Court File and Parties

NEWMARKET COURT FILE NO.: FC-15-49711-00

DATE: 20201202

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Diane Florovski, Applicant

AND:

Louie Florovski, Respondent

BEFORE: The Honourable Mr. Justice R.T. Bennett

COUNSEL: F. Yehia, Counsel for the Applicant

N. Epstein, Counsel for the Respondent

HEARD: December 2, 2020

Ruling on motion

[1] The applicant brings a Notice of Motion seeking to strike the respondent’s pleadings and seeking an Order pursuant to which the respondent would be obligated to pay to her $224,000 being the $500 per day “fine” imposed by Justice Vallee pursuant to an Endorsement August 26, 2019 The applicant submits that the respondent has been in breach since September 13, 2019 of the said Order to produce items 24 (a)-(g).

[2] Upon reading the most recent affidavit material filed for this motion, it appeared that even based on the applicant’s own materials that all disclosure had been produced save and except bank account statements for some months of 2020 for one particular Canadian/US account and an accounting of $25,000 allegedly withdrawn by the respondent from a joint account. The applicant alleges that this $25,000 was withdrawn shortly before the date of separation in 2015 but the respondent submits that it was a series of withdrawals, most of which predate the date of separation by more than one year.

[3] This court has some familiarity with this action.

[4] Even though this court is now operating remotely and does not have access to the court file, the court recalls that it first became involved in this matter at the time of separation when the respondent was confined to a psychiatric ward and the applicant had brought an urgent motion.

[5] This court was subsequently involved with respect to other motions brought by the applicant for disclosure.

[6] In one of those previous motions, this court commented on the aggressiveness of the applicant with respect to that disclosure.

[7] At the outset of today’s motion, the court sought from the applicant’s counsel confirmation that there were only two of 17 disclosure items that remained outstanding. Applicant’s counsel acknowledged that this was in fact the case.

[8] The court then inquired as to whether or not the applicant was still seeking an Order striking the respondent’s pleadings and the imposition of a $224,000 penalty being the cumulative per diem of the $500 per day imposed by Justice Vallee. Applicant’s counsel confirmed that she was in fact still seeking this relief.

[9] Summarizing the applicant’s submissions, it is that the respondent would not have produced the disclosure had it not been for her bringing this motion.

[10] The respondent submits that the bulk of the disclosure was provided in June 2020 prior to the applicant even indicating to the respondent that she was in fact bringing this motion.

[11] The respondent submits that of the two alleged outstanding items, one was produced by him by way of an email from counsel to applicant’s counsel on November 25, 2020 being the bank account statements for the Canada/US account for the calendar year 2020 (which obviously were not specifically covered by Justice Vallee’s previous Endorsement).

[12] The respondent further submits that an explanation of the $25,000 withdrawal was provided by him by way of a November 30, 2020 affidavit which was forwarded to the applicant’s counsel.

[13] Striking pleadings as set out in a plethora of case law is reserved for the most egregious situations.

[14] The court accepts and in fact finds on a regular basis that disclosure is not only mandated by the Family Law Rules and case law but is the cornerstone of settling financial issues in family law matters.

[15] The disclosure sought and the manner in which sought however must be proportional and reasonable.

[16] As indicated orally during this motion, submissions on behalf of the applicant would have had far greater impact on this court if the focus had not been to still seek the striking a pleadings and to seek essentially a quarter million dollar penalty on the respondent.

[17] The applicant continues to pursue the accounting of a series of withdrawals from a joint account that were made by the respondent starting more than one year prior to the date of separation. These withdrawals total $25,000.

[18] The respondent submits that despite previous Orders with respect to the requirement that the respondent provide explanations for these withdrawals (including a previous Order of this court) he was unable to produce the disclosure and explanation for two reasons. Firstly, the applicant claimed that these withdrawals were made immediately prior to the date of separation which occurred in 2015. The respondent produced all of his bank accounts some time ago for the calendar year 2015. It was only subsequently that he learned that most of the alleged withdrawals took place in 2014.

[19] Secondly, at the time of separation the respondent was hospitalized for a number of months in the psychiatric ward. The applicant remained in the matrimonial home and she had access to all of the respondent’s financial records at that time.

[20] As a result of that access, eventually she produced the withdrawal slips signed by the respondent withdrawing these monies from the joint account.

[21] The court pointed out to the applicant that the total amount in question was $25,000, the withdrawals predate the date of separation and that at trial if the trial judge was to find that these withdrawals were relevant, and the respondent had not provided a satisfactory explanation with respect to the same then the issue of a $25,000 withdrawal (or a $12,500 impact on equalization could be addressed at trial).

[22] Based on the materials filed and the submissions made, this court does not find that the actions or inactions of the respondent justify either an Order striking his pleadings or an Order requiring him to pay $224,000 in penalties. In fact, this court finds that the request for such relief is consistent with this court’s finding at a previous motion that the relief being sought by the applicant was overly aggressive.

[23] Therefore motion dismissed. This is without prejudice to the applicant arguing at trial that there should be some cost sanctions for the respondent allegedly not having produced disclosure in a timely fashion subsequent to the Order of Justice Vallee.

[24] However, based on today’s motion, any cost sanctions would be a minuscule percentage of the $224,000 sought.

[25] So far as costs of today’s motion are concerned, this court does not find it to be an appropriate case to award costs. Therefore ,unless cost submissions (not to exceed three pages in length) are served and filed by either party within 15 days, there shall be no Order as to costs.

Justice R.T. Bennett

Date: December 2, 2020