COURT FILE NO.: FC-15-1602-1

DATE: 2018/10/05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shannon Kendra Mulloy (Poisson), Applicant

AND

Allan Paul Mulloy, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Applicant, in person

Respondent, in person

HEARD: August 30, 2018

ENDORSEMENT

Overview

[1] This is a motion for disclosure brought by the Applicant. The Respondent brought a motion seeking various relief including requests related to access and child support. This matter is scheduled for trial on the November 2018 trial lists, which commences November 26, 2018.

[2] For the reasons set out below, I have made some Orders for further disclosure, but have dismissed the majority of requests for relief sought in the parties’ respective motions.

Factual Background

[3] This Application was commenced by the Applicant on July 24, 2015. The parties were married on September 5, 2010. They separated on December 1, 2013. They are now divorced pursuant to the Divorce Order dated July 6, 2018. They have two children, now ages six and ten.

[4] The parties have had twelve previous court appearances in this matter, including two case conferences, two settlement conferences, and eight attendances on various motions. The Children’s Lawyer has been involved and has provided an Investigation Report dated May, 2018.

[5] The Continuing Record now comprises 10 volumes. The parties have been self-represented for significant periods in this litigation although both have, at various times, also been represented by counsel.

Applicant’s Motion

[6] On this motion, the Applicant seeks:

1. Documentation confirming the Respondent’s place of residence;

2. Documentation confirming the vehicles owned by the Respondent, as well as the Respondent’s vehicle registration, insurance and driver’s license since date of separation;

3. The Respondent’s Québec Notices of Assessment and Reassessment for all year since the parties’ separation;

4. The Respondent’s federal Notices of Assessment and Reassessment for all year since the parties separation;

5. Supporting documentation for the Respondent’s debts on date of marriage;

6. Supporting documentation for the Respondent’s debts on date of separation;

7. Supporting documentation for all the Respondent’s separately served bank accounts on Applicant’s counsel and also all served sworn and unsworn financial statements delivered to Applicant’s counsel since November 9, 2015 to present;

8. Documentation exhibiting the Respondent’s compliance with the Order requiring him to install an interlock breathalyser system in his vehicle and completing the required Court ordered Back On Track course; and

9. Documentation exhibiting the Respondent’s compliance with the conditions in dropping the assault charges from 2013 requiring him to attend anger management courses.

[7] The Applicant takes the position that the above information is necessary for her to prepare for trial. She further argues that she has made repeated requests for the Respondent to produce relevant disclosure, which he has largely ignored. The Respondent did provide further disclosure in his affidavit sworn July 24, 2018, which addressed some of the Applicant’s request (including with respect to bank records and number 9 of her motion).

[8] The Respondent’s position is that he has attempted to provide all relevant disclosure to the Applicant, but his efforts have never satisfied her requests, and just lead to further requests for more detailed documentation which he has found overwhelming.

Pleadings

[9] The issue of whether information is relevant for the purposes of disclosure is framed by the parties’ pleadings.

[10] In the original Application, the Applicant sought child support for both children as of July, 2014 in accordance with the child support table amount. She also sought spousal support for herself “as per the table amount” as of July 2014. Further, she sought the sale of the family property, being a jointly owned home in Chelsea, Québec, with a direction that all proceeds from the sale be paid towards various debts, with the requirement that the Respondent absorb the remaining debts, in accordance with a Separation Agreement executed between the parties in May, 2014. This home has now been sold. The Applicant also sought sole custody of both children with no regular access to the Respondent.

[11] At the time the Applicant commenced her Application in July of 2015, she was residing, with the children, in Ottawa, Ontario. The Respondent continued to reside in Chelsea, Québec, at the jointly owned family home.

[12] The Respondent filed an Answer, with the assistance of counsel, dated November 9, 2015. In that Answer, he agreed with the Applicant’s claim for a divorce, sole custody of the children, and sale of the jointly owned property located in Québec. He also agreed to pay child support for the children in accordance with the child support guideline table amount, but disagreed with the Applicant’s claim for spousal support. In addition, he asserted a claim of his own for a divorce, access to the children, equalization of net family property, and sale of the matrimonial home and division of its proceeds, which presumably referred to the jointly owned home located in Chelsea, Québec. The parties’ pleadings do not indicate that they owned any other property other than the Chelsea, Québec property which is why I assume this was the matrimonial home to which they refer. The Respondent sought unsupervised access every second weekend from Friday at 4 p.m. to Sunday at 4 p.m.

[13] The most contentious issues between the parties has been with respect to the Respondent’s access with the Applicant alleging that he abuses drugs and/or alcohol, which the Respondent denies. The Applicant repeatedly refers to the Respondent having a driving under the influence (DUI) conviction, which was in 2007, prior to the birth of the parties’ children, when the Respondent was 23 years old.

[14] The Applicant filed a Reply, served on November 17, 2015, disputing the Respondent’s claims with respect to access and equalization payment.

Analysis

[15] The issue before me is whether the information sought by the Applicant is relevant to the issues in dispute between the parties, is proportional, and is necessary given the other information that has been produced by the Respondent.

[16] At the outset of this matter, in reviewing the 10 volumes of the Continuing Record and, in particular, the pleadings that frame the request for disclosure, it appears that the parties’ last common residence, prior to separation, was Chelsea, Québec. At the appearance before me, both parties confirmed this to be the case although the Applicant stated that on the date of separation, being December 1, 2015, she had actually moved back in with her parents in Ottawa, and the parties were trying to work things out when matters deteriorated and there was no longer any reasonable prospect of reconciliation. The Applicant confirmed, however, that her last common residence with the Respondent prior to separation was at the jointly owned family home located in Chelsea, Québec.

[17] This raises issues about the jurisdiction of an Ontario Court to award an equalization payment under section 5 of the Family Law Act[^1] given that it appears that the property issues arising from the parties’ marriage and separation should be determined under Québec Law. I am not determining this matter on this motion before me. Neither party has raised this issue nor brought a motion seeking summary judgment on this issue but I make these comments here because it does affect my determination of what material is relevant given the issues in dispute between the parties and what is reasonable and proportional to those issues.

[18] Neither party has sought to set aside the Separation Agreement signed by them in May 2014. It does not appear to me, from the pleadings in this matter, that the issues between the parties include any issues as to the validity of that agreement. This is relevant because the Separation Agreement makes provision for various debts to be paid from the proceeds of the home including debts owed to the Applicant’s parents, which the Respondent, in his material, appears to take issue. This debt is referenced in the Separation Agreement that was signed by both parties and the Applicant has provided a letter signed by the Respondent and her parents in support of this debt.

1. Respondent’s residence, Québec Notices of Assessment, federal Notices of Assessment, vehicle registration and driver’s license

[19] The discussion below relates to numbers 1 to 4 of the Applicant’s Motion.

[20] The Applicant seeks confirmation of the Respondent’s place of residence. The Respondent has provided, attached as exhibits to his affidavit sworn July 24, 2018, a copy of the lease, which is under his girlfriend’s name, for his current residence. He states that he resides with his girlfriend although he also spends time at his parent’s home on Meech Lake (Québec). The Respondent has also provided a copy of his Ontario driver’s license, his car insurance showing he is insured, and a copy of the vehicle registration for his current Kia vehicle that confirms his Ottawa address.

[21] Although the Applicant in her material states that she needs to know the address of the Respondent’s residence to know where the children are, upon questioning the Applicant confirmed that this really was not the issue given that the only two residences are the Respondent’s residence in Ottawa, or his parent’s home on Meech Lake.

[22] The Applicant explained that she required confirmation of the Respondent’s place of residence because she needs to be able to confirm where his residence was for the purpose of filing Income Tax Returns, for the purpose of determining whether he would have received a Québec Notice of Assessment. This relates to her request for the Respondent’s vehicle registration, which she also argued would provide proof of his province of residence.

[23] The Applicant argues that this information is needed to determine the Respondent’s income. The Applicant argues that the Québec Notice of Assessment includes different income than the federal Notice of Assessment, and so was needed to confirm the Respondent’s income.

[24] The Applicant pointed the Court to the Respondent’s Notice of Assessment from Québec for 2013, which reported that the Respondent had an income of $35,346 but the Respondent’s federal Notice of Assessment for the same year reported that his income was $37,478.

[25] Upon review of the Respondent’s Notices of Assessment and Re-assessment, I disagree with the Applicant’s view that this shows that the Québec Notice of Assessment is somehow reporting a different income than the federal Notice of Assessment. The federal Notice of Assessment indicates that it is different because it includes income from a Reassessment. Both the Québec and federal Notices of Assessment/Reassessment for 2013 show the Respondent’s income as exactly the same, being $35,346, in the original assessment. The only difference is that there was a Reassessment which included additional income.

[26] The Applicant simply does not believe that the Respondent’s income is what he says it is. The Respondent has provided his Notices of Assessment at various points in this matter. In his affidavit sworn on July 24, 2008, he includes his CRA[^2] Notices of Assessment and Reassessments for 2013 to 2017, with the exception of 2014 for which he has only provided a Québec Notice of Assessment. When questioned about this, the Respondent indicated that he thought this was sufficient with respect to 2014 but he did not have any issue with providing a copy of his CRA Notice of Assessment, and Reassessment, if any, for 2014 and I order him to do so.

[27] I am not satisfied that the Applicant requires evidence of the Respondent’s place of residence since separation in order to know if he should be providing Québec Notices of Assessment, to confirm his income.

[28] This being said, it appears to me that both parties have gotten into the habit of exchanging Notices of Assessment rather than the required complete Income Tax Returns and Notices of Assessment and Reassessment as required under the Family Law Rules[^3] and section 21(1) of the Child Support Guidelines[^4]. I order both parties to provide each other with copies of their complete T1 General Income Tax Returns and all Notices of Assessment or Reassessment, for years 2013 to present, if not already provided, along with confirmation for their income for 2018 to date. Only if these documents are not available, the parties should provide a copy of their detailed notices of assessment which includes line by line income tax information (not just the simple Notice of Assessment information) available to be downloaded from the CRA website for each taxation year.

[29] The Applicant also states that she needs to know where the Respondent resides so that she can determine the applicable child support table. If the Respondent resides in Québec, the Québec child support tables apply. If the Respondent resides in Ontario, the Ontario tables apply.

[30] I do not believe this is the true reason for why the Applicant wants this information. The table amounts between Ontario and Québec are often very close, with the Québec tables often requiring a lower amount of child support to be paid. I find that the Applicant’s true motivation is to gather evidence that she can use to attack the Respondent’s credibility – and in many respects her requests verge on fishing expeditions that are not focused on relevant substantive issues between them. The important factor is the province in which the Respondent declares as his residence for income tax purposes, which should be included in the tax information required above.

[31] The Applicant also raised an issue with respect to the Respondent’s income in 2016. She acknowledged that the Respondent had provided her with a copy of his T4 slips for 2016 which provided income from three different employers, totaling approximately $38,000. However, the Respondent’s CRA Notice of Reassessment shows his line 150 income for 2016 as $48,790. The Applicant concludes that the Respondent has lied and misrepresented his income although it is possible to earn income through mechanisms that do not result in T-slips. After some discussion about what the Applicant’s concern was on this issue, which was not stated in her Notice of Motion material, the Respondent agreed to provide his T1 General Return for all years (or if unavailable his detailed Notices of Assessment), including 2016, which will provide confirmation of his income in that year.

2. Respondent’s debts, bank accounts, financial statements; Respondent’s vehicle registration, insurance and driver’s license

[32] The discussion below relates to numbers 2, and 5 to 7 of the Applicant’s Motion.

[33] With respect to the Applicant’s requests for supporting documents for the Respondent’s debts on the date of marriage and on the date of separation, and bank accounts in his financial statements, the Applicant’s main objection was that she stated the Respondent had not provided accurate and consistent financial statements. She objected to the Respondent’s financial statements including certain assets and debts at times, but then not including the same assets and debts at other times.

[34] When asked to particularize this, the Applicant pointed to the Respondent’s Net Family Property Statement, which did not include the loan to her parents as a loan owed by the Respondent. This is not a basis for ordering further disclosure.

[35] It is common ground between the parties that the loan to the Applicant’s parents is one of the issues that is in dispute between them. Whatever the merit to their respective positions, the Respondent has been clear in his material that he questions whether this was really a loan owed to the Applicant’s parents; the Applicant has been clear in her material that the loan is confirmed by the signed Separation Agreement as well as other documentation that she has provided to the Respondent. No further information needs to be exchanged on this issue, particularly in light of the jurisdiction issues and the parties’ respective pleadings.

[36] The Applicant also states that the Respondent has been inconsistent with respect to the number of vehicles that he owns. She again pointed me to his Net Family Property Statement. However, it is clear that the Net Family Property Statement includes the position of both the Respondent and the Applicant (at least as the Respondent viewed it). This statement reflects, on the Applicant’s side, her position that the Respondent owned other vehicles on the date of marriage and, on the Respondent’s side, his position that the only vehicle he owned was a 2012 Kia.

[37] The real issue is that the Applicant believes the Respondent had an interest in three other vehicles. The Applicant takes the position that this is relevant to the Respondent’s income, as well as the equalization issues raised by the Respondent. The Applicant also submits this information is relevant to the Respondent’s claims of undue hardship. The Respondent has, however, not made a claim for undue hardship in his pleadings.

[38] One vehicle is a GMC Sierra that the Respondent drove. The Respondent states that this vehicle is owned by his employer although he acknowledges that he was the registered owner of the vehicle. He states that the beneficial owner was his employer. The Respondent has a letter from his employer that states this to be the case and he agreed to provide a copy to the Applicant, and I order him to do so. I decline to make a further order for disclosure on the issue of ownership of the GMC Sierra - although the Respondent may provide further information if he wishes. The parties can argue about the issue of who was the true owner of the vehicle at trial, although again, that issue may not be very material given the jurisdictional issues, and the existence of the Separation Agreement.

[39] The second vehicle in issue is a Mustang vehicle which apparently resided in the parties’ driveway, at the jointly owned a home in Chelsea, Québec, at the time of separation. The Applicant believes that the Respondent is the owner of this vehicle. The Respondent states that he is not the owner of the vehicle and that it is owned by his friend. The Respondent has a letter from his friend confirming this, and he agreed to provide a copy to the Applicant. The Respondent states that the Applicant is well aware that he does not own this vehicle. Regardless, he is prepared to provide the letter and I order him to do so. I decline to make a further order for disclosure on the issue of ownership of the Mustang vehicle - although the Respondent may provide further information if he wishes. The parties can argue about the issue of who was the true owner of the vehicle at trial, although again, that issue may not be very material given the jurisdictional issues, and the existence of the Separation Agreement.

[40] The third vehicle is a Volkswagen vehicle. The Applicant states that the Respondent’s insurance company told her that a Volkswagen vehicle was also insured under his policy. It is not clear how or why the insurer provided this information to the Applicant. The Applicant admitted that she did not have any knowledge of Volkswagen vehicle at the date of separation. The Respondent states he did not own a Volkswagen vehicle at the date of separation. Nobody seems to have seen a Volkswagen vehicle at the date of separation. The equalization issues between the parties are minimal if any. I am not satisfied that there is a basis for further disclosure on this issue.

[41] The Applicant also argued that the Respondent should be required to provide proof of his car insurance from 2013 to present to confirm what cars were insured under his policy, as this was relevant to determine ownership of the vehicles. I am not satisfied that further disclosure is required with respect to the issue of vehicle ownership and I decline to order this disclosure on that basis.

3. Proof of Insurance

[42] The Applicant sought proof of the Respondent’s insurance policy since the date of separation. This is part of her request under number 2 in her Motion. The Applicant believes that the Respondent has been driving the children illegally, and without insurance, for the past 10 years which she states is relevant to the parenting issues.

[43] The Applicant acknowledged that the Respondent has provided her with a copy of his current driver’s license such that he has provided confirmation that he is both legally licensed to drive in Ontario at this time as well as insured to do so. The issue for the Applicant is his past conduct.

[44] The Applicant’s concerns relate to an incident in 2017, which is referred to in the Children’s Lawyer’s report. The Respondent was stopped by police in Ontario and advised that he was not allowed to drive in Ontario. It is not contentious that this stems from the Respondent’s impaired conviction in 2007. The Respondent failed to complete the Back on Track program that was required as a result of that conviction. The Respondent states that he was not aware of this requirement or any restriction on him driving in Ontario. He had a Québec driver’s license at the time and states he was fully insured. The Applicant argues that the Respondent was required to advise the Québec government of his previous conviction at the time that he obtained his Québec driver’s license. The Respondent states that at the time he obtained his Québec driver’s license, he had not been convicted and so there was no requirement to advise them.

[45] The Applicant’s premise is that this disclosure goes to whether the Respondent knowingly drove the children without insurance such that he placed them at risk, which is relevant to the current parenting issues. This incident is already referenced in the Children’s Lawyer’s report and dealt with, and considered, in their recommendations. The Respondent takes the position that he was insured and did not place the children at risk. He is agreeable to providing the Applicant with proof that he has been insured since the date of separation and I order him to do so. I am not satisfied that further disclosure is required on this issue.

4. Respondent’s compliance with Order requiring him to install interlock breathalyser system in his vehicle and completing the required Court ordered Back On Track course;

[46] The discussion below relates to number 8 of the Applicant’s Motion.

[47] The Respondent has provided confirmation of the installation of the interlock system on his vehicle, and confirmation that he completed the first two components of the Back on Track program, with just the final component, being the six-month follow-up interview, remaining, which he states he has completed.

[48] The Applicant is not satisfied that the Respondent has completed the Back on Track program even though the Respondent states he would not been able to obtain his Ontario drivers’ license without doing so. In any event, the Respondent is agreeable to providing the Applicant with confirmation that he completed the final phase of the program and I order him to do so.

[49] The Applicant also stated in her submission before me that she wants the Respondent to provide disclosure of what charges were laid against him in 2007. This is not included in her Notice of Motion and I fail to see the relevancy of this. I am not satisfied that further disclosure is required with respect to this issue.

5. Respondent’s Cross-Motion

[50] The Respondent seeks an Order that the Applicant provide copies of the official receipts for her section 7 expenses. The Applicant filed an affidavit sworn on August 28, 2018 which included these receipts such that this was no longer an issue. I remind both parties that they need to provide each other with copies of all documents upon which they will rely at trial in advance of trial and I am imposing a timeline to do so which can be modified only at the trial management conference.

[51] If either party, and particularly the Applicant, is seeking reimbursement for section 7 expenses, she must provide copies of all documents related to this request, including evidence of the expense (including the amount of the expense), when it was incurred, evidence the expense was paid, evidence related to any tax deductions or credits available for the expense[^5], any correspondence upon which she relies if she taking the position that she communicated with the Respondent in advance of incurring the expense, and any other documentation in support of the reasonableness and necessity of the expense.

[52] The Respondent sought an Order requesting that the parties only be required to contribute to a special and extraordinary expenses if the parties consent to the expense in advance in writing, with neither party unreasonably withholding consent. At this juncture, given this matter has been going on since 2015, and given there is a trial in November 2018, I am not going to make an interim Order that adjusts the child support provisions. This being said, I caution both parties that it will strengthen their case for reimbursement of a section 7 expense if they obtain the other parent’s consent in writing in advance of the expense being incurred. Whether or not this will be required going forward or for past expenses will be determined at trial.

[53] The Respondent sought an Order for division of payments for section 7 expenses based on the parties’ annual incomes each and every year. Again, I decline to make an Order with respect to interim section 7 expenses prior to trial and the Respondent did not press this point at the motion.

[54] The Respondent sought an Order that the Applicant provide proof of written consent for the parties’ joint loans from her parents. The Applicant appears to have done so in her affidavit served on August 28, 2018 so this is no longer an issue.

[55] The Respondent seeks an Order to increase his access based on the recommendations from the Children’s Lawyer. I decline, at this juncture, to make an interim Order for access given that this matter has been going on since 2015 and there is going to be a trial in November 2018.

6. Other Issues

a. Current Addresses

[56] There were issues between the parties with respect to service of documents. Both parties shall ensure that they comply with the Family Law Rules by filing Notices of Change listing their current addresses, in particular for the purpose of serving any documents between them.

b. Applicant’s Affidavit

[57] Paragraphs 4, 11, 14 and 15 of the Applicant’s affidavit sworn August 22, 2018, are struck on the basis that they refer to discussions that took place at the settlement conference, and should not be put before the Court[^6].

c. Updated Financial Statements

[58] Neither party has complied with Rule 13(12) of the Family Law Rules which requires that before any case conference, motion, settlement conference or trial, each party shall update a financial statement that is more than 30 days old by filing a new financial statement or an affidavit.

[59] Although the parties have had numerous court appearances as set out above, the Applicant has only filed the two financial statements, sworn on September 9, 2015 and May 1, 2017. The Respondent has filed four sworn financial statements, sworn on November 9, 2015, December 8, 2016, July 20, 2017, and May 15, 2018.

[60] It is notable that despite the Applicant’s repeated requests for disclosure from the Respondent and apparent frustration with his failure to respond to her many requests, she herself is not complied with the obligations under the Rules to provide an updated financial statement. She needs to do so.

[61] I order both parties to provide each other with updated sworn financial statements in advance of the trial management conference, which is scheduled for October 23, 2018.

Disposition

[62] I therefore make the following Orders:

1. The Respondent shall produce the following documents to the Applicant within 30 days:

a. a copy of his CRA Notice of Assessment, and Reassessment, if any, for 2014;

b. a copy of the letter from his employer regarding ownership of the GMC Sierra;

c. a copy of the letter regarding ownership of the Mustang vehicle;

d. evidence that the Respondent has had car insurance since the date of separation; and

e. evidence that the Respondent completed the final phase of the Back on Track program.

2. Both parties shall provide the other with the following, on or before October 16, 2018:

a. Notices of Change listing their current addresses, in particular for the purpose of serving any documents between them (to be served and filed with the Court).

b. updated sworn financial statements (to be served and filed with the Court); and

c. copies of their complete T1 General Income Tax Returns and all Notices of Assessment and Reassessment, for the years 2013 to present, if not already provided, along with confirmation for their income for 2018 to date (by providing their most recent pay stubs or records of employment, or financial statements and invoices if self-employed, showing all income received in 2018 to date). Only if these documents are not available, the parties should provide a copy of their detailed notices of assessment which includes line by line income tax information (not just the simple Notice of Assessment information) available to be downloaded from the CRA website for each taxation year.

3. Both parties shall provide the following to the other, within 30 days:

a. copies of all documents upon which they will rely at trial; and

b. if either party, and particularly the Applicant, is seeking reimbursement for section 7 expenses, she must provide copies of all documents related to this request, including evidence of the expense (including the amount of the expense), when it was incurred, evidence the expense was paid, evidence related to any tax deductions or credits available for the expense[^7], any correspondence upon which she relies if she taking the position that she communicated with the Respondent in advance of incurring the expense, and any other documentation in support of the reasonableness and necessity of the expense.

4. These timelines may be modified at the trial management conference.

5. Paragraphs 4, 11, 14 and 15 of the Applicant’s affidavit sworn August 22, 2018, are hereby struck from the record. These paragraphs shall be redacted from the Continuing Record.

Costs

[63] If the parties are unable to agree on costs, the Applicant may serve and file submissions with respect to costs on or before October 15, 2018. The Respondent may serve and file submissions with respect to costs on or before October 25, 2018. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs, and shall comply with Rule 4.01(1) of the Rules of Civil Procedure[^8].

Justice P. MacEachern

Date: October 5, 2018

COURT FILE NO.: FC-15-1602-1

DATE: 2018/10/05

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Shannon Kendra Mulloy (Poisson), Applicant

AND

Allan Paul Mulloy, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Applicant, in person

Respondent, in person

ENDORSEMENT

Justice P. MacEachern

Released: October 5, 2018

[^1]: R.S.O. 1990, c. F.3 [^2]: Canada Revenue Agency [^3]: Family Law Rules, O. Reg. 114/99, as am., rule 13 (3.2), [^4]: Child Support Guidelines, SOR/97-175, as am., s.21(1) [^5]: The Child Support Guidelines require, at s.7(3), that the Court take into account any subsidies, benefits or income tax deductions or credits relating to s.7 expenses. [^6]: Family Law Rules, rule 17(23) [^7]: The Child Support Guidelines require, at s.7(3), that the Court take into account any subsidies, benefits or income tax deductions or credits relating to s.7 expenses. [^8]: R.R.O. 1990, Reg. 194