Court File and Parties
COURT FILE NO.: FC-16-2651 DATE: 2018/09/25 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hema Niranjan, Applicant -and- Niranjan Rajaghatta, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Wade Smith, for the Applicant Michael Rappaport, for the Respondent on a limited scope retainer to make submissions on this motion
HEARD: July 17, 2018
Endorsement
Overview
[1] This is a motion brought by the Applicant seeking disclosure from the Respondent, child support, and the sale of the jointly owned property located at 13 Brookstone Street, Ottawa (“the Brookstone property”). This motion was heard on July 17, 2018.
[2] The Respondent sought to have his cross-motion, served on July 11, 2018, also heard on July 17, 2018. I declined to do so.
[3] For the reasons set out below, I grant the Applicant’s request for disclosure, with some modifications, grant an Order for interim child support and an Order for the sale of the Brookstone property.
Factual Context
[4] The parties were married on November 13, 1994. The Applicant states that they separated on July 30, 2015. The Respondent states that they separated in July of 2005.
[5] There is one child of the marriage, now age 19. The child completed her first year at Ryerson University in Toronto in May of 2018. She returned to Ottawa to reside with the Applicant in the summer of 2018. She expected to return to Ryerson University for her second year in September of 2018.
Pleadings
[6] In her Application, the Applicant seeks a divorce, custody, child support including contribution to section 7 expenses, spousal support, extended medical and health insurance coverage for herself and the child, life insurance to secure the child and spousal support, financial disclosure, partition and sale of the Brookstone property or in the alternative for the Respondent to purchase her interest, occupation rent, equalization, interest, and costs. The material facts plead by the Applicant include that the parties separated in July of 2005, but reconciled in August of 2006, and separated again on July 30, 2015; and that the Respondent is a contract software developer who owns and operates his own business, being a numbered company through which he pays himself a salary.
[7] In the Respondent’s Answer, he denies the Applicant’s claims and seeks an Order for various relief including that the Applicant’s claim for equalization be dismissed due to the expiration of the limitation period, based on his position that they separated in 2005; that the Applicant be required to pay him child and spousal support; that the Applicant pay punitive damages; for the Applicant to “refund the costs of boarding, lodging, travel and other expenses incurred on her behalf by the Respondent from November 2005 to July 2015”; and for the sale of the Applicant’s new residence to repay joint lines of credit. Even though the Respondent’s position is that the Applicant’s claim for equalization is barred, he also seeks an “unequal division of assets as it would be unconscionable to allow Applicant to enrich and profit from the institution of marriage”.
Properties
[8] Both parties resided at the Brookstone property with the child until July 30, 2015, when the Applicant moved out. The Applicant and the Respondent are registered joint owners of this property. The Respondent has continued to reside at the Brookstone property since July 30, 2015.
[9] On July 30, 2015, the Applicant moved into a new residence located at 98 Fairlop Way, Ottawa. The Applicant purchased this property on June 5, 2015 and registered it in her own sole name. The Applicant withdrew approximately $231,000 [^1] from the available joint lines of credit secured against the Brookstone property to purchase her new residence. The Respondent says this was done without his knowledge or consent, and this is the basis for a number of the Respondent’s allegations of misconduct against the Applicant, as well as his claims for unjust enrichment and an interest in the Applicant’s new residence.
[10] The Applicant has acknowledged by her lawyer’s letter dated July 30, 2015 that she withdrew approximately $224,000 from the joint lines of credit, accepted full financial responsibility for the repayment of these amounts, and advised that she would make the necessary monthly payments to the bank for these amounts, which she has been doing. The Applicant also includes the value of her new residence as an asset in her net family property, such that the value would be included in equalization.
The Respondent’s Income
[11] The Respondent is a programmer/software developer/software engineer [^2]. His income is in dispute. He works as a contractor through a company, apparently Supportability and/or 6630588 Canada Inc. but this is unclear. Although the Respondent admits that the company he works for is controlled by his siblings who reside in India, he claims that the company is an arm’s length third party and that there is no relationship between the financial status of the company and his own. The Respondent claims that his income is at the sole discretion of the company directors. He states that he only makes $12,000 to $25,000 per year and has been drawing from his savings to meet his expenses.
[12] The Applicant’s position is that the Respondent’s income is significantly higher, and points to his previous income of $100,000 per year in 2008, when he worked for IBM/Cognos before becoming an independent contractor, mostly to the Federal Government.
[13] The Respondent admits that he had an ownership interest in Supportability, but states this was limited to a minority interest of 8% and that he disposed of these shares in October of 2017. The Respondent also admits that he was a director of the company. The Respondent has provided limited information about the disposition of his shares, and no supporting documents. The only information he provides is in his affidavit sworn on October 29, 2017, in which he states:
a. that he divested his shares in Supportability earlier that month and was no longer a director of the company; and b. that he had not yet received consideration for the shares, but had asked for $25,000 from the majority shareholders and was not sure with what amount they would counter.
Disclosure
[14] The Applicant seeks an Order requiring the Respondent to provide specific disclosure within defined time limits, failing which his pleadings be struck. There have already been two Orders for disclosure in these proceedings – one on February 24, 2017 and a second on June 9, 2017. In both of these Orders, the Respondent was ordered to provide “his business/company Income tax Returns and Notices of Assessment” for 2014, 2015 and 2016. He has not done so. The Respondent argues that he has provided his personal Income Tax Returns, and that he is not able to provide the business/corporate tax returns because he does not control the company.
[15] The Applicant’s position is effectively that the Respondent is lying when he states he cannot provide this disclosure, such that his pleadings should be struck if he fails to do so. The Applicant requests further disclosure, in particular aimed at the Respondent’s business activities. The Applicant seeks disclosure related to “any and all corporations in which the Respondent may have an interest or for which he is providing services, including but not limited to 6630588 Canada Inc. and Supportability”. Her request is detailed and extensive. It includes the corporation’s director ledgers, shareholder ledgers, bank statements, credit card statements, complete business financial statements, business Income Tax Returns and Notices of Assessment, and a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to or on behalf of persons or corporations with whom any of the corporations in which the Respondent may own an interest or provide services, and every related corporation not dealing at arm’s length.
History of Proceedings
[16] The first disclosure Order was made at the first case conference held on February 24, 2017. Justice Engelking made a temporary without prejudice Order requiring the Respondent to pay child support to the Applicant in the amount of $400 per month, and to provide “his personal and business 2014, 2015 Income Tax Returns and Notices of Assessment within 30 days” and “his company’s 2016 Tax Returns and Notice of Assessment as soon as they are available”. The conference was adjourned to June 9, 2017.
[17] On March 16, 2017, the Respondent brought a procedural motion, without notice to the Applicant, seeking to extend the time to file his Answer to May 1, 2017. In his affidavit filed in support of this motion, sworn March 16, 2017, with reference to Justice Engelking’s disclosure Order, the Respondent swore that “the directors of the company need additional time to seek counsel and come to an appropriate understanding of the Order and the implications of disclosing company records.” The Respondent’s motion for a further extension was dismissed.
[18] The Respondent filed his Answer, Form 35.1, and sworn Financial Statement on March 20, 2017. In his Financial Statement, the Respondent swore that he was employed by a company under the name of “Supportability”, that the address of his employer was the same as his residence, and that he owned an 8% interest in Supportability.
[19] At the continuation of the case conference, on June 9, 2017, Justice Ryan Bell noted that the Respondent had not complied with the disclosure Order of Justice Engelking. Justice Ryan Bell ordered further disclosure, as set out in a schedule prepared and agreed upon by counsel, to be made within 60 days and made a further temporary without prejudice Order requiring the Respondent to continue to pay child support in the amount of $400 per month. Justice Ryan Bell also required the Respondent, in addition to the agreed upon disclosure, to “disclose his business Income Tax Returns and Notices of Assessment for 2014, 2015 within sixty (60) days” and “his business Income Tax Returns and Notice of Assessment for 2016 as soon it is available, all as ordered by Madame Justice Engelking in her Order dated February 24, 2017”.
[20] The parties re-attended before Justice Ryan Bell on August 10, 2017 to settle the Order arising from the case conference on June 9, 2017. Justice Ryan Bell signed the Order on that day, adding a term that neither party was precluded from moving, on proper notice and evidence, for further disclosure.
[21] On August 11, 2017, the Respondent filed a motion returnable on November 2, 2017, seeking an Order requiring the Applicant to pay him damages in the amount of $231,000 for unjust enrichment, or in the alternative granting him an interest in the Applicant’s property, an Order for the sale of the Applicant’s property, and an Order terminating child support as of August 30, 2017 or, in the alternative, that the child support be paid directly to the child.
[22] On November 2, 2017, Justice Shelston dismissed the Respondent’s motion and ordered the Respondent to pay costs in the amount of $700. Those costs were paid the week before this motion was heard on July 17, 2018.
[23] With respect to the Respondent’s claims relating to unjust enrichment and the Applicant’s residence, Justice Shelston held that those issues would be determined at trial. With respect to child support, the Respondent had argued that the child was attending Ryerson University in Toronto as of September, 2017, and took the position that the child’s tuition, residence and partial food plan were being paid by an RESP plan which had a balance of approximately $60,000. Neither party had prepared a budget for the child but Justice Shelston noted that the child still required groceries, personal items, and travel home. Justice Shelston ordered the Respondent to continue to pay $400 per month from September 2017 to April 2018, to be credited to his share of the child’s post-secondary expenses that are not covered by the RESP, and that the Respondent continue these payments until further Order of the Court.
[24] Justice Shelston also ordered the Applicant to prepare a budget of the actual expenses incurred for the child at university for the September 2017 to April 2018 term, and to provide this to the Respondent by May 30, 2018, along with all supporting documentation.
[25] In response to issues raised by the Applicant regarding the Respondent’s disclosure, Justice Shelston provided that the Applicant may bring a motion for further disclosure, to be served on the Respondent and corporation.
Motions on July 17, 2018
[26] The motion before me on July 17, 2018 is the Applicant’s motion. The Applicant’s further amended Notice of Motion was served on July 9, 2018 and amended two earlier versions of the Applicant’s Notice of Motion, dated February 27, 2018 and April 19, 2018. The earlier versions sought the same relief as set out in the most recent version, except that the Applicant has now added a request for the sale of the Brookstone property.
[27] The Respondent served a cross-motion on July 11, 2018, also returnable on July 17, 2018, seeking various relief, including an Order for all encumbrances ($231,000) on the Brookstone property to be set aside, that law enforcement “be given adequate time and resources” to investigate the Applicant’s mortgage actions related to her residence, disclosure from the Applicant and a bank, that the Applicant’s claim for equalization be dismissed on the basis that she does not “come with clean hands” and her actions are unlawful, dishonourable and barred by the limitation period, and seeking an order for a Certificate of Pending Litigation against the Applicant’s property.
[28] I declined to hear the Respondent’s cross-motion given that his notice was not served in accordance with the time requirements under the Family Law Rules [^3], and the Respondent had not served any previous Notice of Cross-Motion that gave notice of his intention to seek similar relief.
[29] In addition, on June 21, 2018, the Respondent had brought a motion, apparently without notice to the Applicant as no Affidavit of Service was filed, to reschedule the July 17, 2018 motion to a later date so that additional time could be set aside to hear the motion, on the basis that he wished to bring a lengthy cross-motion on the same day alleging conduct by the Applicant of a criminal nature, and a motion for summary judgement. Justice Summers dismissed the Respondent’s motion, holding that the Respondent’s intended cross-motion did not need to be addressed on July 17, 2018. The cross-motion that the Respondent served on July 11, 2018 appears to be the motion he referred to before Justice Summers, as it makes similar allegations. In any event, pursuant to the Family Law Rules, the Respondent’s motion was served late [^4], and I declined to hear it on July 17, 2018.
Analysis
Affidavit of 6630588 Canada Inc.
[30] The Respondent filed an affidavit, sworn July 6, 2018, which purports to be the affidavit of 6630588 Canada Inc. This affidavit does not explain the relationship between 6630588 Canada Inc. and the Respondent’s previous disclosed employer, identified as Supportability. It appears that 6630588 Canada Inc. is one and the same as Supportability, given that it states it has provided income to the Respondent (purportedly as an employee only) for the last three years, which corresponds to the same period in which the Respondent swore, in his financial statement sworn March 20, 2017 and affidavit sworn July 19, 2017, that he was employed by Supportability.
[31] The deponent of this affidavit is not identified, nor is their relationship to the corporation. This affidavit is improper and not admissible for the truth of its contents [^5]. I find that it is, however, evidence before me that supports the Applicant’s concerns regarding the Respondent’s lack of full and frank disclosure to date, and his relationship with the “business/company” from which he receives his income.
[32] The affidavit of 6630588 Canada Inc. contains detailed information that demonstrates that the affiant is very familiar with the details of the parties’ marriage and separation, including purported events that date back to 2005, and the full history of these proceedings. It echoes similar allegations of improper and fraudulent conduct by the Applicant as advanced by the Respondent. At the same time, it states that the corporation is an unrelated third party, that the Respondent is only a contract worker, and that he is not a shareholder.
[33] No explanation is provided in this affidavit or any of the Respondent’s affidavits filed in the Continuing Record, for what happened to his 8% ownership interest aside from the Respondent’s statements, in his October 29, 2017 affidavit, that he had divested himself of his shares. As a shareholder, which is what he says he was when the February 24, 2017 and June 9, 2017 Orders were made, the Respondent would have been entitled to certain financial information from the company, including financial statements, and he had an obligation to produce these under Rule 13(3.3) of the Family Law Rules [^6]. He did not do so. The Respondent has not provided any evidence of any efforts made by him to obtain such information prior to divesting himself of his shares, nor any other circumstances regarding the divestment of these shares. In the circumstances, I make an adverse inference that, if in fact the Respondent has divested himself of the shares, which remains to be determined; he did so voluntarily in an attempt to avoid providing relevant financial disclosure to the Applicant.
Disclosure
[34] Full and frank disclosure is at the heart of any family law matter. Parties have an obligation to make full and frank disclosure of their financial circumstances related to the issues in dispute [^7].
[35] In this matter, the Respondent’s income is in issue, as is his overall financial situation in that this relates to his ability to pay support since 2015. In addition, the value of his assets and debts at the date of marriage and separation (being either in 2005 or 2015), and any claimed exclusions, are also in issue. The Respondent has an obligation to make full and frank disclosure with respect to these issues. I find that he has not done so to date and further information is required.
[36] Based on the evidence before me, the Respondent has provided the following financial information:
a. his personal Income Tax Returns CRA summary information and Notices of Assessment for 2014, 2015 and 2016; b. bank statements for one account dated July 31, 2015, December 31, 2015, December 30, 2016, and May 31, 2017, which show a declining balance. He does not provide the complete set of statements for this account which would have allowed the viewer to see what withdrawals had been made during this period; and c. a copy of his personal Notices of Assessment for 2009, which shows a line 150 income of $17,638, and 2010, showing a line 150 income of $58,193.
[37] It is common ground between the parties that the Respondent has not provided the following disclosure that was ordered on June 9, 2017:
a. any other bank statements showing the value of the Respondent’s assets as of the date of separation (July 30, 2015), and current, including the details of all pension plans, RRSPs, savings plans, investments and checking and savings accounts; b. statements for all mortgages, lines of credit, credit card balances, and debts showing the amount owed as of the date of separation (July 30, 2015) and as of today; and c. his business Income Tax Returns and Notices of Assessment for 2014, 2015 and 2016 (also ordered on February 24, 2017).
[38] The Respondent has attached as exhibits to his affidavit a large number of financial statements and documents, most of which relate to his allegations against the Applicant, which confirm his ability to gather and produce extensive financial documentation – at least with respect his position. This supports the inference that the Respondent has the ability to provide further financial disclosure with respect to his personal income, assets and debts, but has refused to do so.
[39] The Applicant has not yet questioned the Respondent. Her counsel advised that his intention is to obtain the ordered disclosure first before moving to questioning.
[40] While I am prepared to make a further Order for disclosure at this time, as detailed below, I am not prepared to order that failing such disclosure, the Respondent’s pleadings shall be struck. Although there is significant evidence before me that supports the Applicant’s position that the Respondent has intentionally failed to provide full and frank disclosure to date, the Applicant’s Further Amended Notice of Motion did not include a request for this relief. Notice was not provided to the Respondent that this relief would be sought.
[41] In addition to the lack of notice, I am also not prepared to make an Order, in these circumstances based on the evidence before me, which provides that if the Respondent does not provide the required disclosure, his pleadings would automatically be struck. A party’s pleadings should only be struck in exceptional circumstances, where no other remedy would suffice [^8]. The Respondent will be required to provide further disclosure, pursuant to the detailed Order provided below, and there may be continued debate over whether he has done everything he can to meet his obligation thereunder, and to provide full and frank disclosure. Those efforts, or lack thereof, may be the subject of a further motion, and the Applicant may raise the issue of whether such conduct meets the test to strike the Respondent’s pleadings at that time. The Respondent should be aware, however, that absent significant evidence on his part to discharge in full his obligation to make full and frank disclosure, he is very much at risk of having his pleadings struck on such a motion.
[42] As indicated above, I am prepared to make a further Order for disclosure at this time. There should be additional information and documentation relevant to the issues in dispute that is within the Respondent’s knowledge, power, possession or control, and he has an obligation to provide this. This includes additional information and documentation:
a. related to any and all steps he has taken to comply with the existing Orders, and the Order for disclosure made herein; b. related to the disposition of his shares in Supportability; c. related to the services that he has provided to or through Supportability and/or any other entity since 2006, and, in particular, since 2015, including copies of any pay stubs, invoices for services, a description and documentation related to hours worked and type of services provided, fees charged to third parties by the entity through which he provides such services, and all payments received, including with respect to income, reimbursement for expenses, payments for shares, dividends, and/or reimbursement for capital investment; and d. related to the corporate financial and organizational structure, and finances, of Supportability, 6630588 Canada Inc., and/or any other entity the Respondent has provided services to since 2006, including information that the Respondent has arising from being a former shareholder and director, and from being a contract employee, including names, addresses and shareholdings of the other shareholders and directors, and address of the company(ies). This information should be provided back to 2006, and, if it has changed since that time, the date and nature of any such change.
[42] The Orders for disclosure made below require the Respondent to provide further information that is within his knowledge, power, possession or control. I have not ordered third parties to produce information, and specifically Supportability/6630588 Canada Inc., even though it is apparent this entity had knowledge of this motion, because the Applicant did not request such Orders in her Notice of Motion. The Applicant may bring a further motion if she seeks an Order for productions by a third party, with proper notice to the third party or on evidence that would warrant dispensing with such notice.
Child Support
[43] The Applicant seeks an interim Order for child support in the amount of $509 per month. This is comprised of a base monthly amount of $303, plus an additional amount of $206 per month for the child’s expenses. The base monthly amount of $303 is calculated by attributing to the Respondent net self-employment income of $100,000 per year, to arrive at a table amount $910 per month, payable for the four summer months of May, June, July and August, for a total of $3,640 per year (4 X $910), payable over 12 months ($3,640 divided by 12) to arrive at a monthly payment of roughly $303.
[44] The Applicant also seeks an additional amount of $206 per month for the Respondent’s proportionate share of the child’s expenses while away at school that are not covered by the RESP. The Applicant has attached an exhibit that lists the child’s expenses, on a monthly basis, from September 2017 through to April 2018, excluding tuition and residence which were paid from the RESP. These expenses total $4,346.84.
[45] The Respondent takes issue with the Applicant’s child expense budget. The Applicant has not provided supporting documentation for these expenses, as required under Justice Shelston’s Order dated November 2, 2017. At the hearing of the motion, Mr. Rappaport, on behalf of the Respondent, stated that the Respondent continues to pay child support in the amount of $400 per month and he does not object to continuing to do so on an interim without prejudice basis.
[46] While I agree that the parties should share, in proportion to their income, the child’s reasonable and necessary expenses while away at school that are not covered by the RESP, in the absence of the Applicant providing supporting documentation as expressly required under the Order of Justice Shelston, I am not prepared to change the existing Order for child support. I order that the Respondent shall continue to pay interim child support to the Applicant in the amount of $400 per month, payable on the first day of the month.
[47] The issues of the determination of the parties’ respective incomes for the purposes of child support, the child’s expenses while away at university not covered by the RESP, and other section 7 expenses incurred while residing with the Applicant during the summer, will be determined at trial and any reconciliation for under or overpayments since 2015 may be calculated at that time, subject only to a change that would warrant a change to this amount on an interim basis.
Sale of the Brookstone Property
[48] The Applicant seeks the sale of the Brookstone property with the proceeds being kept in trust pending further Order or agreement of the parties. The Respondent opposes the sale.
[49] The Applicant argues that she was prepared to transfer her interest in the property to the Respondent, and moved out of the home on this basis, but he has refused to complete the transfer which would require him to remove her name from the existing encumbrances on title. She argues that the Respondent has delayed this matter by failing to provide disclosure, and will continue to do so as long as he is residing in a property free of any mortgage payments. She argues the funds she removed from the joint lines of credit were roughly equivalent to her equity in the Brookstone property, and she is prejudiced by the Respondent’s delay because only she is paying the monthly interest payments on the lines of credit. Her position is that if the Respondent is telling the truth about his finances, he cannot afford to keep the house, and it should be sold. She notes that the property taxes on the property are $6,000 per year alone, and the Respondent states that his income is only $12,000 per year.
[50] The Applicant values the property at approximately $550,000 as of July of 2015, and $625,000 presently. The Applicant’s updated financial statement discloses three lines of credit, two of which appear to be secured against the Brookstone property with a total amount owing of $372,000, which accords with the amounts shown on the Respondent’s financial statement sworn March 20, 2017. In that financial statement, which is the only financial statement filed by the Respondent, the Respondent also valued the Brookstone property at $550,000.
[51] The Applicant has a third line of credit secured on her new property which she states has a present balance owing of $181,690 [^9], although the charge on title is registered for a higher amount ($493,750). She values her new property at $400,000 to $430,000. The Applicant agreed to an Order that would restrain her ability to draw down further on any encumbrances registered against her property pending further Order.
[52] The Respondent’s opposes the sale of the Brookstone property. His arguments are somewhat unclear but appear to be that:
a. he would be prejudiced by the sale because he intends to purchase the Applicant’s interest in the Brookstone property but needs the money he claims the Applicant owes to do so; b. there is no equalization entitlement because they separated in 2005 and such a claim should not be allowed at this time as it is beyond the prescribed time limits; and c. the Brookstone property was purchased after they separated in 2005. He contributed $250,000 to the down payment and other lump sum payments, which was not matched by the Applicant, and which underlies part of his claim based on unjust enrichment.
[53] This Court has authority under the Partition Act [^10] to order the sale of jointly owned property, including a matrimonial home, prior to trial. A joint owner has a prima facie right to partition and sale. Such an Order before trial should only be made where, in all of the circumstances, it is appropriate to do so. The primary consideration is whether the sale would result in prejudice to the other spouse’s claims under the Family Law Act [^11].
[54] The Respondent has not produced or filed any documents supporting his claim that the parties separated in 2005 or that he contributed $250,000 to the down payment and other lump sum payments on the Brookstone property, except for his 2009 and 2010 Notices of Assessment which show that he declared to CRA that he was separated. This is not compelling.
[55] The Respondent has also not filed an updated financial statement, as required by Rule 14(13) of the Family Law Rules [^12]. The only financial statement of the Respondent that is before the Court is his financial statements sworn March 20, 2017, updated by his affidavit sworn June 5, 2017.
[56] Although the Respondent’s counsel argued that there was little equity in the Brookstone property anyway, this does not appear to be the case. The information contained in the Applicant’s current financial statement is that the balance owed on the lines of credit now totals approximately $372,000 and the property is valued at $625,000. The Respondent has access to this information because the lines of credit are also in his name.
[57] The Respondent has not satisfied the Court that his rights under the Family Law Act would be prejudiced if the Brookstone property was sold. If what the Respondent states about his financial circumstances is true, he is not in the financial position to keep the property and there is no reason to delay its sale. If what the Respondent states about his financial circumstances is not true, then he has mislead the Court and he should not benefit from a deferential exercise of the Court’s discretion to delay the sale. The sale of the property will not jeopardize the best interests of the child, nor prejudice the Respondent’s request for exclusive possession because he has not brought a motion for exclusive possession. In fact, the Respondent takes the position that the Brookstone property is not a matrimonial home because the parties separated in 2005. Further, the sale of the property will not prejudice the Respondent’s claim to recover amounts that he argues are owed to him by the Applicant, as I also Order that, pending further Order or agreement of the parties, any proceeds of sale shall remain in trust, the Applicant shall not transfer, dispose, sell or encumber her property further, and the amount owing on her line of credit secured against her property shall not exceed $195,000. In all of the circumstances, I find that it is appropriate to order the sale of the Brookstone property.
Disposition
[58] Given the above, I make the following Orders:
a. the Respondent shall provide, within 30 days, his personal Income Tax Return for 2017, with schedules and attachments, and any Notices of Assessment or Reassessment for 2017; b. the Respondent shall provide, within 30 days, his updated and complete sworn financial statement in Form 13.1, along with all required documentation under Rule 13(3.1) and (3.3) of the Family Law Rules. For the purpose of this disclosure, the valuation date shall be deemed to be July 30, 2015 without prejudice to the issue of the parties’ separation date being determined at trial; c. the Respondent shall provide, within 30 days, information and documentation within his knowledge, power, possession or control, including all supporting documentation: i. related to any and all steps he has taken to comply with the existing Orders (being February 24, 2017 and June 9, 2017), and the Order for disclosure made herein; ii. related to the disposition of his shares in Supportability; iii. related to the services that he has provided to or through Supportability and/or any other entity since 2006, and, in particular, since 2015, including copies of any pay stubs, invoices for services, a description and documentation related to hours worked and type of services provided, fees charged to third parties by the entity through which he provides such services, and all payments received, including with respect to income, reimbursement for expenses, payments for shares, dividends, and/or reimbursement for capital investment; and iv. related to the corporate financial and organizational structure, and finances, including income, revenue and expenses (financial statements), for all corporations, trusts, partnerships or sole-proprietorships, including Supportability, 6630588 Canada Inc., and/or any other entity the Respondent has provided services to, or has or has had an interest in, since 2006, including information that the Respondent has arising from being a former shareholder and director, and from being a contract employee, including: 1. a list of all such entities, including supporting documents related to his relationship with the entity and any services provided; 2. the complete business financial statements, and business Income Tax Returns and Notices of Assessment and Reassessment, for the years 2014, 2015, 2016, 2017; 3. the breakdown of all salaries, wages, and management fees or other payments or benefits paid to, or on behalf of, persons or corporations. This information should be provided back to 2015, and, if it has changed since that time, the date and nature of any such change; 4. names, addresses and shareholdings of the other shareholders and directors, and address(es) of the company(ies), and director ledgers, office ledgers, shareholder ledgers and share transfer ledgers. This information should be provided back to 2006, and, if it has changed since that time, the date and nature of any such change; 5. an explanation, with supporting documentation, of the Respondent’s siblings’ or other family members’ involvement in such entities, in particular Supportability, 6630588 Canada Inc. This information should be provided back to 2006, and, if it has changed since that time, the date and nature of any such change; 6. bank account statements for the period from January 1, 2014 to December 31, 2017; and 7. credit card account statements for the period from January 1, 2014 to December 31, 2017. d. the Respondent shall provide, within 30 days, all credit card and bank account statements for the period from January 1, 2014 to December 31, 2017, for all accounts the Respondent had use of since July 30, 2015; e. the Respondent shall provide, within 30 days, statements showing the value, as of July 30, 2015 and current date, of all of his assets, including the details of all pension plans, RRSPs, savings plans, investments, shares (including shares in Supportability), and chequing and savings accounts; f. the Respondent shall provide, within 30 days, statements for all mortgages, lines of credit, credit card balances, and debts showing the amount as of July 30, 2015 and current date; g. the Respondent shall continue to pay interim child support to the Applicant in the amount of $400 per month, for the child of the marriage, Parnika Niranjan Rajaghatta, born May 15, 1999, payable on the first day of each month; h. the jointly owned property located at 13 Brookstone St., Ottawa, ON, shall be sold. This property shall be listed for sale forthwith, on a multiple listing service. Both parties shall cooperate fully with the sale of the property. If the parties are unable to agree on a listing agent, listing price, or any terms of the listing within 14 days of this Order, the terms of listing shall be determined by me upon written submissions by each party not exceeding 4 pages in length plus any attachments. The Applicant shall file her written submissions on or before 20 days from the date of this Order and the Respondent shall file his written submissions on or before 30 days from the date of this Order. If the parties are unable to agree on any further terms of sale, either party may bring a motion in writing before me, with service in accordance with the Family Law Rules, with submissions not exceeding 4 pages in length plus any attachments; i. pending further Order or agreement of the parties, any proceeds of sale 13 Brookstone St., Ottawa, ON, shall remain in trust; j. pending further Order or agreement of the parties, the Applicant shall not transfer, dispose, sell or further encumber her property located at 98 Fairlop Way, Ottawa, ON, and the amount owing on the TD line of credit secured against this property shall not exceed $195,000; and k. this file shall be case management by myself. No party shall bring a further motion in this matter without scheduling such a motion through me. This matter shall be schedule for a two hour case management conference before me through the Trial Coordinator, on a date after the expiry of the 30 day period for the Respondent’s disclosure provided herein. I will not, at this point, act as a Settlement Conference Judge in this matter and therefore parties should not include any settlement discussions or offers in their material before me.
Costs
[59] If the parties are unable to agree on costs of this motion, the Applicant may serve and file her submissions with respect to costs, of no more than three pages in length, plus any offers to settle and bill of costs, and in compliance with Rule 4.01 of the Rules of Civil Procedure, on or before October 10, 2018. The Respondent may then file his submissions on costs, with the same criteria, on or before October 19, 2018. The Applicant may file a brief reply of no more than one page in length on or before October 26, 2018.
Justice P. MacEachern Date: September 25, 2018
Footnotes
[^1]: There is some dispute between the parties with respect to the exact amount withdrawn from the joint lines of credit. This issue will be resolved at trial. [^2]: There is some dispute regarding the label used for the Respondent’s occupation. [^3]: Family Law Rules, O. Reg. 114/99, as am., Rule 14(11) [^4]: Family Law Rules, O. Reg. 114/99, as am., Rule 14(11). It was required to have been served on July 9, 2018 but was served on July 11, 2018. [^5]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as am., Rule 4.06(1); Family Law Rules, Rule 1(7) [^6]: Family Law Rules, Rule 13(3.3), in particular Rule 13(3.3)8 [^7]: Family Law Rules, Rule 13, in particular 13(1), (3.1), (3.3); Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6 [^8]: See Kovachis v. Kovachis, 2013 ONCA 663, 367 DLR (4th)189; Chiaramonte v. Chiaramonte, 2013 ONCA 641, 370 D. L. R. (4th) 328; Purcaru v. Purcaru, 2010 ONCA 92, 265 O.A.C. 121 at paras. 47-48; King v. Mongrain (2009), 2009 ONCA 486, 66 R. F. L. (6th) 267 (Ont. C.A.); Haunert-Faga v. Faga (2005), 203 O.A.C. 388 (C.A.); and Marcoccia v. Marcoccia (2009), 2008 ONCA 866, 60 R. F. L. (6th) 1 (Ont. C.A.). [^9]: As of July 5, 2018, as sworn in the Applicant’s financial statement, the balance owing on the Fairlop line of credit was $181,690. [^10]: Partition Act, R.S.O. 1990, c P.4, ss.2, 3 [^11]: Martin v. Martin, [1992] O.J. No. 656 (C.A.) On; Silva v. Silva (1990) [^12]: Family Law Rules, Rule 14(13)