COURT FILE NO.: 579-06
DATE: 2017 11 16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Joan Ann Mary Fox
Applicant
– and –
James Henry Fox
Respondent
John G. Cox and Natalie Bazar, counsel for the applicant
Douglas R. Beamish, counsel for the respondent
HEARD: June 7, 2017
Mossip j.
Reasons for Ruling
Introduction – General Overview
[ 1 ] Dr. Fox sought to present at trial particulars of s. 7 expenses he paid on behalf of the children during the period that retroactive child support was claimed by Ms. Fox.
[ 2 ] After hearing from both counsel, I refused the request of Dr. Fox and indicated I would provide brief reasons at the end of the trial. These are those reasons.
[ 3 ] The order of Bielby, J., dated September 13, 2016, provided that Dr. Fox was to provide, within 60 days, particulars of his s. 7 expenses that he claimed to have paid. These are the documents counsel for Dr. Fox sought to file at the commencement of trial.
[ 4 ] There is no dispute that the first request to the bank for proof of the payments was made by Dr. Fox in April, 2017, by letter from counsel for Dr. Fox to the bank.
[ 5 ] The position of Ms. Fox is that the production of these documents, essentially at the commencement of trial, is too late. Dr. Fox should have sent for the bank records immediately after the order was made in September, 2016. Further, the payment by him of the s. 7 expenses, was not a new issue. Dr. Fox set out in his pleading (Answer) in 2006, that he paid these expenses. As of that time he ought to have known he would have to prove these payments.
[ 6 ] Counsel for Ms. Fox submitted that Ms. Fox would be prejudiced in her trial preparation by the late production of these documents. Further, failure to comply with a court order, and the disclosure obligations pursuant to the Courts of Justice Act Family Law Rules O. Reg. 114/99 Amended to O. Reg. 322/13 (“Family Law Rules”), must be considered by me. The overriding interests of justice demand that Dr. Fox cannot be permitted, on the morning of trial, to hand over documents he should have produced years ago. Counsel for Ms. Fox relied on the statements in Iannarella v. Corbett, 2015 ONCA 110 and Blatherwick v. Blatherwick, 2015 ONSC 2606, to support his submissions.
[ 7 ] Counsel for Dr. Fox submitted that it would be unfair not to allow the documents to be entered as evidence of Dr. Fox’s payment of s. 7 expenses. Proof of the payment of these expenses would reduce any amount I find Dr. Fox owes for a support adjustment award back to 2006. Dr. Fox is entitled to an accounting of his payment of s. 7 expenses and it would not be fair or equitable to disallow the filing of these documents.
[ 8 ] Counsel for Dr. Fox submitted that there is a “gap” in the evidence of his client which was not isolated until trial preparation commenced. There is no dispute that Dr. Fox paid the s. 7 expenses and that Mrs. Fox did not contribute to them. This allegation was set out from the outset by Dr. Fox in his pleadings. The delay and slowness by the bank in producing the documents was out of his control. Counsel for Dr. Fox submits I should exercise my discretion, which all the Family Law Rules are subject to, and permit the documents to be filed.
Analysis
[ 9 ] As set out in my brief oral decision, in my view, the Family Law Rules, and the jurisprudence on this issue, subject to the exercise of my discretion, should not be admitted at this late date.
[ 10 ] In Iannarella, Lauwers, J.A. dealt with surveillance evidence, which was admitted at trial even though this was the first time the plaintiff and counsel had seen this evidence. The defence had not disclosed the existence of the surveillance in an affidavit of documents as required by the R.R.O. 1990, Reg. 194: Rules of Civil Procedure under Courts of Justice Act, R.S.O. 1990, c. C.43 (“Rules of Civil Procedure”) and had not provided particulars of it.
[ 11 ] Lauwers, J.A. wrote the following with respect to the obligation of parties to comply with production and disclosure requirements set out in the Rules of Civil Procedure:
33 The Rules are designed to require full disclosure of information in order to "to prevent surprise and trial by ambush." … Documentary disclosure and production obligations are laid out in rule 30.02, and each party's obligation to swear and serve an affidavit of documents is imposed by rule 30.03. For the purpose of the Rules, a video disc containing surveillance is a document. (Citations omitted).
46 Given the interests of fairness and the objectives of efficiency and settlement, the court expects the parties to comply fully and rigorously with the disclosure and production obligations under the Rules.
66 The respondents breached the following rules: rule 30.03(1) by failing to serve an affidavit of documents; rule 30.07(b) by failing to disclose surveillance conducted after the matter was set down for trial in an affidavit of documents; and, inferentially, rule 31.09 obliging the respondents to correct answers given on an undertaking ultimately leading to the provision of surveillance particulars.
70 Instead, the trial judge enabled what amounted to a trial by ambush, which is completely inappropriate under the Rules (see Ceci, at para. 10). In the circumstances, the respondents cannot be absolved of the disclosure obligations set out above. I do not excuse the lapse in good trial practice by appellants' trial counsel (not Mr. Zuber), by failing to pursue the appellants' entitlements at an earlier stage. However, the weight of the disclosure obligations falls on the respondents, and rule 48.04 does not provide them with an escape route.
[ 12 ] In Blatherwick, Richetti, J., also dealt with a late disclosure issue by Mr. Blatherwick. In that case, Mr. Blatherwick sought to introduce at trial, additional, previously undisclosed, financial documentation dealing the valuation of his companies that his expert had relied on to produce a further expert report. The revised report was served on Ms. Blatherwick’s counsel on the first day of trial.
[ 13 ] Richetti J., several days after the trial commenced, heard submissions on the admissibility of the new and additional financial documentation, and the further expert’s report. Richetti, J., ruled the documentation, and the updated report, were not admissible at the trial.
[ 14 ] Richetti, J., relied on the language in Iannarella and emphasized “the importance of full and complete disclosure, its importance to civil litigation and trial fairness, and the importance of avoiding trial by ambush.”
[ 15 ] Richetti, J., referred to the Family Law Rules which by reference incorporated the disclosure requirements of the Rules of Civil Procedure. In particular Rule 19 of the Family Law Rules, makes it clear that timely and full disclosure of every document relevant to an issue in the case is the rule. If production is not made, the document favourable to the party’s case may not be used except with leave of the court.
[ 16 ] In the case before me, not only did the Family Law Rules require production of the financial documents Dr. Fox sought leave to produce in his examination-in-chief, the order of Bielby, J., set out a time frame for the production of the s. 7 expense back-up.
[ 17 ] As Richetti, J., set out in para 15:
15 After years of being represented, Mr. Blatherwick was self-represented at trial. He was provided with written information as to the conduct of a trial and invited by this court to ask questions. From time to time during the trial, Mr. Blatherwick was provided information on procedural matters and granted adjournments so that he could properly prepare for the various steps at trial.
[ 18 ] The lack of production by Dr. Fox of the required documents must be seen in context. I find it was part of a pattern of non-disclosure that was exhausting and expensive for Ms. Fox.
[ 19 ] Counsel for Ms. Fox had prepared his examination of her without any reference to the exact amount Dr. Fox paid in s. 7 expenses. Counsel had prepared his calculation for the amounts owing in retroactive support without accounting for the s. 7 expenses. This late financial disclosure affected the amount of the arrears Ms. Fox claimed was owing to her, perhaps in a significant way. It affected how Ms. Fox’s counsel prepared for trial, both his questions and his own documents. The late disclosure of these s. 7 expenses did not give counsel time to check their accuracy, or refute their significance.
[ 20 ] Given the length of time it had taken to get this matter to trial, not surprisingly, neither counsel asked for an adjournment to resolve the disclosure issue. Further, there were no terms suggested to accompany admission of the documents, if I so ordered.
[ 21 ] I considered, in my decision to disallow the documents, and factored into that decision, late and incomplete disclosure Dr. Fox engaged in throughout the litigation, the undue prejudice to Ms. Fox of this non-compliance with a court order, and that an adjournment of the trial or a costs order, could not compensate Ms. Fox if I ruled the documents admissible.
“ Justice Mossip”
Justice Mossip
DATE: November 16, 2017
COURT FILE NO.: 579-06
DATE: 2017 11 16
ONTARIO
SUPERIOR COURT OF JUSTICE
Joan Ann Mary Fox
Applicant
– and –
James Henry Fox
Respondent
reasons for ruling
Justice N. Mossip
Released: November 16, 2017