Petit v. Petit, 2015 ONSC 1188
COURT FILE NO.: FS-07-0214-02
DATE: 2015-02-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Luc Petit,
Samuel R. Bachinski, for the Applicant
Applicant
- and -
Doris Petit,
Paul Mongenais (attending via videoconference), Agent for the Respondent
Respondent
- and -
Gratien Bernier,
Non-party
Pierre D. Brunelle, (attending via videoconference), Agent for the Non-party
HEARD: February 19, 2015,
at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Decision On Motion
[1] This is a motion by the applicant, Luc Petit, to require the respondent, Doris Petit, to produce certain documents in connection with his motion to change a final order.
Background
[2] On December 17. 2008, Platana J. granted an order that provided that the two children of the parties’ marriage were to have their primary residence with Mr. Petit and that Ms. Petit was to pay child support of $431.00 per month. The order also provided that Mr. Petit would pay to Ms. Petit spousal support of $2,000 per month, commencing January 1, 2009 and continuing for a period of five years, at which time the order was subject to review de novo as to entitlement and quantum. The order also provided for variation within that five year period based upon a material change in circumstances. At the date of the order, Mr. Petit’s income from all sources was $133,632.00. His present base income is $148,885.00, plus the possibility of a yearly bonus.
[3] In his motion to change, Mr. Petit seeks to have Ms. Petit contribute to expenses for the children under s. 7 of the Child Support Guidelines. Most significantly, for the purposes of the motion before me for production of documents, Mr. Petit seeks to terminate spousal support as of January 1, 2014.
[4] The motion for production requests an extensive number of documents related to Ms. Petit’s income and expenses. Ms. Petit has now produced most of those documents. She agrees to produce the remaining documents relating to her expenses, namely:
• rental or mortgage payments;
• car repairs
• dentist
• eye care
• vacations.
[5] An order shall go, on consent, that verification of those expenses shall be produced. This order is not to be understood, however, as an acknowledgement that I would have ordered Ms. Petit to produce all the documents related to her income and expenses that were demanded by Mr. Petit, if she had not done so voluntarily.
[6] The central issue for this motion is Mr. Petit’s demand that Ms. Petit produce documents relating to the income and business interests of Gratien Bernier, who is not a party to these proceedings.
[7] Mr. Petit describes Mr. Bernier as the common law spouse of Ms. Petit. He alleges that Ms. Petit and Mr. Bernier reside together in Smooth Rock Falls. Mr. Petit states that Mr. Bernier is a wealthy businessman, with interests in several corporations which own significant assets, and that Mr. Bernier’s income is approximately $1,000,000.00 per year.
[8] Ms. Petit deposes that she and Mr. Bernier lived together for about four years in Smooth Rock Falls but that because of a turn down in his business operations, Mr. Bernier has moved almost all of his operations to Wawa where he now resides.
[9] Mr. Bernier deposes that Ms. Petit is his “significant other” and that although they regularly spend periods of time together, including weekends and extended vacations, they maintain separate residences. Mr. Bernier acknowledges that he assists Ms. Petit and that she occasionally drives his vehicles.
[10] It is not possible on this motion, on competing affidavits, without cross-examination, to determine whether or not Ms. Petit and Mr. Bernier presently reside together. However, without so finding, I will assume, for the purposes of this motion only, that they do reside together.
[11] Ms. Petit has produced Mr. Bernier’s personal income tax summaries and T-4 and T-5 slips for 2009, through 2013, inclusive. I am told that Mr. Bernier will be res-assessed by Canada Revenue Agency for the 2013 taxation year. I understand that the results of that re-assessment will be produced to Mr. Petit. The income tax summaries which have been produced show Mr. Bernier’s income, rounded, as follows:
2013 $126,000.00
2012 $76,000.00
2011 $155,000.00
2010 $62,000.00
2009 $125,000.00.
[12] Mr. Petit claims that in addition to those income tax summaries and T-4 and T-5 slips, Ms. Petit should produce the following:
• complete copies of all of Mr. Bernier’s last five years’ personal income tax returns, notices of assessment and re-assessment;
• complete copies of all income tax returns for companies that Mr. Bernier controls or has an interest in, directly or indirectly;
• for the five most recent taxation years:
(i) the financial statements of any business Mr. Bernier controls or has an interest in directly or indirectly; and
(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of persons or corporations with whom Mr. Bernier does not deal at arm’s length;
• if Mr. Bernier is a partner in a partnership, confirmation of his income and draw from, and capital in, the partnership for its five most recent taxation years;
• any other records in a corporation that Mr. Bernier has an interest in, either directly or indirectly, including but not limited to, balance sheets, income statements and minute books.
[13] Mr. Petit has not framed his motion as a motion under rule 19(11) for production of a document in a non-party’s control. Production was demanded of Ms. Petit. Ms. Petit deposes that Mr. Bernier will not agree to produce the documents demanded by Mr. Petit, other than the personal income tax summaries and T-4 and T-5 slips which have been produced.
[14] Some time after the motion for production was served on Ms. Petit, copies of the motion materials were served on Mr. Bernier. Mr. Bernier retained counsel. Although the motion was not properly brought as a motion under rule 19(11), the parties and Mr. Bernier have approached the hearing of this motion as if it was a rule 19(11) motion. I will overlook the procedural irregularity and treat the motion as a motion under rule 19(11).
Submissions
[1] Mr. Petit submits that the corporate information and the complete copies of Mr. Bernier’s income tax returns, rather than summaries are needed to show Mr. Bernier’s income and his ability to support Ms. Petit, which are relevant to her need for support. Mr. Petit notes that the spousal support award of December 17, 2008, was made on a non-compensatory basis and therefore the focus of the motion to change will be on Ms. Petit’s need for support.
[2] Mr. Petit submits that even if Ms. Petit and Mr. Bernier are presently separated, they resided together for four years by Ms. Petit’s own admission and therefore Mr. Bernier has an obligation to support her.
[3] Mr. Bernier submits that he should not be required to produce the documents that Mr. Petit is demanding.
[4] Mr. Bernier submits that the cases relied upon by Mr. Petit, where the court has required the production of corporate documents, are concerned with situations where one of the spousal parties has an interest, directly or indirectly, in the corporation in question. They do not deal with production of documents from a non-party who is a new partner of a spousal party.
[5] Mr. Bernier and Ms. Petit submit that Mr. Petit is overreaching and that although there might be some minor relevance to the documents demanded, the demand, if allowed, would introduce unwarranted expense and complexity into the proceeding.
[6] Mr. Bernier and Ms. Petit submit that Mr. Petit can question Ms. Petit on matters such as Mr. Bernier’s contributions to her expenses, whether she resides in Mr. Bernier’s home, how often they go on trips, how often she uses his vehicles and the provision of other benefits that may be relevant to her need for spousal support. Mr. Bernier and Ms. Petit submit that Mr. Bernier has a legitimate privacy interest that should be respected in view of his status as a non-party.
Discussion
[7] Ms. Petit does not have control of the documents that Mr. Petit seeks from Mr. Bernier. Rule 19(11) deals with production of documents in the control of a non-party:
19(11) If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,
(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and
(b) order that a copy be prepared and used for all purposes of the case instead of the original.
[8] In Ontario (Attorney General) v. Ballard Estate (1995), 1995 CanLII 3509 (ON CA), 86 O.A.C. 43, the Court of Appeal reviewed the key factors to be considered on a motion for production of documents from a non-party under rule 30.10(1) of the Rules of Civil Procedure. The factors should include:
• the importance of the document in the litigation
• whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness;
• whether the discovery of the defendants with respect to the issues to which the documents are relevant is adequate and if not, whether responsibility for that inadequacy rests with the defendants;
• the position of the non-parties with respect to production;
• the availability of the documents or their informational equivalent from some other source which is accessible to the moving parties;
• the relationship of the non-parties from whom production is sought to the litigation. Non-parties who have an interest in the subject matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true “stranger” to the litigation.
[9] In my view, another factor, especially important to family law cases, is proportionality.
[10] Rule 2(2) of the Family Law Rules provides that the primary objective of the Rules is to enable the court to deal with cases justly. Rule 2(3) states:
2(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with cases in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
[11] Justice Perell, in Boyd v. Fields, [2006] O.J. No. 5762 (S.C.J.) at para. 12 addressed the issue of proportionality and the assessment of disclosure obligations in the context of rule 2(3):
“Full and frank disclosure is a fundamental tenet of the Family Law Rules. However, there is also an element of proportionality, common sense, and fairness built into these rules. A party’s understandable aspiration for the outmost disclosure is not the standard. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact finding process are factors. I also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can mislead or distract the trier of fact’s attention from the main issues and unduly occupy the trier of fact’s time and ultimately impair a fair trial.
[12] As a person who is not a party to this litigation, Mr. Bernier has a privacy interest in the highly personal information which Mr. Petit wants him to disclose. This interest should be recognized by the court and balanced against the need to have information produced which is reasonably necessary to fairly adjudicate the case between Mr. Petit and Ms. Petit. In my view, this balancing favours a decision that Mr. Bernier not be required to produce the further information that Mr. Petit demands of him. Mr. Bernier has already surrendered a significant degree of his privacy by voluntarily producing to Mr. Petit his personal income tax summaries and T-4 and T-5 slips for the past five years.
[13] I am of the view that what Mr. Petit seeks to have disclosed is disproportionate to the importance of what is in dispute, namely whether $2,000.00 per month spousal support, which Mr. Petit has been paying for the past five years, should be varied.
[14] Mr. Petit wants to embark on an investigation to try to impute income to Mr. Bernier for the purpose of showing that Mr. Bernier has an ability to support Ms. Petit at a level beyond that which is set out in Mr. Bernier’s income tax summaries. That may well be an appropriate inquiry if this was a case of Ms. Petit claiming support from Mr. Bernier, but she is not. Mr. Bernier has the right within the bounds of the law, to organize his financial affairs and those of his companies as he sees fit.
[15] I agree with the submissions of Mr. Bernier and Ms. Petit that Mr. Petit’s proposed inquiry will cause the litigation between himself and Ms. Petit to become bogged down in expense and complexity which is disproportionate to the importance of the issue in dispute.
[16] Mr. Petit, through the questionning process, will have the opportunity to obtain extensive information about Ms. Petit’s needs, in the context of the benefits that she receives directly or indirectly as a result of her relationship with Mr. Bernier. This will enable the court to fairly adjudicate on that issue. It is not necessary for the court to require what surely would be a hotly contested, and in my view a largely irrelevant, investigation into what Mr. Bernier should or should not be doing to maximize his income for the notional purpose of supporting Ms. Petit. If, because of Mr. Bernier’s resources, he and Ms. Petit have been living “the good life” over the past four or five years, that should be evident from questionning of Ms. Petit. Mr. Bernier’s presence as a factor in the litigation will be considered by the trial judge. However, it can be fairly considered by reference to his income tax summaries and by effective questionning of Ms. Petit.
[17] Each case on the issue of disclosure must be considered in light of its particular circumstances and dealt with in a manner that is appropriate to its importance and complexity.
[18] Mr. Petit bears the burden of proof that it would be unfair for him to proceed to trial without production of Mr. Bernier’s documents. In my view, Mr. Petit has not discharged that burden.
Conclusion
[19] For the reasons given, an order shall go, on consent that Ms. Petit shall produce verification of her following expenses:
• rental or mortgage payments;
• car repairs
• dentist
• eye care
• vacations.
[20] The balance of Mr. Petit’s motion is dismissed.
Costs
[21] If the parties are unable to agree on the costs of this motion, they shall serve and file written submissions within 20 days, not to exceed five pages, plus their bills of costs, followed by any reply submissions within the following 10 days, failing which the issue of costs shall be deemed to have been settled.
The Hon. Mr. Justice D. C. Shaw
Released: February 25, 2015
CITATION: Petit v. Petit, 2015 ONSC 1188
COURT FILE NO.: FS-07-0214-02
DATE: 2015-02-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Luc Petit,
Applicant
- and -
Doris Petit,
Respondent
- and -
Gratien Bernier,
Non-party
DECISION ON MOTION
Shaw R.S.J.
Released: February 25, 2015
/mls