ONTARIO

SUPERIOR COURT OF JUSTICE

NEWMARKET COURT FILE NO.: FC-02-152740006

DATE: 20150903

CORRIGENDA DATE: 20150910

BETWEEN:

Kimberly Lazier

Applicant

– and –

Jean-Pierre Vanier

Respondent

Mark Greenstein, Counsel for the Applicant

Respondent, Self-represented

HEARD: July 15, 2015

Ruling on motion

(text of original decision has been amended – changes appended)

jarvis j.:

[1] The wife moves for an order dismissing the husband’s Motion to Change a final support Order, and to prohibit the husband from bringing any further motions in what is a high conflict case spanning almost nine years of costly litigation.[^1] For reasons that follow I decline to grant that relief, and provide directions to expedite a hearing of the outstanding issues on their merits.

[2] A summary of the tortuous procedural background to this motion needed.

Final Order

[3] The parties are former spouses. They were married on February 4, 1994, separated on March 5, 2001 and were divorced by Order of Perkins J. dated January 13, 2003. For convenience sake the parties shall be referenced as husband and wife in these reasons.

[4] There are two children of the parties’ marriage, namely Alexis Karin Vanier born March 27, 1997 and Victoria Francoise Vanier born March 9, 2000. The children have resided with their mother, the wife, since their parents separated. To say that in light of the legal proceedings between the parties since they separated that the children’s relationship with their father, the husband, has been significantly compromised is a gross understatement.

[5] In May 2004 the wife commenced an Application for, among other things, custody of the children, equalization of the spouses’ net family properties, child and spousal support and ancillary relief. Both parties retained counsel, and after three years of litigation, shortly before trial the parties entered into Minutes of Settlement which were subsequently incorporated into a final Order of Rowsell J. dated October 5, 2007. Paragraphs 15-18 of that Order are relevant.

[6] Subsequent conflict between the parties about the children’s access with their father, and financial issues, led in early 2009 to the husband bringing a motion to have the wife found in contempt of the access provisions of the final Order. On March 18, 2009 Perkins J. made an Order appointing the OCL and adjourned the husband’s contempt motion to a date to be heard along with an intended Motion to Change by the wife.

[7] The wife commenced a Motion to Change the final Order on May 29, 2009 shortly before the June 3 return date for the hearing of the husband’s contempt motion. The wife was seeking a variation of certain access and related support terms as set out in the final Order.

[8] Both parties chose to represent themselves.

[9] On June 3, 2009 Mulligan J. made an Order adjourning the husband’s contempt motion and, on consent, varied the support Order to provide that the husband pay child support of $1,290 per month starting June 1, 2009. Nothing further, it seems, happened afterwards. On October 2, 2010 an administrative dismissal Order was made by the clerk of the court.

Motion to Change

[10] On December 19, 2011 the husband commenced a Motion to Change the June 3, 2009 support Order made by Mulligan J. and to vary paragraphs 15-18, inclusive of the October 5, 2007 final Order (although paragraph 15 of that Order had already been varied by Mulligan J.). The reasons advanced for the Motion were a significant decrease in the husband’s income together with a better procedure for dealing with verification of the section 7 children’s expenses for which the wife was requesting the husband’s contribution. The wife responded to that Motion to Change and made a claim of her own, disputing the husband’s alleged reduction in income and challenging the husband’s disclosure.

[11] Both parties were self-represented.

[12] On May 14, 2012, and in accordance with local practice, both parties appeared before a Dispute Resolution Officer. The endorsement made by the DRO indicated that the husband was abandoning his Motion to Change, instead intending to move to enforce the existing Order of Rowsell J., and that the wife wished to have her costs assessed.

[13] Later that day Nelson J. made an Order in accordance with the DRO screening report.

[14] On May 28, 2012, and notwithstanding Justice Nelson’s Order, the husband obtained a Case Conference date for September 10, 2012. Shortly before the Case Conference, the wife brought a 14B Motion to dismiss the husband’s Motion to Change based on what she contended were procedural irregularities and financial prejudice.

[15] At the Case Conference heard September 10, 2012 Kaufman J. observed that, among other things, whether “…or not the [husband] agreed to abandon his Motion to Change is moot other than for credibility purposes” and that the wife’s use of a 14B Motion to prohibit the husband from further access to the courts was inappropriate. Kaufman J. also noted that the wife was advancing broad-ranging disclosure requests and he endorsed the record that the “disclosure requests of [the wife] shall be limited to 2008 onward” (emphasis added). In addition, Kaufman J. noted that the wife understood that “disclosure requests of third parties…must be obtained on notice…to those individuals or corporations.” A typed copy of Kaufman J’s endorsement was released to the parties on October 10, 2012 and the Case Conference adjourned to February 8, 2013.

[16] Shortly before the release of the typed endorsement of Kaufman J. the wife served on the husband a Request for Information (“RFI”) dated September 30, 2012. 47 information requests were made, many involving third parties and well over a third relating to pre-2008 documentation. The husband had also served an RFI on the wife requesting information relating to insurance refunds for section 7 expenses incurred by the wife on behalf of the children, and section 7 expense receipts with proof of payment from and after January 1, 2008. Each party’s RFI requested the information to be provided within 60 days by affidavit.

[17] On January 29, 2013 the wife retained counsel.

[18] On February 8, 2013 the Case Conference continued before Kaufman J. and, at its conclusion, an Order was made, the relevant provisions of which are as follows,

1. The Respondent Father has until March 8, 2013 to provide further disclosure if he thinks relevant. If provided, leave for questioning is granted. If no questioning, a Trial Management Conference shall be held.

2. If disclosure is not provided, the Applicant Mother may bring a Motion on 21 days notice to have disclosure provided. The Respondent Father shall have ten days to respond. Reply, if any, three days prior to the Motion.

3. Based on the outcome of the Motion, either matter ready for Trial Management Conference or Applicant Motion will be successful on Motion, receive further disclosure, then proceed to questioning.

4. A Trial Management Conference shall be held combined with Settlement Conference on October 15, 2013 at 12 noon.

[19] On September 25, 2013 the wife brought a motion for an order, among other things, requiring the husband to provide the documents requested by the wife a year earlier in her RFI and additional documents. 27 additional requests for information were made by the wife, many of which duplicated not only each other but also the wife’s earlier RFI and about a third of which related, in whole or part, to the period before 2008. The wife contended that the husband had only satisfied (in March 2013) 9 of the 47 disclosure requests made in her September 2012 RFI and that the absence of the balance of the information earlier, and now, requested was needed before the combined Settlement/Trial Management Conference scheduled for October 15, 2013 could proceed. The wife’s motion was returnable November 6, 2013.

[20] In early October, 2013 the husband agreed with the wife’s counsel to adjourn the combined Settlement/Trial Management Conference although, as the husband later argued, he did not expect when he agreed to the adjournment that the court would reschedule it to April 15, 2014, a delay he viewed as unreasonable.

[21] On November 6, 2013 the wife’s motion was heard by McGee J. The husband had not delivered any response to the wife’s motion, and did not appear. Her Honour stayed the husband’s December 19, 2011 Motion to Change and made an Order, the following terms of which are relevant,

2. The Respondent may seek an order lifting the stay by filing proof that all prior orders have been placed into compliance, including production of the disclosure sought in today’s Motion, and by a payment of costs in the amount of $7,500.00 to the Applicant.

3. The payment of costs is a credit to any final determination of costs in the event the stay is lifted. It is inclusive of the costs reserved to today per Justice Kaufman’s Order of February 8, 2013.

4. Should the Respondent take no steps to lift the stay by March 1, 2014, the Applicant may seek an order by 14B Motion, without service, to dismiss the Motion to Change and enforce the above and any other costs award(s) as support through the Family Responsibility Office.

[22] On February 27, 2014 the husband brought a motion to lift the stay ordered by Madam Justice McGee including a request to stay the Order that he pay $7,500 in costs. This motion was accompanied by an affidavit from the husband that sought to provide an explanation for his non-attendance in court “in October” but which included answers, and information, to the 47 requests made by the wife in her September 2012 RFI. The husband’s motion was returnable March 19, 2014 but, as it had not been properly confirmed, it was rescheduled to April 2, 2014. Three days before that motion was to be heard, on March 30, 2014 the wife brought a 14B Motion without notice to the husband for relief that included dismissing the husband’s Motion to Change, having the $7,500 costs award made by McGee J. on November 16, 2013 enforced as a support Order, prohibiting the husband from bringing any further motions until all costs Orders had been paid, and costs (also enforceable as a support Order). The husband’s motion and the wife’s 14B Motion were heard by Madam Justice Healey on April 2, 2014. On that day Healey J. dismissed the husband’s Motion to Change and ordered that the costs ordered by McGee J. as well as $1,000 costs for that day, payable to the wife, both be enforced as support Orders by the Family Responsibility Office.

[23] Paragraphs 14 and 15 of the wife’s affidavit sworn March 30, 2014[^2] stated that the respondent had only provided some of the 20 of the 74 disclosure items ordered before March 1, 2014. At least 24 of the items which the wife claimed were outstanding related, in whole or in part, to the period before 2008.

[24] In that part of the endorsement made by Healey J. dealing with the husband’s disclosure Her Honour commented that “…the evidence of the [husband] is not convincing regarding disclosure, as only 20 items out of 74 have been provided. The [husband] has not met the preliminary standard of disclosure to permit the court to adjudicate his Motion to Change.”

[25] It does not appear that the earlier endorsement made by Kaufman J. limiting the wife’s disclosure requests to the period from 2008 onward was brought to Her Honour’s attention. Certainly there is no reference to that anywhere in the wife’s evidence. Nor does it appear from the record that the court was made aware of the significant duplication of the requests made, as earlier noted in this Ruling.

[26] On August 18, 2014 the husband commenced a Motion to Change that included the relief originally sought in his December, 2011 Motion to Change that had been dismissed by Healey J. on April 2, 2014 and added, in an omnibus fashion, requests to change the Orders of McGee J. and Healey J. The husband also brought a motion to have the wife found in contempt of court and he supported that motion with a documented narrative of the case, including six and a half volumes of the Continuing Record comprising (for the most part) the disclosure that he maintained had been earlier provided to the wife before, but mostly after, the Order of McGee J. made November 6, 2013.

[27] The wife responded to the Motion to Change on September 11, 2014 and made claims of her own to vary the final Order.

[28] On September 17, 2014 Douglas J. dismissed the husband’s contempt motion and awarded the wife costs fixed in the amount of $2,000 payable at the rate of $100 per month, enforceable as a support Order by the Family Responsibility Office.

[29] In accordance with local practice a DRO attendance of the parties and the wife’s counsel proceeded on October 10, 2014. Nothing was resolved for reasons not entirely clear from the Continuing Record but, from a practical standpoint understandable given the procedural history of the issues before the court, a Settlement Conference was subsequently held by McGee J. on March 31, 2015. Nothing was resolved then either but the wife was given leave to proceed (as she was entitled to in any event) with a motion to dismiss the husband’s Motion to Change. That motion proceeded on July 15, 2015 and was supported by an affidavit from the wife sworn June 3, 2015. Exhibit “B” to the wife’s affidavit set out what she maintained were 42 outstanding disclosure items. The husband’s affidavit sworn July 10, 2015 in response repeated much of what he had earlier sworn in the affidavit filed before Madam Justice Healey and, without putting too fine a point to it, was a screed about what the husband maintained was an ineffective, costly and unduly prolonged process then well into its fourth year. While the husband cannot excuse his role in how the legal process unfolded, there is some element of truth in his complaints.

Disclosure

[30] A review of the 42 disclosure requests that wife contends remain outstanding indicate the following:

(a) 19 of the 42 requests reference, either exclusively or partially, production requests prior to 2008 that Kaufman J. explicitly ruled that the wife was not entitled to make: for example the wife’s complaint that there had been no disclosure of the husband’s 2006 and 2007 tax returns, Notices of Assessment and supporting tax documentation (#6-#8). The wife also complained that the husband had not provided consulting invoices for 2006 and 2007 for a numbered company and a copy of golf club membership dues and expenses for 2006 and 2007 (and parts of 2008), (#40-#42);

(b) Nine of the requests the husband answered that the documentation didn’t exist. One of those related to whether the husband owned a joint account with his then current wife, which the husband indicated he did not. The wife complained that the husband had not “provided any proof to substantiate” that there was no such joint account. For another the wife complained that she possessed information contrary to the husband’s answer. With respect to the balance the wife was simply not satisfied with the husband’s answer (#1, #2, #9, #12, #16, #21-23);

(c) Several other complaints related to missing pages from compilations of bank statements already produced;

(d) Two disclosure requests related to the husband’s bankruptcy before 2008 (#19 and #20).

Unaddressed Issues

[31] Absent from the Continuing Record is any clear indication whether the wife satisfied any of the RFIs requested by the husband. For example, the husband made a RFI (as already noted) on September 28, 2012 and renewed that, albeit in an expanded form, in an RFI dated August 18, 2014. His affidavit not unfairly queries why non-compliance of his disclosure requests by the wife is either disregarded or held to a lower level of obligation than his disclosure obligations.

[32] The evidence that the children have been inappropriately involved in, certainly, the financial issues between their parents is overwhelming. While Douglas J. when hearing the husband’s motion for contempt on September 17, 2014 observed that it appeared that the children might be exposed to “events” in the case, he was not, beyond a reasonable doubt, able to determine who was responsible but given “the nature and quality of [the wife’s] e-mails to [the husband], I certainly have my suspicions, but suspicion is not enough.”

Analysis and Disposition

[33] Rule 15 of the Family Law Rules governs Motions to Change a final Order. It is the only procedure open to a party subject to continuing obligations in a Judgment to vary those obligations based on changed circumstances. A more summary, and potentially less expensive process, is contemplated: Rule 15 (26) empowers the court to make decisions on the material filed or, if that approach is not appropriate, to give directions, including directions for a trial. The onus is on the applicant to show that a trial is needed.[^3]

[34] Proper disclosure in family law cases is critical. In Roberts v. Roberts,[^4] the Court of Appeal observed,

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.

[35] But disclosure must be proportional to the issues. Rule 1.04 (1.1) of the Family Law Rules incorporates that principle. It provides,

In applying these rules, the court shall make orders…that are appropriate to the importance and complexity of the issues…in the proceeding.

[36] In Kovachis v. Kovachis,[^5] the Court of Appeal observed that when determining whether to strike pleadings for, in that case – like this, non-disclosure,

“…consideration ought to [be] given to the importance or materiality of the items of disclosure…not produced. Although full and frank disclosure is a necessary component of family law litigation, exhaustive disclosure may not always be appropriate. Courts and parties should consider the burden that disclosure requests bring on the disclosing party, the relevance of the requested disclosure to the issues at hand, and the costs and time to obtain the disclosure compared to its importance: see Chernyakhovsky v. Chernyakhovsky, 2005 6048 (ON SC), 137 A.C.W.S. (3d) 988 (ON SC) at paras. 8, 15; Boyd v. Fields, [2007] W.D.F.L. 2449 (On SC) at paras. 12-14. Disclosure orders must be fair to both parties and appropriate to the case.

[37] Both Roberts and Kovachis held that the power to strike out pleadings “is to be used sparingly and only in exceptional cases.”[^6] In Kovachis, where substantial disclosure had been made, the court also held that it was incumbent on the party alleging non-disclosure to clearly articulate what was missing. What may be “missing” however must be demonstrably important or material to the issues at hand.

[38] In this case, while the wife has listed the items of disclosure she alleges are missing, and argued that the husband could be earning undisclosed income, there was no evidence of a “smoking gun” before the court, nor was any effort made to tie-in what was missing to that allegation. Moreover, and as already noted, many of the items about which the wife claimed non-disclosure had already been ruled by Kaufman J. as not relevant (i.e. pre-2008); within the wife’s ability to obtain from the public record herself (like the husband’s bankruptcy filings); or available to her on notice to third parties by motion if the wife was unsatisfied with the husband’s answers or efforts (as commented upon by Kaufman J.).[^7] There was no evidence that the wife ever resorted to Rule 20 (5) of the Family Law Rules dealing with questioning or disclosure of or from third parties, nor that the husband and wife in this case had questioned the other (also permitted by Kaufman J. in September 2012).

[39] Far too often overly broad disclosure requests are made in family law cases that, while superficially relevant to the issues, are tactically driven to delay a determination of the merits of the case while demanding continuing compliance with the Order sought to be changed. This is particularly so in Motions to Change support Orders. The recent disclosure amendments to the Family Law Rules provide a minimum disclosure standard for all litigants which can be expanded, or narrowed, depending on each case’s particular circumstances. What cannot be lost sight of though is the fair and expeditious disposition of cases.

[40] As already noted, Rule 15 (26) empowers the court to give directions. Given the acrimonious history and delay in this case it is imperative that the merits of the husband’s Motion to Change and the wife’s claims be determined as soon as practically possible.

[41] The wife has also requested that the husband’s Motion to Change be dismissed because he has failed to pay the costs awards made totalling $10,500. Those, however, she sought, and was granted, an Order enforcing those awards as support Orders by the Family Responsibility Office. Not only were they, in fact, being enforced but in the motion heard by Douglas J. direction was given about the payment of the costs he awarded. This request is, therefore, denied.

[42] Rule 2 (2) of the Family Law Rules identifies their primary objective as enabling the court to deal with cases justly, and dealing with cases justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case 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. O. Reg. 114/99, r. 2 (3).

[43] Parties and their lawyers are required by Rule 2 (4) “to help the court to promote the primary objective.”

[44] In this case, the husband’s original Motion to Change the support Order was commenced on December 19, 2011. The changes upon which the husband was relying then, and now in his Motion to Change, included a reduction in his income and difficulties that were being experienced with respect to disclosure, verification and payment of the children’s special or extraordinary expenses. The merits of that motion have never been considered. In the interim, the original Order has continued to be enforced resulting not only in the husband’s loss of his licence to drive but also over 14 volumes of a Continuing Record, half a dozen court Orders, several disclosure Orders and costs awards enforceable as support.

[45] Kaufman J. was clearly alert to the disclosure issue when he case conferenced the parties’ Motions to Change on September 10, 2012. His endorsement identified what disclosure was not only needed but was also not relevant to the proper disposition of the case. The wife had many disclosure requests but understood that, at least as regards to third parties, she needed to put those individuals or corporations on notice. Her disclosure requests were limited to the period 2008 onward. Her RFI dated September 28, 2012 ignored that limitation, as did her later information requests and complaints about the husband’s inadequate or non-disclosure. It is clear though, too, that the husband’s failure to in a timely or better organized fashion answer the information requests (even those he contended had been answered in part) contributed to the unedifying spectacle of ever greater recrimination and delay, for which both parties are responsible.

[46] No satisfactory explanation was given by the husband why he ignored the wife’s motion that was heard by McGee J. on November 16, 2013. His reasons for not attending court in October (when the combined Settlement/Trial Management Conference was scheduled to be heard) because the wife’s counsel and he had agreed to reschedule it misses the point, and there has been since then no additional explanation proffered. That it took the Order of McGee J. staying his Motion to Change before he provided to the wife, and identified for the court, much of the disclosure she had requested for so long is regrettable and undeserving of reconsideration of the costs awards made, even if the court had that jurisdiction.

[47] Accordingly, an Order shall issue as follows:

(1) The husband shall answer in prescribed form within 45 days of the date of this Order the following outstanding disclosure items identified in Exhibit “B” to the wife’s affidavit sworn June 3, 2015 and as more particularly set out in the schedule attached to this Ruling;

(2) The wife shall answer in prescribed form the husband’s Requests for Information dated September 28, 2012 and August 18, 2014 within 45 days of the date of this Order;

(3) If either party maintains that he or she has already answered or satisfied, in whole or in part, the disclosure referenced in (1) and (2) above then that party shall, no later than September 30, 2015, file with the court an affidavit evidencing that those disclosure requests have been answered or, if they have not been fully answered, then detailing the efforts made by that party to answer them;

(4) Leave is granted to the wife to bring a motion on notice, if she requires, for an order for third party questioning or disclosure of information by affidavit;

(5) Pursuant to Rule 1 (7.2) (p), the parties’ Motions to Change shall be listed for the November trial sittings of this court. A combined Settlement/Trial Management Conference shall be held on October 6, 2015 at 2:15 p.m.;

(6) The wife’s motion shall be dismissed;

(7) There shall be no costs of this motion.

[48] Despite the dismissal of the wife’s motion, there do remain disclosure requests unsatisfied by the husband but the gratuitous, unrestrained and ill-conceived aspersions peppering his material filed, and his submissions, should be discouraged now and in future.

Justice D.A. Jarvis

Released: September 3, 2015

Schedule – Vanier Outstanding Disclosure

No. Item

5 January – May 2008 TD Visa Statements for TD Visa ending #1801, and missing pages from statements June 2011 to June 3, 2015 for Visa cards ending #2404 and #9626;

10 Missing 2013 corporate tax return (NB. The name of the company is not identified);

18 A detailed explanation how Mr. Vanier was financially compensated as a result of the Fort McMurray sale in 2010 and an explanation as to the source and disposition of the deposits of $100,000 in January 2010 and $150,000 in July 2010;

26 Proof that the husband’s life insurance policy is in good standing;

27 Copies of up-to-date RESP Statements for the children;

32 Letter from 4 Seasons listing all sales from start of contract to date and commission paid;

33 2012 and 2014 Homelife Realty Sales and Commission Statements;

39 Letter from Real Estate Brokerages verifying husband’s earned commission from 2012 to present (NB. This appears to be a partial duplication of #33);

NB This list is not intended to relieve the husband from providing copies of other missing pages from his disclosure if those can be obtained. If they cannot be obtained, then the husband should be prepared to account for his efforts to obtain them.

AMENDMENTS

Paragraph 34 – The footnote number 4 is no longer italicized.

Paragraph 46 – The word on has been changed to when and the sentence now reads:

His reasons for not attending court in October (when the combined Settlement/Trial Management Conference was scheduled to be heard)…

[^1]: The wife’s motion is more broadly based but the relief noted describes its essence. During the course of their litigation both parties declared bankruptcy.
[^2]: See para [19]. The wife’s 2012 RFI and the additional requests for information totalled 74.
[^3]: I.(M.) v. W.(M.), [2011] O.J. No. 1685, 2011 ONSC 2021, 6 R.F.L. (7th) 167 (ONT. S.C.J.).
[^4]: 2015 ONCA 450.
[^5]: 2013 ONCA 663.
[^6]: Supra #4 at para. [15].
[^7]: See para. [15] above.