Endorsement

COURT FILE NO.: FS-17-90997-00 DATE: 2019 01 07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Urmila Malik, Applicant AND: Binesh Malik, Respondent

BEFORE: Justice G.D. Lemon

COUNSEL: Georgina L. Carson, Sevena Lein, Counsel for the Applicant Anita Kania, Counsel for the Respondent.

HEARD: November 27, 2018

The Issue

[1] Ms. Malik seeks an order declaring that Mr. Malik is in breach of the order of Snowie J. dated May 23, 2018. She says that Mr. Malik has failed to produce all of his disclosure as set out in that order.

[2] She asks that should he fail to provide that information within 30 days, his pleadings shall be struck and I should impose such other immediate sanctions as I consider necessary for a just determination of the matter, pursuant to Rule 1(8) of the Family Law Rules, O. Reg. 114/99 including her full indemnity costs.

[3] Ms. Malik also asks for orders for exclusive possession of the home and its contents; restraining orders against Mr. Malik; damages for “inclusion on seclusion;” a non-depletion order; retroactive and ongoing child and spousal support; life insurance, medical and dental benefits; interim disbursements in the amount of $150,000 and an advance on her equalization payment of $500,000.

Background

[4] The parties were married April 16, 1993, and separated August 31, 2017. They have two children, ages 24 and 22. The proceedings commenced in December 2017. At a case conference May 23, 2018, Snowie J. endorsed and ordered Mr. Malik to produce a number of documents.

[5] There were difficulties with productions and the matter came before Daley R.S.J. on November 15, 2018. His endorsement said:

1. A case supervision conference was held on November 15, 2018.
2. The Applicant’s motion scheduled for November 27, 2018 is now peremptory to both parties.
3. This motion was served, scheduled and then adjourned previously and as the respondent had not as of the date of this conference served and filed any responding material to the applicant’s motion, it is ordered that the respondent shall serve all of his responding material on or before November 19 and to be filed with the court no later than November 20.
4. Both parties’ counsel shall serve and file their factum and casebooks on or before November 22, 2018.
5. As to the time allocated for submissions, all of the submissions shall be limited to a maximum of one hour.
6. Counsel for the applicant shall make submissions in 25 minutes, followed by counsel for the respondent within the same time of 25 minutes, concluding with reply submissions by counsel for the applicant for 10 minutes.
7. As to the issue of costs, unfortunately the respondent seems to think that court orders are simply suggestions from the court and that compliance is entirely in his discretion. The attendance on this case supervision hearing was entirely as a result of the respondent’s noncompliance with several orders relating to disclosure and with respect to the scheduling of the pending motion and the filing of affidavit materials.
8. The costs associated with this court attendance are entirely connected with the misconduct on the part of the respondent and as such given the time spend in preparing a detailed case supervision brief as well as a needless attendance in court, I ordered that the respondent pay to the applicant the sum of $2500 forthwith.

[6] The materials that were filed for the motion filled a banker’s box. As could be expected, all of the issues set out in the Notice of Motion could not be dealt with in an hour. Given the time constraints, some of the issues were narrowed.

[7] On consent, I ordered:

1. The wife shall have interim without prejudice exclusive possession of the matrimonial home and its contents and neither party shall dispose of contents in his or her possession pending further agreement or court order.
2. Save and except the issue of costs which shall be adjudicated by Lemon J., the balance of the Wife’s motion not addressed today, shall be adjourned to be spoken to and scheduled by RSJ Daley, by conference call, or appearance at a case management conference, if necessary.
3. The Husband shall maintain the Wife on the Blue Cross extended health coverage.

[8] Accordingly, I was left to determine:

1. Sanctions with respect to Mr. Malik’s breaches of Snowie J.’s order of May 23, 2018, if in fact he has breached that order.
2. A civil restraining order against Mr. Malik.
3. An advance on equalization or interim disbursements or both “to be characterized at a later date” for Ms. Malik.
4. Life insurance for Ms. Malik

Has Mr. Malik Breached Justice Snowie’s Order?

[9] There are three corporate entities in play in this litigation. Mr. Malik carries on business as an insurance broker. He has interests in B&U Malik Holdings Inc., Breckles Group of Companies Inc. and B&U Malik Trust Holdings Inc. Ms. Malik has a 49% interest in B&U Malik Holdings Inc. It appears that Mr. Malik carries on business with three other partners operating the Breckles Group of Companies Inc. I have little information about B&U Malik Trust Holdings Inc.

[10] At the case conference on May 23, 2018, Snowie J. endorsed and ordered, among other things, that Mr. Malik produce a number of documents:

1. If a party is unable to produce a document he/she must swear an affidavit setting out the reason and the efforts made to obtain the document.
2. Rule 17(14.2) requires the following documents to be brought to the Settlement Conference if not already produced: a. Any document that supports a party’s position in respect to a dispute regarding the value of property or regarding the amount of a debt:; b. Any document required to be served under Rule 13 (financial disclosure), if there is a dispute as to whether it was served.
3. The Respondent to produce to the Applicant’s solicitor the disclosure in Schedule “A” attached within 60 days.
4. The Respondent is hereby restrained from depleting his net family property including any and all corporate or trust assets without the Applicant’s consent or a court order and the Respondent shall forthwith account for all corporate and trust activity since separation (Rule 17(8)).

Schedule “A” to May 23, 2018 order of Justice Snowie

The Respondent shall produce all outstanding disclosure in response to the Applicant’s Request for Information dated March 8, 2018 within 60 days including but not limited to the following:

(a) A complete copy of the Respondent’s 2017 income tax return and notice of assessment once received; (b) Documentary proof of the Respondent’s 2018 income to date and ongoing until resolution of this action; Not acknowledged as remains ongoing; (c) An income analysis of the Respondent’s income for support purposes in 2015, 2016, 2017 and 2018 to date and ongoing prepared by a certified business valuator together with the scope of review documents; (d) Documentation to support the value of each asset and debt set out in the Respondent’s financial statement sworn January 18, 2018, including account numbers for all accounts listed; (e) Statements for all bank accounts, investments, registered plans, pensions, credit cards, etc. from January, 2014 to date (including all business accounts and business investments) held by the Respondent, or in trust for the Respondent, or over which the Respondent has singing authority; (f) A business valuation by a certified business valuator of the Respondent’s incorporated and other business and trust interests, if any, as of the date of separation together with the scope of review documents; (g) The share register and shareholders’ loan ledger for B&U Malik Holdings Inc., Breckles Group and Companies Inc. and B&U Malik Trust Holdings Inc.; (h) The Director and Shareholders’ Resolution Agreements for B&U Malik Holdings Inc., Breckles Group of Companies Inc. and B&U Malik Trust Holdings Inc.; (i) All applicants for credit, statement of affairs, or net worth statements prepared by the Respondent or on his behalf in the past 5 years and ongoing until resolution of this matter; and (j) Details of all safety deposit boxes, by number and location, held by the Respondent or on his behalf, or over which he has signing authority, together with a full inventory of the contents of each safety deposit box.

[11] Ms. Malik says that Mr. Malik has failed to produce this disclosure as required.

[12] Mr. Malik says that he has, for the most part, complied with the order but that Ms. Malik continues to change her requests. I agree with Mr. Malik that there is a distinct difference between Ms. Malik’s requests by correspondence, her Notice of Motion, and her submissions at court. Some of the items in her proposed draft order do not seem to appear anywhere else in the pleadings. I will therefore focus on the Notice of Motion.

[13] Mr. Malik does acknowledge that he has not provided two particular items as ordered and consistently requested in the pleadings. He has not provided:

• An income analysis for support purposes from 2015 to 2018 inclusive prepared by a certified business valuator together with the scope of review documents.
• A business valuation by a certified business valuator of his corporation, business and trust interests at the date of separation, together with the scope of review documents.

[14] He explains the situation in his affidavit as follows:

88. The valuation of the business was done in September of 2017 for a retiring partner (which she refused to sign to buy him out – so the deal fell through). The partners of the Breckles Group of Companies are not agreeing to a second valuation, nor has Urmila brought an action to add the partners to the proceedings, if she truly wishes to obtain a valuation of the business.
89. The truth is: the business is worth what another individual(s) will pay for it on the open market. My three partners (being Intact Insurance, Christopher and Gary) and I would never prejudice ourselves by receiving less than what the business is worth. Even if I suggested to sell it for more (or less) than the value, my partners have ¾ say, and I have a ¼ say in the decision.
90. In terms of my income valuation, I hired Steve Ranot of Marmer, Penner on August 17, 2018. I spoke with Mr. Ranot and he advised me, and I do verily believe that the income valuation might be completed in 3-4 months. I did not wait 1 year before retaining a CBV. There was no Order for same until May 23, 2018 – that is less than 3 months – not 1 year. To state so is misconstruing the facts.
91. I have never ‘thumbed my nose’ at Madam Justice Snowie’s Order. I have provided one box of disclosure already, but every time I provide more disclosure, Urmila asks for more. I am not in contempt of the Order of Snowie. J.

[15] In a letter from Mr. Malik’s counsel to Ms. Malik’s counsel dated June 25, 2018, Ms. Kania says: “The partners will not agree to paying for another valuation.”

[16] Ms. Kania and Mr. Malik seem to misunderstand the terms of the order. It was not appealed. Snowie J. did not require Mr. Malik and his partners to pay for a valuation. She ordered Mr. Malik to get on with the valuation. His partners have nothing to do with it.

[17] Even if they did, there are no affidavits from those representatives on this issue. Mr. Malik seems to suggest that it is up to Ms. Malik to add those individuals to the litigation. Again, he misunderstands the reality of the situation. The materials show that he is in default of the order. It is his onus to show why he is not. Hearsay is not of assistance. Mr. Malik has failed to meet that onus.

[18] There is a document that Mr. Malik refers to as a 2017 business evaluation in the materials. I have significant doubts about its reliability but, in any event, it does not appear to have been done by a certified business valuator and it was carried out before Snowie J.’s order. As such, it does not comply with the order.

[19] Snowie J. ordered that Mr. Malik provide an income analysis by July 23, 2018. He only started that process more than a month after it was due. That is “thumbing his nose” on anyone’s definition.

[20] With respect to the other outstanding items, Ms. Malik asks that Mr. Malik produce:

3. Within 15 days, the Husband shall account for all corporate and trust activity since separation.
4. Within 15 days, the Husband shall provide the following: a. Documentary proof of 2018 income from all sources including but not limited to income available from Breckles Group including disclosure of the Husband’s book of business and commissions and income available through B&U Malik Holdings Inc. & Trust; b. Documentation to support the value of each asset and debt set out in his financial statement sworn January 18, 2018 and November 19, 2018, including account numbers for all accounts listed and an Equifax Report; c. Statements for all bank accounts, investments, registered plans, pensions, credit cards, etc. from January 2014 to date (including all business accounts and business investments) held by the Husband, or in trust for the Husband, or over which the Husband has signing authority of which at least the following remains outstanding: i. Statements for the following credit cards since January 1, 2014 held by the Husband, in trust for the Husband or over which he has signing authority: ii. All business credit card statements from 2014 to date and ongoing; iii. BMO credit card ending in 5453 (including but not limited to 2014 and 2015 statements); iv. BMO credit card ending in 7970 (including but not limited to January 2016 to September 2016); v. BMO credit card ending in 6199 (including but not limited to period from September 2016 to February 2017); vi. AMEX ending in 1005 (including but not limited to period from September 2016); vii. AMEX ending in 3001 (including but not limited to period from April 2015 to November 2016); viii. AMEX ending in 4009 (including but not limited to period from December 2016); and ix. Any new credit cards the Husband may have opened and is currently using. x. Statements for the following bank accounts from January 1, 2014 or inception if later; 1. BMO account # […]721; 2. BMO chequing account # […]157; 3. Business bank accounts; and 4. Tangerine savings account […]538

[21] Many of these items are not specifically referred to in the Notice of Motion or Snowie J.’s order.

[22] Item 3 from the draft order is not in the Notice of Motion. It is, however, in Snowie J.’s order that he shall “forthwith account for all corporate and trust activity since separation.” Given the extent of the disclosure to date, this is too broad to order now. It refers to “activity” which I presume to be income. I expect that will be covered (or uncovered) in the income evaluation. This request is dismissed without prejudice to a further motion of greater particularity.

[23] Item 4 (a) refers to documents to support Mr. Malik’s income but he has deposed that he has already done so. He has already produced a great deal of information and more will be coming from the income analysis with which I have already dealt. I cannot tell if this request is proportional to the materials already provided or to be provided by the income analysis. This request is denied without prejudice to a further motion of greater particularity.

[24] Item 4 (b) refers to both a November 19, 2018, Financial Statement and an Equifax report that are not referred to in either the Notice of Motion or the order. There is nothing in the materials in support of the request for the Equifax report. Those items are dismissed.

[25] I do note however that Rule 13 (11) of the Family Law Rules sets out that:

If a party believes that the financial disclosure provided by another party under this rule, whether in a financial statement or otherwise, does not provide enough information for a full understanding of the other party’s financial circumstances,

(a) the party shall ask the other party to give the necessary additional information; and (b) if the other party does not give it within seven days, the court may, on motion, order the other party to give the information or to serve and file a new financial statement.

[26] Mr. Malik may well wish to take the request in this motion as such a request and avoid a further motion.

[27] While the documents set out at item 4 (c) are not specifically set out in the Notice of Motion, they are referred to in Ms. Malik’s reply affidavit. They are covered under paragraphs (d) and (e) of Schedule A of Snowie J.’s order. Reviews of produced documents often lead to requests for further documents disclosed in the production. Both support and equalization are in issue. Mr. Malik sets out that his net family property is just under five million dollars. On that basis, I cannot find that this request is overreaching. Mr. Malik shall provide it within 30 days.

[28] I have some doubt that records are required back to 2014 but Snowie J. has already dealt with that in her order; I cannot go behind that order.

[29] I note that Ms. Malik has set out this list only in her reply materials. To the extent that Mr. Malik may have said that it was already provided, he will simply have to provide another copy.

[30] I turn next to the Notice of Motion.

[31] Mr. Malik sets out in his response that he has provided his 2017 Notice of Assessment. Ms. Malik does not reply to that. This request is not repeated in the draft order. It is already listed in Snowie J.’s order. I need not deal with it here.

[32] Item 2 (b) is subsumed in item 2 (c) and I need not deal with them again.

[33] It appears from Ms. Malik’s reply affidavit that items 2 (d) and (e) have been resolved except the list set out above. I need go no further.

[34] I have already dealt with item 2 (f).

[35] The first order required Mr. Malik to comply within 30 days. From the information that we now have, that time limit was overly optimistic. Mr. Malik shall comply with my orders within 45 days. That will make it expensive for him, in both time and money, but he has had ample time to proceed in a more efficient fashion.

[36] Counsel have attached a great deal of their correspondence in the materials. Much of it is less than helpful to either the lawyers or the parties. I would suggest that a meeting between the two counsel to sit down and review all that has been provided and a civil discussion of what is still required to meet their client’s needs would be more cost and time effective than continued back-and-forth correspondence and motions.

[37] As an example, Ms. Malik is “shocked” that Mr. Malik lists his business interests as of the date of separation as $5,765,314 and then lists the current value at only $5.77. I suspect that a little calm thoughtfulness might disclose that the answer is a mere typographical error.

What Sanctions are Necessary?

[38] Ms. Malik does not seek a finding of contempt. In submissions and according to her draft order, she does not ask that Mr. Malik’s pleadings be struck. Rather, she asks for an order that Mr. Malik is in breach and some form of sanctions. He clearly is; and willfully so.

[39] In the recent case of Mullin v. Sherlock, 2018 ONCA 1063, Pepall J.A. set out the way in which a judge should deal with disclosure issues in family matters:

(i) Jurisprudence

[32] In Roberts v. Roberts, 2015 ONCA 450, at paras. 11 and 12, Benotto J. A. wrote:

The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.

[33] Traditionally, striking pleadings has been considered to be a remedy of last resort. In Purcaru v. Purcaru, 2010 ONCA 92, Lang J.A. stated at para. 47 that in family law cases, pleadings should only be struck and trial participation denied in exceptional circumstances and where no other remedy would suffice. The same principle was reiterated in Chiaramente v. Chiaramente, 2013 ONCA 641, at paras. 31-33. Laskin J.A. described the relevant considerations in Kovachis, at para. 34:

Before striking Kovachis’ pleadings, consideration ought to have been given to the importance or materiality of the items of disclosure Kovachis has not produced. Although full and frank disclosure is a necessary component of family law litigation, exhaustive disclosure may not always be appropriate. The courts and parties should consider the burden that disclosure requests bring on the disclosing party, the relevance of the request of disclosure to the issues at hand, and the cost and time to obtain the disclosure compared to its importance. [Emphasis added]

[34] In a family law case, as the resulting judgment may provide for continuing obligations that can only be varied on proof of a change in circumstances, the striking of pleadings has added significance. If pleadings are struck, a “change in circumstances may be difficult to establish if the initial judgment is based on incorrect assumptions, thus perpetuating injustice.” Purcaru, at para. 48.

[35] In Manchanda v. Thethi, 2016 ONCA 909, this court was satisfied that the motion judge had complied with the requirements of Kovachis in striking the appellant’s pleadings, stating that he had properly assessed the willful non-compliance to be egregious and exceptional, and it was not a situation of overreaching by the wife. The motion judge had expressly considered proportionality by examining the disclosure made in comparison with the disclosure still outstanding. The motion judge scrutinized both the quantity of disclosure, which had been significant, and the quality, which was deficient in that it omitted basic documents such as income tax returns, financial statements, and credit card statements.

(ii) Family Law Rules

[36] Rule 1(8) of the Family Law Rules provides direction to the court on the types of orders that may be made when a person fails to obey an order:

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs; (b) an order dismissing a claim; (c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party; (d) an order that all or part of a document that was required to be provided but was not, may not be used in a case; (e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (f) an order postponing the trial and any other step in the case; and (g) on motion, a contempt order.

[37] Rule 1(8.1) provides that if a person fails to follow the rules, the court may make an order under Rule 1(8) other than a contempt order under clause (8)(g).

[38] Rule 1(8.4) provides that:

If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
2. The party is not entitled to participate in the case in any way.
3. The court may deal with the case in the party’s absence.
4. A date may be set for an uncontested trial of the case.

[39] Rule 2(2) of the Family Law Rules provides that the primary objective of the rules is to enable the court to deal with cases justly. Rule 2(3) states that dealing with a case justly includes:

(a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[40] In 2015, Rule 13 of the Family Law Rules was amended to emphasize a party’s financial disclosure requirements. So, for instance, specified disclosure is required for a claim for support (Rule 13 (3.1)) or a claim under Part 1 of the Family Law Act (Rule 13 (3.3)). Under Rule 13(11), if a party believes that the financial disclosure is insufficient, the party shall first ask for the additional information and, if it is not provided within seven days, the court may order its production. Rule 19(1) addresses the need to provide an affidavit of documents 10 days after being requested to do so by the other party.

[41] Judges presiding over family law disputes are frequently faced with mounds of material, a busy court docket and pressure to process files expeditiously. Repeated and frequent motions for disclosure are often necessary, though they should not be. As stated by Benotto J.A. in Roberts, at para. 12, delinquencies add significant expense to proceedings and consume substantial judicial time and resources. Counsel and their clients should not expect that repeated adjournments and indulgences will be given to instances of non-disclosure. Furthermore, an effective remedy for inadequate or non-disclosure should be available.

[42] At the same time, a litigation strategy that involves repetitive motions for disclosure untethered from the disclosure already made may give a false impression of the extent of the non-disclosure. It must be recognized that given the size and complexity of some estates, it may be easier to ask the question than to give the answer.

[43] Given the ongoing challenges presented by inadequate disclosure in family law proceedings and the need to provide a workable remedy while ensuring that the procedure is fair to all parties, a decision-making framework for the application of Rule 1(8) is required.

(iii) Decision-making Framework

[44] First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.

[45] Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:

• the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;
• the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
• the extensiveness of existing disclosure;
• the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
• any other relevant factors.

[46] Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception.

[47] If the judge decides to strike, as in the case under appeal, Rule 1(8.4) becomes applicable. As mentioned, this subsection provides that certain consequences apply unless a court orders otherwise. Accordingly, a party is not entitled to participate in a case in any way unless the court orders otherwise. This provision gives the judge the ability to frame the procedural consequences to a party in default. In making this determination, consideration should be given to whether the consequence is responsive to the breach and whether it achieves a just outcome.

[48] If the judge decides to strike, Rule 1(8)(c) does not refer to striking “pleadings”. Instead, it specifically distinguishes amongst striking out an application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party. Rule 1(8.4) addresses the consequences if an order is made striking an application, answer, motion to change or response to a motion to change. Ideally, when making an order under this subsection, the judge should specify what is being struck.

[49] The decisions to strike a document and to determine the parameters of trial participation are discretionary in nature, and as stated by Lang J.A. in Purcaru, at para. 50, are “entitled to deference on appeal when exercised on proper principles. The exercise of discretion will be upheld where the motion or trial judge fashions a remedy that is appropriate for the conduct at issue.”

[40] Following that framework, I make the following findings.

[41] In this case, the business valuation and income analysis are the heart and soul of the litigation. There are significant financial issues in play. Nothing can be finalized in this file until Mr. Malik complies with this order.

[42] While I have some sympathy with Mr. Malik’s view that he has been rushed, ultimately, he has not complied with a very clear order. Some delay may have been excusable, non-compliance is not.

[43] I am not convinced that the additional list of documents are needed immediately. Mr. Malik’s real work is still to be done. As set out below, Ms. Malik says that she cannot afford to take steps to review that work. This list was only itemized in the reply affidavit to this motion. Some of this material may not be needed in the end result. I have ordered it to be produced but the present failure to provide this list alone does not invite a serious penalty.

[44] Ms. Malik describes Mr. Malik as having “failed to provide basic financial disclosure”. She describes Mr. Malik as providing only “minimal disclosure”. She overreaches to the point of harming her credibility. This thick file has a great deal of information from Mr. Malik upon which Ms. Malik’s counsel can get to work. The parties have been separated for about 18 months. Co-operative spouses could take this long to resolve the financial dispute. That said, despite the fact that he has made some disclosure, the delay now is entirely caused by Mr. Malik’s conduct.

[45] The end result is that Mr. Malik has admittedly not provided the records he was ordered to obtain and his explanation is weak at best.

[46] I am not disposed to striking Mr. Malik’s pleadings; Ms. Malik is not asking for that.

[47] Pursuant to Rule 1(8)(a), costs are an obvious result but more needs to be done. Rule 1(8) employs the helpful term “including”, which does not restrict the avenues available to me to ensure that justice is done. Furthermore, our Court of Appeal has encouraged trial judges to be more creative than simply striking pleadings.

[48] Mr. Malik’s financial statement sets out that he earns more than $150,000 per year and has (including RRSP and TFSA accounts) more than $500,000 in liquid assets. He needs to understand that he must comply with court orders whether he likes to or not. He is in breach of these terms since at least July 23, 2018. A payment to Ms. Malik of $5,000 per month commencing August 1, 2018, should bring these terms to his attention.

[49] Accordingly, Mr. Malik shall pay Ms. Malik the sum of $30,000 within 30 days and $5,000 on the first day of each month until the above items are produced. To be clear, this is a separate order and may not be set off by any support or equalization claims.

Restraining Order

[50] Ms. Malik seeks an order that Mr. Malik shall be restrained from communicating directly or indirectly with her, other than through counsel, or from coming within 1,000 metres of the matrimonial home or any other place Ms. Malik is known to be.

[51] Section 46(1) of the Family Law Act, R.S.O. 1990, c. F3 reads:

On application, the court may make an interim or final restraining order against a [spouse] if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

[52] Ms. Malik sets out a variety of assaults upon her and serious abusive behaviour by Mr. Malik. Mr. Malik denies all of those allegations. Both affidavits are detailed. Both are contrary.

[53] The only objective evidence with respect to Ms. Malik’s allegations are two incidents when Mr. Malik contacted her by electronic means contrary to his terms of release. The first contact is a quite garbled text. It is consistent with being sent by mistake in the manner of a “pocket dial”. The other is more concerning; however, that contact was investigated by the police. Charges were laid but later withdrawn.

[54] Mr. Malik was charged with assault upon Ms. Malik on December 22, 2017. I am advised that he was to go to trial November 28 and 29, 2018 - the day after his motion was heard. With this conflict in evidence, I am not satisfied that I can make the restraining order requested. I therefore dismiss the request without prejudice to Ms. Malik to bring a further affidavit setting out the results of the criminal trial. That may well be of significance to another judge hearing the motion.

Advance Payment/Interim Disbursements

[55] Ms. Malik’s Notice of Motion requests both an order for $150,000 in interim disbursements and $500,000 as an advance on her equalization. At the outset of her submissions, counsel requested $200,000 to be “characterized at a later date”.

[56] As set out above, it is clear that Mr. Malik has not been complying with his production requests. He has been delaying this matter. It would, of course, be tempting to punish him for that conduct. However, that is not the intention of advance payments or interim disbursements.

[57] Both parties have liquid assets of approximately $500,000. Although Mr. Malik is in greater control of the corporate assets than Ms. Malik, she objects quite properly to his proposed sale of one of the companies. That would most likely be in breach of Snowie J.’s order that Mr. Malik is “restrained from depleting his net family property and all corporate or trust asses without the Applicant’s consent or a court order.” Without that sale, he has no ability to provide significant funds to her; particularly after the payments set out above. The court cannot order him, on the one hand, not to liquidate his business and, on the other, require him to pay as much as $200,000 to Ms. Malik. He is, of course, about to pay significant sums to Ms. Malik as a result of his failure to comply with outstanding orders. That will not change her claims but will reduce his ability to pay them.

[58] It appears that Ms. Malik is in need of support but she has chosen to adjourn that aspect of the motion. Once she has the financial reports from Mr. Malik, she will be in a better position to know what she needs in the way of accounting advice and support. A judge will then know more about the justness of a request for either interim disbursements or an advance on her equalization.

[59] Accordingly, for now, this motion is dismissed without prejudice to being brought on with greater information.

Insurance

[60] Ms. Malik submits that Mr. Malik should be required to have his life insurance payable to her rather than to the children. Specifically, she asks that:

The Husband shall designate the Wife as irrevocable beneficiary of the 3 life insurance policies set out in his financial statement sworn November 19, 2018 and he shall deliver up copies of the policies and their designations within 10 days. He shall not borrow against the policies or otherwise erode their value.

[61] Ms. Malik’s affidavit in support of this request asks that Mr. Malik “name and maintain me as irrevocable beneficiary of his life insurance policies as security for his support obligations”. Mr. Malik agrees to do so to the extent of $250,000 pursuant to what he sees as his spousal support obligations.

[62] In his affidavit of November 19, 2018, Mr. Malik deposes:

At present, the children are irrevocable beneficiaries of my life insurance policies. Urmila removed me from her life insurance policy, and I changed the designation to our children.

[63] It is not clear when that occurred. If it was after Snowie J.’s non-dissipation order, he may be in breach, but I cannot make that determination here.

[64] Section 34(1)(i) of the Family Law Act says:

In an application under section 33, the court may make an interim or final order, requiring that a spouse who has a policy of life insurance as defined under the Insurance Act designate the other spouse or a child as the beneficiary irrevocably.

[65] The support claim has been adjourned; there is nothing yet to insure pursuant to s. 33. This issue is adjourned to the support motion. In the interim, Mr. Malik shall live up to his undertaking with respect to the insurance policies.

Costs

[66] If costs cannot be agreed upon, Ms. Malik shall provide her costs submissions within the next 15 days. Mr. Malik shall provide his reply within 15 days thereafter. No reply submissions shall be filed unless I request them.

[67] Each submission shall be no more than three pages, not including any Bills of Costs or Offers to Settle.

[68] Written submissions shall be forwarded to me at my office at the Superior Court Office, 74 Woolwich Street, Guelph, Ontario, N1H 3T9. I shall make sure that they are filed when I have finished with them.

Lemon J.

Date: January 7, 2019