Superior Court of Justice - Ontario
COURT FILE NO.: FC-19-938
DATE: 2019/09/23
RE: LAURA ELLEN McCONNELL, Applicant
-and-
DAVID JOHN McCONNELL, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Gina Rossi, for the Applicant
Respondent is self-represented
HEARD: In Writing
ENDORSEMENT
[1] This endorsement deals with disclosure issues outstanding from the parties’ case conference that was before me on September 11, 2019. At the case conference, I directed counsel for both parties to attempt to agree on disclosure. If they were able to agree, they were to provide me with the terms for a draft order within one week. If they were not able to agree, they were to provide me with their submissions on disputed items within seven days. The submissions were limited to two pages in length.
[2] Mr. McConnell is now self-represented.
[3] Both parties have provided written submissions on the disclosure issues. They have been able to agree on several items, but there are items in dispute.
Disclosure on Consent
[4] On the consent of the parties, I order the following:
- Mr. McConnell shall provide the following within 30 days:
a. a copy of all of his tax information slips including T3, T4, T4 RSPs, and T5 for 2018, 2017 and 2016;
b. a copy of his most recent RRSP statements and LIRA statements;
c. a copy of his last employment contract showing his total earnings;
d. a copy of his pension valuation prepared by a professional appraiser;
e. a copy of his pension retirement statements, if any;
f. copies of his investment statement income for 2018 since July 2016; and
g. copies of his complete income tax returns, with schedules and attachments, and notices of assessment, for 2018, 2017 and 2016.
Disclosure in Dispute
[5] The parties were not able to agree on other items.
[6] Mr. McConnell wants Ms. McConnell to provide the same disclosure as he has agreed to provide, as set out above. Ms. McConnell refuses on the basis that her income is not relevant because she is seeking child support from Mr. McConnell.
[7] Relevancy is determined by the pleadings. The test at the disclosure stage is “semblance of relevancy.”
[8] Under the pleadings, Ms. McConnell’s income is directly relevant to two issues – she seeks contribution to s.7 expenses for the children, and Mr. McConnell seeks spousal support from her. Ms. McConnell also takes the position that she has provided her income tax returns and notices of assessment for the past three years, although it is not clear to me that these include copies of all information slips and schedules, which should be included under a party’s obligation to provide a copy of their complete tax return. Ms. McConnell’s ability to earn income from her assets is also relevant, particularly as she states she is now laid-off and will be receiving her pension in October of 2019.
- Ms. McConnell shall provide the same disclosure as Mr. McConnell is required to provide under 1. a. to g. above, if not previously provided, within 30 days.
[9] Ms. McConnell seeks an order requiring Mr. McConnell to provide copies of his bank account statements and monthly credit card statements from January 2016 to the present. Mr. McConnell opposes this disclosure request. He believes it is not relevant and will unnecessarily aggravate this matter. Mr. McConnell has also made statements about his claim for spousal support, but again, relevancy is determined based on the pleadings, and his pleadings include a claim for spousal support retroactive to the date of separation, which in his Answer, is June 2018. I note that in Ms. McConnell’s Application, she is only seeking child support retroactive to June 1, 2018. Mr. McConnell seeks the same documents from Ms. McConnell that he is required to produce.
[10] While I find that bank and credit card statements are relevant to the issue of income, as well as need and ability to pay (which relate to child and spousal support), I am not prepared, at this point, to order production dating back to January of 2016. There is an insufficient evidentiary basis to determine the relevancy of these statements dating back to January of 2016. I find there is a semblance of relevancy and it is proportional to require both parties to produce copies of their bank account statements and monthly credit card statements for the period from January 1, 2018 to the present, and so order.
- Both parties shall produce copies of their bank account statements and monthly credit card statements for the period from January 1, 2018 to the present.
[11] Ms. McConnell seeks disclosure related to Mr. McConnell’s efforts to find employment and his ability to do so. This disclosure is directly relevant to Mr. McConnell’s pleadings that specifically refer to his ability to find employment, including his skill and education levels, and efforts to do so.
- Mr. McConnell shall provide the following within 30 days:
a. a copy of his updated and complete curriculum vitae;
b. a list of all employment positions he has applied for and interviewed with since July 2016;
c. the particulars of all efforts made to secure employment since July 2016, with supporting documentation, including copies of all correspondence to and from employers with regard to employment applications;
d. the particulars of all efforts made to secure independent contractor positions/contracts since July 2016, with supporting documentation, including copies of all correspondence to and from potential contractors and applications; and
e. confirmation from Waterloo University Registrar’s Office confirming the particulars of any degree he has earned through that institution, if any.
[12] Mr. McConnell effectively seeks that Ms. McConnell provide the same disclosure as he is required to provide. This request applies to the items at number 4 above, except the information from Waterloo. Ms. McConnell takes the view that her income and employment are not relevant because she is seeking child support from Mr. McConnell, and she is retiring. Ms. McConnell is 57 years of age and states that she was laid-off from her employment in October of 2017.
[13] Again, Ms. McConnell’s income is relevant to the sharing of s.7 expenses as well as the claim for spousal support that Mr. McConnell makes against her. Both parties must take reasonable steps to earn income, and therefore the terms of her lay-off from her former employer are relevant, as is the issue of whether it is reasonable or not for Ms. McConnell to not seek new employment.
- Ms. McConnell shall provide the following within 30 days:
a. a copy of her updated and complete curriculum vitae;
b. the particulars of her lay-off from her former employer, including supporting documents showing when she was notified of the lay-off, the terms of the lay-off including severance benefits and other compensation, and whether she was offered or negotiated for any alternative employment arrangements;
c. a list of all employment positions she has applied for and interviewed with since she was notified she was laid-off;
d. the particulars of all efforts made to secure employment since she was notified she was being laid-off with supporting documentation, including copies of all correspondence to and from employers with regard to employment applications; and
e. the particulars of all efforts made to secure independent contractor positions/contracts since she was notified she was laid-off, with supporting documentation, including copies of all correspondence to and from potential contractors and applications.
[14] Given the divided success on the disclosure issues, there shall be no order as to costs.
Justice P. MacEachern
Date: September 23, 2019
COURT FILE NO.: FC-19-938
DATE: 2019/09/23
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Laura Ellen McConnell, Applicant
-and-
David John McConnell, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Gina Rossi, for the Applicant
Respondent is self-represented
ENDORSEMENT
Justice P. MacEachern
Released: September 23, 2019