COURT FILE NO.: 33777/10 DATE: 20181220 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Delia Joan Berta, Applicant AND: Raymond Louis Berta, Respondent
BEFORE: Conlan J.
COUNSEL: Michael Zalev, Counsel for the Applicant Peter Callahan, Counsel for the Respondent
Endorsement on Motion
I. Introduction
[1] Time is of the essence. We are on the doorsteps of the holiday season. There is another motion in this file scheduled for January 8, 2019. The parties and counsel are entitled to have the within decision well before then.
[2] Hence, this Endorsement will necessarily be more cursory than it otherwise may have been.
[3] I am indebted to counsel for their assistance at Court in Milton on December 19th. To be frank, when I reviewed the history of the case and saw six banker’s boxes and more than twenty volumes of Continuing Record materials, I had a sour taste in my mouth. Good counsel can alleviate that to some extent. Mr. Zalev and Mr. Callahan succeeded in doing so.
[4] Succinctly put, these parties were married for some 27 years, separated, and have battled each other in litigation since. This latest round is Mr. Raymond Berta’s Motion to Change the Final Order of Harper J. made in September 2016, varied by the Court of Appeal in November 2017.
[5] The issue is spousal support payable by Mr. Berta in favour of Mrs. Delia Berta. As varied on appeal, that amount is currently $13,759.00 per month.
[6] Mr. Berta wants that figure reduced, and significantly so. His Motion to effect that reduction on an interim basis is set for January 8th of next year. The same date, Mrs. Berta’s Motion to strike the whole proceeding returns to Court to be spoken to. She alleges a pattern of non-compliance with Court Orders and delinquency in paying costs on the part of Mr. Berta as the grounds for such a serious remedy.
[7] On November 27, 2018, Mr. Berta was questioned by counsel for Mrs. Berta. Some questions were answered. Some were refused. Some were taken under advisement. Undertakings were given. Further answers have been provided since. The usual routine, although Mrs. Berta alleges that her counterparts were unreasonably stubborn.
[8] A dispute remains concerning several items. This decision attempts to resolve that dispute.
[9] All references below are to one or more of the following documents: (i) the “Updated Refusals and Undertakings Chart” attached to Mrs. Berta’s Amended Confirmation of Motion (Form 14C) dated December 18th; (ii) Mrs. Berta’s “List of Basic Financial Disclosure That Remains Outstanding” (one page document, twelve items) that was submitted by Mr. Zalev at Court on December 19th; (iii) the “Compendium of Joan Berta” (bound, 26 tabs); and (iv) the “Book of Authorities of Joan Berta” (bound, 5 tabs).
[10] In turn, those are abbreviated herein as “Chart”, “List”, “Compendium”, and “Book”.
II. Analysis
Chart #1 – Mr. Berta’s Bank Statements since January 1, 2015
[11] At questioning, this item was refused. Since, an answer has been provided by Mr. Berta by way of authorizations and directions permitting Mrs. Berta to obtain the requested documents directly from the financial institutions.
[12] With respect, that answer is not sufficient. Mr. Berta was not asked for directions and authorizations. He was asked for the bank documents. They are clearly relevant (it was not argued otherwise). He can obtain them without any difficulty. This Court orders that he shall do so and produce copies of them, forthwith.
[13] For clarity, “all accounts” includes any RRSP account(s).
Chart #3 – Mr. Berta’s Credit Card Statements since January 1, 2015
[14] The assessment for this item is a carbon copy of that regarding #1. The result must be the same for both, therefore, the same Order is made.
Chart #4 – Mr. Berta’s Line of Credit Statements
[15] The assessment here traces that with respect to items 1 and 3, thus, the same Order is made.
Chart #5 – Mr. Berta’s Applications for Loans or Credit since January 1, 2015
[16] At questioning, this item was refused. Since, an answer has been provided in the letter from Mr. Berta’s counsel dated December 11, 2018 (pages 268-269 of the Compendium, plus the enclosures).
[17] With respect, that answer is not sufficient. The wording of the question is important. It encompasses loan or credit applications, agreements and rejection notices. The answer addresses only the agreements themselves.
[18] This Court orders that Mr. Berta shall, forthwith, advise whether there are any applications and/or rejection notices for the period in question and, if so, he shall, without delay, provide copies of same.
[19] For clarity, that Order includes the applications related to items (a) through (c) identified in the written answer provided by Mr. Berta’s counsel (see page 269 of the Compendium, as presumably there were applications required for the RBC credit facilities mentioned therein).
Chart #9 – Corporate Minute Books
[20] At questioning, this item was refused. Since, an answer has been provided in the letter from Mr. Berta’s counsel dated December 11, 2018 (page 270 of the Compendium).
[21] With respect, that answer is, in part, not sufficient. Regarding the Minute Book for 911184, the answer is satisfactory – it cannot be found. Regarding the Minute Books for ACCE and ACCE International, they are, in my opinion, relevant to an assessment of Mr. Berta’s income for support purposes.
[22] Mr. Berta was not asked to provide access to the Minute Books; rather, he was asked for the Books themselves. Copies will suffice. This Court orders that Mr. Berta shall provide, forthwith, copies of the Minute Books for both entities.
Chart #10 – Recent Pay Stubs and Related Documentation
[23] The only grievance on the part of Mrs. Berta is that Mr. Berta has not produced any pay stubs.
[24] At Court on December 19th, Mr. Callahan stated that there are none to produce. That shall be taken as the answer, in supplement to what is contained in counsel’s letter dated December 11th (pages 270-271 of the Compendium), which I interpret as being satisfactory.
Chart #11 – Mr. Berta’s Travel Particulars and Passports
[25] The only complaint on the part of Mrs. Berta is that Mr. Berta has not produced his Canadian passport.
[26] One cannot produce what one does not have. Counsel’s letter dated December 11th is a proper answer in that the Canadian passport was surrendered to the Government as per the direction of the Family Responsibility Office.
[27] If Mrs. Berta wants to pursue the matter further, she can ask Mr. Berta to provide an authorization and direction to obtain a copy directly from the Government, which if requested I would think ought to be provided.
Chart #s13,19, 20, 21, and 24 – Disclosure Related to Mr. Berta’s Expert, Marmer Penner Inc. (“Marmer”)
[28] According to the List, #20 is now satisfied.
[29] It is common ground that certain documentation has already been disclosed by Mr. Berta regarding the retainer, instructions to and work of his expert, Marmer (tabs 3, 4, 7, 8, 10, 11, 12, and 13 of the Compendium).
[30] Likewise, it is undisputed that, on September 27, 2018, the same day that Mr. Zalev received the latest Marmer report dated September 26th, he asked for more disclosure (page 91 of the Compendium).
[31] As well, there is no question that Woollcombe J., on October 12, 2017, made a very broad disclosure Order that Mr. Berta shall provide “all of the documentary evidence upon which he relies in support of his motion to change, which shall include his position as to what his income [was] for the years 2014-2017” (tab 6 of the Compendium).
[32] Finally, there is no doubt that Justice Kurz made a handwritten Endorsement on November 15, 2018 that states that Mr. Callahan undertook to produce some extra documentation, and that the said extra documentation had already been ordered produced by Woollcombe J. in October 2017 (tab 19 of the Compendium, specifically at page 169).
[33] This “extra” documentation is that referred to in Appendix B of the September 26, 2018 Marmer report, item 1(o), “[d]iscussions with and correspondence from you, Raymond and Mr. Adriann Ninaber” (page 68 of the Compendium).
[34] The first issue is whether the said item 1(o) has already been ordered to be produced. If so, that is the end of the matter.
[35] In my view, with respect for any opinion to the contrary, it has not. The wording of the Woollcombe J. Order, however broad it may be, cannot reasonably include the said things referred to in item 1(o).
[36] The second issue is whether the law requires the production of what is referred to in item 1(o). In my view, it does not.
[37] Applying the test advocated for by Mr. Zalev, outlined at paragraph 77 of the decision of the Court of Appeal for Ontario in Moore v. Getahun, 2015 ONCA 55 (tab 1 of the Book), I am not satisfied on balance that there are “reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert witness’s duties of independence and objectivity”.
[38] I agree with Mr. Zalev that the evidence demonstrates that Marmer is proceeding now on an assumption, as instructed by counsel for Mr. Berta, that played no role in the prior proceedings, namely, that “ACCE was forced to pay Ms. Joan Berta…$2.2 million to purchase her share interest in ACCE” (page 45 of the Compendium), however, neither that alone nor in conjunction with the other materials referred to in oral argument by Mr. Zalev persuades this Court that the requisite reasonable suspicion exists.
[39] Consequently, I decline to order that Mr. Berta produce or disclose anything further with regard to Marmer. In making that decision, I am aware that it could be argued that this Court has undermined the alleged undertaking given by Mr. Callahan at Court on November 15th, however, on the basis of Kurz J.’s Endorsement, alone, I am uncertain as to the exact parameters of the said undertaking.
Chart #s14, 15, and 16 – Particulars Related to Corporate Financial Statements
[40] These items were resolved on consent. Accordingly, this Court orders that Mr. Pont, on behalf of Mrs. Berta and her counsel, shall be at liberty to communicate with Mr. Berta’s accountant(s) to clarify the answers already provided to those questions.
Chart #25 – Temagami Cottage Expenses
[41] According to the List, this item is now satisfied.
Chart #36 – Documentation Related to Mr. Berta Borrowing Against his Home in order to Invest in ACCE
[42] There is no reason to disbelieve Mr. Berta and his counsel when they say that the supporting documents that they have already requested from BMO have not yet been received by them.
[43] Once they are received, they shall be disclosed forthwith. So ordered.
Chart #40 – Date and Documentary Proof of Paying-Off Mr. Berta’s Car Loan
[44] At questioning, Mr. Berta was asked when he paid off his car loan and for proof of having paid it off. The question was taken under advisement.
[45] Counsel’s letter dated December 11th states that Mr. Berta cannot recall for sure when he paid it off but thinks that it was at the end of 2017 (page 279 of the Compendium).
[46] With respect, that answer is not sufficient. The subject matter is surely relevant to the issue of spousal support (Mr. Berta’s ability to pay and overall financial circumstances). He can easily get the documentation requested from the lender. He shall do so and disclose it, forthwith. So ordered.
Chart #44 – The Availability of Third-Party Financing for the Buy-Out of Mrs. Berta’s Shares in ACCE
[47] At questioning, Mr. Berta was asked whether it was safe to assume that his expert, in saying that third-party financing could not be secured to buy Mrs. Berta out, must have relied upon information provided by Mr. Berta or his lawyer. The question was refused.
[48] Subsequently, in counsel’s letter dated December 11th, it is indicated that the answer is “yes”, although not in that express word (pages 283-284 of the Compendium). Further, Mr. Berta can offer no other potential source for the said information.
[49] One cannot get blood from a stone. I see those answers as being satisfactory.
Chart #52 – Proof of the Withdrawals of the T4s as per the Order of Justice Lederer
[50] There is no reason to disbelieve Mr. Berta and his counsel when they say that the supporting documents that they have already requested from the accountant have not yet been received by them.
[51] Once they are received, they shall be disclosed forthwith. So ordered.
III. Conclusion
[52] Accordingly, the Motion brought by Mrs. Berta is allowed in part.
[53] Subject to being persuaded otherwise by counsel, I think that no costs should be ordered given the divided success.
[54] If necessary, any side seeking costs may file written submissions (two pages maximum, excluding attachments) within thirty days of the date of this Endorsement. Only one submission from each side will be entertained.
[55] I thank both counsel for their assistance.
Conlan J.
Date: December 20, 2018