Court File and Parties
Court File No.: FS-13-388250 Date: 2018-11-16 Superior Court of Justice - Ontario
Re: Catherine Elizabeth Politis, Applicant And: Themistocles Politis, Respondent
Before: Kiteley J.
Counsel: Erin Chaiton-Murray, for the Applicant James D. Singer for the Respondent
Heard: October 23, 2018
Endorsement
[1] This is a motion by the Respondent for an order that the Applicant fulfill two undertakings given at her questioning held April 16, 2018. The Applicant takes the position that she has sufficiently answered her undertakings and the motion should be dismissed.
[2] For the reasons that follow, I dismiss the motion.
Background
[3] The parties married in December 1982. For purposes of this motion I assume they separated in 2008. They have three adult children.
[4] The Application was issued in July 2013. In an endorsement dated October 20, 2015, Harvison Young J.[^1] provided written reasons for ordering the Respondent to pay temporary spousal support in the amount of $5,288 per month retroactive to January 1, 2015. Harvison Young J. observed in paragraph 7 that the Applicant acknowledged that she had been cohabiting with A.B. since 2009 and that he contributed to her support although at paragraph 58, Harvison Young J. noted that the evidence indicated that they had been cohabiting since at least 2011 and had been together as a couple for some time prior to that.
[5] At paragraphs 18 to 21 Harvison Young J. held that the Applicant had established a prima facie entitlement to spousal support. At paragraphs 22 to 35, Harvison Young J. reviewed the evidence as to the income of the Respondent and found that his income for purposes of the motion for interim spousal support was $200,500 per year. At paragraphs 36 to 59, Harvison Young J. addressed the issues of need and ability to pay and took into account the evidence that was before her as to A.B.’s contribution to their household. Harvison Young J. specifically considered the applicability of the SSAG’s in circumstances in which the recipient had re-partnered.
[6] At paragraph 59, Harvison Young J. held that the Applicant had shown a need in the amount of $8,038.67 minus $2750 per month which was 50% of the monthly contribution by A.B. based on the evidence then available. Based on that calculation, the Respondent was ordered to pay $5,288 per month.
[7] Since then, the Respondent has made attempts to obtain financial information from A.B, so as to focus on his actual contribution to the household. A.B. provided some voluntary disclosure which indicated his income was greater than his disability income which was the evidence available to Harvison Young J. The Respondent brought a motion for an order that A.B. be compelled to provide significant additional information and documents. In her endorsement dated January 12, 2018, Kristjanson J.[^2] dismissed that motion.
[8] The Applicant attended for questioning on April 16, 2018 and the transcript has been made available. The transcript indicates that 19 undertakings were given.
[9] In connection with the motion heard by Harvison Young J., the Applicant had delivered a form 13.1 financial statement sworn June 17, 2015 and a reply affidavit sworn July 14, 2015. In her form 13.1, the Applicant indicated that she paid “rent or mortgage” in the amount of $1,531 per month to A.B. At page 32 of the transcript, the following exchange occurred:
Q. 148. All right, so you’ve been paying Mr. B. $1,531 a month for how long?
A. I don’t know the exact date.
Q. 149. All right, so I’m going to ask you to provide me with proof of how you come up with each number, with each amount in this Financial Statement, okay?
A. Yes.
Q. 150. All right.
Mr. Fogelman: Sorry, proof - - -
Mr. Singer: Of how Ms. Politis comes up with each expense in this Financial Statement.
Mr. Fogelman: Okay.
[10] At pages 64 and 65, the following exchange occurred:
Q. 278. You gave an undertaking to show me proof of payment of the items in your Financial Statement, okay? That was an undertaking that you gave, yes?
Mr. Fogelman: Yes.
Q. 279. All right, if it turns out that some of these items weren’t being paid, I’m going to want that undertaking to include how you arrived at the amount in your Financial Statement, okay?
A. Mm-hmm.
Q. 280. You’ve got to say ‘yes’.
A. Yes.
Q. 281. Saying ‘mm-hmm’ doesn’t pick it up. And, I want you to identify for me for each Financial Statement that has been sworn by you to date which items you actually are paying and which items you are not paying that are notional payments, okay?
Mr. Fogelman: Okay.
Speaker not identified: All right, and just while we’re on it – let’s go off the record for a minute
Discussion off the record
Q. 282. June 17, 2015, Financial Statement – this is a Financial Statement that you swore immediately before the motion. Are there any items in your Financial Statement that you claim to actually - - -
A. What’s the date?
Q. 283. This is your Financial Statement.
A. Yes.
Q. 284. Are there any items in there that you claim actually to be paying?
A. I have to check.
Q. 285. You can’t tell me offhand?
Mr. Fogelman: Sorry, ‘you claim to be paying’? I’m not sure I understand - - as opposed to being accrued?
Mr. Singer: As opposed to just being a number picked out of a hat, yes, accrued, yes.
Mr. Fogelman: Different than the undertaking that she just gave?
Mr. Singer: I’m just trying to delve into it now, trying to - -
A. Numbers weren’t picked out of a hat.
Mr. Fogelman: No, no, the question being asked is you have these numbers on the page.
A. Yes.
Mr. Fogelman: Some of them you weren’t paying. You were accruing them.
A. Yes.
Mr. Fogelman: Okay, he’s asking you – okay, were you actually paying $44.00 on the water or was it being accrued? Were you actually paying 3-48 [sic] or was it being accrued ---
A. I can’t answer that right now.
Mr. Singer: All right, so that’s part of the undertaking, Counsel?
Mr. Fogelman: I’ve already given you that undertaking.
Mr. Singer: That’s fine.
[11] Counsel exchanged correspondence but the Respondent asserted that the Applicant had not fulfilled her undertakings and brought this motion.
[12] In his affidavit sworn July 17, 2018 in support of this motion, the Respondent deposed as follows:
There are two undertakings that have not been satisfactorily answered, and they are linked in that they both require the applicant to furnish evidence of the actual dollars she expends monthly to meet her needs. This is, after all, the starting point (and ending point) for Justice Harvison Young’s analysis.
To fulfill the undertaking, the applicant is required to provide either her original marked up working sheet for the financial statement or to re-create whatever she did originally to complete her Financial Statement sworn for the motion. Presumably, under either scenario, I will receive the applicant’s marked up account statements, credit card statements or line of credit statement that will (for example) have an “F” beside a “food expense”.
This undertaking goes to the central issue of whether the applicant has an actual need for support or whether that need has been transferred over to and is being met by AB, her common law spouse.
The other undertaking inadequately answered is at P 65/Q 281. That undertaking requires the applicant to distinguish between expenses being accrued and expenses being actually incurred. By “accrued”, the applicant is really saying one of two things: “AB is paying this on my behalf and I owe him the money” OR “neither AB nor I am paying this amount, but I intend to pay this amount.” But either way, the applicant maintains, it is an expense that fits into her “need” category.
In short, the applicant must provide me with the marked up, cogent statements evidencing payment of her expenses and this will satisfy both undertakings. Emphasis added
[13] In respect of both undertakings, the Respondent also takes the position that the various answers provided by the Applicant are contradictory.
Analysis
[14] The starting point for a motion such as this is the allegations in the Application, Answer and Reply. In her Application, the Applicant asks for a divorce and spousal support and accordingly s. 15.2 of the Divorce Act applies. At trial, the judge is required to take into consideration the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited and the functions performed by each spouse during cohabitation. In his Answer, the Respondent essentially takes the position that the Applicant is not entitled to spousal support and if she is, he alleges that he has overpaid since the date of separation. In her Reply, the Applicant emphasized the circumstances on which she relies to establish entitlement to spousal support.
[15] At paragraph 14 of her endorsement, Harvison Young J. set out the following principles as being applicable to the motion for interim support:
On applications for interim support the applicant’s needs and the respondent’s ability to pay assume greater significance;
An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;
On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;
The courts should not unduly emphasize any one of the statutory considerations above others;
On interim applications the need to achieve economic self-sufficiency is often of less significance;
Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;
Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support. Emphasis added
[16] She went on to analyze the Applicants claim from the perspective of her “need”. At various points in her endorsement, Harvison Young J. pointed out the approach likely to be taken by the trial judge in contrast to the approach that she took on the motion for interim support.
[17] In this motion, the Respondent is focused on whether the Applicant has demonstrated a need for spousal support. However, pursuant to s. 15.2, at the trial, the broader concept of the circumstances of each of the parties will be the framework within which the trial judge will make findings. Contrary to the excerpt from paragraph 9 of his affidavit quoted in paragraph 12 above, need is not the starting point and the ending point at trial.
[18] Furthermore, as I observed in Saunders v. Saunders[^3] the burden of proof is on the Applicant. She must address “the condition, means, needs and other circumstances of each spouse”. If at trial she relies on need as a basis for an order for spousal support, she has to provide evidence to substantiate that need.
[19] The material before me on this motion is in volume 7 of the continuing record. I also have volume 1 that contains the pleadings and I have the endorsement brief. The material before me indicates that the Applicant delivered a sworn financial statement in July 2013 and in July 2015. On April 16, 2018 the questioning by counsel for the Respondent focused on expenses that had been incurred as reflected in a form 13.1 financial statement that is now more than three years old.
[20] The Applicant did not refuse to answer the questions and did not refuse to respond to her undertakings. Family Law Rule 20(19) does not apply.
[21] Both parties made submissions on the issue of proportionality. Counsel for the Applicant relied on Family Law Rule 2(2), (3), (4) and (5) and argues that those subrules incorporate the element of proportionality. She also argues that this is in effect, a motion requiring the Applicant to create a document and that request is not proportional to the issues in the case.
[22] In the Family Law Rules, the only reference to “proportionality” is found in the amendment in 2018 to rule 24(12) in the context of costs. However, rule 2(2), (3), (4) and (5) evoke a framework that engages proportionality in all of the rules affecting all of the procedural steps in a family law action.[^4]
[23] The Respondent relies on Rule of Civil Procedure 29.2.03. I accept that the test is “semblance of relevance” which is measured in the context of s. 15.2 of the Divorce Act referred to above.
[24] In my view, requiring the Applicant to provide information in addition to the answers already provided and to create the analysis of expenses reflected in a form 13.1 that is more than 3 years old does not meet the semblance of relevance test. Nor is it proportional to the issues at the trial given that need is only one factor for the court to consider and the burden of proof is on the Applicant.
[25] The Respondent also relies on the decision in Midland Resources Holding Ltd. v. Shtaif[^5] that holds that the burden is on the party who seeks to limit production of relevant documents on the basis of proportionality to put forward at least some evidence addressing the rule 29.2.03 factors. The Applicant has provided no evidence with respect to any of those factors. However, that is not the issue before me. The Applicant does not seek to limit production of existing documents. She resists being ordered to create a document that is not required by the wording of the question that she undertook to answer.
[26] The Respondent simply does not accept the responses, considers them to be “inadequate” and insists that the only way the Applicant can comply is by preparing the “marked up, cogent statements”. That is the Respondent’s version of how the undertakings are to be answered. If that is what the Respondent hoped to achieve, the question ought to have contained that request so that her counsel could assess the reasonableness of the request and decide whether the Applicant would give an undertaking. After the fact, it is not reasonable for the Respondent to define how the Applicant is to respond.
Costs
[27] At the conclusion of submissions on October 23, 2018 I reserved decision. I asked counsel for submissions as to costs. Counsel exchanged their costs outlines in court and then conferred and announced that they agreed that costs of the motion including fees, disbursements, HST and the attendance that day ought to be fixed at $5,200. However, the Respondent had made an offer to settle the motion. I directed counsel for the Respondent to provide the offer in a sealed envelope to my Registrar.
[28] Having made the decision to dismiss the motion, I have now reviewed the offer to settle. Prior to serving the motion to compel answers to undertakings, the Respondent served and filed an offer to settle dated July 6, 2018 that required the Applicant to answer the undertakings given at page 32 question 150 and page 65 question 281 in a manner consistent with the contents of his affidavit quoted in paragraph 12 above. The Respondent did not achieve a result better than his offer to settle.
[29] The Applicant was successful in opposing the motion and pursuant to rule 24(1) she is presumed to be entitled to costs. The Applicant did not make an offer to settle but it was not the sort of motion for which the court should penalize a party for not making an offer because there were only two possible outcomes. The absence of an offer in the circumstances of this motion is not a factor relevant to overcome the presumption of entitlement to costs.
[30] Given the agreement as to the amount of costs, I see no reason to deprive her of the benefit of a costs order.
Next Steps
[31] I am concerned that this action has been outstanding for more than 5 years with no end in sight, either by settlement or trial. Pursuant to rule 2(5), I intend to set a date for a case conference at which time I will make an order as to next steps. As indicated below, I am providing two possible dates. Counsel must agree on one of them. Counsel need not deliver a case conference brief. However, I do require counsel to attempt to establish a consent timetable. I may not accept it and if they cannot agree, I will impose a timetable.
ORDER TO GO AS FOLLOWS:
[32] The motion by the Respondent is dismissed.
[33] By December 17, 2018 the Respondent shall pay costs of the motion to the Applicant in the amount of $5,200.
[34] Parties and counsel shall attend before me on either November 30, 2018 at 3:30 or December 21, 2018 at noon for a case conference for purposes of establishing a timetable for next steps in the case.
[35] By November 23, 2018, counsel shall file a confirmation form specifying which of those dates has been accepted.
[36] By November 26 or December 17, as the case may be, counsel shall file another confirmation form which includes the following:
(a) a list of the agreed issues for trial;
(b) a timetable for events on which they agree;
(c) a timetable for events on which they do not agree.
Kiteley J.
Date: November 16, 2018
[^1]: 2015 ONSC 5997 [^2]: 2018 ONSC 323 [^3]: 2015 ONSC 926 at paragraph 15 [^4]: see footnote 3 at paragraph 28 [^5]: 2010 ONSC 3772, [2010] O.J. No. 2767 at paragraph 15