Court File and Parties

COURT FILE NO.: 4961/15 DATE: 2019-01-28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jayme Anne Green, Applicant AND: Devon Whyte, Respondent

BEFORE: The Honourable Mr. Justice R.J. Harper

COUNSEL: Self-Represented Applicant Self-Represented Respondent

HEARD: January 17 and 18, 2019

Endorsement

Issues

[1] Has the Respondent, Devon Whyte (Devon) complied with all of the disclosure order?

[2] If he has not, what disclosure remains outstanding?

[3] Given any outstanding disclosure, is the Applicant, Jayme Anne Green (Jayme) entitled to an order for interim disbursements?

Preamble

[4] Before getting into a review of the lengthy and complicated journey for financial disclosure in this case, certain fundamentals must be restated and emphasised.

[5] As stated by Justice Gordon in Bousfield v. Bousfield, 2016 ONSC 3145, at para. 15:

Disclosure

(a) each party is required to serve a financial statement and make full and frank financial disclosure (Rule 13, Family Law Rules, and section 21, Child Support Guidelines);

(b) the onus is on the support payor to accurately disclose his income, not on the support recipient to obtain the relevant information;

(c) the failure to provide disclosure may lead to severe sanctions; and

(d) the court may draw an adverse inference against a party who has failed to comply with the obligation to provide disclosure and may impute income to him as considered appropriate (Section 23, Child Support Guidelines).

[6] In the case of Brown v. Silvera, 2009 ABQB 523, Justice Moen dealt with the requirements for full and accurate disclosure in circumstances where parties were attempting to negotiate a separation agreement for their property. In my view her comments apply equally to parties trying to assess their position within litigation in order to obtain the proper level of child support. Moen J. stated at para. 41:

I adopt the reasoning of Justice Erb in Fercho v. Dos Santos, at paras. 40 and 45. She held that parties to a separation agreement are not expected to engage in a “scavenger hunt”, to unweave “a complex web of corporate or other intrigue” or to “make huge expenditures to untangle complex corporate structures” just to ascertain family assets. Justice Erb stated that behaviour of concealing assets is not to be encouraged. I agree.

[7] When making a determination of what income is available for child support, the court must consider all of the factors set out in the Child Support Guidelines, O Reg 391/97. The starting point is the Objectives set out in s. 1:

1. The objectives of this Regulation are,

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;

(b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective;

(c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and

(d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances.

[8] The objectives of the Guidelines must guide the court’s interpretation of all remaining sections. The emphasis must be on establishing a fair standard of support which ensures that children benefit from the “financial means of their parents.”

[9] In addition to the above comments I draw the parties’ attention to the following:

a. Timely, accurate and complete disclosure is the foundation of family law.

b. The Family Law Rules make it clear that cases must proceed in a manner that promotes the primary objective of the Rules and that is to enable cases to court to deal with cases justly.

c. It is the duty of the Court to promote the primary object and the parties and their lawyers are required to help the court to promote the primary objective.

d. Financial Statements must fully and accurately disclosure of a party’s financial situation and attach any documents to prove the party’s income that the financial statement requires.

[10] In this case, neither the objectives of the Guidelines nor the directions set out in the Family Law Rules have been complied with.

[11] The Respondent, Devon, has not disclosed his financial means in a manner that is complete, accurate and timely. I will detail this lengthy saga below. I find that Devon has misrepresented his income, assets, and liabilities throughout this litigation. He is responsible for creating the antithesis to any achievement of the Guidelines objectives. Instead of reducing conflict and tension, his slow and inaccurate financial disclosure has increased the conflict and tension. Instead of improving the efficiency of the legal process by giving courts, parents and spouses, guidance in setting the levels of child support and encouraging settlement, he has bogged the process down and placed barriers that prohibited informed decisions of the court and informed analysis of the Applicant in order to arrive at settlement positions.

The Litigation Chronology

[12] I will review some of the more significant material evidence as follows:

a. The Application was issued on August 21, 2015. Devon did not file his Answer until December 4, 2015.

b. This matter was adjourned several times subsequent to the first appearance. The attendance at a first appearance was required as no Answer had been filed by that date. Once the Answer was filed, Devon selected a case conference date of July 5, 2016. That is almost a year after the Application was issued.

c. Devon did not file a case conference brief and he did not appear at the case conference. The judge hearing the conference noted in the endorsement record that Devon had only filed an “incomplete financial statement.” This was one of three financial statements has filed in this matter. The first incomplete statement was sworn November 28, 2015. The second financial statement was sworn on September 29, 2016. His final financial statement was filed on December 4, 2017.

d. Despite the Family Law Rules providing that parties must file a new financial statement if the statement is older than 30 days, or an affidavit stating that there have been no changes, this rule was never complied with.

e. Each financial statement filed by Devon had different representations of his income and lacked details regarding his expenses, assets, and liabilities. It is significant to note that due to the lack of information relative to Devon’s income, expenses, assets and liabilities, the original case conferencing judge endorsed that there could be no meaningful conference.

f. On July 5, 2016, Justice Brown ordered Devon to file a complete financial statement within 30 days of July 5, 2016. She also ordered that he attach the following to the statement:

i. Copies of his 2012, 2013, 2014 Income Tax Returns for both Canada and the USA;

ii. Copies of any Notices of Assessment for 2012, 2013 and 2014 for both Canada and the USA;

iii. Proof of his 2016 income for 2016 from all sources;

iv. Jayme was also ordered to file an up to date financial statement and copies of her Income Tax Returns and Notices of Assessment for those same years; and

v. Both Jayme and Devon were to file this disclosure within 30 days.

g. When the matter returned to court on September 1, 2016, Devon claimed that he had provided all of the disclosure ordered. Devon asserted that he had only received Jayme’s disclosure the day before and he sought an adjournment of the motion. The motion was adjourned to September 16, 2016.

h. At the return of the motion on September 16, 2016, Justice Pazaratz made an order for questioning for both parties. Questioning did not occur. I accept Jayme’s evidence that due to the lack of disclosure, she could not formulate the proper questions to ask Devon. On March 3, 2017, Justice Pazaratz endorsed, “I share the Applicant’s concern that disclosure issues are unusually complex.”

i. At that appearance before Justice Pazaratz, Devon undertook to obtain and provide to the court an expert report that would provide an opinion with respect to his income available for support purposes.

j. The matter was adjourned a number of times. It subsequently came before Justice Madsen on July 28, 2017.

k. Justice Madsen issued a written endorsement, Green v. Whyte, 2017 ONSC 4760. Despite Devon’s claim that he had provided everything he had to, Justice Madsen wrote at para. 9:

The Respondent’s financial statements of November 28, 2015 and July 6, 2017 are missing significant information.

l. At the attendance before Justice Madsen, Devon did file the income analysis report from a valuator that he had undertaken to provide. The Report was from “Valuquest Business Valuations” dated July 6, 2017. This report stated that Devon’s income for support purposes for 2015 and 2016 was $93,000.00. Justice Madsen noted:

There are important limitations to the report. The valuators did not have Mr. Whyte’s 2016 tax return by the time that he had the report was issued on July 6, 2017. Mr. Whyte told the valuator that he had received an extension to file that report and he was instructed to assume that his income for 2016 consisted only of his income from Rogers Blue Jays Baseball Partnership. He was also instructed to assume that there were no changes to his income for 2015 and 2016.

m. At the motion before Justice Madsen on July 28, 2016, she was asked for an order for interim disbursements and for disclosure. Jayme asked for an order for $30,000.00 so that she could hire an expert valuator to do an income analysis. However, she did not provide to the court, at that time, any details of why that sum was needed and what would be done with the funds.

n. Justice Madsen reviewed all of the criteria and factors that must be considered when making a determination to order interim disbursements. Justice Madsen stated that the moving party must establish:

i. Impecuniosity;

ii. The need to level the playing field;

iii. A prima facie case; and

iv. Exceptional circumstances.

o. Justice Madsen found impecuniosity and the need to level the playing field, however she went on to state that:

If there is a renewal of this motion Jayme did not have to establish impecuniosity or the need to level the playing field. She would only have to establish a prima facie case and exceptional circumstances.

p. One year ago, to this date, the parties had a Trial Scheduling Endorsement Meeting. At the end of the meeting, the parties singed the form and identified the outstanding issues as parenting, disclosure, and income determination.

q. Jayme later secured an order for interim disbursement in the amount of $7,500.00 to be paid to Jayme by Devon as a loan. This yielded a report from Mr. Carnegie, dated May 17, 2018, who is a valuator with Taylor Lebow accounting firm. The report stated that it was not possible to determine Devon’s income without significant disclosure. Mr. Carnegie set out a detailed list of what disclosure he thought was necessary to conduct any informed analysis.

r. From his review of the information provided by Jayme, relative to the potential interests in entities that could be a source of income for Devon, Mr. Carnegie made an extensive list for disclosure that he stated was necessary to do a proper analysis of Devon’s income for support purposes (the “Carnegie List”).

[13] Before reviewing the Carnegie List, it is important to set out some of Devon’s submissions at the hearing of this motion. Devon confirmed that over the past three and a half years of litigation before this court he has filed four sworn financial statements.

[14] The sworn Financial Statements of Devon are as follows:

1. November 28, 2015;
2. September 29, 2016;
3. July 6, 2017; and
4. December 4, 2017.

[15] Devon submitted that he swore a subsequent affidavit to state that his financial circumstances had not changed since his December 4, 2017 Financial Statement.

[16] Even a cursory review of the three statements reveals that his sworn representations of his income, expenses, assets and liabilities are inconsistent and lack credibility.

[17] In his financial statement sworn November 28, 2015 he swore that his income for 2014 was $64,419.80. However, in the body of the financial statement he did not put anything under income source and claimed that his living expenses were $0.00. Devon did not show anything under assets or liabilities except for one American Express credit card debt in the amount of $3,000.00. He also claimed that payments were being made toward that debt, however, he did not disclose what those payments were.

[18] In contrast to his Financial Statement sworn November 28, 2015, the Answer that was signed by him and filed with the court dated November 22, 2015 stated:

I am a retired former baseball player for the Toronto Blue Jays. I have had some bad business dealings and have lost most of my savings. I do have a home in Boca Raton, Florida which is under creditor protection. I currently am Ambassador for the Toronto Blue Jays and earned a gross income for 2013 of $32,660.67 and in 2014 of $64,419.80. I deduct from this income so my income for income tax purposes is considerably less than this. In 2013, my net income was about $32,640,00. This contract began in May 2013 and continues to date. I have been paying the Applicant child support of $500.00 per month in the 15th of each month since May 2014. Based upon my income of $32,640.00 pursuant to the Child Support Guidelines the monthly payment would be $277.00 per month.

[19] His 2014 USA Tax Return shows that he declared 2014 Canadian income as $58,388.00 He also claimed under “occupation” in his tax returns from 2012 through 2017 that was “real estate”. In his Tax Return he lists ownership in “Capital Dynamics Champion Ventures I, L.P and Capital Dynamics Capital Ventures II L.P.” None of these assets are shown on his Financial Statements filed with the court.

[20] His 2015 Tax Return shows Canadian income of $78,731.00 USD.

[21] On July 13, 2015, Devon received a notice from the IRS that there were changes to his 2013 Tax Return and that retirement income in the amount of $208,888.00 would be added to his income. This would result in taxes owning by him in the amount of $83,790.00. Devon never produced any details of any retirement pension despite being ordered by this court to do so.

[22] In a letter dated November 16, 2016, from Emily Deng, Vice President of Capital Dynamics to Devon and Colleen Whyte, Ms. Deng confirms that Devon and Colleen are joint Limited Partners in Capital Dynamics Champion Ventures II, LP, a Delaware Limited Partnership.

[23] The parent company of Capital Dynamics Champion Ventures II, LP is Capital Dynamics Inc., which is registered as an investment adviser with the Security and Exchange Commission. This was not disclosed in any sworn Financial Statement filed by Devon.

[24] Devon’s tax returns also reveal that he has an annuity with Advantage Insurance (Advantage Annuity policy number ADVA 1305-6072) in the Grand Cayman Islands with an approximate value of $134,334.27, as of June 30, 2017. He never disclosed this on any of his Financial Statements filed with this court.

[25] In Devon’s Financial Statement dated July 6, 2017, he swore that his income based on an updated report from his income valuator dated November 27, 2017, was $88,000.00 Canadian. However, in the body of his financial statement he swears that his income is $0.00 and his expenses are $97,336.92. Just four months later on December 4, 2017, he swore that his income was $94,999.92 and his yearly expenses were $144,086.88. His 2017 Income Tax Return shows an income of $87,195 USD. Converted to Canadian would result in an income for 2017 of approximately $115,000.00 Canadian.

[26] Despite his sworn evidence on December 4, 2017, that he had a yearly deficit of $49,086.96, Devon did not show any increasing debt nor decreasing assets to fund the shortfall.

[27] Devon stated that he filed an up to date affidavit swearing that there was no change in his financial circumstances since his last financial statement sworn December 4, 2017.

[28] When many of these inconsistent disclosures and lack of disclosures were pointed out to Devon during his submissions, he claimed to be unaware of the fact that he needed to disclose his assets and investments in his financial statements. He went on to state that he is aware of his obligation now and will comply with any order I make. I emphasized to Devon that he is the one who was swearing his financial statements to be true and accurate under oath. He further submitted that many of the assets not shown on his financial statement were in the Tax Returns that he did disclose. He had no explanation for the inconsistent representations of his income.

[29] Parties have a duty to make timely and accurate disclosure. When they swear a financial statement that statement is under oath. The representations made under oath are no different that given oral testimony under oath. That testimony must be accurate and truthful. Devon’s four different financial statements were neither accurate, timely nor were they truthful.

[30] When disclosure is ordered by the court, it must be completed in the timeline that is directed by the court. Not on the parties own schedule. Devon’s disclosure was slow, incomplete and obscured the reality of his finances. Over his own timeline, he provided massive amounts of documents that amounted to partial document dumps requiring the applicant Jayme and the court to attempt to make sense out of the mayhem created by such a process. That amounts to what Justice Moen referred to in Brown v. Silvera, supra as a scavenger hunt. Whether it is referred to as a scavenger hunt or what I called “litigation hide and seek” during the submissions, this cannot be tolerated.

[31] It is within the above foundation of facts that I review the issue of compliance with disclosure orders and the income valuator, Mr. Carnegie’s, request for disclosure and Devon’s responses in order to determine what disclosure remains outstanding.

Details of Devon’s Retirement Plan and Pensions with Major League Baseball

[32] Devon was ordered to provide details of his retirement and pension plans with Major League Baseball. His lawyer’s response was that the pension is not in pay. This is unsatisfactory. Devon shall produce within 30 days complete details of any retirement or pension plan.

Carnegie’s Disclosure Requests

[33] I will review the requests by Mr. Carnegie in his letter dated May 17, 2017, by using his numbering. Devon’s response through his lawyers and Carnegie’s Reply to the response are as follows:

Request #1

[34] Carnegie requested tax returns and Notices of Assessment form 2012 through 2017 for the following entities:

a. Devon & Colleen Whyte Family Trust Limited Partnership b. Van-Whyte Enterprises, LLC c. Whyte Estates, LLC d. Whyte Enterprises, LLC e. Ousely & Whyte Capital Partners, LLC f. Raintree Crossing Office Condominium Association g. Devon White Baseball Academy LLC h. DCW Raintree Holdings LLC i. Raintree Holdings Group, LLC j. Raintree Holdings Group II LLC k. CJW &DMW Limited Partnership l. Leen & Dev Limited Partnership m. Dev & Leen Limited Partnership n. DCW Raintree Holdings Enterprises LP o. OWCP Virlyn LLC p. OPWCP South Parkway 1 LLC q. 3901 E. Kristal Way Property, LLC r. AZ Hype Foundation s. Devonshire Square, LLC

Response

[35] Devon’s lawyers responded that the LLCs were all owned by one individual, Devon Whyte, and as such all information related thereto would be disclosed on his personal Tax Return. I disagree. Many of the listed entities are not individual, they include others and other partners.

Order

[36] This request by Carnegie must be complied with within 30 days.

Request #2

[37] Carnegie requested documentation of the percentage of ownership interest (direct of beneficial) held by Mr. Whyte along with supporting information such as shareholders ledgers or partnership agreements.

Response

[38] This has never been complied with.

Order

[39] Mr. Whyte must comply within 30 days.

[40] Further, he is to provide an organizational chart of all corporations, partnerships, foundations, trusts that he has an interest in both beneficial and direct) along with a description of his percentage of interest.

Request #3

[41] Carnegie requested proof of dissolution of any of the entities listed above, including the date the entity was dissolved and financial statements and tax returns up to the date of dissolution.

Response

[42] The evidence before me shows that the dissolution of many of the entities was applied for at the same time the requests for disclosure were made. The response that no financial statements are required because the entities were either dissolved or are in the process is not satisfactory.

Order

[43] Mr. Whyte shall provide financial statements for any of the entities which are dissolved or are in the process of dissolution.

Request #4

[44] If any of the above listed entities are non-profit organizations, proved a copy of the Form 990 (Exempt Organization Business Income Tax Return), for the years 2012 through 2017. One of the entities, AZ Foundation is a non-profit.

Response

[45] Mr. Whyte was not the corporate agent for this Foundation and could not produce the documents.

[46] Mr. Whyte was the corporate agent until the disclosure request was made. He then changed to have his son be the agent. I find that Mr. Whyte has control over such documents.

Order

[47] Devon must disclose the copies requested within 30 days.

Request #5

[48] Carnegie requested disclosure of whether Mr. Whyte had any ownership interest in the following:

a. Uzuri Inc; b. WGO Raintree Holdings Realty c. Devonshire Condominium d. Spiral Development Holdings. LLC e. Devonshire Place, LLC f. Devonshire Partners. LLC g. Devonshire Holdings, LLC h. 900 Devonshire Condominium Association i. Devonshire Place Condominium. LLC j. Devonshire REIT, Inc. k. Devonshire REIT II, Inc.

Response

[49] Mr. Whyte represented that he had no interest any of those entities. There is no evidence to contradict this representation.

Order

[50] No further order is necessary given this representation.

Request #6

[51] Carnegie requested disclosure of Devon’s percentage of interest in the entities set out above.

Response

[52] The representation that he has no interest in these entities is not contradicted.

Order

[53] Given the representations, no order is required.

Request #7

[54] This also refers to further information with respect to the items listed in Item 5. Therefore, no further order is necessary.

Request #8

[55] Jayme agreed that she does not have any evidence to refute the claim by Devon that he does not have an interest in DMW Family Trust and therefore no further order is required.

Request #9

[56] Devon claims that he provided the items requested in this request. Jayme has no evidence to the contrary. No further order is required.

Request #10

[57] Carnegie requested that Devon produce any T4-NR slips for 2017.

Response

[58] This was not satisfactorily responded to and not produced.

Order

[59] This must be produced within 30 days.

Request #11

[60] Devon did not produce all pages of Schedule E for his tax returns for 2012 through 2017.

Order

[61] The Schedule E from 2012 through 2017 must be produced within 30 days.

Request #12

[62] Devon has not produced copies of Form 8949 from his personal income tax returns from 2012 through 2017.

Order

[63] He must produce that form within 30 days.

Request #13

[64] Devon has not produced his Form 1099 (including Form 1099-R for retirement plans) issued by the IRS for 2012 through 2017.

Order

[65] He must produce this within 30 days.

Request #14

[66] Jayme agrees that no further disclosure is required for this item.

Request #15

[67] Carnegie requested fund balances, deposits, and withdrawals for all income earned form Advantage Insurance Annuity Policy No ADVA 1305-6072 for the years 2012 through 2017. He also requested an explanation of why the value was not reported on Mr. Whyte’s personal income tax return after 2014.

Response

[68] This has not been provided.

Order

[69] This must be produced within 30 days.

Request #16

[70] Carnegie requested updated information from November 2016 to the present, including any income earned or documentation regarding the sale of property, for the following:

a. Hwy 129 OSCP1 LLC (48.32 acre property in Jackson County) b. Hall Road OSCP Two LLC. (87 acre property at Wilkerson Road and Ono Road)

Response

[71] Devon’s lawyer’s response was that this vacant land has not been sold and to date there is no income generated.

[72] I am satisfied that no order should be made with respect to this item.

Request #17

[73] Carnegie requested details of Advantage Retirement Plans Trust.

Response

[74] Devon’s lawyers submitted that this was out of proportion to the task at hand. I do not agree with Devon’s counsel’s submission. I agree with Mr. Carnegie’s representation in his letter of September 21, 2018, that this information is relevant to and necessary to calculate income for child support.

Order

[75] The details of Advantage Retirement Plans Trust must be produced within 30 days.

Request #18

[76] Carnegie requested details of Entrust Arizona Retirement Plan Administration LLC. Entrust Arizona Retirement PLA and Devon White IRA as follows:

a. Income earned for years 2012 through 2017; b. Fund Balances at the end of each year from 2012 through 2017; c. Details of all deposits and withdrawals for the years 2012 through 2017; and d. Names of all beneficiaries.

Response

[77] Devon’s response through his lawyers was that this was out of proportion the task hand. I agree with the Carnegie response that this information is relevant and necessary in order to calculate income available for support.

Order

[78] All of the items requested in Item 18 shall be produced within 30 days.

Request #19

[79] This request is for all K-1 Forms form 2012 through 2017. These forms have been provided except for 2012, 2013 and 2017.

Response

[80] They have not been provided.

Order

[81] The items requested must be provided within 30 days.

Request #20

[82] No further disclosure is necessary given Mr. Whyte’s response.

Request #21

[83] Carnegie requested copies of any correspondence he may have received from the IRS, including all CP200 Forms, letter and other correspondence for the years 2012, 2013 2014 2015, 2016, and 2017.

Response

[84] Devon’s lawyers submitted that this production request was irrelevant. I do not agree.

[85] I agree with Carnegie that this request is relevant. Devon was apparently reassessed in 2015 with respect to retirement income of approximately $208,888. There has been no satisfactory answer with respect to this reassessment. In addition, he claims on his returns that he has capital loss carry forward of approximately $900,000. There is no break down or disclosure of what these claimed losses include.

Order

[86] Devon shall be produced the items requested in #21 within 30 days.

Request #22

[87] The same order is appropriate relative to Carnegie’s request for IRS correspondence to companies, partnerships trusts or other entities owned by Devon, including all forms, letter and other correspondence for the years 2012 through 2017.

Request #23

[88] Carnegie requested details of all revenue and expenses for clothing or other merchandise related to Mr. Whyte’s baseball academy. I am satisfied with Mr. Whyte’s response that he just started this business in 2016 and it really never got off the ground. I am also satisfied that any teaching sessions or camps are affiliated through the Toronto Blue Jays. No further disclosure is necessary.

Request #24

[89] This item of request is related to item 23 and no further order is required.

Request #25

[90] Carnegie requested all Qualified Domestic Relations Orders in relation to Mr. Whyte’s pension with Major League Baseball from 2012 to the present.

Response

[91] Devon’s lawyers submit this is irrelevant. I do not agree.

[92] I agree with the Carnegie response that these documents include information regarding pension assets held by Devon. The tracing of the retirement assets and possible income is relevant to the calculation of potential income for child support purposes.

Order

[93] Devon shall produce this within 30 days.

Request #26

[94] Carnegie requested copies of all affidavits of financial information, documentation of assets, and documentation of liabilities from Devon’s divorce proceedings in Arizona.

Response

[95] Devon’s lawyers submitted that this was not relevant. I disagree.

[96] This information would provide details of what Devon represented under oath to a court with respect to his assets income and liabilities in or about 2012 and 2013. Given Devon’s lack of complete disclosure and inconsistencies in all of his financial statements in this case so far, it is very relevant to see what he swore his income assets and liabilities were at that time, to the Court in Arizona.

Order

[97] Devon shall produce the items requested in item #26 within 30 days.

Request #27

[98] As a result of Devon’s claim that he is depleting his retirement savings and incurring debt to pay his expenses, Carnegie requested the following:

a. Details showing the increase debt (lien of credit statements, loan statements etc.) b. Detail of the depletion of his retirement savings, such as, i. From which account are withdrawals being made, and ii. How much has been withdrawn for retirement savings and the production of all statements for the retirement savings account and details of all withdrawals from 2012 to the present. This is still outstanding. Devon shall produce this requested disclosure within 30 days.

Response

[99] No satisfactory response was given.

[100] In his submissions on this motion, Devon stated that when he retired, he probably invested “maybe $2,000,000.00.” His evidence thus far is a mere statement that his investments have done poorly and that has resorted to living off his assets and increasing his debt. None of his Financial Statements show a reduction in the asset that he did disclose. The opposite is the case. There has been no substantial increase in his debt, at least according to the statements that he filed. Devon has no supporting documentation with respect to this claim.

Order

[101] Devon is ordered to produce this item within 30 days.

Signed Contracts

[102] Devon conceded that he has not provided disclosure of any signed contracts he has with Rogers Blue Jay Baseball Partnership. He has only provided unsigned copies of these purported contracts.

Order

[103] He is ordered to provide signed copies of these contracts from the beginning of such contracts in or about 2016 to and including his contract for 2018 and 2019.

Interim Disbursements

[104] Justice Madsen ordered interim disbursements on January 31, 2018. At that time she found all of the factors to be present when a court is considering such a claim for relief. I agree with her analysis.

[105] I find that none of the factors that were present when Justice Madsen made that order have changed, except there is further detailed evidence setting out the increased fees and disbursements required by Mr. Carnegie to complete an income analysis after proper disclosure has been made.

[106] Mr. Carnegie provided an outline of his projected fees at p 12 of Exhibit “A” to the Applicant’s affidavit. I have reviewed his estimates as set out in his letter dated July 11, 2018. I find a reasonable estimate of his fees up to and including trial as follows:

a. The balance owing from his account to date being $12,430.00 less the money on deposit from the $7,500.00 ordered on January 31, 2018. b. The total balance owing being: $4,930.00 c. Review of the significant documentation that is ordered by me to be outstanding and must be produced and to prepare an income analysis report: $15,000.00 d. To prepare a critique if necessary: $3,000.00 e. Pretrial preparation including any meeting with opposing expert: $3000.00 f. Attendance at trial: $3,000.00 (anticipated 1 day of testimony)

[107] Total: $28,930.00.

[108] Given my findings set out above, Devon has created this web of obscurity in his finances that needs to be unraveled. Mr. Carnegie’s increase in the projected costs are necessary in order to properly review and analyze Devon’s complex finances.

[109] Devon submitted that his costs have been significant to date. He stated that he has continued to receive legal advice despite the fact that he has been self-represented in court. He stated that he has incurred legal fees in excess of $100,000.00.

[110] The playing field needs to levelled. The issue is child support. The court must be put into a position in which all of the material documentation is before it in order to accurately assess the financial means of the Respondent. His child Kingston deserves no less.

[111] The Respondent, Devon Whyte shall pay the sum of $28,930.00 to the Applicant within 30 days by way of interim disbursements.

Timeline to Trial

[112] More than one judge who has touched this file has commented that the parties need a final resolution to this matter which has lingered in this court for over 3 years and 7 months.

[113] It is my expectation that the disclosure will be provided in 30 days as set out above.

[114] Devon shall provide the interim disbursements ordered within 30 days.

[115] Mr. Carnegie should be allowed 30 days to review the disclosure and to prepare and serve his income report.

[116] Devon shall be allowed 30 days following the receipt of Mr. Carnegie’s report to have his expert prepare and serve a responding report.

[117] Jayme shall be allowed 15 days from the receipt of any responding report to serve any reply to the response.

[118] In Karrys v. Karrys, 2014 ONSC 713, para. 19, Brown J. made the following comments:

Since these reports deal with historical cash use issues, including the quantification of relevant transactions, I think this is an appropriate case in which to order pre-trial “hot-tubbing” of the experts pursuant to Rules 50.07(1)(c) and 20.05(2)(k) of the Rules of Civil Procedure along the lines of that ordered in Glass v. 618717 Ontario, 2011 ONSC 2926, at paragraph 26. Consequently, I direct the authors of the Navigant report and the Wasserman report, to meet, in the absence of counsel, and to prepare a joint statement, signed by both of them, which clearly:

(i) identifies their areas of agreement; (ii) identifies their areas of disagreement; and (iii) explains in detail the reasons for any disagreements in their opinions.

[119] In that case, Justice Brown was dealing with a civil matter pursuant to the Rules of Civil Procedure which specifically allow for such an order. The Family Law Rules provide for the following in Rule 1(7.2)(k):

(7.2) For the purposes of promoting the primary objective of these rules as required under subrules 2 (4) and, particularly, (5), the court may make orders giving such directions or imposing such conditions respecting procedural matters as are just, including an order,

(k) that any expert witnesses for the parties meet to discuss the issues, and prepare a joint statement setting out the issues on which they agree and the issues that are in dispute.

[120] Pursuant to the above rule, I order Mr. Carnegie and any expert who has served a report in response to his report to meet prior to trial and prepare a joint report setting out the issues on which they agree and the issues that are in dispute. Such joint report is to further set out the reasons for any disputed items.

[121] The Trial Coordinator shall schedule a 5-day trial in the sittings for May 2019.

[122] Costs of this motion shall be reserved to the trial judge.

Harper J. Date: January 28, 2018