Manchanda v. Thethi

Ontario Reports Ontario Superior Court of Justice, Myers J. June 9, 2016 131 O.R. (3d) 393 | 2016 ONSC 3776

Case Summary

Family law — Practice — Disclosure — Respondent failing to comply with disclosure orders — Contested trial impossible because of respondent's failure and unwillingness to make basic financial [page394] disclosure in accessible form — Applicant's motion to strike respondent's pleadings granted.

The applicant and the respondent each brought a motion to strike the other's pleadings on the basis of a failure to make financial disclosure.

Held, the applicant's motion should be granted; the respondent's motion should be dismissed.

Disclosure is critical to the court's fact-finding tasks. The applicant had made sufficient financial disclosure to allow the fundamental calculations required by the Family Law Act to be made. By failing to disclose what had happened to certain funds in her financial account, she was not close to evincing an intention not to participate in fair and just proceedings. That was not true of the respondent, who had ignored disclosure orders over a period of three years and had failed to make basic financial disclosure in an organized and accessible form. The respondent's non-disclosure was willful and sufficiently egregious that it had to be concluded that he did not intend to help the court promote a just outcome. His failure to make basic, accessible financial disclosure made a contested trial impossible. It was appropriate to strike his pleadings.

Cases referred to Bardouniotis v. Trypis, 2010 ONSC 4466, supp. reasons 2010 ONSC 6586; Blaney v. Blaney, 2012 ONSC 1777; Grenier v. Grenier, 2012 ONCA 732, affg Grenier v. Grenier, 2012 ONSC 6512; Hao v. Wang, 2015 ONSC 6989; Hryniak v. Mauldin, 2014 SCC 7; Kovachis v. Kovachis, 2013 ONCA 663; Levely v. Levely, 2013 ONSC 1026; McKinlay v. McKinlay; Meade v. Meade, supp. reasons ; Quesnel v. Nadon-Quesnel; Rayzberg v. Bakhmatch, 2015 ONSC 6306; Roberts v. Roberts, 2015 ONCA 450; Turk v. Turk, 2014 ONSC 4490

Rules and regulations referred to Family Law Rules, O. Reg. 114/99, rules 1(8), (b), (8.1), (8.4), 2(2), (3), (d), (4), 13 [as am.], (3.3), 20.1(10)

MOTIONS by the applicant and the respondent to strike pleadings.

Counsel: Evelyn K. Rayson, for applicant. Richard H. Parker, for respondent. [page395]

MYERS J.: —

It's 2016.

[1] When is enough, enough? It has been clear for over 15 years that financial disclosure -- early, voluntary and complete financial disclosure -- provides the factual foundation for the resolution of financial issues in family law proceedings.

[2] The parties participate in legal proceedings to seek a fair and just determination of their disputes. Rules 2(2) and 2(3) of the Family Law Rules, O. Reg. 114/99 require that all participants in a family proceeding try to obtain a fair, efficient, proportional and just outcome. These rules provide:

PRIMARY OBJECTIVE

2(2) The primary objective of these rules is to enable the court to deal with cases justly.

DEALING WITH CASES JUSTLY

(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 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.

[3] I stress rule 2(4), which provides that everyone involved in a family law proceeding owes a duty to promote a fair and just resolution of the proceeding. This duty applies to the court, the lawyers and to the parties themselves.

DUTY TO PROMOTE PRIMARY OBJECTIVE

2(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

[4] Early, voluntary and complete disclosure of financial information is essential to family law proceedings. This has been said and written by judges over and over again. It is the duty of the parties to produce documents to establish their incomes, expenses, assets and liabilities as at various valuation dates depending on the specific relief that is claimed in the proceeding. Even where valuing one's property may be inconvenient or expensive, the duty to obtain all necessary valuation expertise required to do so lies on the party who owns the particular property. [page396]

[5] This was said about as plainly and clearly as can be said by Justice Czutrin (as he then was) in Blaney v. Blaney, 2012 ONSC 1777 as follows [at paras. 3-5]:

The Family Law Rules that first came into effect in 1999 had as its objective, promotion of settlement and early disclosure. It created a process that would allow early access to judges. The process was and is still dependent on readiness and parties and counsel being able to use the judicial time appropriately. Far too often, little, particularly where the issues are financial may be achieved, if disclosure remains an issue.

Soon after parties separate, or perhaps even in anticipation of separation, parties no doubt look for information about the process and what is required of them. If they consult family counsel they will be advised that they need to start gathering documentation to deal with property and support issues.

Particularly where a party is self-employed, or is a shareholder of a company and works for that company they should know that, for support purposes, their Income Tax Returns may not be enough to establish income and that the value of their interests in a company will need to be established by the use of and need for experts in many instances. The obligation and onus to satisfy the court as to income and the value of assets and debts is on the person whose income or asset or debt is called into question. Here, the Respondent (husband) had that obligation. His obligation existed prior to any court orders, conferences or court attendances.

[6] I note in particular Senior Family Justice Czutrin's reference to the Family Law Rules regime having come in to force in 1999. That was 17 years ago.

[7] In 2001, MacKinnon J. discussed the policies of the Family Law Rules in Quesnel v. Nadon-Quesnel, at para. 19. He wrote:

Equally strong is the policy of the law requiring full and continuing financial disclosure.

[8] Where it can, the court will draw inferences against positions adopted by parties who fail to meet their disclosure obligations. In 2002, in Meade v. Meade, at para. 81, additional reasons Meade v. Meade, Kiteley J. discussed the consequences of inadequate disclosure as follows:

Where disclosure is inadequate and inferences are to be drawn, they should be favourable to the spouse who is confronted with the challenge of making sense out of financial disclosure, and against the spouse whose records are so inadequate or whose response to the obligation to produce is so unhelpful that cumbersome calculations and intensive and costly investigations or examinations are necessary.

[9] Over and over, again and again, courts have stressed the importance of disclosure in family proceedings. In 2010, Mesbur J. dealt with a party's failure to make early and timely financial disclosure in Bardouniotis v. Trypis, 2010 ONSC 4466, at paras. 8 and 9, additional reasons Bardouniotis v. Trypis, 2010 ONSC 6586, [page397] as follows:

As is the case in all family law litigation, financial disclosure is at the heart of it, particularly production of income tax returns and attachments. Mr. Trypis has been under an obligation to produce for five years. He finally produced his tax returns for the taxation years 2004 to 2007 at the end of the trial, after the evidence was concluded! He was able to obtain them with a simple call to his accountant. This alone suggests to me that Mr. Trypis has, and had no intention of making meaningful disclosure at any point during this protracted lawsuit.

Disclosure, of course, is critical to the court's task of fact-finding, particularly where, as here, there are significant credibility issues. In these circumstances of deliberate non-disclosure I draw an adverse inference against Mr. Trypis and accept little of what he says on contentious issues unless corroborated by independent, credible evidence.

(Emphasis added)

[10] The court cannot determine the value of a party's property at the date of marriage or at the valuation date if the party does not disclose all of the property that he or she owned at each date. Without disclosure, there are no facts upon which the court can make the required findings to resolve the financial issues in dispute. As noted by Kiteley J. above, with imperfect disclosure it is often possible to draw inferences that allow the court to make approximations of financial values. It may also be possible to make imputations where the law allows. But the court cannot guess. I agree with Mesbur J. that disclosure is critical to the court's fact-finding tasks.

[11] In recent years, restatements of this fundamental point have become clearer and sharper. For example, in Turk v. Turk, 2014 ONSC 4490, D.A. Wilson J. wrote, at para. 11:

The jurisprudence makes it abundantly clear that full and complete financial disclosure is necessary in the family law context, particularly when parties have entered into domestic contracts.

[12] In 2015, in Hao v. Wang, 2015 ONSC 6989, at para. 70, Sutherland J. wrote:

It is trite to say that documentary disclosure is an integral part of family litigation. Without forthright and expedient financial disclosure, family litigation cannot be conducted in a logical, rational manner nor can litigation be settled without comprehensive documentary disclosure. Documentary disclosure which includes financial disclosure is integral and the foundation of family cases for the purpose of either going to trial or settlement. The sooner comprehensive financial disclosure is provided in a logical manner, the sooner litigants in family cases can assess their case and attempt to settle that case. [page398]

[13] In 2015, in Rayzberg v. Bakhmatch, 2015 ONSC 6306, at para. 19, Jarvis J. wrote:

Disclosure in family law cases is critical to a fair and expeditious resolution of a case, and is the responsibility of each party.

(Citations omitted)

[14] In 2015, the Court of Appeal made the same point in Roberts v. Roberts, 2015 ONCA 450, at paras. 11-13:

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

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 on the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.

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

[15] In 2015, Rule 13 of the Family Law Rules was amended to reinforce the parties' positive obligations to disclose. Rule 13(3.3) sets out various classes of required documents to demonstrate the breadth of financial disclosure required. Moreover, it requires parties to deliver proof that they have applied for some of the required documents which may be in the possession of third parties. The amendments also added a requirement for financial disclosure to be refreshed before case conferences by the filing of a certificate.

[16] The amendments to Rule 13 have had no appreciable effect on disclosure practices in Toronto. Despite the better modelling of required behaviour in the most recent amendments, in case after case, the court still sees refusals to disclose, or slow disclosure, or late disclosure, or failure to apply for third party documents, or failure to obtain valuations, and other asset-hiding tactics being adopted as if they are legitimate, normal litigation strategies. They are not.

[17] Disclosure reluctance remains common in "big" cases and "small" cases alike. Requiring the less moneyed spouse to repeatedly come to court to try to slowly peel back the layers of the financial onion is still standard fare on motion days and in case conferences. And it has to stop.

[18] A party who does not make early, voluntary and complete financial disclosure is not participating in the process. He or she is not fulfilling the primary duty to help promote a just outcome.

[19] As this case so aptly demonstrates, trips to court are wasted due to disclosure not being completed. Hearings have been cancelled or derailed due to the lack of disclosure. Disclosure [page399] motions take significant time to go through numerous requests and hear argument on each. On June 4, 2015, Horkins J. dealt with approximately 60 information requests before running out of time. Although counsel scheduled and confirmed in writing that the motion before me would take one hour, as should be obvious on reviewing the particulars listed in Appendix "A" to these reasons, the hearing took all day. Motions to require a party to do what he or she was supposed to have done voluntarily, or what he or she has already been ordered to do, are a waste of judicial resources and for that reason too are contrary to the parties' duties to help the court implement the primary objective as set out in rules 2(3)(d) and (4) above.

[20] Without enforcement of the primary objective, a party can frustrate the civil justice system's goals of efficiency, affordability, proportionality and fairness by making the process slow, expensive and distressful. Without enforcement, 17 years into the piece, all of the important words recited above, written by so many experienced family law judges, amount to little more than spilled ink.

[21] The Supreme Court of Canada has already issued a clarion call for a culture shift to enhance access to civil justice in Canada (Hryniak v. Mauldin, 2014 SCC 7). Seventeen years is enough lead time. If family cases are to be made more efficient, quicker, cheaper and less distressing for the parties, then the first step is for all participants to commit to and fulfill their disclosure obligations early, voluntarily and completely.

[22] A party should not have to endure order after order after order being ignored and breached by the other side. A refusal to disclose one's financial affairs is not just a misstep in the pre-trial tactical game that deserves a two-minute delay of game penalty. Failure to disclose is a breach of the primary objective. Especially if it involves breach of a court order, a party who fails to disclose evinces a determination that he or she does not want to play by the rules. It is time to oblige such parties by assessing a game misconduct to eject them from the proceeding.

The Motions

[23] The applicant wife moves to strike the pleadings of the respondent husband by reason of his continuing breaches of multiple court orders in this proceeding. Alternatively, she moves for further disclosure of documents, an order that the applicant take over from the respondent managing the parties' residential rental units, a full accounting of all rent received by the respondent from tenants, and an order that the respondent [page400] deposit rent received to date into a specified bank account as ordered by judges previously.

[24] In addition, the applicant seeks an order granting her leave to amend her application to the form set out as Schedule "B" to her notice of motion dated April 7, 2016. Absent very limited exceptions, under the Family Law Rules the court is required to grant leave to amend pleadings. None of the exceptions apply in this case. The draft pleading sets out a tenable cause of action. The amendments will cause no prejudice to the respondent. Accordingly, leave to amend, as sought in para. 6 of the applicant's notice of motion dated April 7, 2016, is granted.

[25] The respondent also brought two motions. First, he asked for an order requiring the applicant to pay occupation rent of $1,400 per month for the unit that she occupies as the matrimonial home in the parties' rental property. The respondent effectively withdrew this motion in light of the decision of Justice Granger in McKinlay v. McKinlay.

[26] In his second motion, the respondent asked the court to strike the applicant's pleadings due to her failure to obey the order of Corbett J. dated March 21, 2016 relating, in particular, to the applicant's ongoing failure to disclose particulars of her use of the sum of approximately $377,000.

The Current Status of this Proceeding

[27] This proceeding has suffered from a number of maladies. At the outset, the applicant obtained a restraining order without notice to the respondent. That prompted months of responding motions until the order was essentially set aside. The applicant then sought 374 itemized disclosure items. The respondent has responded by not disclosing his assets or income, ignoring court orders and then engaging in an old-fashioned "document dump". 1

[28] It is apparent from reading the endorsements brief that several judges have been concerned about the degree of antipathy between the parties that is being played out as excessive motion practice and disclosure games. The multitude of motions, [page401] aborted conferences and piecemeal productions have led to a continuing record that is ten volumes, so far, and is nearly impenetrable. I tried.

[29] By endorsement dated October 22, 2015, Justice Harvison-Young also commented on this issue while dealing with an earlier motion by the applicant to strike the respondent's pleadings due to his failure to comply with prior orders. Justice Harvison-Young wrote:

In light of the fact that there has been some attempt to comply with the Horkins J. order I am not prepared to strike the [respondent's] pleadings. Part of the problem as I have noted is the poor organization of the continuing record. The [applicant] shall ensure that the index in the continuing record is updated and that all the materials contained in it are properly and chronologically organized before the next appearance.

[30] Counsel for the applicant advises that she has complied with Justice Harvison-Young's direction as best as she could. As will become apparent below, however, she did not succeed. References that she gave me to items in the continuing record are not where she said or are not in the record at all. The continuing record is literally bursting at its seams and cannot be relied upon to give a readily intelligible, comprehensive account of the proceedings to date.

[31] The proceeding came before Justice Corbett on March 2, 2016 for a trial management conference. He declined to set a date for trial because there were still outstanding disclosure issues. He tried to clean up the record by ordering each party to make one further written request for any disclosure that they still required. Responses were to be delivered by a set date. The parties were then to attend a settlement conference before Justice Corbett where he would deal summarily with any lingering disclosure issues, if any. Justice Corbett expressly noted that nothing in his order released any disclosure obligations from prior orders.

[32] On March 21, 2016, the parties attended again before Corbett J. He recited the applicant's consent to provide the disclosure requested by the respondent in his request for information dated March 4, 2016. Justice Corbett ordered that the applicant to provide the listed disclosure by April 30, 2016 as she agreed to do.

[33] Justice Corbett also noted that the applicant's further request for disclosure by the respondent was not limited to requesting outstanding items. Rather, she summarized generally the total disclosure sought although only some of it may remain outstanding. The respondent responded to the generality of the applicant's request with an equally unhelpful, generalized [page402] claim that "everything relevant has been disclosed". Justice Corbett found that the exchange between counsel did not enable to court to resolve the issues summarily as he had hoped. Accordingly, he authorized the applicant to bring this motion.

The Facts

[34] The applicant makes essentially two complaints against the respondent. She says that he refuses to deposit rent received on their rental units into a joint account as ordered by three separate judges. Second, she says that he has refused to disclose documents despite court orders.

[35] The first complaint is admitted by the respondent. He essentially pleads "guilty with an explanation". As to disclosure, the respondent says that he has disclosed everything that he can and that he has done all that was required of him.

a. The respondent refuses to deposit rent received into the joint account

[36] On August 8, 2013, Czutrin J. (as he then was) granted an order without notice prohibiting the respondent from coming within 250 metres of the parties' property at 74 Edinborough Court, Toronto. He also granted the applicant exclusive possession of the property pending the return of the motion on notice. This not only gave the applicant exclusive possession of the matrimonial home that formed one unit in the property, but it also prevented the respondent from collecting rent or doing other chores to manage the two rental units at the property.

[37] The parties entered into consent terms that were ordered by Czutrin J. on October 1, 2013 that provided for comprehensive disclosure of the parties' financial information.

[38] By order dated December 2, 2013, Jarvis J. set aside the restraining order and the order granting the applicant exclusive possession of the property. He ordered that the applicant could occupy the top-floor apartment and common areas without interference from the respondent. He also ordered the respondent to resume managing the two rental units. Justice Jarvis ordered the respondent to deposit all rent that he received into a specified joint bank account. He also ordered that the account was to be accessed only with the consent of both parties.

[39] The respondent did not comply with Justice Jarvis' order to deposit rent received into the specified joint account. Therefore, on November 24, 2014, Justice Frank ordered the respondent to transfer rents he had received into a joint account set up by the applicant. The order provides: [page403]

4. . . . The Respondent shall deposit into that joint account all rents paid to date of this Order.
5. THIS COURT ORDERS THAT the Respondent is to provide an accounting of rent received and bills paid.

[40] It should be noted as well that Frank J. ordered the respondent to deposit all rents that he had received in the prior year. The order did not take account of the fact that the respondent was paying upkeep on the property from those rents. Presumably, this was intended to be covered off by the accounting required in para. 5 of the order. Would that the respondent had deposited the net amount of rents supported by contemporaneous disclosure of an accounting for expenses with backup documentation provided, I suspect this issue would not be before me.

[41] The next important order on this issue was made by Justice Horkins on June 4, 2015. Her endorsement provides:

The [applicant] lives rent-free on the second floor. The first floor and basement each contain a rental unit and are rented out.

On December 2, 2013, Jarvis J. ordered the [respondent] resume management of the rental units, receive rent, and deposit rent into a specific CIBC bank account. Money in that account was not to be used without parties' consent. The CIBC account was closed for inactivity.

On November 26, 2014, Frank, J. ordered that a joint account be opened, and that any rent monies in the previous CIBC account be transferred to this new account. [Respondent] was ordered to deposit rent monies into this new account.

A joint account in the names of both parties is now open at CIBC account number [number omitted] as confirmed in CIBC letter dated March 30, 2015.

There is a significant dispute regarding [respondent's] use of rent money. Unfortunately, the original order of Jarvis J. was not followed.

I make the following order re 74 Edinborough Court. It is agreed that this is a matrimonial home.

1. The [respondent] shall continue to collect the rent from the rental units and he shall continue to be responsible for managing the rental units as ordered by Jarvis, J. pending further order of the court.
2. The [respondent] shall deposit the rent monies into the joint account number [number omitted] at CIBC effective immediately.
3. The rental money shall only be used to pay the typical expenses associated with owning a home and renting units to tenants (property taxes, heat, water, and necessary repairs).
4. The [respondent] shall provide the [applicant] with a monthly accounting of his use of the rental monies and shall provide copies of all receipts. [page404]
5. The parties shall make best efforts to agree on the expenses that can be paid with the rent monies. They shall have the list prepared by Monday, June 12, 2015. Those items that cannot be agreed on shall be discussed at the conference on July 27, 2015 at 10 am[.]
6. If the parties cannot agree on [respondent] using rent money to pay his rent, this issue, shall be discussed at the TMC on July 27.
7. If an agreement concerning use of rent monies cannot be reached on June 8, 2015, the parties agreed that the TMC judge may make an interim order on this issue at the July 27 TMC.
8. Parties shall provide a conference brief with sufficient detail and if necessary, a short affidavit. Each shall provide a list of what they should be paid from rent monies.
9. If available, I shall hear the TMC on July 27.
10. [Respondent] shall provide [applicant] with a full and detailed accounting of all rental money he received from the tenants from January 1, 2014 to date. This shall include copies of all receipts for expenses paid. To be completed before July 27 conference.
11. There is a dispute about who collected the rent money in June and July, 2013.
12. The [applicant] shall provide a full and detailed accounting of rent money she collected from August 1, 2013 to December 31, 2013 plus copies of all receipts for expenses paid before the July 27 conference.

(Emphasis in the original)

[42] In an endorsement dated July 27, 2015, Justice Horkins wrote:

Today I received a [settlement conference] brief from the [respondent] that is virtually useless. The [applicant] continues to allege that the [respondent] is in default. She has provided a chart in her [settlement conference] brief clearly setting out what the [respondent] has and has not complied with (re: my order)[.]

Today was supposed to be an opportunity to discuss settlement and fix a trial date if no settlement. As a result of the [respondent's] failure to follow my order, this was not possible.

The [respondent's] counsel says that [applicant] has not complied with my order. However, he has not obtained particulars of such default.

[43] In his affidavit sworn April 15, 2016, the respondent concedes that he has not deposited rent that he has collected into the joint account as ordered by Justice Jarvis, Justice Frank and Justice Horkins. He provides his view that the applicant is a "pathological liar and manipulator". He says that the applicant failed to add his name to the CIBC account ordered by Justice Jarvis. He says that "she claims that the Account was closed due to inactivity, which is not true, but could become dormant". [page405] I have no idea what that means. He says that the applicant has continued to keep the rent that she collected during her few months of exclusive possession in 2013. Rather, she only recently deposited a portion of that money into the new joint account. Most significantly, he says that he has paid expenses on the rental units that are greater than the rent that he has collected resulting in him having a shortfall. He says the applicant will not pay her share of his shortfall. Paragraph 13 of the respondent's affidavit provides:

It is for this reason that I did not deposit monies into a joint account because I knew there would be absolutely no cooperation from her. As can be seen by what I have supplied, that all of the various utilities and taxes and insurance have been paid. While she had the $6,250, she did not pay any expenses for the property.

[44] The respondent's counsel argues that the respondent had good reason not to trust the applicant. For the few months that she was collecting rent under the initial order made without notice by Czutrin J. (as he then was), she paid no utilities or other property expenses. The respondent, by contrast, says that he has paid up all expenses and incurred capital costs in relation to the properties. He has provided unsupported, late statements purportedly setting out his receipts and disbursements. He has provided one month's worth of utility bills which, to his credit, show that there were no arrears, at least as of last fall. Moreover, the respondent's counsel notes, fairly, that the applicant lives in the unit rent free and is not complaining about a lack of heat or light, or about the receipt of any tax default notices. Accordingly, it can be inferred that the respondent has kept up necessary payments to date.

[45] On her side, the applicant complains that the respondent has ignored repeated, clear court orders requiring him to account, with copies of invoices and receipts, for all rent received and property expenses claimed. She also complains that the respondent is paying his own rent, of $800 per month, from the rent money that he receives on their joint property. The respondent thinks it is fair for him to pay his own rent from the rental received on the joint property because the applicant lives rent free in the third unit. In effect, she is paying her rent from the property as well. This issue was noted by Justice Horkins in her June 4, 2015 endorsement. Rather than resolving it as ordered, the respondent ignored the order and continued to engage in self-help.

[46] I find that the respondent has been in persistent breach of the orders made by Justice Jarvis, Justice Frank and Justice Horkins from the date each order was made. He has failed to [page406] deposit rent moneys received into the account(s) as ordered. Even if he was not shown as a joint account holder on one of the accounts for a period of time, nothing precluded him from making deposits into the account. If the applicant refused to allow funds to be drawn to pay proper expenses to maintain the property, that issue ought to have been brought to the court. So too should the issue of whether the respondent was entitled to pay his own rent from those funds. Except for one month of utility bills, he also failed to provide backup documents with his accountings as ordered by Justice Horkins. It was not up to the respondent to just ignore the court's orders. His affidavit leaves no doubt that his breaches were knowingly made and are deliberate.

[47] While I will return to this below, I note that this issue is independent of the disclosure issues. However, it also provides additional evidence and grounds for my ultimate conclusion on the disclosure issue that the respondent has evinced an intention not to participate in a fair and just legal proceeding.

b. The respondent's failure to disclose

[48] In her endorsement dated June 4, 2015, Justice Horkins also dealt with the applicant's requests for disclosure:

Recently, [applicant's] counsel sent a Request for Information dated March 31, 2015 (21 pages) consisting of 374 requests. The [respondent] responded by sending an affidavit dated April 14, 2015.

The extent of this dispute is so far-reaching that there isn't time on this motion to deal with each item. [Respondent] in his affidavit claims that some disclosure was given when [applicant] says it was not. I will deal with information requested about the [respondent's] financial circumstances. It is relevant to his spousal support claim and equalization.

Request 1-21

Order: [Respondent] shall answer by June 30, 2015. If, as he claims he has previously answered ([applicant] disputes this) he shall provide proof of the answer.

Request 35-37

These questions deal with the value of the matrimonial home on marriage and on the date of separation (June 16, 2013 is agreed as [Date of Separation]).

Order: If not already provided, each party shall provide other with proof of value of matrimonial home on the date of marriage of data separation (proof they intend to rely on at trial). To be done by June 30, 2015.

Requests 40-42

There is a dispute about whether this has been answered. Parties will make best efforts to resolve. [page407]

Order: [Respondent] owns property in India. This must be shown on his [Net Family Property] statements and he must make full disclosure of value on [Date of Marriage] and [Date of Separation]. If property was sold then provide full disclosure of particulars.

If this is not resolved [applicant] may bring motion on this issue, but better evidence is required.

Requests 43-75

This dispute shall be resolved as follows:

Order: Both parties shall serve and file updated Financial Statements by June 30, 2015. Each shall provide proof of all items listed (domestic and foreign).

(Emphasis in original)

[49] I turn therefore to assessing whether the disclosure ordered by Justice Horkins has been provided by the respondent. Much of the disclosure provided by the respondent is contained in two binders that are exhibits to his affidavit sworn April 15, 2016 for this motion. This is the material that I referred to previously as a "document dump". It is certainly voluminous. However, its organization makes it largely unusable. To highlight this point, I requested several times during the hearing that Mr. Parker actually show me documents that the respondent submitted were responsive to various information requests. Although Mr. Parker had an assistant with him in court, he was often unable to find the documents which he said his client relied upon to evidence his compliance with Justice Horkins' order. If the counsel who produced the material is unable to navigate his way through it, the format of disclosure is obviously insufficient for the opposing party's or the court's purposes. Moreover, the abusiveness of this type of production tactic is self-evident.

[50] Details and my holdings concerning the inadequacy of the respondent's responses to the requests for information that Justice Horkins ordered him to answer are set in Appendix "A" to these reasons. By my count, as set out in Appendix "A", the respondent has failed to produce more than 30 of the particular documents and document classes specifically ordered by Justice Horkins.

[51] I am less moved by the quantity than by the quality of the respondent's breaches. This application commenced in 2013. The parties agreed to a consent order for disclosure on October 1, 2013. It is now over two-and-one-half years later and I cannot make heads nor tails of the respondent's finances. The respondent has not disclosed basic documents such as his income tax returns, financial statements, bank account statements, credit [page408] card statements and investment account statements. He has plainly not disclosed his full income both as a taxi driver beyond listing bald, conclusory numbers on a page. He has made almost no disclosure concerning his corporation A4U Inc. -- certainly nothing beyond limited income tax documents rather than a valuation backed-up source documents that might disclose the real inputs. Moreover, he has not provided a complete list of his assets and liabilities as at the date of marriage and the date of separation. Neither has he provided clearly identifiable and verifiable evidence of the value of his assets or liabilities even for those listed in his sworn financial statements. It is obvious from the piecemeal bits and pieces that he has allowed to ooze out when squeezed that his sworn financial statements bear little resemblance to reality.

[52] Counsel for the applicant does not particularly want a further disclosure order. She recites the aphorism, commonly attributed to Albert Einstein, that the definition of insanity is doing the same thing over and over and expecting a different result. If the court orders production, she says, there is no reason to believe that the respondent will produce anything meaningful. Moreover, even if he were to produce an organized set of useful, real numbers, the applicant's business valuation expert would only then be able to start the process of drilling down into the information to confirm and test the disclosure. The parties will be right back at the beginning, in effect, due to the respondent's delays and obfuscation. She prefers to go to trial without the respondent and leave it to her expert to make assumptions, as best as she can, on what she has. If the respondent gets to participate in the trial, then the expert will not be able to proceed in this way as the respondent will be able to cherry-pick from his selective disclosure or make further late disclosures to undermine the expert based on his own failure to make a fair and proper disclosure.

[53] I have some sympathy for that position. The problem is not so much that the respondent has not yet made full disclosure. Rather, he is not willing to make disclosure. If he has assets overseas nothing that this court can order will ever be able to force him to make disclosure if he does not want to do so. Moreover, he cannot disclose his income without at the same time admitting that he has repeatedly understated it in his tax returns. Perhaps the best that can be done by an Ontario court is to use what is exigible here and leave the parties to their own devices in India or elsewhere. This assumes, as I may, that the respondent is willing to walk away from his equity in assets in Canada in order to protect his overseas or other holdings. If that [page409] is so, then there is no purpose in having him continue to participate in these proceedings. In fact, allowing him to participate further may be rewarding his thumbing his nose at the applicant and at the court's processes.

[54] But there is another piece to the story.

The Applicant's Non-Disclosure

[55] As noted above, to try to cut through the outstanding disclosure issues, on March 2, 2016, Justice Corbett allowed the parties to make one last set of information requests. The respondent's requests were narrowly defined and specific. The only one of immediate relevancy is No. 6 that provides:

6. Where was the sum of approximately $377,000.00 taken from the Applicant's PC Financial Account?

[56] By the time of the applicant's first sworn financial statement, in October 2013, her PC Financial account had already been reduced to approximately $225,000. In her financial statement sworn October 26, 2015, it appears that there is nothing left in that account. The respondent asks, in effect, "[w]here has the $377,000 gone"?

[57] On March 21, 2016, Justice Corbett ordered the applicant to provide this disclosure by April 30, 2016 on consent. She did not comply. Accordingly, on May 12, 2016, the respondent brought a cross-motion to strike the applicant's pleadings. In response, the applicant delivered an affidavit of a law clerk in her counsel's office.

[58] The law clerk swears that the balance in the applicant's PC Financial account was $377,000 in early 2013, before the parties separated in June of that year. The applicant apparently disclosed this in her affidavit sworn April 29, 2015. 2 The law clerk continues:

The applicant had advised that this amount has never been withdrawn, and as such, she is unsure what the respondent is asking. Over time, after separation, the balance was transferred to the Applicant's CIBC account and was used primarily for legal fees and living expenses and the PC account was then closed.

[59] The applicant's financial statements sworn October 16, 2013 and October 26, 2015 disclose that the applicant suffers an annual shortfall of revenue to meet expenses of only approximately $9,000. This in no way accounts for the consumption of [page410] the $377,000 that was in the PC Financial account. Moreover, it appears that approximately $150,000 was consumed between early 2013 and the swearing of the first financial statement on October 16, 2013.

[60] The bulk of the funds remained in the applicant's account on the valuation date in June 2013. The account statements referenced by the law clerk allow the equalization calculation to be conducted as at the valuation date. If the applicant does not disclose with greater particularity how funds were consumed in early 2013, she might expect a greater portion or the full $377,000 may be attributed to her as at the valuation date.

[61] However, the failure to disclose the post-valuation date depletion of her assets does not affect the equalization calculation per se. The quantum of her post-separation assets and her failure to disclose the full extent of her investments may well adversely impact any support claimed by the applicant and, especially, arrears of support, if any, claimed. But, unlike the respondent, the applicant has made the basic disclosure to allow the fundamental calculations required by the Family Law Act to be made. The disclosure is incomplete. But in delaying this one piece, relating to one particular asset, in the context of the full and timely disclosure she has made otherwise, she is not close to evincing an intention not to participate in fair and just proceedings like the respondent.

Analysis

[62] The Family Law Rules set out detailed consequences for breach of an order or of the Rules themselves. Rule 1(8) provides:

1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including, (a) an order for costs; (b) an order dismissing a claim; (c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party; (d) an order that all or part of a document that was required to be provided but was not, may not be used in the case; (e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (f) an order postponing the trial or any other step in the case; and (g) on motion, a contempt order. [page411]

[63] Moreover, rule 1(8.1) provides that all of the above remedial orders (other than a contempt order) may be made when a party fails to follow the Rules.

[64] While rule 1(8)(b) allows for a proceeding to be dismissed on breach of an order or the Rules, this would apply only where the person against whom relief is sought is the applicant (or cross-applicant). Where the person against whom relief is sought is a respondent, it would make no sense to dismiss the proceeding brought by the innocent party. Conversely, judgment cannot be granted in favour of the innocent party just because the responding party has breached an order or the Rules. The court cannot grant judgment until it has determined that the innocent party is entitled to judgment at law based on the facts pleaded and evidence provided. Striking pleadings, then, is a remedy that allows an applicant to continue to trial or to seek relief in writing without the offending respondent being entitled to participate in the proceeding any further.

[65] The consequences of an order striking out pleadings are discussed specifically in rule 1(8.4) as follows:

1(8.4) If an order is made striking out a party's application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
2. The party is not entitled to participate in the case in any way.
3. The court may deal with the case in the party's absence.
4. A date may be set for an uncontested trial of the case.

[66] In Grenier v. Grenier, 2012 ONSC 6512, at para. 21, affd Grenier v. Grenier, 2012 ONCA 732, Rogers J. discussed the remedy of striking pleadings in family proceedings as follows:

A court being asked to strike pleadings looks to Rules 1(8), 13(6), 13(7), 14(23) and 19(10). The remedy of striking of pleadings has the most drastic impact for a party that is not in compliance with court orders and should only be imposed in the most egregious of circumstances. To determine if said sanction is appropriate in situations of non-disclosure, the court should consider the following issues:

1. What was the overall effort to complete disclosure relative to the undisclosed items and what ratio does the completed disclosure bear to the undisclosed items?
2. Are the missing pieces of disclosure relevant to significant issues in the file or are they about issues that were or have become minor? Does the mover need this disclosure to proceed and would a court be hampered in adjudicating without it? [page412]
3. Was there and is there a realistic possibility of obtaining this disclosure?
4. What is the cost of the disclosure relative to the overall quantum of money at risk?
5. Is the disclosure available to the seeker?
6. Given the advances in the information in the case, has the request for missing disclosure become over-reaching?
7. Were the orders (or order) concerning the disclosure sufficiently clear that the party ordered to provide the information would understand what was being sought?
8. Were the time-frames for obtaining the disclosure reasonable?
9. Did the seeker of the disclosure continue to pursue the disclosure and enforce the order(s)?
10. Were the disclosure orders (or order) so onerous that a party could not reasonably locate and disclose the volume of material requested?
11. Is there a lesser remedy that would suffice? Would it be reasonable to provide that information not disclosed could not be used at trial?
12. Has the seeker of disclosure discharged the onus of the burden of proof in the motion?

(Emphasis added)

[67] In considering these factors, I am looking only at the basic documents that are still undisclosed in a comprehensive, organized and accessible way, such as all but two years of the respondent's personal income tax returns, financial statements and tax returns for his businesses, bank account statements, credit card statements and investment account statements. I consider as well his failure to disclose any documents to provide backup proof of his taxi income such as logbooks and gas expense documentation. I ignore all of the applicant's requests for information that were not ordered answered by Horkins J. But I do include in my consideration the fact that the respondent expressly tried to put the burden on the applicant to find his investments in India rather than volunteering that disclosure as discussed in Schedule "A" below.

[68] I do not view the "ratio" referred to by Rogers J. in his first factor to be just a calculation based on page numbers. Rather, that factor, as I read it, is an attempt to assess the importance of the missing disclosure. Is it a small piece of the puzzle or is it the majority of the pieces? In my view, the respondent has disclosed very little of the information required to prove the extent of his net income and capital and to back up [page413] his sworn financial statements. Based on all of the documents that I have reviewed in the continuing record, including the two volumes dumped on the applicant recently, I have very little idea of the respondent's assets, liabilities, income or expenses at any relevant valuation date. He has put numbers on pages to be sure. But he has not provided comprehensive, organized, intelligible backup to enable the applicant or the court to assess or confirm his net income, his capital or his net family property with any degree of assurance beyond his bare word.

[69] The applicant has tried to do the respondent's work for him and has been frustrated at every turn. The respondent has shown himself willing to blatantly ignore and breach the court's orders because he does not trust the applicant. Were the court to consider trying to order disclosure, yet again, any such order ought to be accompanied by a very substantial costs order to ensure that the applicant is compensated for wasted time and protected pending the trial date which will necessarily be pushed well down the road into the future by the need to wait for and then assess any new disclosure that the respondent might deign to make. However, I do not believe that there is any order I can make that will result in the respondent making proper disclosure.

[70] The order of Horkins J. was clear and its timeframe reasonable.

[71] I do not see how any order other than striking the respondent's pleadings can be available. A contested trial on the current or some slightly enhanced production would be a travesty. The trial judge would have thousands of pages of sound and fury signifying nothing. This is a case where the respondent's non-disclosure, in my view, is sufficiently egregious to conclude that he does not intend to help the court promote a just outcome. It is exceptional and drastic in degree if not in kind. As noted above, cases in which a party tries to use disclosure as a tactic or bargaining lever are all too common and must end generally. But this case is extreme.

[72] I pause to note that the respondent's admitted and continuing refusal to deposit rent money that he collects in the joint account is also relevant. First, as discussed above, the breaches are intentional and deliberate. That is deserving of sanction on its own. However, in light of my decision to strike pleadings for non-disclosure, I do not need to consider a separate remedy for these breaches. But, I do use these breaches and, especially, the respondent's clear and admitted intention to ignore court orders, to nourish my conclusion that he does not want to participate in a fair and just process governed by law. [page414]

[73] In Kovachis v. Kovachis, 2013 ONCA 663, at para. 37, the Court of Appeal held that not all cases of non-disclosure are sufficiently extreme so as to call for striking of a party's pleadings. Laskin J.A. wrote:

Taken together, these four considerations -- the substantial disclosure Kovachis had made, the failure of either the motion judge or Bertrand to list what disclosure he had not made, the absence of any evidence that he had wilfully disobeyed any of the previous disclosure orders, and the principle of proportionality -- call for an order reinstating Kovachis' pleadings.

[74] Here, I have tried to go through a complete and detailed recital of the documents that ought to have been disclosed and they are many. There is evidence that the respondent's approach is wilful -- in the length of time that has passed, the lack of production of even basic financial records, the orders ignored and the document dump strategy that he finally adopted. I also infer intention from the respondent's blatant and admitted, wilful refusal to deposit rent received into a joint account as ordered. As to proportionality, I have ignored the bulk of the overkill initially sought by the applicant and limited my considerations to the fundamental financial documents needed to address the fundamental issues in the case. Three years in and the respondent has still not disclosed tax returns or financial statements. Proportionality is not the issue.

[75] Moreover, I respectfully question the degree to which striking of pleadings should still be reserved for drastic and extreme cases. How many orders does a party get to breach on top of ignoring the primary objective that requires early, voluntary and complete disclosure without an order even being made? It is not the remedy that should be exceptional. Rather, it is the continued existence of cases with parties who ignore their disclosure obligations that ought to be exceptional. The remedy will become exceptional when the Rules are followed and enforced as written and as interpreted. That is, once cases with non-disclosure issues are exceptional, then the need to consider striking pleadings for non-disclosure too will be exceptional. Failing to provide consequences however is tacit, if not explicit, permission to continue the course that countless courts have already said is inappropriate. Deferred disclosure, delayed disclosure and non-disclosure cannot be accepted as normal, tactical give-and-take in 2016.

[76] I agree with D.L. Chappell J. who, at para. 12 of Levely v. Levely, 2013 ONSC 1026, wrote:

Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner. Unfortunately, they all too [page415] often become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party. The frequency with which Family Law litigation degenerates into an abusive game of delay tactics, stonewalling, and dodging of judicial authority is a concern which must remain at the forefront of the judge's mind in considering remedies for a party's failure to participate as required in court proceedings or to comply with court orders. Family Law litigants who come to the court for assistance must come with a strong sense of assurance that the process will be an effective means of mending and stabilizing the family fabric, rather than a futile money pit of failed justice. The court has a critical responsibility and role to play in ensuring that proceedings which are intended to protect families and lead to resolution of pressing and emotionally divisive issues are not hijacked by a party and transformed into a process for further victimizing the other party and the children in their care.

(Emphasis added)

[77] Implementing a culture shift to enhance access to justice by promoting efficiency, affordability and proportionality requires the court to re-draw the line between limiting drastic measures and applying the law robustly. In my respectful view, a little less judicial diffidence, a little less reluctance to hold accountable those who would deny justice to their former spouses, and a little more protection of abused parties from abusers, might be a better fulfillment of our critical responsibility as so aptly phrased by Justice Chappell. After 17 years, it is time for the court's words were taken to mean what they say.

Disposition

[78] The respondent's pleadings are struck out. The applicant may proceed to an uncontested trial. Her trial record shall include an affidavit, to be sworn by the applicant, which discloses the complete details, with backup statements, of her use or investment of the $377,000 that was in her PC Financial account in early 2013. As noted above, leave to amend, as sought in para. 6 of the applicant's notice of motion dated April 7, 2016, is granted. The husband's motions are dismissed. The applicant shall exclusively manage the rental premises at 74 Edinborough Court pending trial. The respondent is prohibited from collecting rents from tenants at the premises. The applicant will deposit all rents that she collects into the account ordered by Horkins J. previously and pay all expenses associated with the management of the property from that account. The applicant shall pay all expenses associated with the property in the ordinary course and shall make no payments from the relevant bank account outside of the ordinary course of business. The applicant shall include in her trial record a sworn accounting of all rents received and expenses paid in respect of the property from this day until trial. The accounting is to include copies of backup [page416] documentation supporting every expense paid from the bank account. The respondent may continue to draw $800 per month from the bank account to pay his rent pending trial. He shall not make any other withdrawals or pay any other expenses from the bank account except with the written consent of the applicant.

[79] Nothing in this order releases the parties from any obligation previously ordered by the court except those specifically amended, in para. 78, above.

[80] The applicant may take out a formal order without the approval of the respondent to the form or content of the order.

Costs

[81] In light of my findings that the respondent has deliberately breached multiple court orders and his duty in rule 2(4), in my view this is an appropriate case for substantial indemnity costs. Ms. Rayson seeks costs of $18,650 using a billing rate of $450 per hour and a counsel fee for a full day attendance of $3,500. In my view, the cost sought are reasonable, proportionate and within the reasonable expectation of the respondent as to the likely outcome given the importance of the issues and the sheer volume of material that was before the court. The respondent shall pay costs of these motions to the applicant in the amount of $18,650, inclusive of HST and disbursements forthwith.

APPENDIX "A"

[82] Request No. 1 required the respondent to produce financial statements for the period 2003 to 2013 for his taxi business, A4U Inc., East-West Trading Company, his social work/counselling/psychotherapy business and investment properties from which he received an income. The applicant concedes that the respondent has provided appropriate documentation with respect to his social work/counselling/psychotherapy business. The respondent says that he had fulfilled the other requirements by providing his personal income tax returns for calendar years 2013 and 2014. Those returns include unsupported revenue and expense reporting relating to his taxi business and counselling business. In addition, the respondent's 2013 tax return includes an income statement for A4U Inc. and his 2014 tax return contains both an income statement and a balance sheet for the corporation. It should be noted that the respondent has not disclosed his income tax returns for the years 2003 through 2012, although notices of assessment for some years were provided with his answer. Moreover, personal income tax returns are not in themselves otherwise financial [page417] statements. The respondent is in breach of Justice Horkins' order concerning this request.

[83] As to the corporation A4U Inc., the respondent has provided some notices of assessment and says that it is too expensive for him to provide financial statements. Accordingly, he concedes that he is in breach of Justice Horkins' order. This includes item Nos. 2 and 3 ordered by Justice Horkins that relate to specific disclosure from A4U Inc. that the respondent has not or will not provide. The respondent is in breach of Justice Horkins' orders concerning these requests.

[84] Request No. 4 required the respondent to produce HST returns for A4U Inc. He claims that A4U did not make enough money ($30,000) to file HST returns. The respondent's bank statements show HST being paid by the respondent, but he claims this was for his taxi business. Interestingly, as set out below, he also alleges that his taxi business did not make $30,000 gross revenue and yet he filed HST returns for it.

[85] The applicant alleges that A4U Inc. made substantial amounts of money. However, in the absence of any meaningful disclosure by the respondent, she is unable to prove this. The respondent may not be in breach of Justice Horkins' order if no HST returns exist. However, the failure to comply with requests Nos. 1 through 3 for A4U Inc. is certainly capable of raising an inference that the respondent is hiding value relating to this corporation.

[86] Request No. 5 required the respondent to produce all corporate bank statements for all accounts relating to A4U Inc. The applicant says that in the document dump, she was able to find some bank statements from June to August 2013. The respondent says that he has provided all of the documents requested and ordered. However, his counsel was unable to show these documents to me when asked. The respondent is in breach of Justice Horkins' order concerning this request.

[87] Request No. 6 required the respondent to produce his annual reports to the Ministry of Transportation concerning the mileage on his taxi motor vehicle. The respondent claims he has none. Since this information is required on everyone's annual or biannual licence plate renewal as a matter of law, I do not accept this answer. The respondent is in breach of Justice Horkins' order concerning this request.

[88] Request No. 7 required the respondent to produce his taxi logbook and gas receipts concerning his operation of a taxi throughout the marriage. He claims that he does not have a logbook and that he does not keep receipts for gas. Rather, he relies on his MasterCard to pay for gas. A logbook is required under [page418] the municipal by-laws. The respondent claims that he earns revenue of approximately 24,000 per year from driving a taxi and that, after expenses, principally for gas, he has almost no net income for tax purposes. The logbook and gas receipts would both disclose if the respondent is hiding revenue and under-declaring his taxable income. Moreover, the respondent's counsel was not able to point to any MasterCard statements showing gasoline expenses claimed. It is patently obvious to all but someone who chooses to bury his or her head deeply in the sand and ignore all practicalities of the real world that the respondent cannot and would not operate a taxi for long hours for no net return. His refusal to produce his logs, that he is required by law to keep, and his failure to produce documentary backup for his gas expenses is a clear breach of Justice Horkins' order concerning this request.

[89] The respondent's counsel concedes that he has not yet complied with requests Nos. 8 and 9.

[90] Request No. 10 is a repetition of the request for gasoline receipts that has not been adequately provided.

[91] Request No. 11 has been fulfilled.

[92] Request No. 12 required the respondent to produce lease agreements. The respondent's counsel says that he asked the applicant's counsel if they wished to receive the 60 pages that are responsive to this request. In the absence of response, he did nothing further. But there was a response. This motion is a response to the lack of production ordered by Justice Horkins. Of course they want the documents. They are moving for them -- again. The respondent is in breach of Justice Horkins' order concerning this request.

[93] Request No. 13 has been fulfilled

[94] Request No. 14 seems to confuse the respondent's website with contracts for the operation of his business as a psychotherapist. The respondent has produced a copy of his website profile. The contracts are dealt with again under request No. 16 below. This request has been fulfilled.

[95] Request No. 15 required the respondent to produce his invoices and corroborating bank account statements evidencing the deposit of monies he received as a psychotherapist. The respondent's counsel argues that this request is met by the production of the respondent's personal income tax returns for calendar years 2013 and 2014. As far as I am aware, an income tax return is neither an invoice nor a corroborating bank statement evidencing the deposit of monies received. Moreover, the respondent disclosed only two years of income tax returns in any [page419] event. The respondent is in breach of Justice Horkins' order concerning this request.

[96] Request No. 16 required the respondent to produce copies of all contracts that he had with companies that refer patients to him for therapy. Respondent has produced three contracts. He says that is all that he has. The applicant points to account statements produced by the respondent, in which he seems to be dealing with some very significant companies. The applicant has not established that the respondent has anything further. I do not find that he is in breach of Justice Horkins' order on this request.

[97] Request No. 17 required the respondent to produce a copy of all account statements for moneys that he received as a counselor. Once again, the respondent argues that his two income tax returns ought to suffice. Tax returns are not account statements. The respondent is in breach of Justice Horkins' order concerning this request.

[98] Request No. 18 required the respondent to produce copies of cheques and receipts for cash payments received from independent, self-referrals or drop-in clients for his therapy business. The respondent's counsel says that he did not keep such records. It would be completely inconsistent with someone who hides his income to minimize his taxes to do so. Absent evidence to the contrary, the respondent is not in breach of Justice Horkins' order concerning this request.

[99] The respondent did not respond to request No. 19. Therefore, the respondent is in breach of Justice Horkins' order concerning this request.

[100] The respondent makes inconsistent responses to request No. 20. His counsel argued that since the business at issue closed in 2006, no records were kept. However, in his letter dated August 15, 2015, the respondent's counsel advised that the respondent left his records at the matrimonial home when he was required to move out. In any event, the applicant does not pursue further relief on this request.

[101] Request Nos. 35 to 37 required the respondent to provide a valuation and/or opinion from a professional capable of valuing the matrimonial home as of the date of marriage, the date of separation and the date of the order. The valuations were to be capable of being relied upon at trial. The respondent has provided bald, conclusory letters of opinion from a real estate agent. The letters do not meet the requirements of rule 20.1(10) of the Family Law Rules and therefore are not capable of being relied upon at trial. The respondent is in breach of Justice Horkins' order concerning these requests. [page420]

[102] Request No. 40 required the respondent to produce ownership documents concerning a unit in a cooperative in India. His response is that he has no documents because the government took over the property. At the hearing of the motion, the respondent's counsel provided me with a copy of an endorsement from a court in India reciting that the co-operative withdrew an appeal from its objection to certain municipal planning changes proposed by the government for the property. None of this is responsive to the request. The respondent did not show that he made best efforts, reasonable efforts or any efforts to obtain the documentation ordered. He is in breach of Justice Horkins' order concerning this request.

[103] Requests Nos. 41 and 42 required the respondent to account for all rental income received from a property in Dwarka, India with corroborating bank statements and copies of leases. The respondent advises that his mother and brother live in the property. Accordingly, he has no lease and he charges no rent. The respondent has fulfilled these requests.

[104] The applicant agrees that the respondent has fulfilled requests Nos. 42 through 44.

[105] Request No. 46 required the respondent to produce a copy of the bank loan referred to in his financial statements. He points to documents evidencing a loan by A4U Inc. that is behind tab BE of Exhibit "B" to his affidavit sworn April 15, 2016. There is no personal guarantee disclosed which would account for this being an entry on the respondent's personal financial statement. Therefore, the respondent is in breach of Justice Horkins' order concerning this request.

[106] Request No. 47 required the respondent to provide full particulars of moneys he has loaned to any company, individual or group of individuals throughout the marriage. A loan of $20,000 is disclosed in the respondent's financial statement. However, no further disclosure of any backup material or proof for the disclosed loan or any other loan has been produced. Therefore, the respondent is in breach of Justice Horkins' order concerning this request.

[107] Request No. 48 required the respondent to disclose and provide full particulars of all loans he has received. Absent a clear statement confirming the entire extent of all loans received by the respondent, he is in breach of Justice Horkins' order on this request.

[108] Request No. 49 required the respondent to explain how he was able to afford expenses of $47,359.56 set out in his financial statement sworn November 18, 2014, when his annual income disclosed in that affidavit was only $24,000. Counsel's [page421] unsworn submission was that the income figure in the financial statement was a net number. This does not make sense in light of the structure of the financial statement form which expressly separates revenue from expenses. In any event, an oral submission by counsel made first during a motion to enforce is not compliance with the court's order. The respondent is therefore in breach of Justice Horkins' order on this request.

[109] Request No. 50 required the respondent to produce cheques to substantiate his monthly rent in the amount of $1,055 as was claimed earlier in the proceeding. It is now common ground that respondent's rent is actually $800 per month. There is nothing more to disclose. This issue goes to credibility at trial. Therefore there is no basis to find a breach of Justice Horkins' order for this request.

[110] Requests Nos. 51 and 52 required the respondent to list all of his financial accounts, domestic and foreign, and provide corroborating statements for all such financial holdings throughout the marriage. Requests Nos. 53 through 60, Nos. 62 through 69 and No. 71 particularize the general requests set out in Nos. 51 and 52. That is, the applicant has named a number of specific financial institutions and requested that the respondent provide details of his holdings at, in or through those institutions. All of this flows from Justice Horkins' order regarding requests 43-75 as set out above.

[111] As to Tangri, which is the subject of requests Nos. 53 and 54, the respondent says both that he has no holdings with that company and that he left his documents with the applicant. His responses are inconsistent. The respondent's response to request No. 55 regarding Primerica is that particulars are in his sworn financial statement. Once again, he has provided no proof or account statements as required. As to request number 56, the respondent says that he told the applicant that he has no accounts with Manulife Financial. However, he cannot find the correspondence where he did so. Request number 57 has been provided. Counsel for the respondent advised that the answer to request No. 58 is found at tab E. After the lunch break, counsel advised that in fact the documentation was at tabs BC and BD. Those tabs disclose that for several years, the respondent has made a significant number of relatively small transactions moving money in and out of an account in India.

[112] Overall, the respondent's approach is that the he has given consent forms to the applicant so that she can seek information from foreign institutions on his behalf. His counsel says that he believes there are no accounts and is waiting for the applicant to prove otherwise. This completely reverses the [page422] burden of disclosure. The continuing record discloses several complaints by the applicant earlier in the proceeding in which she advised that a number of institutions in India have refused to make disclosure to the applicant concerning the respondent. The applicant complained that the consent forms signed by the respondent were not signed in his usual signature. This resulted in several institutions in India continuing to refuse disclosure even with the consent forms he provided. It is not up to the applicant to guess which institutions hold funds by, for or on behalf of the respondent. It was up to him to make early, voluntary and complete disclosure of his holdings. Justice Horkins' order is clear that each party is to list their accounts and to provide corroborating proof. Therefore, the respondent is in breach of Justice Horkins' order concerning all of these requests except Nos. 53, 54 and 57.

[113] Request No. 61 required the respondent to provide unredacted and unedited account statements for HDFC Bank. The applicant's counsel argues that comparing a recently disclosed redacted statement with the unredacted statement disclosed in the respondent's August 16, 2015 affidavit, it is clear that the respondent has purported to alter the bank statement and has committed fraud on the court. She points in particular to volume 5, tab 10 of the continuing record. Unfortunately, there is no tab 10 of volume 5 of the continuing record. Moreover, the index to the continuing record, which counsel to the applicant was required to verify, does not list an affidavit sworn August 16, 2015. There is an affidavit of the respondent sworn August 13, 2015 at volume 6, tab 2 of the continuing record. However, try as I might, I do not see an unredacted bank statement from HDFC Bank among the multitude of exhibits to that affidavit. If counsel is going to allege that a document has been tampered with and that a fraud has been committed on the court, it behooves her, at least, to be able to put the allegedly forged document before the court.

[114] Request No. 70 requires the respondent to produce account statements and valuations for all domestic stock shares in which he had an interest throughout the marriage. The applicant's counsel says that the respondent's counsel showed her a note with handwriting, which showed a number of shares and prices per share. She rightly argues that when one buys and sells publicly listed shares, there should be paper trail [of] the transaction. Therefore, the respondent is in breach of Justice Horkins' order concerning this request.

[115] Request No. 72 required the respondent to produce a Credit Information Bureau (India) Limited report as of [page423] March 31, 2015. He has not done so. Therefore, the respondent is in breach of Justice Horkins' order concerning this request.

[116] Request No. 73 required the respondent to produce account statements for all foreign investments in which he has an interest. The respondent's counsel was unable to point me to evidence establishing that the respondent fulfilled this requirement in his sworn financial statement or with backup documents. Therefore, the respondent is in breach of Justice Horkins' order concerning this request.

[117] Requests 74 and 75 are repetitive basket clauses that reiterate the respondent's obligation to produce account statements and valuations for foreign and domestic shareholdings.

Applicant's motion granted; respondent's motion dismissed.

Notes

1 I am referring to an abusive, old-school practice whereby a party discloses a large number of disorganized documents so as to inflict cost and confusion for the receiving party. Apart from imposing a significant time burden on the receiving party by requiring counsel to organize the documents, a document dump can also be a way to try to hide damaging documents. Damaging documents can be located among a load of irrelevant ones to try to deprive the harmful documents of context.

2 This affidavit is not listed in the index to the continuing record and I could not find it when I looked for it.

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