ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-14-820
DATE: 2015/12/17
BETWEEN:
Katherine McPhee
Applicant
– and –
Patrick McFadden
Respondent
Susan Galarneau, for the Applicant
Earl Atnikov, for the Respondent
HEARD AT OTTAWA: December 17, 2015
DECISION ON MOTION
PHILLIPS J.
[1] The Applicant brings a motion to compel disclosure from the Respondent. She asserts that the Respondent has not complied with a previous disclosure order made by Madam Justice Doyle on July 7, 2015. In particular, the Applicant argues three issues:
the July 7, 2015 order directs the Respondent to provide by August 25, 2015, a letter from Scotiabank that he has no other business accounts. The Applicant presently asserts that the response to that disclosure order is insufficient in that it does not specify whether the Respondent has business accounts over and above the two which are already known;
the July 7, 2015 order directs disclosure of “details of the amount of the car allowance he is paid from the company”. The Applicant argues that the information given on that subject does not allow her to assess its veracity or reasonableness;
the July 7, 2015 order directs disclosure of a list of the expense account submitted by the Respondent to his company for payment. The Applicant argues that the information disclosed thus far on that subject does not allow her to meaningfully probe the veracity or reasonableness of the accounts.
[2] I agree with the Applicant with respect to issue number one. The July 7, 2015 order is clearly meant to address the quantum of business accounts. It is already known that there are two business entities. Learning that there are no other accounts for any other entities misses the point. I find that the disclosure made thus far fails to comply with the order made by my sister Justice Doyle. The Respondent shall, within 14 days, disclose to the Applicant documentation from Scotiabank as to whether he has any other business accounts.
[3] I disagree with the Applicant with respect to issue number two. I find that in all meaningful respects the July 7, 2015 disclosure order was complied with by way of the information conveyed on the subject of the car allowance. I can see how that sort of superficial information does not allow for much assessment or review. However, in my view, a just result in this case can be arrived at without a deep dive on that issue.
[4] With respect to issue number three, I find that the Respondent has complied with the July 7, 2015 order but I agree with the Applicant that background data is required to assess the veracity and reasonableness of the accounts. In that regard, it is ordered that supporting documentation be disclosed showing how the numbers on the last two pages of Tab 2(c) of Volume 2 of the Continuing Record were arrived at. Without limiting the generality of the foregoing, it is ordered that the Respondent provide information with respect to what is meant by “miscellaneous”.
[5] I find the first of these three issues to be the most important. I accept that determining the quantum of bank accounts controlled by the Respondent is a necessary precondition to assessment of the income available to him for support purposes. As a result, I find the Respondent’s failure to comply with the clear and plain meaning of the July 7, 2015 order serious and concerning. In addition, I do not fault the Applicant for wishing to adjourn the trial of this matter so that a proper evaluation of the Respondent’s means can be accomplished.
[6] The Applicant may adjourn the trial if she wishes to do so. The Respondent cannot both fail to disclose pertinent information and dictate the pace.
Mr. Justice Kevin B. Phillips
Released: December 17, 2015
COURT FILE NO.: FC-14-820
DATE: 2015/12/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Katherine McPhee
Applicant
– and –
Patrick McFadden
Respondent
DECISION ON MOTION
Phillips J.
Released: December 17, 2015