Court File and Parties

Hill v. Mayne, CITATION: 2016 ONSC 4089 Court File No.: 11989/01 Date: 2016-06-21 Superior Court of Justice – Ontario

Re: Linda Suzanne Hill, Applicant And: Edgar Frederick Mayne, Respondent

Before: Mr Justice Ramsay

Counsel: Joseph E. Sloniowski for Applicant Hendrik Keesmaat for Respondent

Heard: June 20, 2016 at Welland

Endorsement

[1] The parties settled spousal support with minutes of settlement that were incorporated into a court order made by Quinn J. on December 20, 2004. The Applicant has filed a motion to change the order by increasing quantum of support. The Respondent in his answer asks that support be terminated. The Applicant here moves for an order for production and disclosure of certain financial records, and for an order under Rule 24 (12) requiring the Respondent to pay her approximately $37,000 for past and future accounting and legal fees.

[2] The order for spousal support obliged the Respondent to pay $52,000 a year for the first two years after it came into effect, $36,000 a year for the next three years, and $18,200 a year (about $1,500 a month) thereafter indefinitely.

[3] The order provided that it could be reviewed after December 31, 2013 at the request of either party based on a foreseen or unforeseen change of circumstance, or if the Applicant re-married or cohabited for three years. (She may or may not have done so.)

[4] The settlement also required the Respondent to convey the business assets and the matrimonial home and other property to the Applicant. It is evident to me that the settlement contemplated that the Applicant would continue to run the family business, a Dairy Queen, and the Respondent would strike out on his own. He did so and prospered. According to the Applicant, she failed.

[5] On the Applicant’s figures (Applicant’s supplementary brief tabs 3 and 4) her net worth is now about $256,000 and the Respondent’s about $277,000. The Respondent says that she earns about $34,000 a year. The Applicant says that he earns about $120,000 a year. At age 65, he is now retired. His earnings are comparable to what he has usually earned. He had one exceptionally good year in which he made over $400,000. The Applicant earned about $50,000 a year from employment during much of the 31-year marriage. Toward the end she retired from her job and took over running the Dairy Queen with the Respondent. She blames part of her troubles on emotional stress caused by the Respondent taking up with his new wife sooner than he should have. That looks to me like an attempt on the Applicant’s part to circumvent the plain meaning of subsections 15.2(5) and 17(6) of the Divorce Act, but the trial judge will say.

[6] The Respondent has disclosed some 156 documents including tax returns, notices of assessment and bank statements for him and his new wife and financial statements and general ledgers for their companies. The Applicant has filed a letter from her forensic accountant in which he claims to need further records such as minute books of the corporations, key contracts and further bank account and credit card statements. In general, this is said to be required to value the Respondent’s business, which in turn would cast light on his income.

[7] Financial disclosure is the fundamental obligation of family litigation. Inadequate financial disclosure has been called the cancer of family law. However, the disclosure must be relevant to the issues in question and the expense of producing it must be proportionate to its evidentiary value and the amounts at stake. The Respondent has disclosed what the court needs to decide his means and condition. It is not necessary to know the value of his businesses. This is not an equalization claim. The Respondent needs to inform the court what income he gets and where it comes from. He has done this. The court does not need to know what he does with his money. Neither is it necessary to undertake further examination of his expense accounts. There is little doubt that the Respondent is able to pay spousal support. Decision of the motion to change will turn more on the Applicant’s current financial state and to what extent she is responsible for it.

[8] Neither is it just and expeditious to order this massive new disclosure when, after two years, a trial date is looming in a few months and the Applicant has still not exercised her right to question the Respondent under oath.

[9] I decline to order the Respondent to make further disclosure.

[10] It follows that I would decline to order the Respondent to fund the Applicant’s expert witness.

[11] I am not satisfied that the Respondent should pay the Applicant’s legal fees at this point. It is far from clear that the Applicant is likely to succeed. Nor is it necessary to make the requested order “to even the playing field.” The Applicant has sufficient assets to fund her motion, including an investment company worth $180,000.

[12] The motions are dismissed. The parties may submit brief written submissions to costs to which may be appended only a bill of costs and any offers to settle, the Respondent within 7 days and the Applicant within 7 days thereafter.

J.A. Ramsay J. Date: 2016-06-21