COURT FILE NO.: FS-06-FD315212-0003 DATE: 202102 18
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PENELOPE KAY SICKINGER Applicant – and – RALPH THOMAS JAMES SICKINGER Respondent
Self-represented Self-represented
HEARD: November 12, 2020
FAIETA j.
Reasons for Decision
[1] The Applicant wife brings a motion for the following orders:
(a) An order that Ralph Thomas James Sickinger, ("the Respondent") shall produce the disclosure attached hereto as Schedule "A" to the Applicant within (15) days, failing which, his Motion to Change to be struck;
(b) An Order compelling the Respondent to answer the outstanding undertakings, refusals and advisements arising from his questioning of March 11, 2020, as summarized at Schedule "B" attached hereto, within (15) days, failing which his motion to Change be struck;
(b) An Order scheduling the Respondent's Motion to Change on a fixed date before Justice Diamond, and an order setting dates of interim steps leading up to the hearing of the Respondent's Motion to Change;
(c) An Order requiring the Respondent, Ralph Sickinger, to pay the arrears outstanding pursuant to the Order of Justice Diamond dated February 20, 2020;
[2] The Respondent husband did not proceed with his motion for disclosure.
BACKGROUND
[3] The parties were married in 1991. They have three adult children, Richard, age 20, Madison age 23 and Katharine age 26. The parties separated in November 2005 and this Application for Divorce was commenced in May, 2006.
[4] The parties entered into a separation agreement in December, 2007. An Order was issued on April 8, 2008 (the “Final Order”) that incorporates the terms of the separation agreement. Amongst other things it required the Respondent husband to pay $2,500 per month for child support and $2,300 per month for spousal support plus certain lump sum amounts.
[5] Unfortunately, what has followed is a history of litigation between the parties that almost equals the number of years that they lived together. The following review of the parties’ shared litigious history is not comprehensive. It includes background provided in the Ontario Court of Appeal in Sickinger v Sickinger, 2017 ONCA 760 and Sickinger v. Sickinger, 2018 ONCA 526 and
[6] The Applicant wife was found by Justice Greer to be in contempt of the Final Order for having failed to make any attempts to require their daughter Katharine to attend access visits with the Respondent father: See Sickinger v. Sickinger, [2009] O.J. No. 2306, aff’d 2009 ONCA 856. By Order dated July 2, 2009, Justice Greer ordered that the Applicant pay costs to the Respondent of $20,341.98.
[7] The Respondent father’s first motion to change, brought in May 2009, was successful in part. Prior to this seven-day trial, the Respondent was deemed to have filed an assignment in bankruptcy. Justice Perkins found that there had been a material change in the Respondent’s financial circumstances after he signed the separation agreement. An Order was granted that reduced child support to $1,273 and that reduced spousal support to $400 per month from June 1, 2009 based on the Respondent’s income imputed at $65,444 and the Applicant’s income imputed at $13,000 (the “Perkins Order”): See Sickinger v. Sickinger, 2012 ONSC 2065.
[8] On November 6, 2013, Justice Spence issued an Order that fixed the Respondent’s support arrears at $14,037.95.
[9] The Respondent father brought a second motion to change in April 2014 for retroactive adjustments, both retroactive and ongoing, to his support payments. Numerous settlement conferences were held in 2014, 2015 and 2016. The Respondent was discharged from bankruptcy in about November 2014 and the Applicant went onto social assistance at about that time.
[10] In her Endorsement dated January 25, 2016, Justice Backhouse noted that the Respondent was not paying the required child support. She cautioned that: “If payment does not resume forthwith, then this Motion to Change should be dismissed.”
[11] At a case conference held on August 15, 2016, Justice Hood denied the Respondent’s request for a trial and ordered that the Respondent’s second motion for change was to be heard on affidavit evidence. The Respondent was ordered to provide current financial disclosure, including his tax returns, Justice Hood noted that much of the disclosure had already been ordered to be produced in 2014. The motion was scheduled to be heard on December 13, 2016.
[12] On December 13, 2016, having failed to produce the ordered disclosure, Mr. Sickinger sought an adjournment of his second motion to change. Justice Harvison-Young, who was to hear the motion, adjourned it to December 22, 2016 to give the Respondent "a last chance to comply with the outstanding court orders". He was, at the time, in serious default of his obligations to pay support and to make financial disclosure.
[13] On December 22, 2016, the Respondent yet again sought a further adjournment of his second motion to change. Justice Glustein adjourned the motion to February 28, 2017, making it peremptory to the Respondent. He also ordered the Respondent on a peremptory basis, to serve any further affidavit material by January 16, 2017 and stipulated that no further affidavit material could be filed thereafter. The Respondent did not appeal this order.
[14] In spite of Justice Glustein’s order, the Respondent late served a financial statement and 13 affidavits on the Applicant on January 17, 2017 (the January Affidivits). And on January 18th - the next day - he brought a Form 14B motion for leave for late service of his materials that were due on January 16, 2017 to reflect that service was completed on January 17, 2017. The Form 14B motion was scheduled to be heard on February 28, 2017 along with the Respondent’s motion to change.
[15] On February 2, 2017 the Respondent’s Form 14B motion to permit the admission of the January Affidavits was heard by Justice Corbett, who adjourned the motion to be heard orally by any judge. It was ultimately heard by Justice McWatt, as she then was, on the Respondent’s motion to change on February 28, 2017.
[16] On February 21, 2017, the Respondent purported to serve and file six affidavits in response to the Applicant's affidavits (the “February Affidavits”). The February Affidavits were served and filed contrary to Justice Glustein’s order that the Respondent did not have a further right of reply.
[17] The Respondent then filed a second 14B motion seeking an order that he be permitted the right of reply evidence. The February Affidavits did not contain the Respondent's income tax returns. This motion was also heard on the February 28, 2017 motion to change.
[18] Justice McWatt dismissed the Respondent’s motion to extend the time to file additional materials and his motion to change. In an Endorsement dated March 6, 2017, found that the Respondent had not demonstrated a material change since the Perkins Order. She terminated the child support for the two oldest children as of December 19, 2014; both had stopped living with the Applicant in 2013. McWatt J. increased the child support payable by the Respondent for the third child effective June 2016 due to the Respondent’s increase in income. The Respondent’s arrears of child and spousal support were fixed at $83,544. In arriving at these conclusions, the court noted that the Respondent had failed to produce any income tax returns at all, including returns and notices of assessment for 2014, 2015 and 2016. On May 12, 20217, the Respondent was ordered to pay costs of $22,000 plus HST and disbursements of $1,658.49 to the Applicant: Sickinger v Sickinger, 2017 ONSC 2612. The Respondent’s appeal of the decisions on these two motions was dismissed with costs of $15,000 to be paid by the Respondent. : Sickinger v. Sickinger, 2018 ONCA 526. In dismissing the Respondent’s appeal on the motion to change, the Ontario Court of Appeal stated:
[34] Second, the motion judge heard Mr. Sickinger’s motion to change almost three years after he commenced it. At the time she heard the motion, seven different judges dealing with various aspects of the proceeding, including case management, had all ordered Mr. Sickinger to produce relevant disclosure. Indeed, some of this crucial disclosure is the subject of the fresh evidence motion on this appeal. Again, the first time this evidence was ever produced in court was on February 1, 2018.
[35] The record reveals that far from experiencing procedural unfairness, Mr. Sickinger has benefitted significantly from indulgences by the courts. This allegation by Mr. Sickinger is wholly without merit. As Ms. Sickinger’s appeal counsel expressed it, “this is about Mr. Sickinger’s continual failure to provide financial information; not procedural fairness”. We agree.
[36] It is worth repeating that rules for disclosure and the sanctions for non-compliance are "the centrepiece of the Family Law Rules". As this court described it in Roberts v. Roberts, 2015 ONCA 450, at paras. 11-12:
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.
[37] As the history of this appeal illustrates, Mr. Sickinger has continually failed in his duty to disclose.
[19] The parties’ young child, Thomas, commenced living out of town in September 2018 in order to attend university.
[20] In November, 2018, the Respondent filed a third motion to change. Amongst other things he seeks an order that:
terminates spousal support effective April 1, 2017;
fixes the amount of spousal support owed to the Applicant and the City of Toronto at NIL as of November 1, 2018;
fixes the amount of child support owed to the Applicant and to the City of Toronto at NIL as of November 1, 2018;
requires the Applicant to pay child support in the amount of $359 per month for their son Richard Sickinger, commencing July 1, 2018, based on the Applicant having an income of $40,000.00; and
permitting the Respondent to issue this motion to change without having his past three years’ notices of assessment attached to his financial statement which shall be filed upon receipt by the Respondent.
[21] In June 2019, the Applicant and the City of Toronto each filed a motion to dismiss the Respondent’s motion to change. In July, 2019, the Respondent filed a motion to stay the support provisions of the McWatt Order and to stay its enforcement. The motions were scheduled to be heard on November 19, 2019. At that time, Justice Kristjanson adjourned the motions to February 20, 2020 for a full day in order to provide the Respondent an opportunity to respond to the substantial affidavit served by the Applicant on November 13, 2019.
[22] On February 20, 2020, Justice Diamond ordered that the motion to change shall proceed on July 4, 2020 without any oral evidence. The parties agreed to deliver certain disclosure by March 6, 2020 and questioning was to take place on March 20, 2020. Form 14B written motions and responding material for additional disclosure was to be served and filed by March 27, 2020. As well, the Respondent was to pay monthly spousal support of $2,500 per month commencing on March 1, 2020 for arrears and ongoing support. He also ordered that the default/enforcement hearing scheduled in the Ontario Court of Justice on April 7, 2020 2ould be rescheduled to proceed, if necessary, on a date returnable after the disposition of the Respondent’s motion to change. Any attempts by the FRO to seek a suspension of the Respondent’s driver’s license or a forfeiture of the Respondent’s passport were stayed until the disposition of the Respondent’s motion to change however, any existing or future garnishment efforts were not stayed.
[23] On February 26, 2020, the parties delivered Form 20 requests for information. The parties delivered disclosure on March 6, 2020.
[24] On March 17, 2020, the court’s regular operations were suspended due to the COVID-19 pandemic.
[25] On July 6, 2020 Justice Shore ordered that the parties may bring Form 14B motions to Justice Diamond’s attention with respect to disclosure as contemplated by his Order. The court also ordered the parties were to attend a settlement conference on August 12, 2020. If the motions were not settled, then a long motion was to be scheduled before Justice Diamond.
[26] On July 20, 2020 both parties delivered Form 14B motions for disclosure. Both parties filed responding materials on July 27, 2020. On July 31, 2020 the Applicant filed reply materials.
[27] On August 5, 2020, Justice Diamond issued an Endorsement which finds that both Form 14B motions were, in fact, each a long motion and that both motions should be heard as such. He stated:
The parties complied with the terms of Justice Shore’s Endorsement, and I have now had an opportunity to review their voluminous motion materials. Regrettably, I am simply unable to decide these motions in writing as I originally contemplated. The scope of the outstanding disclosure sought by both parties is far wider and greater than what was anticipated when I made my Order on February 20, 2020. For example, the respondent is seeking production of information and documentation relating to 15 different issues sought in his Form 20, on top of a series of allegedly outstanding undertakings and questions taken under advisement at the applicant’s questioning.
For her part, the applicant is seeking production of 23 allegedly outstanding items which she sought in her Form 20, plus 37 allegedly unanswered questions from the respondent’s questioning.
The task being asked of this Court is not something conducive to a 14B motion. While I appreciate that I was the one who suggested the parties proceed with 14B disclosure motions, that was done at a time when the Court sought to streamline matters so that the respondent’s Motion to Change could proceed as scheduled. The potential scope of any potentially disputed disclosure was represented to be nowhere near the extent of disclosure now sought before me.
Both motions are now in fact each long motions, and they should be heard as such. I am prepared to hear both motions as part of a full day hearing (either in person or by telephone or Zoom conference) on the understanding that the parties prepare updated charts which organize the outstanding questions into categories so that a much narrower argument can be presented for each category. This way, the hearing will proceed more efficiently as argument by category will result in a series of questions either being ordered to be answered or not. The parties will contact the Family Scheduling Office to arrange for a long motion date to proceed before me on a mutually agreeable date and time.
[28] The parties were ordered to prepare updated charts which organize the outstanding questions into categories so that a much narrower argument could be presented for each category.
[29] On consent of the parties, the settlement conference did not proceed.
[30] The Form 14B motions are the subject of this decision
ANALYSIS
[31] The following principles govern this motion.
[32] On a motion to change a final support order, the moving party must deliver a financial statement in Form 13 along with other information and documents: See Rules 13(4.02) and Rule 13(5.0.1) of the Family Law Rules. The obligation of financial disclosure is continuous as Rule 13(15) provides that as soon as a party discovers that a document that delivered under Rule 13 is incorrect, incomplete or out of date, the party shall serve on the other party and, if applicable, file, a corrected, updated or new document, as the circumstances require.
[33] In addition, Rule 19(1) requires that every party shall, within 10 days after another party’s request, give the other party an affidavit listing every document that is,
(a) relevant to any issue in the case; and
(b) in the party’s control, or available to the party on request.
[34] Under Rule 20(5), a court may make an order for questioning or disclosure order that a person (whether a party or not) be questioned by a party or disclose information about any issue in the case, if the following conditions are met:
(a) It would be unfair to the party who wants the questioning or disclosure to carry on the case without it;
(b) The information is not easily available by any other method; and
(c) The questioning or disclosure will not cause unacceptable delay or undue expense.
[35] The Ontario Court of Appeal has emphasized the importance of disclosure in family law proceedings.
[36] In Manchanda v. Thethi, 2016 ONCA 909, 84 R.F.L. (7th) 374, at para. 13, the Ontario Court of Appeal stated:
This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11.) In 2015, Family Law Rule 13 was amended to emphasize a party's financial disclosure obligations. A party's non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.
[37] In Leitch v. Novac, 2020 ONCA 257, at para. 44, the Ontario Court of Appeal stated:
As the Supreme Court suggested in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34, nondisclosure is the cancer of family law. This is an apt metaphor. Nondisclosure metastasizes and impacts all participants in the family law process. Lawyers for recipients cannot adequately advise their clients, while lawyers for payors become unwitting participants in a fraud on the court. Judges cannot correctly guide the parties to a fair resolution at family law conferences and cannot make a proper decision at trial. Payees are forced to accept an arbitrary amount of support unilaterally determined by the payor. Children must make do with less. All this to avoid legal obligations, which have been calculated to be a fair quantification of the payor's required financial contribution. In sum, nondisclosure is antithetical to the policy animating the family law regime and to the processes that have been carefully designed to achieve those policy goals.
[38] I now turn to the particulars of the Applicant’s motion.
[39] The Respondent delivered a Disclosure Brief, dated March 6, 2020, which included an affidavit listing documents sworn by the Respondent on the same date, which discloses all documents to the best of his knowledge, information and belief relating to his working relationship with Roto-Gro International Limited and Roto-Gro World Wide (Canada) Inc. that are in his possession, control or power:
Signed offer of employment dated March 1, 2017;
Employment letter from Michael Carli, dated January 31, 2019;
Restriction agreement with respect to shares of Roto-Gro;
Assignment of Shares certificate to Eddy Blasiak, dated February 10, 2018 with a copy of the cheque for payment of $25,000 dated May 15, 2017;
Assignment of Shares certificate to Robert Salna for the assignment of $1,000,000 shares of Roto-Gro with a copy of the cheque for payment of $50,000, dated June 19, 2017;
Escrowed fully paid ordinary shares traction confirmation statement, dated February 6, 2017;
Affidavit of Michael Anthony Carli (of Roto-Gro International Inc.), sworn March 21, 2019;
T4 slips for 2017 and 2018;
Final 2017 paystub dated December 6, 2017;
Final 2019 paystub dated January 25, 2019; and
Year-end paystub from 2018.
[40] The Respondent also delivered an affidavit, sworn on July 27, 2020, by Irene Bardakjian. Ms. Bardakjian is a law clerk at MacDonald & Partners LLP who she states are the solicitors for the Respondent. Rule 14(18) of the Family Law Rules provides that an affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit. Further, Rule 14(19) states that an affidavit may also contain information that the person learned from someone else, but only if the source of the information is identified by name and the affidavit states that the person signing it believes the information is true. Ms. Bardakjian states that she has knowledge of the matters described in the affidavit, which includes the matters descrbed below under the heading “Status”, and that where she does not have personal knowledge, she has stated the source of her information and belief. Nowhere in her affidavit does she state that her knowledge is based on information and belief. I have difficulty in accepting that Ms. Bardakjian has personal knowledge of all of the matters addressed below that are listed under the heading “Status” in her affidavit and below.
[41] As a result, I order that the Respondent submit an affidavit by March 1, 2021 that states that the information in Ms. Bardakjian’s affidavit, sworn July 27, 2020, is true or that identifies what portions of her affidavit are true and not true.
Schedule “A” – Employment Documents
| Item # | Disclosure Requested by Applicant | Status (as described by Ms. Bardakjian for the Respondent) | Applicant’s Reply |
|---|---|---|---|
| 1 | An Affidavit listing all documents relevant to Mr. Sickinger's working relationship with Roto-Gro International Limited ("ASX: RGI" or "RotoGro"), his financial arrangements with RotoGro, any monies received from RotoGro and any monies to which he is or may be entitled to from RotoGro, as well as copies of the documents referred to therein; | Offer of employment letter dated March 1, 2017 from Michael Carli of Roto-Gro World Wide (Canada) Inc. was produced. There are no other contracts with Roto-Gro. | The Respondent’s contract with Roto-Gro International Limited has not been produced. |
| 2 | An Affidavit listing all documents relevant to the Respondent’s working relationship with Roto-Gro World Wide (Canada) Inc. ("RGWWC"), his financial arrangements with RGWWC, any monies received from RGWWC and any monies to which he is or may be entitled to from RGWWC, as well as copies of the documents referred to therein; | See above | The Respondent has not produced a single travel expense receipt even though he states that he travelled extensively for Roto-Gro. The Applicant seeks documents explaining his compensation package including payment of expenses, bonuses, commissions and severance |
| 3 | A signed Authorization and Direction, permitting the Applicant to obtain information from and make inquiries of Roto-Gro International Limited and Roto-Gro World Wide (Canada) Inc., regarding Ralph's tenure and financial arrangements; | The Respondent has arranged a phone call to allow the Applicant to speak with Michael Carli, CEO of Roto-Gro International Limited and Roto-Gro Worldwide (Canada) Inc. The Respondent will be a participant on the call. The Applicant refused. Michael Carli’s affidavit does not provide full disclosure | Documentary evidence from Roto-Gro International Limited and Roto-Gro World Wide (Canada) Inc. regarding the Respondent’s tenure and financial arrangements. |
| 4 | An explanation of all deposits, withdrawals, account transfers and e-transfers exceeding, meaning identification of the other party and the reason for the transactions, exceeding $400 from Mr. Sickinger's bank accounts, if the other party to such transactions is not identified in the statements | Request is overbroad and irrelevant. It must be more specific to be meaningful. The Respondent has produced all bank account records. The Applicant did not request that the Respondent explain particular transactions. The request covers an undefined period of time and could include hundreds of thousands of transactions. | The Respondent to provide copies of checks and other related documents from January 1, 2017 and explain the debits and credits circled by the Applicant in respect of substantial unidentified transactions. |
[42] In respect of the above requests, the Respondent shall deliver the following documents to the Applicant by April 2, 2021:
An Affidavit listing all documents relevant to the Respondent's working relationship with Roto-Gro International Limited ("ASX: RGI" or "RotoGro"), his financial arrangements with RotoGro, any monies received from RotoGro and any monies to which he is or may be entitled to from RotoGro, as well as copies of the documents referred to therein;
An Affidavit listing all documents relevant to the Respondent’s working relationship with Roto-Gro World Wide (Canada) Inc. (“RGWWC”), his financial arrangements with RGWWC, any monies received from RGWWC and any monies to which he is or may be entitled to from RGWWC, as well as copies of the documents referred to therein;
The Respondent shall deliver a signed Authorization and Direction that permits the Applicant to contact, make inquiries and obtain information and documents related to the Respondent’s tenure and financial arrangements with Michael Carli, Roto-Gro International Limited and Roto-Gro World Wide (Canada) Inc.;
For the period starting on March 1, 2017 to the present, the Respondent shall provide an explanation of all deposits, withdrawals, account transfers and e-transfers that exceed $400 from the Respondent's bank accounts, if the other party to such transactions is not identified in the statements including the identification of the other party and the reason for the transactions;
Schedule “A” – Financial and Travel Documents
| Item # | Disclosure Requested by Applicant | Status (as described by Ms. Bardakjian for the Respondent) | Applicant’s Reply |
|---|---|---|---|
| 5 | Copies of the Respondent’s 2017, 2018 and 2019 T4 slips from all sources | complete | complete |
| 6 | Full particulars of any income earned by the Respondent directly or indirectly in the year 2017, 2018 and 2019 from a source other than employment including but not limited to any business or consulting income, with copies of any contracts pursuant to which such income was earned | Respondent did not receive any additional income that was not included in his income tax returns | Respondent claims income as a “labourer” in his 2019 tax return |
| 7 | Copy of the Respondent’s 2019 income tax return (with all schedules and attachments) and notice of assessment when available | Income tax return for 2019 produced but not notice of assessment | Notice of Assessment to be produced once received |
| 8 | Full particulars of any income earned by the Respondent directly or indirectly in the year to date, including but not limited to any business or consulting income, with copies of any contracts pursuant to which such income is earned | All income received by the Respondent has been disclosed in his income tax returns | Further information regarding the income as reported on his 2019 tax return |
| 9 | From March 1, 2017 and ongoing to trial, a list of all company names and corresponding company registration numbers in which the Respondent has /had an interest of any kind, whether directly or indirectly | The Respondent has not had an interest in any companies from March 1, 2017 to date. The Respondent will notify the Applicant of any changes until trial | Requires updated information to make current |
| 10 | From March 1, 2017 and ongoing to trial, full particulars of any income generated from such companies | See #9 | Requires updated information to make current |
| 11 | From March 1, 2017 and ongoing to trial, the shareholders’ and directors’ ledgers of the Minute Books of any corporation in which the Respondent has /had an interest of any kind | See #9 | Requires updated information to make current |
| 12 | From March 1, 2017 and ongoing to trial, a list of all partnership or trust names in which the Respondent has /had an interest of any kind, whether directly or indirectly | The Respondent has not had an interest in any partnerships or trusts from March 1, 2017 to date. The Respondent will notify of any changes until trial | Requires updated information to make current |
| 13 | From March 1, 2017 and ongoing to trial, complete financial statements for all business interests, partnerships or trusts in which the Respondent has /had an interest of any kind, whether directly or indirectly | See #9 and #12 | Requires updated information to make current |
| 14 | From March 1, 2017 and ongoing to trial, any shareholders’, partners’ or other agreements to which the Respondent was/is a party, whether directly or indirectly | See #9 and #12 | Requires updated information to make current |
| 15 | A tracing of the proceeds received by the Respondent from the sale of his RotoGro shares | The Respondent has previously received a copy of the tracing of the proceeds from the sale of his RotoGro shares. The funds were deposited in hi BMO account that ends in 242. | completed |
| 16 | A tracing of the proceeds received by the Respondent from the sale of the children’s RotoGro shares | completed | completed |
| 17 | Proof of life insurance as ordered by Justice Diamond | Application for life insurance in the amount of $250,000 is in progress. See email from insurer dated July 21, 2020 | Proof of life insurance not provided as ordered |
| 18 | A current copy of all pages of the Respondent’s passport from March 2017 to present and ongoing to June 4, 2020 | Applicant has delivered a copy of his passport issued April 16, 2018. His earlier passport is not available | Failed to produce his pages of his passport from March 2017 to April 2018 |
| 19 | Copies of the credit card statements held solely or jointly for the Respondent’s personal and/or business use for the period from March 2017 to present unless already provided | Complete. See Affidavit sworn December 16, 2019. Statements for Capital One account from October 2019 to February 14, 2020 provided | Respondent has not identified business expenses on his statements of purchase for Thomas for post-secondary school |
| 20 | Proof of applications all other insurance policies held by the Respondent including but not limited to tenant insurance, disability, health and automobile insurance | See #17 | No further information about status of the life insurance ordered by the court has been received |
| 21 | Tenancy agreement and proof of termination of said agreement for the Respondent’s rental of the condominium at 70 Roehampton Rd | Respondent no longer has the tenancy agreement and proof of termination for his rental of 70 Roehampton | Complete |
| 22 | Documentary proof of the Respondent’s business expenses from March 2017 to present | Request is overbroad. The Applicant may discuss the company’s expenses during her telephone call with Michael Carli, CEO of Roto-Gro and the Respondent | Business expense reports are required |
| 23 | Documentary proof of alleged loans received by the Respondent from friends and family members, unless already provided | Respondent has not received any additional loans from friends or family members | Financial documents provided are insufficient. Loan agreements are outstanding |
| 24 | Copies of any and all credit applications made by the Respondent from March 1, 2017 ongoing to trial | Respondent has not made any credit card applications from March 1, 2017 to present. He will update this information until trial | Requires updated information to make current |
[43] In respect of the above requests, the Respondent shall deliver the following disclosure by April 2, 2021:
Full particulars of any income that he earned as a labourer in 2017, 2018 and 2019 along with a copy of any contracts pursuant to which such income was earned;
A copy of the notice of assessment in respect of the Respondent’s income tax return for 2019;
In respect of the credit card statements that he has delivered, the Respondent shall identify business expenses on each statement;
Particulars of any loans made to the Respondent, including a copy of any loan agreements, from friends and family members for the period from March 1, 2017;
The Respondent’s Travel History Report obtained from the Canada Border Services Agency. By February 23, 2021, the Applicant shall apply to the Canada Border Services Agency for the Report, which shall show his travel particulars for the period starting March 1, 2017 to the current date;
The business expense claims that were submitted by the Respondent to Roto-Gro International Limited and Roto-Gro Worldwide (Canada) Inc. for payment along with any documents related to payment of these claims. By February 23, 2021, the Applicant shall request that Michael Carli, Roto-Gro International Limited and Roto-Gro Worldwide (Canada) Inc. provide any such business expense documents in their power, possession or control; and
Any credit card applications made by the Respondent after July 1, 2020.
[44] Until the commencement of the trial of the motion to change, the Respondent shall promptly disclose to the Applicant the particulars of any changes to the answers provided in respect of items 9, 10, 11, 12, 13 and 14, above.
[45] Finally, the Respondent shall not be permitted to take any further step in this proceeding unless this court otherwise orders until he has delivered proof of life insurance in accordance with Justice Diamond’s Order dated February 20, 2020.
Schedule “B” – Undertakings related to the Respondent’s Questioning held March 11, 2020
| Item # | Question # in Transcript | Description of Undertaking | Status (as described by Ms. Bardakjian for the Respondent) | Applicant’s Reply |
|---|---|---|---|---|
| 1 | 32-34 | To advise whether the Respondent provided updated financial disclosure to the Applicant each year within 30 days of the anniversary of the McWatt Order as required by the McWatt Order? | The Respondent has searched his records and is unable to confirm or deny whether he produced the ordered disclosure by April 2018 | Complete |
| 2 | 38 | In the event that the date of service of the motion to change on the Applicant was anything other January 4, 2019, then Respondent to advise of the date. | The Respondent’s search of his records have not indicated a date of service of this motion to change other than January 4, 2019 | Not provided |
| 3 | 81-85 | Respondent to provide a list of the shareholders of 1588169 Ontario Inc. o/a Greenlight Capital at the time of incorporation | There shareholders at the time of incorporation of 1588169 Ontario Inc. were Ralph and John Sickinger | Not provided |
| 4 | 88-89 | Respondent to check if 158 has filed tax returns | 1588169 Ontario Inc is presently dormant/defunct and has not filed tax returns for at least the last three years | Not provided |
| 5 | 90 | Respondent to check if 158 has completed financial statements | 1588169 Ontario Inc is presently dormant/defunct and has not filed financial statements for at least the last three years | Not provided |
| 6 | 108-109 | Respondent to provide his Greenlight Capital business card | The Respondent has checked his records and he does not have in his possession a business card from 1588169 Ontario Inc. | Not provided |
| 7 | 194-195 | Respondent to provide all documents of any kind related to his working relationship with Roto-Gro Worldwide Inc (as opposed to Roto-Gro Worldwide Canada Inc or Roto-Gro International Limited) | The Respondent agrees to produce this shortly | |
| 8 | 202-203 | Respondent to provide his executive service contract with Roto-Gro Worldwide Inc. dated November 2, 2016 | The Respondent agrees to produce this shortly | |
| 9 | 204-208 | Respondent to provide the “back and forth” emails that related to the termination of his contract with Roto-Gro Worldwide Inc dated November 2, 2016. | The Respondent advises that no such email exists | |
| 10 | 241-247 | Respondent to provide all benefit, bonus, and commission plans related to his contracts with Roto-Gro Worldwide Inc. and /or Roto-Gro International Limited | The Respondent advises that there are no other details on compensation plan other than in Employment Agreement | |
| 11 | 248-251 | Respondent to provide a copy of Roto-Gro International Limited’s stock option plan if he has it | The Respondent advises that there is nothing regarding a stock option plan for the Respondent as it elapsed February 2019 and none was redone | |
| 12 | 252-255 | Respondent to check his emails to ascertain whether he received written notice of termination | Emails between Michael Carli and the Respondent dated March 20, 2019 and with Stephen Brookhurst are enclosed as Exhibit “K”. | |
| 13 | 257-259 | Respondent to provide a copy of any document, including emails, between the Respondent and Roto-Gro International Limited, Roto-Gro Worldwide Inc. and Roto-Gro Worldwide Canada Inc. about the terms of his employment, the termination of his employment and related financial arrangements. | See above #12 | |
| 14 | 265-267 | Respondent to check to see if he received a severance payment on termination of his contact with Roto-Gro | No severance payment was received | |
| 15 | 290-296 | For what price per share did he sell 500,000 shares in Roto-Gro International to Eddy Blasiak? | The share price at the time of the assignment was between 35 cents and 45 cents. | |
| 16 | 303-308 | Respondent to ask each of his children whether they continue to own shares in Roto-Gro | The children advise that they do not own Roto-Gro shares today | |
| 17 | 312-322 | Respondent to advise whether he is consultant to CS Consulting or SC Consulting | The Respondent advises that the company is called S.C. Consulting | |
| 18 | 323-324 | Respondent to provide a copy of the “back and forth” emails with CS Consulting or SC Consulting that reflect the terms of his working arrangement | The Respondent has searched his records and advises that there are no meaningful documents that he has found regarding his working arrangement from Carlos Monsalve. An affidavit from Mr. Monsalve may be requested by the Applicant | |
| 19 | 362-368 | Respondent to provide a log of his efforts to obtain business opportunities, and timing thereof, as well as supporting third party emails | The Respondent agrees to produce this shortly, subject to the Applicant executing a non-disclosure agreement | |
| 20 | 380-386 | Respondent to advise what is the account number for the Bank of Montreal “plan lead account” | The lead account is the account I have provided the transactions for and the account FRO seized. Enclosed as Exhibit “L” is a transaction history from the BMO account ending in 242 for 2019 | |
| 21 | 387-390 | Respondent to check whether he had a US dollar account with the Bank of Montreal | The Respondent agrees to produce this shortly | |
| 22 | 395-400 | Respondent to provide monthly statements for March 2017 for his CIBC RRSP account | The Respondent agrees to produce this shortly | |
| 23 | 395-407 | Respondent to provide a copy of the March 2017 monthly statement for all accounts that he held with Bank of Montreal and the CIBC and also to advise of the names of all of the holders of those accounts | The Respondent advises that the BMO account is owned jointly by the Respondent and Katharine. Attached as Exhibit “M” is a copy of a cheque from this account showing the names on the account | |
| 24 | 451-455 | Respondent to make best efforts to provide a copy of the promissory note for $30,000 that he gave Eddy Blasiak | The Respondent advises that Mr. Blasiak has the promissory note and he will provide if in August upon his return to Canada |
[46] In respect of the above undertakings, the Respondent shall, by March 5, 2021:
(1) answer the undertakings described above as items 7, 8, 9, 13, 18, 19, 21, 22, 24;
(2) in respect of item 13, the Respondent shall produce any document, other than emails (which apparently do not exist), between the Respondent and Roto-Gro International Limited, Roto-Gro Worldwide Inc. and Roto-Gro Worldwide Canada Inc. about the terms of his employment, the termination of his employment and related financial arrangements.
(3) in respect of item 18, the Respondent shall make best efforts to deliver an affidavit sworn by Carlos Monsalve of S.C. Consulting that describes the terms of the Respondent’s work arrangements and that appends any documents related to the Respondent’s work arrangements.
Schedule “B” – Refusals related to the Questioning of the Respondent held March 11, 2020
| Item # | Question # in Transcript | Description of Question | Status (as described by Ms. Bardakjian for the Respondent) | Applicant’s Reply |
|---|---|---|---|---|
| 25 | 208-209 | Provide any emails, texts or other electronic communications related to the termination of his contract dated November 2, 2016 with Roto-Gro ?? | The Respondent advises that no such email exists | |
| 26 | 210-212 | What legal advice did the Respondent receive from Colin James after being notified that his contract was being terminated? | Refused | As a solicitor, Colin James would have had a conflict of interest in providing legal advice to the Respondent given Mr. James was also providing consulting services under the executive services contract to Roto-Gro International Limited |
| 27 | 456 | Did Eddie Blasiak pay an amount to Mr. Joseph on account of the Respondent’s legal fees? | Refused | Respondent should not be allowed to refuse the same disclosure that he requires of me |
[47] Items 26 and 27 were properly refused.
Schedule “C” – Additional Disclosure Requested
| Item # | Disclosure Requested | Status (as described by Ms. Bardakjian for the Respondent) | Applicant’s Reply |
|---|---|---|---|
| 1 | Documentation to prove the Respondent’s involvement with all Roto-Gro companies with respect to employment or consulting or remuneration of any sort including Roto-Gro International Limited and Roto-Gro World Wide (Canada) Inc | Provided in the Respondent’s Affidavit Listing Documents attached above | Repeats Schedule A – Item #2 |
| 2 | A direction ordering the Bank of Montreal, CIBC and RBC to provide a list of all accounts held by the Respondent at their bank and all other Canadian institutions for the period of June 2016 to the present | The Respondent agrees to this request if it is a mutual provision requiring the Applicant to produce same | Respondent has not provided any bank statements for his primary BMO bank account ending 719 for the period of March 6, 2017 to July 31, 2020 |
| 3 | Monthly bank statements, not transaction histories, for all bank accounts held by the Respondent or held by the Respondent jointly with others unless previously produced | The Respondent has produced transaction histories including all the same information as is included in a monthly bank statement. There is a cost to obtain these monthly bank statements that the Respondent cannot afford to incur | Respondent has not provided any bank statements for his primary BMO bank account ending 719 and ending in 42 for the period of March 6, 2017 to July 31, 2020 |
| 4 | A complete and fulsome list of the Respondent’s travels outside of Ontario for the period from March 2017 to the present | The Respondent has produced his passport and advised of other travels. This is not necessary. | Outstanding |
| 5 | The name and address of the Respondent’s partner as listed in his disclosure brief dated March 6, 2020 | This information is not relevant to these proceedings | Outstanding |
| 6 | Receipts for how Thomas paid for his tuition, books and groceries from September 2018 and how/when Thomas loaned the Respondent money as claimed | This is disclosure from a third party who is not a party to these proceedings. The Respondent is attempting to obtain this information | Outstanding |
| 7 | Documentary proof of loans made to the Respondent from Thomas, Madison and Katharine including dates, amounts and loan agreements and any repayments made | This is disclosure from a third party who is not a party to these proceedings. The Respondent is attempting to obtain this information. Enclosed as Exhibit “N” is a copy of a bank statement for Madison dated March and April, 2019 showing funds being transferred from Madison to the Respondent | Outstanding |
| 8 | An order that RotoGro international Inc and RotoGro Worldwide (Canada) provide disclosure of all employment information with regard to the Respondent | This is disclosure from a third party who is not a party to these proceedings. | Outstanding |
| 9 | A CBSA report for the Respondent’s travels for the period of March 2017 to present | This information is not relevant to these proceedings. The Respondent has disclosed his passport and history of travels | Outstanding. |
[48] In respect of the above requests, the Respondent shall deliver the following documents and disclosure by April 2, 2021:
A direction and authorization to the Bank of Montreal, CIBC and RBC signed by the Respondent for each bank to provide the Applicant at her own expense with a list of all accounts held by the Respondent at their bank for the period of June 2016 to the present
A direction and authorization to the Bank of Montreal signed by the Respondent for the Bank of Montreal to provide to the Applicant at her own expense all bank statements for BMO bank account #0384-3***-719 and BMO bank account 394*-*42 for the period from March 1, 2017 to the present;
The Respondent shall disclose the name and address of his partner; and
The Respondent shall provide particulars of the loan(s) given to him by Thomas.
Conclusions
[49] To summarize, I order that
(1) the Respondent shall deliver the following documents to the Applicant by April 2, 2021:
(a) An Affidavit listing all documents relevant to the Respondent's working relationship with Roto-Gro International Limited ("ASX: RGI" or "RotoGro"), his financial arrangements with RotoGro, any monies received from RotoGro and any monies to which he is or may be entitled to from RotoGro, as well as copies of the documents referred to therein;
(b) An Affidavit listing all documents relevant to the Respondent’s working relationship with Roto-Gro World Wide (Canada) Inc. ("RGWWC"), his financial arrangements with RGWWC, any monies received from RGWWC and any monies to which he is or may be entitled to from RGWWC, as well as copies of the documents referred to therein;
(c) The Respondent shall deliver a signed Authorization and Direction that permits the Applicant to contact, make inquiries and obtain information and documents related to the Respondent’s tenure and financial arrangements with Michael Carli, Roto-Gro International Limited and Roto-Gro World Wide (Canada) Inc.;
(d) For the period starting on March 1, 2017 to the present, the Respondent shall provide an explanation of all deposits, withdrawals, account transfers and e-transfers that exceed $400 from the Respondent's bank accounts, if the other party to such transactions is not identified in the statements including the identification of the other party and the reason for the transactions;
(2) the Respondent shall deliver the following disclosure by April 2, 2021:
(a) Full particulars of any income that he earned as a labourer in 2017, 2018 and 2019 along with a copy of any contracts pursuant to which such income was earned;
(b) A copy of the notice of assessment in respect of the Respondent’s income tax return for 2019;
(c) In respect of the credit card statements that he has delivered, the Respondent shall identify business expenses on each statement;
(d) Particulars of any loans made to the Respondent, including a copy of any loan agreements, from friends and family members for the period from March 1, 2017;
(e) The Respondent’s Travel History Report obtained from the Canada Border Services Agency. By February 23, 2021, the Applicant shall apply to the Canada Border Services Agency for the Report, which shall show his travel particulars for the period starting March 1, 2017 to the current date;
(f) The business expense claims that were submitted by the Respondent to Roto-Gro International Limited and Roto-Gro Worldwide (Canada) Inc. for payment along with any documents related to payment of these claims. By February 23, 2021, the Applicant shall request that Michael Carli, Roto-Gro International Limited and Roto-Gro Worldwide (Canada) Inc. provide any such business expense documents in their power, possession or control;
(g) Any credit card applications made by the Respondent after July 1, 2020;
(3) Until the commencement of the trial of the motion to change, the Respondent shall promptly disclose to the Applicant the particulars of any changes to the answers provided in respect of items 9, 10, 11, 12, 13 and 14 in Schedule A above, including any supporting documents;
(4) The Respondent shall not be permitted to take any further step in this proceeding unless this court otherwise orders until he has delivered: (1) proof of life insurance to the Applicant in accordance with Justice Diamond’s Order dated February 20, 2020; and (2) a sworn affidavit by March 1, 2021 that states that the information in Ms. Bardakjian’s affidavit, sworn July 27, 2020, is true or that identifies what portions of her affidavit are true and not true;
(5) In respect of the undertakings described in Schedule B, the Respondent shall, by March 5, 2021:
(a) answer the undertakings described above as items 7, 8, 9, 13, 18, 19, 21, 22, 24;
(b) in respect of item 13, the Respondent shall produce any document, other than emails (which apparently do not exist), between the Respondent and Roto-Gro International Limited, Roto-Gro Worldwide Inc. and Roto-Gro Worldwide Canada Inc. about the terms of his employment, the termination of his employment and related financial arrangements.
(c) in respect of item 18, the Respondent shall make best efforts to deliver an affidavit sworn by Carlos Monsalve of S.C. Consulting that describes the terms of the Respondent’s work arrangements and that appends any documents related to the Respondent’s work arrangements.
(6) In respect of the Schedule C requests, the Respondent shall deliver the following documents and disclosure by April 2, 2021:
(a) A direction and authorization to the Bank of Montreal, CIBC and RBC signed by the Respondent for each bank to provide the Applicant at her own expense with a list of all accounts held by the Respondent at their bank for the period of June 2016 to the present;
(b) A direction and authorization to the Bank of Montreal signed by the Respondent for the Bank of Montreal to provide to the Applicant at her own expense all bank statements for BMO bank account #0384-3***-719 and BMO bank account 394*-*42 for the period from March 1, 2017 to the present;
(c) The Respondent shall disclose the name and address of his partner;
(d) The Respondent shall provide particulars of the loan(s) given to him by Thomas;
[50] In addition to the above orders, as requested by the Applicant, costs of this motion shall be reserved to the judge that hears the Respondent’s motion to change.
[51] This Order takes effect immediately without a formal Order being issued and entered.
Justice M. D. Faieta
Released: February 18, 2021
COURT FILE NO.: FS-06-FD315212-0003 DATE: 20210218
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PENELOPE KAY SICKINGER Applicant – and – RALPH THOMAS JAMES SICKINGER Respondent
REASONS FOR DECISION
Justice M. D. Faieta
Released: February 18, 2021