ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-04-19819-02
DATE: 20150731

BETWEEN:

Ellen Denise Spigelman
Applicant

– and –

Victor Ian Spigelman
Respondent

Sharon R. Shore, for the Applicant

Jack M. Straitman, for the Respondent

HEARD: July 29, 2015

Ruling on motions

jarvis j.:

Motions

[1] In this Motion to Change a final Order for spousal support, both parties (hereinafter referenced as “husband” and “wife” for convenience: they are divorced) bring motions for disclosure. Each has already made substantial disclosure but there remain several requests that have either been refused or are insufficiently answered. The broader personal, factual and procedural background of this matter is not relevant to these reasons: suffice it that after a marriage of anywhere between 21 to 25 years (the parties disagree) a Divorce Order was made by Nelson J. on January 11, 2008 for spousal support that was later varied, on consent, and which currently requires the husband to pay $4,800 monthly spousal support. In 2014, he was paid a severance package by his employer, and is now unemployed. Both parties are 58 years old.

The Law

[2] Two overarching principles inform these motions, and this case. The first is robust, but proportional, financial disclosure: the second is prudent utilization of accumulated assets for support purposes.

[3] In Roberts v. Roberts, [2015] ONCA 450 Benotto J., speaking for a unanimous court, highlighted the importance of disclosure in family law proceedings

“11 The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

12 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.

13 Financial disclosure is automatic. It should not require court orders – let alone three – to obtain production.”

[4] Where, as in this case, there is a support variation request made involving parties both nearing what might be described as “retirement age” the court must consider, and balance, the entirety of the parties’ financial circumstances. Depleting capital or savings to continue funding spousal support is no more justifiable than ignoring reasonable options to generate income: Van Horne v. Van Horne (2007), 2007 CarswellOnt 3000, [2008] W.D.F.L. 171 (Ont. S.C.J.); Star v. Bolster [2012] ONSC 4744, 2012 CarswellOnt 15990 (Ont S.C.J.); see also Fishlock v. Fishlock (2007), 2007 12714 (ON SC), 46 R.F.L. (6th) 254, 2007 CarswellOnt 2235 (Ont. S.C.J.).

Analysis and Disposition

(a) Wife’s Motion

[5] The husband’s unsatisfied disclosure relates to his loss of employment (items #5-#7) and his production of records relating to his bank accounts and credit cards (#12, #13, and #16). The wife is not satisfied with the husband’s explanation about both his loss of employment and his employer’s refusal to cooperate with the wife’s requests. Substantial disclosure was made with respect to the husband’s banking activities and credit card use. The wife contends that there appear to be unexplained transactions between the two disclosed bank accounts, and she is dissatisfied with the husband’s efforts to produce complete credit card records. The husband maintains that he made requests, and that he has provided to the wife everything he has, and may in future receive.

[6] Having reviewed the evidence, and in light of counsel’s agreement that each party may question the other without the need for a formal Order, the following Order is made with respect to the wife’s motion:

(1) The wife’s request relating to items #5-#7 of the disclosure chart that accompanied her affidavit is dismissed but without prejudice to her moving, if so advised, for an order pursuant to Rule 20 (5) of the Family Law Rules on notice to the husband’s former employer for the information sought;

(2) Within 21 days of the release of this Ruling the wife shall provide to the husband a list of those transactions involving the husband’s bank accounts for which she seeks an explanation. The husband shall respond to that request within 30 days of its receipt from the wife (item #12 from her disclosure chart);

(3) The husband shall deliver to the wife within 21 days of the release of this Ruling an authorization prepared by his counsel permitting her to obtain from his credit card issuers the documentary disclosure not already produced. She shall share that information with the husband within seven days of its receipt by her. Any costs shall be to the wife’s account (item #13 from her disclosure chart).

(b) Husband’s Motion

[7] In his motion for disclosure the husband wants more fulsome details about several assets the wife claims are either legally or beneficially owned by her elderly mother, and he reciprocates several of the same requests made by the wife. The former involve a family cottage and accounts owned by the wife and her mother: the latter include the wife’s bank account and credit card information.

[8] Items #1, #2 and #17 (c) of the husband’s disclosure chart involve the cottage and the mother’s accounts with the wife. In her Financial Statement sworn January 8, 2015, the wife states (among other things) that the “property is owned by the wife’s mother “in trust” for the four children without any trust Agreement” and that “she does not have any interest in the property.” The wife states later in her affidavit sworn May 19, 2015 that she does not “currently pay nor have I paid for any expenses within (sic) the last two years for the cottage property. My mother pays all the expenses related to the cottage property, including but not limited to property taxes, water, hydro, telephone snow removal, lawn care, etc.”

[9] In a further affidavit from the wife sworn July 27, 2015, and attached as an exhibit, is a letter addressed “To whom it may concern” purportedly signed by the wife’s mother on July 26, 2015 in which there is no reference to the cottage but which states that she is the beneficial owner of the impugned bank accounts and that the wife “has signing authority on the accounts so that she can pay bills on my behalf.”

[10] The legal ownership of the cottage is easily verifiable by undertaking a title search of the address given. The letter is, of course, not sworn evidence.

[11] Items #5, #6, #13 and #14 of the husband’s disclosure chart request documentation and confirmation, respectively, of the historical values for the wife’s non-registered and registered accounts, and proof that they did not exist when the parties signed their Separation Agreement on August 15, 2007. Nowhere in the husband’s pleadings is he challenging the Agreement. While the current values of the accounts are relevant, whether they existed when the Agreement was signed is not. Pleadings define the issues, and relevancy.

[12] With respect to the loan and missing credit card information (items #15 and#16 from the husband’s disclosure chart) there is no reason why the wife cannot give to the husband the same kind of authorization that he has been directed to give to her. In fact, the wife indicated in argument that she would not be adverse to such a disposition, so that will be ordered.

[13] But there is a more discrete issue involving the bank accounts (items #7-#9).

[14] The wife has answered the husband’s request to provide bank statements and cancelled cheques for those accounts that she owns but redacted the transaction descriptions so that only the running balance is shown (she did the same for her credit cards but no issue has been taken by the husband in that regard). It is argued that as there are no allegations by the husband of the wife’s reckless spending, and no change in her lifestyle, his request is not relevant.

[15] In Pilkington v. Barrack (2014), 55 R.F.L. (7th) 221, 2014 CarswellOnt 18887, [2015] W.D.F.L. 1404, 249 A.C.W.S. (3d) 629 (Ont. S.C.) the husband in that case redacted the transaction details in his credit card statements but not their opening and closing balances.

[16] Stevenson J. stated that,

“11…that the disclosure of the Respondent’s credit card statements showing the amount spent by the Respondent post-separation is relevant to the matters in issue being quantum of spousal support and, in particular, imputation of income. However, while I do find that the disclosure of the credit card statement amounts each month is relevant to the Respondent’s spending pattern and the determination of his income i.e. does the amount of spending accord with the Respondent’s reported income or does it appear excessive which may cause one to question his income as reported, I do not see the need for the Respondent to provide full details of what each line by line item is on his statements.

12 These cases are fact-driven and as stated by Perell J. in Boyd v. Fields, 2006 CarswellOnt 8675 (Ont. S.C.J.), at para. 12: “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…” The dollar amounts are sufficient. Nothing is to be gained by the disclosure of line by line details of the Respondent’s spending and I accept the Respondent’s argument that this request really amounts to a fishing expedition. The totals alone will afford the Applicant an opportunity to challenge the Respondent’s income and to ascertain whether he has been truthful regarding his income.” (bolding added).

[17] In this case, where a termination of the spousal support obligation is sought, the husband questions the significant increase in the wife’s net worth since their Agreement was signed. To explain that increase the wife reviewed her bank statements “in detail” and traced her savings in a ledger tendered as part of her evidence, the contents of which cannot be easily reconciled with the statements provided because the dates, withdrawal and deposit columns are all redacted. While there may be, like Pilkington, a privacy interest underpinning the wife’s redactions, there are other assets and accounts which, unlike Pilkington, may impact the wife’s need for spousal support, quite apart from any issue involving its compensatory nature. In my view, and taking into account the proportional and contextual nature of the disclosure sought, the husband’s request does not amount to a fishing expedition, so the following Order is made with respect to the husband’s motion:

(1) The husband’s motion with respect to items #1 and #2 of his disclosure chart is dismissed but on a without prejudice basis;

(2) The husband’s requests with respect to items #5, #6, #13 and #14 are dismissed;

(3) The wife shall provide unredacted bank statements for the TD bank accounts ending #8449, #1542 and #0140 (USD). With respect to request #15 the wife shall deliver to the husband within 21 days of the date of release of this Ruling an authorization prepared by her counsel and signed by her to permit him to obtain from TD Canada Trust and the Royal Bank of Canada any loan application form or Financial Statement given to either of those financial institutions by her or submitted on her behalf from and after April 10, 2010. The husband shall share that information with the wife within seven days of its receipt by him. Any costs shall be to the husband’s account;

(4) The wife shall deliver to the husband within the same period as in (3) above an Authorization prepared by her counsel permitting him to obtain from her credit card issuers the documentary disclosure relating to her credit cards not already produced (this is item #16 from the husband’s disclosure chart). The husband shall share that information with the wife within seven days of its receipt by him. Any costs shall be to the husband’s account;

(5) Within 21 days of the date of the release of this Ruling the wife shall provide to the husband an affidavit from her mother explaining the nature of the cottage’s ownership, any trust relating to that ownership, confirming the identity of who is responsible for, and has paid, the expenses for the property and, lastly, affirming the truth of her July 26, 2015 “To whom it may concern” note. This relates to item #17 (c) of the husband’s disclosure chart, and is also made on a without prejudice basis.

[18] The Orders with respect to (1) and (5) above are intentionally made “without prejudice.” In the event that the disclosure provided dealing with the wife’s bank accounts conflicts with any of the wife’s earlier answers to the information requests made by the husband dealing, in particular, with the cottage property and the accounts owned by the wife and her mother, the husband may move for such relief as he may be advised.

[19] A final disclosure request related to a Canada Revenue Agency form T657, being a prescribed form for calculating Capital Gains and relating to the lifetime Capital Gains exemption and election contemplated by the Income Tax Act of Canada. The husband argued that this request related to a disposition of property made by the wife well before the parties signed their Separation Agreement. The wife produced her 2011-2014 personal income tax returns and, as there were no capital gains deductions or any assets that would qualify her for the deduction, no such form was prepared. This request is denied.

Costs

[20] Notwithstanding the parties’ divided success, and in the event that the parties are unable to resolve the issue of costs arising from their motions, any costs submission shall be limited to three double-spaced pages not including Bills of Costs, Offers to Settle and Authorities (if any) upon which either party may be relying, to be delivered on or before August 31, 2015.

Justice D.A. Jarvis

Released: July 31, 2015