Court File and Parties
COURT FILE NO.: FS-17-88915-00 DATE: 2021 03 02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DR. CHAULA ASHISH MEHTA, Applicant Kathryn L. Smithen for the Applicant
- and -
DR. ASHISH KANTILAL MEHTA, Respondent Stephen J. Codas & Stephanie Romano for the Respondent
HEARD: December 2, 11, 2020 via videoconferencing
REASONS FOR JUDGMENT
Fowler Byrne J.
1There are two motions before me.
2The first motion was brought by the Respondent Father Dr. Ashish Kantilal Mehta (“the Father”) in which he seeks summary judgment, declaring that the settlement reached between the parties in January 2019 with respect to child support is binding and enforceable.
3The Applicant Dr. Chaula Ashish Mehta (“the Mother”) denies that any settlement was reached and asks this court to dismiss the Father’s motion. In the event that this court determines that a settlement was reached and is binding on the parties, the Mother has brought her own motion seeking summary judgment declaring that any agreement should be set aside on the basis that the settlement:
a) is based on inaccurate income for the Father which grossly undervalues his child support obligations; and
b) waives any child support for the benefit of Aarusha, to whom the Father stood in loco parentis, and thus is contrary to the Federal Child Support Guidelines, SOR/97-175 (“the Guidelines”).
4If the Mother’s request is granted and the settlement is set aside, she seeks an order that the Father pay significant retroactive child support and section 7 expenses for the two children, in addition to prospective child support until which time the children complete all post-secondary education. The Mother also seeks substantial disclosure.
5In response to the Mother’s motion, the Father takes the position that he never acted in loco parentis with respect to Aarushi, and therefore is not obligated to support her. With respect to Janvi, the Father takes the position that Janvi has repudiated her relationship with the Father, and accordingly, he is not obliged to support her from the time of this repudiation.
A. Facts
i. Background
6The parties met when they were medical students in India. They were married in India on January 15, 1995 when the Mother was 24 years old and the Father was 25 years old. They lived with the Father’s parents following their marriage.
7After graduation, the Father became an Ear, Nose and Throat specialist. The Mother practiced in Obstetrics and Gynecology. While in India, they owned and operated their own hospital in Mumbai called the Gayatri Maternity and Ear, Nose and Throat Hospital between July 2000 and March 31, 2010.
8The parties’ account of the nature of their marriage differs significantly. The Mother alleges physical, emotional, verbal and financial abuse at the hands of the Father and her in-laws. With respect to the physical abuse, the most disturbing allegations include an assault that resulted in a perforated ear drum causing permanent hearing loss, another that caused a broken thumb, and another where the Father allegedly kicked the Mother repeatedly when pregnant with their first child. The Mother also alleges that the Father was unfaithful and that he and his parents had complete control over her earnings in India. The Father adamantly denies the allegations of any abuse, and claims that it was the Mother who was unfaithful.
9The parties agree that their daughter, Janvi Ashish Mehta, was born on December 23, 1998 (“Janvi”) in Mumbai. They continued in their relationship, working and supporting their family. They also agree that the Mother had another daughter, Aarushi Ashish Mehta, born April 10, 2007 (“Aarushi”). The Father is listed as Aarushi’s father on the birth registration.
ii. Paternity of Aarushi
10Before Aarushi turned one year old, the issue of her paternity was raised. The Mother concedes that she had a one-time sexual encounter with another man in 2007 and there is a possibility that this other man is Aarushi’s biological father. The Mother though, argues that the identity of Aarushi’s biological father is irrelevant as the Father acted as Aarushi’s father in every way, even after he knew that he may not be Aarushi’s biological Father. The Father maintains that he obtained a DNA test that shows definitively that Aarushi is not his biological child, although the Mother has no knowledge of the circumstances in which the DNA samples were taken from Aarushi.
11The parties disagree on the date of separation and whether the Father acted in loco parentis to Aarushi. The parties have filed extensive conflicting affidavit evidence in that regard. It appears uncontested though, that the Mother, Father and two children together emigrated to Canada in or about April 2010 and that they continued to reside together in the same home in Canada until February 2011, when the Mother moved to a new location with the children and the Father moved in with his brother in Albany, New York.
12As part of her allegation that the Father acted as Aarushi’s father, the Mother produced many pictures of the Mother and Father with the two children, wherein the Father appears to be participating and enjoying many family events, including birthday parties. She produced other documentations where the Father is identified as Aarushi’s father. The Mother states they were all from the period after the Father was made aware of the possibility that Aarushi may not be his biological child. She maintains they lived as a family until February 2011. The Father maintains that this evidence is not an accurate reflection of his attitude or actions with respect to Aarushi.
13Just before the separation, the Mother brought Aarushi back to stay with her parents in India, while she looked for new accommodation and worked toward her Canadian medical accreditation, which required her to work extensive hours. Aarushi stayed in India for 8 months. When the Mother was able to purchase a condominium in September 2011, Aarushi returned to live with her.
iii. Income of the Parties
14The Mother wrote her medical accreditation exams during 2010 and 2011. She also volunteered as a research assistant and at pharmacies and was able to earn a small income at that time. In July 2011, she started a one-year Fellowship Programme at Mount Sinai in Toronto in the area of High-Risk Obstetrics offered through the University of Toronto. She earned $50,000. She was then accepted into the Residency Program at the University of Toronto with a stipend of $50,000 per year. The Mother completed the Residency Program in Obstetrics and Gynaecology at the University of Toronto in December 2016. She then started a Fellowship in Reproductive Gynaecology and Infertility through TRIO Fertility, under the umbrella of University of Toronto, which was completed in 2018. She worked on the weekends or was on call to earn some income. The Mother’s income during this time, as indicated in her personal tax returns was as follows: in 2010 she earned $800; in 2011, she earned $21,408; in 2012 she earned $40,525; in 2013, she earned $44,554; in 2014 she earned $52,724; in 2015 she earned $57,673; in 2016 she earned $80,338; in 2017 she earned $137,726.22; in 2018 she earned $172,059; and in 2019 she earned $181,653.
15The Father eventually returned to India in 2011 and started divorce proceedings in India to which the mother responded. On June 11, 2012, the Father was ordered in India to pay child support in the sum of $1,120 per child per month for both Aarushi and Janvi. The Father claims he has paid this sum since June 2012, but only for Janvi. The Mother denies that he has paid, stating that the Father has unsuccessfully appealed the child support order in India and is arrears of approximate sum of $35,840 USD.
16The Father also worked towards his accreditation in Canada. He wrote a number of accreditation exams between 2010 and 2014, during which time he claims he earned income as a security guard. In May 2014, the Father was accepted into a Saskatchewan International Physician Practice Assessment Program (SIPPA). He completed the SIPPA program and started working in his field sometime in 2014. The Father has lived in Saskatchewan ever since.
17The Father’s income, as set out in his tax returns, is as follows: in 2012, he earned $1,884; in 2013 he earned $447; in 2014 he earned $63,817; in 2015, he earned $71,800; in 2016 he earned $86,700; in 2017 he earned $444,696; in 2018, he earned $600,800; and in 2019 he earned $517,367. The Mother asserts the Father’s income is higher as his Notices of Assessment do not account for the income from his professional corporation, and also does not account for various large deposits into his bank accounts in Canada and in India, where the parties apparently have assets.
iv. Ontario Proceedings
18The mother started these proceedings on March 28, 2017. On November 21, 2017, the parties agreed to an interim order on a without prejudice basis, wherein the Father was to pay the sum of $1,180 per month for Janvi only. They also agreed to exchange disclosure and discontinue the India proceedings. Either party had the ability to bring a motion after January 31, 2018 for child support and section 7 expenses in relation to both children.
v. Settlement of Child Support Issues
19Once the Mother commenced the Ontario proceedings, both parties were represented by counsel and communicated through their counsel. Counsel appeared to have ongoing communications and attempted resolution.
20The Father maintains that the negotiations were partially successful in that a number of child support issues were resolved on a final basis. The Father maintains that the settlement resulted from an exchange of letters that started in early October 2018. After the exchange of a number of letters, the Father’s counsel prepared a letter dated January 17, 2019, the pertinent parts which are as follows:
Further to our recent exchange of correspondence, we have received updated instructions from [the Father] that should be able to resolve most of the outstanding issues in this matter. I will address the issues in the same order that they appear in your letter of December 18, 2018:
CHILD SUPPORT AND SECTION 7 ARREARS [The Father] is in agreement with the quantification of his child support and section 7 arrears at the sum of $65,000. In addition, this payment will be made by way of monthly payments of $2,000, commencing January 1, 2019.
ONGOING CHILD SUPPORT [The Father] agrees with your client's proposal that his monthly child support obligation shall be $2,500/per month, commencing September 1, 2018. Upon acceptance by your client, [the Father] will provide a top-up payment to cover the underpayment of support from and after September 1, 2018 to the present date.
Child support will continue until the earlier of the conclusion of Janvi’s undergraduate degree and April 30, 2020. At that time, the onus will be on your client to commence an application or a review of child support to be paid from and after May 1, 2020 (or an earlier date, if warranted).
There will be a dismissal of your client’s claim for child support, as it relates to Aarushi. This will include a dismissal of your client’s allegation that Aarushi is a child of the marriage.
SECTION 7 EXPENSES It is agreed that the parties will each be responsible for 50% of the costs associated with Janvi's eligible section 7 expenses, including tuition and books, on a go forward basis, commencing September 1, 2018. The same issue regarding a review/application to address expenses incurred after May 1, 2020 as in the prior section shall apply to this issue. The onus will be on your client to establish a basis for any future child support for Janvi and contribution to section 7 expenses from and after May 1, 2020.
DIVORCE Based on the above, my suggestion is that we proceed by way of 14B Motion regarding a Consent Order that addresses the issues that have been resolved. In addition, the Order can sever the issue of a divorce from the other corollary issues so that issue can also proceed by way of a 14B Motion.
Please advise forthwith of your client’s position. The six provisions above are non-severable and must all be accepted for there to be a deal.
a) On January 21, 2019, the Mother’s counsel wrote back, in a letter marked “Without Prejudice”. The pertinent parts were as follows:
We are in receipt of your letter dated January 17, 2019 and have reviewed same with our client.
Our client is prepared to settle items 1, 2, 3, and 6 on the terms outlined in your letter by way of a consent order that can proceed by way of a 14B motion. This would resolve all matters relating to your client’s arrears in child support, his ongoing child support, s.7 expenses and a Divorce.
If your client is not prepared to commence making payments in the agreed/revised amount as soon as possible and also refuses to commence payments of his child support arrears, my client would be completely within her rights to bring a motion just on child support matters to enforce your client’s obligations to pay same.
Accordingly, as stated above, my client is willing to settle items 1, 2, 3 and 6 (as set out in your letter) on the terms outlined in your letter by way of a consent order that can proceed by way of a 14B motion.
We are agreeable to your office preparing the 14B motion and providing us with a draft for our review.
21In response, the Father’s counsel emailed the Mother’s counsel on January 23, 2019, as follows:
Hello:
Thank you for your letter.
[The Father] is in agreement with the resolution of child support (including a dismissal of the child support claim regarding Aarushi) and a Divorce as set out in our respective correspondence. We will prepare Minutes of Settlement to give effect to this resolution, a 14B Motion Form and draft Orders, for your review and approval. We hope to have this documentation to you by the end of this week.
22On February 4, 2019, the Father’s counsel forwarded to the Mother’s counsel draft Minutes of Settlement, a 14B Motion for an order on consent, a consent to Order, a draft Order (child support) and a draft Order (divorce). He asked that the Mother sign 4 copies of the Minutes of Settlement along with the consent. Once received, the Father’s counsel agreed to file the 14B motion with the court. The draft Minutes of Settlement clearly set out that the Mother’s claims with respect to Aarushi were dismissed, with prejudice.
23Having heard nothing from the Mother’s counsel for a several weeks, the Father’s counsel followed up on two occasions before receiving a letter dated March 6, 2019, in which he was served with a Notice of Change of Representation, showing that the Mother had retained new counsel. Also served with this letter was a Form 12: Notice of Withdrawal, wherein the Mother withdrew any offers to settle made by her before and during the litigation. This Notice was dated March 6, 2019.
24The Father’s counsel wrote back on March 8, 2019 maintaining the position that an offer that was accepted could not be withdrawn. On April 5, 2019, on April 11, 2019, and again on April 26, 2019, the Mother’s new counsel asked for an indulgence to respond to his letter. On May 28, 2019, having heard nothing, the Father’s counsel against wrote to the Mother’s new counsel and asked for clarification on their position. The Father’s counsel indicated that if the Mother’s position was that there was no binding agreement, the Father would like to have that single issue determined before the remainder of the issues are adjudicated. That same day, the Mother’s counsel responded indicating that her client’s position would be set out in her settlement conference brief.
25Upon receipt of the Mother’s settlement conference brief, wherein it was clear that the Mother took the position that there was no binding settlement, the Father brought this motion.
26The Father has delivered cheques in support of this settlement, which the Mother has cashed.
v. The Children
27Janvi obtained an Honours Bachelor degree in Health Sciences at Wilfrid Laurier University in Waterloo (“WLU”). She was on the Dean’s List each year. Janvi lived away from home for her first two years, but since mid-2018 has resided with the Mother and commuted. Janvi was accepted by the University of Toronto for a Master’s programme in Public Health, specializing in epidemiology, starting September 2020. This is a 16-20 month programme. Tuition is approximately $11,719.90 per year. She intends to apply for scholarships and other awards.
28Janvi hopes to be accepted to medical school and follow in her parents’ footsteps, or in the alternative, to become a dentist. She has arranged to write the MCAT and DAT, the entrance exams for medical school and dental school, respectively.
29Aarushi is also a very intelligent and engaged student, who is currently in grade 8.
C. Issues
30The following issues must be determined:
a) Is the relief sought by the Father properly adjudicated by summary judgment?
b) If so, does the evidence support a finding that a binding and enforceable agreement was reached between the parties with respect to retroactive and prospective child support?
c) If this court finds the purported settlement to be binding and enforceable, should this court grant summary judgment to the Mother to set aside this settlement on the basis that it contravenes the Guidelines, by providing insufficient support based on the Father’s income, and because it does not provide support for Aarushi, to whom he is alleged to act in loco parentis?
d) If the purported settlement is set aside, should a order for child support be made for either child at this time?
e) What disclosure should be ordered?
D. Analysis
i. Partial Summary Judgment
31Subrule 16(1) of the Family Law Rules, O. Reg. 114/99 states as follows:
- (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
32The subrule specifically permits the entire claim, or even part of a claim, to be adjudicated in this manner. Accordingly, this subrule permits the parties to seek partial summary judgment. This is what the Father seeks – a final judgment on only some of the issues raised in this Application and Answer. If the Father is successful, the Mother also seeks relief with respect to only some of the issues raised in the pleadings.
33In determining whether a motion for summary judgment is appropriate, a judge must first determine whether there is a genuine issue requiring a trial based only on the evidence before them, without using the new fact-finding powers. There is no genuine issue requiring a trial if the evidence presented: (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. If, after this analysis, it appears that there is a genuine issue for trial, the judge should determine if a trial can be avoided by using the new powers under r. 20.04(2.1) and (2.2) to weigh evidence, decide credibility and draw reasonable inferences: These powers should be exercised unless it is in the interest of justice for them to be exercised only at a trial: r. 16(6.1); Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 42-49, 66-68.
34A process that does not give a judge confidence in their conclusions can never be proportionate, timely or cost effective. The standard of fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that they can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. The evidence need not be the equivalent to that of trial, but must be such that the judge is confident that they can fairly resolve the dispute: Hryniak, at paras. 50, 57; Zaky v. 2285771 Ontario Inc., 2020 ONSC 4380, at para. 16.
35The proper circumstances in which to bring a motion for partial summary has been addressed by the Court of Appeal for Ontario on a number of occasions.
36In Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, a number of concerns with partial summary judgment were raised. A motion for partial summary judgment could cause the action to be delayed, be very expensive, unduly occupy the judiciary in a way that does not entirely dispose of an action, and could lead to inconsistent findings of fact: Butera, at paras. 30-33. Pepall J.A., writing for the court, stated the following at para. 34:
A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that maybe dealt with expeditiously and in a cost effective manner. Such an approach is consistent with the objectives described by the Supreme Court in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits.
37In Malik v. Attia, 2020 ONCA 787, at paras. 61-62, the Court stated:
[T]he risk of inconsistent findings is only one of several matters that a motion judge must consider when asked to entertain a motion for partial summary judgment. Reduced to its essence, the decision in Hryniak v. Mauldin promoted summary judgment as a procedural tool that offers the prospect, when used in the right circumstances, to provide litigants with timely and affordable access to the civil court system. Given that simple objective, before embarking on hearing a motion for partial summary judgment a motion judge must determine whether, in the circumstances, partial summary judgment will achieve the objectives of proportionate, timely, and affordable justice or, instead, cause delay and increase expense.
When faced with a request to hear a motion for partial summary judgment, a motion judge should make three simple requests of counsel or the parties:
(i) Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;
(ii) Show how partial summary judgment will get the parties’ case in and out of the court system more quickly;
(iii) Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case. [Citations omitted.]
38It is the desire of the court that parties resolve their own issues. In addition, litigants need to be confident that any settlement reached is enforceable. That being said, this is not one of those circumstances in which the resolution of only some of the issues before the court by way of summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result. While the three questions raised in Malik were not specifically asked of counsel in this motion, an analysis of the litigation shows that the response to these three questions would undoubtedly lead this court to the conclusion that granting partial summary judgment is not appropriate in these circumstances.
39First, there is a possibility of inconsistent findings of fact if the Father’s request for relief is granted.
40The purported settlement appears to resolve the issues of retroactive child support and section 7 expenses, prospective child support and section 7 expenses, and whether Aarushi is a child of the marriage. What remains to be adjudicated is spousal support and equalization. When determining the proper spousal support to be paid by either party to the other, the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), states:
15.2 (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
41Accordingly, when determining the entitlement of each party to spousal support and the proper amount of spousal support to be paid, evidence will be presented regarding the parties’ income, the roles the parties played in parenting both Janvi and Aarushi, and the financial consequences that arose therefrom. This leads to the possibility of a finding that the Father acted as a parent to Aarushi during the time the family was intact, or that each parties’ income is different than what was used to reach the resolution on child support.
42Second, the determination of spousal support is often inextricably intertwined with child support. The court will have to consider the child support arrangements made first, before the proper amount of spousal support can be determined.
43Third, the purported settlement agreement eliminates Aarushi’s right to periodic child support and potentially Janvi’s right to support through her post-secondary schooling.
44When parties reach a settlement on property issues and even spousal support, it is usually the result of give and take in negotiations. The parties are unfettered in their ability to make a deal with which they can live after proper disclosure or the conscious and informed decision to not pursue disclosure.
45Child-centric issues are different. A resolution with respect to children must be in the child’s best interests, and a judge is not obligated to accept any settlement that they determine is not in a child’s best interests, although reasons for this rejection should be provided: Richardson v. Richardson, 2019 ONCA 983, 35 R.F.L. (8th) 265, at para. 26, leave to appeal to the Supreme Court of Canada granted, [2021).
46In addition, child support is the right of the child. A spouse cannot barter away their child’s right to support in a settlement agreement: Richardson v. Richardson, [1987] 1 S.C.R. 857 at 869, as followed in C.M.M. v. D.G.C., 2015 ONSC 1815, at para. 90:
90First, child support is the right of the child. Second, no contract or agreement can oust the court's jurisdiction in respect of child support. Parents cannot barter away a child’s right to support. Third, the parents' conduct at the time of the child's birth and thereafter, and at the time of the Agreement, is irrelevant to the child's entitlement to support. Finally, the court is always free to intervene and determine the appropriate level of support for a child. [Citations omitted.]
47It is acknowledged that the Father is not seeking a finding of fact that Aarushi is not a child of the marriage or that Janvi has repudiated her relationship with her Father. I agree with the Father that these are triable issues beyond the scope of a motion for summary judgment. The undisputed facts are, according to the Father, that an offer was made, and accepted, on the child support issues and Aarushi’s status. According to the Father, that disposes of those issues, which results in a shorter trial on the remaining issues.
48The Father has provided this court with a number of cases that support this court’s authority to find judgment based on an agreement reached between the parties, whether or not it conforms with s. 55(1) of the Family Law Act, R.S.O. 1990, c. F.3, when the parties are both represented and the terms are clear. While these cases are good authority for the argument put forward, they are all distinguishable on the same point. All these cases involve agreements to resolve all outstanding issues in the litigation, not just some, and not just issues involving the support of the children.
49In the case before me, the settlement reached, in effect, potentially bargains away Aarushi’s right to child support and Janvi’s continued right. The court cannot simply grant summary judgment on the basis of an agreement made, but must instead look at the substance of the agreement itself when it applies to the rights of the children. However the motion for summary judgment is characterized, the result is the same – a result which is potentially contrary to statute and case law.
50Finally, the granting of summary judgment in these circumstances does not give the parties more affordable and timely access to justice. It will not necessarily shorten the trial as the court will still have to determine each party’s income for the purposes of spousal support. The historic role of each party in the marriage will also have to be presented. There are minimal if any savings to the parties by bifurcating the issue of child support in this scenario.
51Accordingly, determining the issue of whether there is a binding settlement on the child support issues and the status of Aarushi as a child of the marriage should not be determined by summary judgment, as it would not be the most proportionate, more expeditious and less expensive means to achieve a just result in this matter.
ii. Is the Agreement Binding?
52Given this determination, there is no need to decide the second issue. I specifically made no finding on this issue so as to not encroach upon the trial judge’s role to adjudicate the issues on the entirety of the evidence before them.
iii. Setting Aside the Agreement
53The Mother seeks summary judgment in the event that the Father’s motion is granted. Given my decision in that regard, the Mother’s request for summary judgment becomes moot.
54In any event, my analysis with respect to the appropriateness of summary judgment in general, applies to the Mother’s request as well. The bases on which the Mother seeks to set aside the purported agreement are clearly triable issues. The Mother and the Father have provided competing affidavit evidence on the issues of the Father’s role in Aarushi’s life and the relationship between the Father and Janvi. These factual findings cannot be made at a motion for summary judgment, and should be reserved to trial. I specifically make no finding to the validity of the purported agreement, again so as to not encroach upon the role of the trial judge.
iv. Child Support Order
55The Mother’s request for an order for retroactive and ongoing child support was dependant on this court granting summary judgment in her favour. Given that the Mother’s motion was moot, the issue of child support will not be considered at this time.
56Currently, an interim and without prejudice order is in place that the Father pay support for Janvi in the sum of $1,180 per month. Until which time another order is made that stops support or varies it, that order remains in effect.
v. Disclosure
57Despite the extensive disclosure requested by the Mother, very little time was spent during the argument of this motion on what is appropriate disclosure and what has been fulfilled to date.
58The Mother has requested an order that she produce those items listed in paragraph 3(a) of her Amended Notice of Motion. Given that she requested this order with respect to herself, I see no reason to not so order. Counsel for the Father indicates that some of this disclosure remains outstanding.
59The Father maintains that a great deal of the requested disclosure will not be relevant if his motion for summary judgment is granted. Given my ruling on that issue, full disclosure must continue.
60In her submissions, the Mother did acknowledge receipt of some of the disclosure requested from the Father. In some instances, she acknowledges a response, but does not find it satisfactory. Some of the items requested were already ordered by Trimble J., or are items that the Father must disclose in the usual course under the Guidelines. In general, the disclosure requested appears reasonable given the history of these parties and the issues outstanding.
E. Conclusion
61For the foregoing reasons, I make the following orders:
a) The Father’s motion for summary judgment is dismissed;
b) The Mother shall provide to the Father the disclosure listed in paragraph 3(a) in her Amended Notice of Motion, dated July 28, 2020, if not already provided, within 30 days. If the Mother is unable to provide the disclosure, she is to provide a sworn affidavit within 30 days, advising why she could not produce it and when it could be available;
c) The Father shall provide to the Mother the disclosure listed in paragraph 3(b)(ii), (vi), (viii) but for 2019 only, (x), (xi), (xiii), (xiv), (xv), (xvi), (xvii) in her Amended Notice of Motion, dated July 28, 2020, if not already provided, within 30 days. If the Father is unable to provide the disclosure, he is to provide a sworn affidavit within 30 days, advising why he could not produce it and when it could be available;
d) Disclosure for 2020 shall be provided as soon as it is available;
e) The parties are encouraged to resolve the issue of costs themselves. If they are unable to do so, the parties shall serve and file their written submissions, restricted to two pages, single-sided and double-spaced, exclusive of costs outline and offers to settle, no later than 4:30 p.m. on March 19, 2021. The parties shall serve and file their responding submissions, with the same restrictions, no later than 4:30 p.m. on April 2, 2021.
f) The remainder of the relief sought by either party is dismissed.
Fowler Byrne J.
Released: March 2, 2021