INTRODUCTION

[1] In this motion the respondent wife seeks an order that the applicant husband provide a completed FSCO Application for Family Law Value for his pension. The applicant resists the motion on the grounds that the respondent’s claim for equalization is statute barred. He says the respondent must first obtain an order extending the time for equalization before she is entitled to have a valuation of his pension.

[2] The parties were married in 1995. The parties now agree that the separation date was February 1, 2011. The applicant brought his application for a simple divorce in 2019. In her answer, the respondent claimed equalization. She initially asserted the separation date was in 2013 so she was entitled to claim an equalization and did not need an extension of time under s. 2(8) of the Family Law Act. However, eventually, she agreed the separation date was February 1, 2011.

Previous Disclosure Motion

[3] Before the separation date issue was resolved, the respondent brought a disclosure motion which included a request for a FSCO Application for Family Law Value for the applicant’s pension. That motion was resisted on various grounds including that it was necessary and appropriate to first determine the separation date. The applicant intended to bring a summary judgment motion to determine the separation date, and he argued that disclosure should wait until after that motion was decided.

[4] The respondent’s disclosure motion was dismissed by Justice Coroza. One of Justice Coroza’s concerns was that the disclosure request was disproportionate. It sought substantially more than the pension valuation. It sought CRA and RRSP documentation going back to 1995. In the current motion, the applicant has narrowed her disclosure request to only the pension valuation.

[5] Justice Coroza also noted that there was no utility in determining the pension value when there was a live issue as to the date of separation. That issue is now resolved.

[6] Justice Coroza further reasoned that if the applicant succeeded with his summary judgment motion, “most of the records sought are unnecessary.”

The Time Limit

[7] Subsection 7(3) of the Family Law Act says that an application for equalization “shall not be brought after … six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation.”

Purpose of Limitation Periods

[8] It is useful to review the purpose behind limitations statutes. In Carmichael v GlaxoSmithKline Inc., 2020 ONCA 447 at para. 80, the Court of Appeal said:

[80] Traditionally, limitation periods were seen as having three purposes, known as the certainty, evidentiary, and diligence rationales. The certainty rationale seeks “to promote accuracy and certainty in the adjudication of claims”; the evidentiary rationale seeks “to provide fairness to persons who might be required to defend against claims based on stale evidence”; and the diligence rationale seeks “to prompt persons who might wish to commence claims to be diligent in pursuing them in a timely fashion.”

[81] In Novak, McLachlin J. (as she then was) observed that the three traditional rationales for limitation periods generally reflect the interests of potential defendants, based on the idea that they should not have to respond to stale claims brought by persons who have not asserted their rights diligently. But as legislatures have modernized their limitations statutes, they have increasingly focussed on the need to treat plaintiffs fairly and to account for their interests as well. Today, therefore, a limitations statute “must attempt to balance the interests of both sides.” [Citations omitted.]

[9] The Family Law Act has a specific provision which addresses the balancing of interests, tailored specifically to family law disputes. Subsection 2(8) of the Family Law Act states:

The court may, on motion, extend a time prescribed by this Act if it is satisfied that,

a) there are apparent grounds for relief;

b) relief is unavailable because of delay that has been incurred in good faith; and

c) no person will suffer substantial prejudice by reason of the delay.

[10] As I have considered this matter, I have weighed whether production of the pension information before determination of the limitations issue will:

promote the purpose of s. 7(3) and s. 2(8) of the Family Law Act, and
promote the just and efficient resolution of the dispute.

Disclosure Rules

[11] The respondent has referred me to multiple cases which emphasize the importance of disclosure in family law cases. I was specifically directed to Rick v. Brandsema, 2009 SCC 10 at para. 47, Buttrum v. Buttrum, 2001 CanLII 28187 (ONSC) at para. 67 and Roberts v. Roberts, 2015 ONCA 450 at para. 11 and 12.

[12] In Rick v. Brandsema, the Supreme Court of Canada stated, “a duty to make full and honest disclosure of all relevant financial information is required to protect the integrity of the result of negotiations undertaken in these uniquely vulnerable circumstances.” The respondent argues that as a result of the failure to provide the pension valuation, she “is negatively impacted, prejudiced, as she is forced to negotiate without any knowledge of what the Applicant's assets are.” Further, the respondent believes the applicant’s pension is the most significant asset driving the equalization calculation. The matrimonial home was sold in 2013. Although I do not have the details, I understand the net proceeds were divided.

[13] The applicant distinguishes the cases cited by the respondent on their facts. With respect to Rick v. Brandsema, he submits that the disclosure duty between spouses in negotiations over equalization do not apply where the claim for equalization is statute barred.

[14] The applicant also argues that the respondent’s disclosure remains inadequate, and that a unique problem arises here because records from and prior to 2011 are needed and in many instances such records are or may be unavailable. Thus, he faces the prospect that the pension will be the only significant asset that can be readily valued, whereas other assets and liabilities, including those normally determinable through credit card, bank account and investment statements, will be difficult to find and value. He deposed that he has not been provided a financial statement from the respondent with a valuation date of February 1, 2011, and he has “received zero disclosure from the Respondent Wife to verify her Net Family Property using the valuation date of February 1, 2011.”

Goodfellow v Tordjman

[15] The applicant relies on Goodfellow v. Tordjman, 2016 ONSC 3888 as a case which closely resembles the circumstances here. That matter had a complex history which involved two trips to the Court of Appeal prior to the motion. There are similarities to the case at bar. The parties had separated in 1998. The motion was in a proceeding that was commenced in 2011. There was a very real limitations issue.

[16] The Court of Appeal in Goodfellow had decided (2013 ONCA 376) the husband’s claim for support and for return of support overpayments was statute barred, subject to his right to bring a motion to the Superior Court under s. 2(8) of the Family Law Act to extend the time.

[17] The husband then moved before Justice Perkins for disclosure. He claimed disclosure was needed to support his intended s. 2(8) motion that the Court of Appeal had permitted. Justice Perkins held:

[43] The applicant submits that he needs to know about the respondent’s means throughout the last 18 years in order to bring forward his motion for an extension of the limitation period for his spousal support claim. …

[44] The disclosure he seeks in his disclosure list is extensive, and is of a nature and extent that would be justified if he is indeed allowed to bring forward his motion for spousal support. But for the limited purposes of establishing his “apparent grounds of relief”, he does not need anything near what he has asked for. The respondent has in her evidence for these motions before me made a number of admissions about her income over the years and her current assets. In summary, she has earned anywhere from about $80,000 to $120,000 annually for the last 15 years.

[45] For purposes of a motion under section 2(8), the applicant already has more than enough information. The means of the respondent are not the central issue at this stage, and the applicant can rely on the evidence already provided by the respondent to show that there are or were means at the relevant times. However, for the convenience of the parties and the presiding judge on such a motion, I order that in response to the motion if brought, the respondent must serve and file a financial statement in the form for a support claim, attaching the required income tax information and a summary of her income going back 15 years or as far as her records permit.

[46] The applicant’s motion for disclosure is dismissed.

[18] The Goodfellow case was quite a different circumstance from the case here. Most importantly, the disclosure sought was extensive whereas here the respondent has made a very focused request for the pension valuation only.

[19] As stated above, for Justice Coroza in the earlier motion in this matter, the extensive request was a concern as well. The concern seemingly shared by Justice Perkins and Justice Coroza arose from the very real issues caused by the limitations question in each case. A party facing a serious limitation problem should not be able to make a tactical and abusive request for extensive disclosure to support their s. 2(8) motion. However, the request in the current motion is in no way extensive or abusive.

[20] Further, Justice Perkins in Goodfellow did order limited production in the event the applicant brought a motion under s. 2(8).

Is the Pension Information Needed Here?

[21] The respondent intends to bring a motion under s. 2(8) of the Family Law Act for an extension of time. She says that the pension valuation is required for the motion to assist the court in determining the first branch of the test for an extension of time – “apparent grounds for relief.”

[22] The applicant denies that the pension is required for this purpose. He says that the threshold to establish “apparent grounds for relief” is low. He notes that in Miller v. Miller, 2001 CarswellOnt 4000, [2001] O.J. No. 4385 at para. 8, the court held that either party might persuade a court that an equalization payment is due. In other words, it is enough if there are apparent grounds that one of the parties is entitled to an equalization payment. I note as well that there is no minimum amount required for an equalization claim: Gilmore v. Gilmore 2015 ONSC 2331 at para. 111.

[23] During the hearing, however, counsel for the applicant was not prepared to admit that the threshold set by s. 2(8)(a) was met. He noted that the respondent already has a copy of a pension estimate from 2011 which indicates that the estimated contributions plus interest during the marriage are $85,718.78 as at January 1, 2011. Thus, in his submission, there is adequate evidence on this point already. In fairness, counsel had not had an opportunity to consult with his client on this question.

[24] Counsel for the respondent argues in response that the available document is an estimate, not a valuation, and it is not onerous to provide an authorization.

[25] While it would have been an easier decision for me if the applicant had conceded that the first branch of the test in rule 3(8) was met, i.e., that there are “apparent grounds for relief,” I conclude that there is no need to have the pension valuation for the motion. The motions judge hearing the motion to extend time will have the evidence of the pension estimate from 2011. The precise amount of the pension is not needed. The estimate will be sufficient to address the “apparent grounds” part of the test.

Promoting a Just Settlement

[26] I now turn to the question of whether requiring production of the pension information will promote a just and efficient resolution of the dispute (including by promoting a just negotiated settlement). Referring again to Rick v. Brandsema, the Supreme Court said at para. 46:

Decisions about what constitutes an acceptable bargain can only authoritatively be made if both parties come to the negotiating table with the information needed to consider what concessions to accept or offer. Informational asymmetry compromises a spouse’s ability to do so.

[27] However, here, the respondent has not provided financial disclosure and the applicant has described the difficulties that will exist in obtaining the full picture of the parties’ financial positions in 2011. Her belief that the applicant’s pension is the main asset driving equalization is not something I am prepared to act upon. Ordering production of the pension information will not necessarily level the playing field for negotiations. Full disclosure would be required to do that. If I grant the motion, I may in fact be promoting informational asymmetry, not preventing it.

Disposition

[28] Bearing in mind the purposes of limitation periods, it is not desirable to require detailed production before the issue of extending the time is addressed. Subsection 7(3) says that an application for equalization “shall not be brought” after the time limit. Requiring a party to provide more disclosure than is necessary to determine the limitations issue in a proceeding that is prima facie prohibited by the statute runs counter to the purpose of the statute. Disclosure of the pension or more detailed disclosure is not needed to determine the limitations issue. Deferring disclosure until after the limitation issue is decided does not impair the assessment of the limitations issue. The court will still be able to do the balancing of the parties’ interests as required. If the limitations issue is decided in favour of the respondent, full disclosure from both parties will be required.

[29] Further, in this case, ordering production of the pension information alone will not necessarily eliminate informational asymmetry between the parties. It will not assist in promoting a just and efficient resolution of the dispute.

[30] The motion is dismissed.

[31] If the parties cannot agree on costs, the issue may be addressed in writing. Applicant’s submissions by February 18, 2021. Respondent’s submissions by February 24, 2021. No reply. Submissions are limited to two pages plus bills of costs, offers to settle, dockets or other supporting documentation.

Signed by Justice R. Chown

Released: February 8, 2021

COURT FILE NO.: FS-19-95085

DATE: 20210208

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Roger Steven Pardy

Applicant

and -

Esther Mary Kelly

Respondent

REASONS FOR JUDGMENT

Chown J.

Released: February 8, 2021

Pardy v. Kelly, 2021 ONSC 1029

Case Summary

INTRODUCTION

Previous Disclosure Motion

The Time Limit

Purpose of Limitation Periods

Disclosure Rules

Goodfellow v Tordjman

Is the Pension Information Needed Here?

Promoting a Just Settlement

Disposition

REASONS FOR JUDGMENT

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2