.

[29] Questioning to be completed one week prior to Case Conference.

[30] I will deal with all motions (if available) to Settlement Conference, conduct the Settlement Conference and Trial Management Conference, but do no substantive motions after Settlement Conference.

Czutrin J.

Released: March 22, 2013