CITATION: McCain v. Melanson, 2017 ONSC 538

COURT FILE NO.: FS-16-409757

DATE: 20170123

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Eleanor Marie Norrie McCain, Applicant

AND:

Jeffrey James Melanson, Respondent

BEFORE: C. Horkins J.

COUNSEL: Donald Jack and Jacqueline M. Mills, for the Applicant

Harold Niman and Richard Niman, for the Respondent

HEARD at Toronto: January 19, 2017

ENDORSEMENT

Introduction

[1] The applicant, Eleanor Marie Norrie McCain brings this motion for an order requiring the respondent, Jeffrey James Melanson to produce documents and for leave to question him.

[2] It is the applicant’s position that she requires this relief so that she can respond to the respondent’s motion for an order under Family Law Rule 24(12). The respondent’s motion is scheduled to proceed as a long motion on January 26, 2017.

[3] The respondent’s long motion seeks an order that the applicant pay him $125,000 for his expected legal costs of this proceeding through to a settlement conference. The respondent states that he does not have funds to pay counsel and would be unable to carry on with this litigation without an interim payment. He explains that he is unemployed, has taken all reasonable steps to find employment and has received no income since he resigned from the Toronto Symphony Orchestra.

Summary of the Pleadings

[4] The parties signed a Marriage Agreement on April 24, 2014. They were married on April 26, 2014 and separated in January, 2015.

[5] The applicant commenced this application on March 2, 2016. The only relief she seeks is an annulment of the marriage. In his Answer, the respondent asserts his own claim. He asks for a divorce and an order that the Marriage Agreement be enforced with costs and prejudgment interest.

[6] In the Marriage Agreement the parties waived all rights to spousal support and property. In the event of a marriage breakdown, the Marriage Agreement states that the applicant will pay the respondent a lump sum of $5 million less any amounts previously transferred or gifted by the applicant to the respondent during the marriage. Further, the respondent is entitled to share in the increased value of the matrimonial home during the marriage. The Marriage Agreement provides at section 9.11 that all terms of the agreement survive an annulment.

[7] The applicant filed a Reply disputing the respondent’s claim. In her Reply, the applicant states that the Marriage Agreement “should be set aside pursuant to s. 56(4)(c) of the Family Law Act, R.S.O. 1990, c. F.3. However, the applicant has not requested this relief in her Application. As a result, it is not before the court.

Scheduling the Rule 24(12) Motion

[8] The respondent’s rule 24(12) motion was first raised at a case conference on June 3, 2016 before Glustein J. who recorded that the respondent would be bringing this motion.

[9] Kiteley J. held a further case conference on October 25, 2016. In her endorsement she ordered that on consent the respondent’s rule 24(12) motion was scheduled for January 26, 2017 “for no longer than 1 day including any preliminary motions”.

[10] Kiteley J. recorded in her endorsement an anticipated dispute about disclosure for the rule 24(12) motion. At para. 4 of her endorsement, she states:

Aside from the materials to be filed on this motion, counsel anticipate they will have a difference of opinion as to the extent of financial disclosure required to bring or defend this motion which may lead to preliminary objections at the hearing of the motion. This rule 24(12) motion ought not to take longer than 3 hours and since the day has been set aside that is more than adequate to deal with the motion and any preliminary issues.

[Emphasis added.]

[11] At para. 5 of the endorsement, Kiteley J. ordered counsel to comply with the following timetable:

(a) by November 10, 2016 counsel for the Respondent shall serve and file the notice of motion and affidavit(s) on which he relies;

(b) by December 15, 2016, counsel for the Applicant shall serve and file responding evidence;

(c) by January 10, 2017, counsel for the Respondent shall serve and file reply material if any;

(d) by January 13, 2017 counsel for the Respondent shall serve and file factum and book of authorities;

(e) by January 20, 2017, counsel for the Applicant shall serve and file factum and book of authorities.

(f) if any preliminary objections are raised on behalf of the Applicant, counsel shall agree on a timetable to deal with those in order to ensure readiness for the hearing on January 26, 2017.

[12] Kiteley J. ordered questioning on consent for a pending summary judgment motion that the respondent was intending to bring and did not order questioning for the rule 24(12) motion.

Analysis

[13] During the hearing of the motion, the parties agreed on terms for the production and use of the respondent’s banking and credit card statements. A consent order was issued for these documents on January 19, 2017. These reasons deal with the remaining requested documents and the request to question the respondent.

[14] There are two reasons why the applicant’s motion fails. First, the applicant’s motion is contrary to the order of Kiteley J. This alone is reason to deny the requested relief. Second, the nature of the requested disclosure is excessive, unnecessary and disproportionate to the issues raised on the respondent’s motion. Questioning is not an unlimited right and the applicant has not satisfied the conditions in rule 20(5).

Motion is contrary to Kiteley J’s Endorsement

[15] The applicant has not complied with the timetable that Kiteley J. ordered and her motion is contrary to para. 4 of the order.

[16] The time set for the respondent’s motion was intended to include preliminary objections about the “extent of financial disclosure required to bring or defend this motion” at “the hearing of the motion”. Kiteley J. was fully aware of the anticipated dispute about disclosure and she ordered that it would be raised at the hearing of the motion and not by bringing a separate disclosure motion. This is consistent with the timetable that does not allow for any production or questioning motions to be brought prior to the hearing of the rule 24(12) motion.

[17] If this motion is allowed, applicant’s counsel submits that they will do everything possible to make sure that the respondent’s motion proceeds as scheduled. This is not a realistic submission. It is clear that if the applicant’s motion was allowed, a new timetable and long motion date would have to be set.

Disclosure is excessive, unnecessary and disproportionate

[18] The disclosure that the applicant seeks is excessive and reaches well beyond the boundaries of reasonable and proportionate disclosure for an interim motion under rule 24(12).

[19] The respondent has provided the applicant with considerable disclosure: his sworn financial statement, a 2014 income tax return, notice of re-assessment for 2014, his 2015 T4 and 2015 income tax return, details of his efforts to find employment, details of the sale of his condominium and his use of the net proceeds, details of a loan from a friend, his final pay stub for 2016, details of his contributions to his RRSP in 2015 and 2016, banking and credit card statements for 2015, an explanation of what the respondent did with the costs award that the applicant paid him for a motion that she brought and lost last year and details of legal fees he has paid to counsel and what he owes counsel.

[20] In addition, the respondent has replied to questions that the applicant has raised. For example, he has offered details about various trips that he has taken since leaving his employment at the TSO in March 2016.

[21] The applicant retained Steve Ranot a chartered accountant and business valuator. On this motion, the applicant filed an affidavit from Mr. Ranot. He states that all of the information and documentation that the applicant has requested is relevant to determine the respondent’s ability to finance his own litigation. He notes that there are cash infusions in the respondent’s bank account and further information about the infusions is required. He states that he cannot make a “proper presentation to the court” without the requested disclosure. He notes that the applicant is seeking an order allowing questioning of the respondent.

[22] Based on Mr. Ranot’s affidavit, it seems that the applicant was intending to obtain an expert report from Mr. Ranot and file it with the court for the rule 24(12) motion. If this was her plan, it fails. The timetable in Kiteley J’s order does not allow for experts and in any event the applicant’s deadline for filing responding material for the rule 24(12) motion expired on January 10, 2017.

[23] It is important to put the applicant’s motion in perspective. The respondent was an employee and he was terminated. He is not working. His financial circumstances are not complicated. In this context and given the disclosure already provided, the applicant’s disclosure demands are excessive and unreasonable. Furthermore, the suggestion that Mr. Ranot might prepare an expert report in this context is highly unusual and disproportionate to the motion in question.

[24] The specific requests that are excessive, unnecessary and disproportionate are reviewed below.

[25] The respondent lives with Caroline. The applicant seeks extensive disclosure from her: 2014 and 2015 income tax returns and notices of assessment, details of her severance agreement with her past employer, her 2015 RRSP statement , details of all of her travel with the respondent since 2015, bank and credit card statements for 2015 and 2016.

[26] Caroline has not been served with the motion. If such request was allowed, all the applicant would obtain is an order directing the respondent to ask Caroline for the disclosure.

[27] This disclosure is irrelevant and unnecessary for the rule 24 (12) motion. Caroline has no obligation to contribute to the respondent’s legal costs. The pending motion is not a support motion where, in theory, Caroline’s income tax returns and notices of assessment may be relevant. It may be argued on the rule 24(12) motion that the respondent’s living expenses are less because he shares the accommodation with another person. The applicant does not need disclosure from Caroline to make this argument.

[28] The applicant wants monthly statements from the respondent’s counsel so she can determine if counsel has extended credit to the respondent. This request overreaches. The respondent has already revealed what he has paid his counsel and what is owed. Further, he has stated that he has no special arrangements with counsel for payment of legal fees.

[29] The applicant wants the financial details of the respondent’s severance agreement from the TSO. The respondent has refused to provide this information because he is “not at liberty” to release the information. He has revealed that all monies owing under the agreement have been paid and the money was not paid into his RRSP. He has also revealed that his 2016 income is $420,000 and this amount is solely a severance payment from the TSO. There is no justification for the applicant’s request to dig further into the details of the severance.

[30] The applicant seeks disclosure of the respondent’s 2015 and 2016 RRSP contributions. This has been provided.

[31] The applicant seeks further information about the net proceeds of the sale of the respondent’s condominium. He has already revealed that he spent all of the money on legal fees, debt repayment and renovation expenses. The applicant’s request to inquire further into this information is unreasonable.

[32] The applicant wants the respondent to produce sworn financial statements for all years since 2012. She says that she needs these financial statements so that she can assess whether the expenses in his current financial statement are reasonable. This request is a clearly excessive, unnecessary and disproportionate. The applicant does not need past financial statements to be created, to assess the reasonableness of his current expenses.

[33] The applicant seeks supporting documentation about the respondent’s child support payments to his former spouse. The respondent has listed the expense in his financial statement. I see no justification for allowing the applicant to in effect investigate this obligation.

Questioning

[34] The applicant’s request for an order permitting questioning is refused. As noted above Kiteley J. did not allow for questioning in the timetable.

[35] Furthermore, questioning is not an automatic right. The applicant has not met the test for questioning in rule 20(5) that states:

(5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:

1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.

2. The information is not easily available by any other method.

3. The questioning or disclosure will not cause unacceptable delay or undue expense.

[36] Given the respondent’s disclosure and the excessive, unnecessary and disproportionate nature of the applicant’s request, it is not unfair to require the applicant to proceed with the respondent’s rule 24(12) motion, without questioning. Questioning would cause unacceptable delay to the respondent’s rule 24(12) and cause him undue expense.

Conclusion

[37] The applicant’s motion is dismissed. The parties have agreed on costs. The applicant shall pay the respondent $7,500 all inclusive for the costs of this motion.

C. Horkins J.

Date: January 23, 2017