COURT FILE NO.: FS-19-41901 DATE: 2021 03 10 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: M.C., Applicant AND: M.A.C., Respondent
BEFORE: Conlan J.
COUNSEL: Ms. Smithen, Counsel for the Applicant Mr. Mamo/Mr. Rappaport, Counsel for the Respondent
HEARD: March 9, 2021
Endorsement
I. Introduction
[1] Each side has a Motion before the Court. They were supposed to be argued at Court, before another Justice, on February 23, 2021, but they were adjourned on that date to March 9th. Apparently, according to the Endorsement made on February 23rd, and as confirmed by counsel during the hearing on March 9th, the case is set for trial during the blitz sittings commencing this very month. Clearly, therefore, time is of the essence.
The Mother’s Motion
[2] In her Notice of Motion dated January 29, 2021, except for some disclosure items that were resolved between the parties before today and were made the subject of a consent Order issued on the last occasion, the Applicant mother, M.C., seeks disclosure of various documents from the Toronto Police Service, the Halton Regional Police Service, the Crown Law Office, the Halton Children’s Aid Society, lawyer David Whitten (who represented the father in an employment law matter), the Bank of Montreal, the Bank of Nova Scotia, the Canadian Imperial Bank of Commerce, the Royal Bank of Canada, the Toronto Dominion Bank, Jim Dimitropoulos (the father’s accountant), and Stuart W. Henderson (the father’s real estate lawyer).
[3] The mother also seeks disclosure of documentation directly from the father regarding (i) his attempts, successful or otherwise, to sell the property in Oakville, Ontario (now owned, on title, by the father alone) and (ii) how the mortgages obtained were spent between July 1, 2016 and today.
[4] In addition, the mother seeks a preservation Order to secure the father’s child and spousal support obligations. That Order would, among other things, require that the net proceeds of sale of the property in Oakville, Ontario be paid to counsel for the mother, in trust.
[5] Finally, the mother seeks costs.
[6] In her Confirmation (Form 14C) dated March 2, 2021, M.C. relies upon her Affidavit sworn on January 29, 2021, her Reply Affidavit sworn on February 18, 2021, and her Factum dated February 19, 2021.
The Father’s Position on the Mother’s Motion
[7] Succinctly put, the father’s position regarding the mother’s Motion is that (i) the remaining disclosure requests are overly broad, irrelevant, privileged, and/or amount to a fishing expedition, and (ii) without admitting that a preservation Order is required, the father will agree to have the net proceeds of sale of the home in Oakville, Ontario held in trust by his real estate lawyer, on condition that $50,000.00 be dispersed to each party to fund basic expenses pending a trial decision.
The Father’s Motion
[8] In his Amended Notice of Motion dated February 16, 2021, the Respondent father, M.A.C., requests the following relief by March 15, 2021: (i) an abridgement of the time for serving and filing the Motion, if necessary, (ii) disclosure of all written communications between the Applicant mother, M.C., and the children (T., born in […] 2003, and J., born in […] 2008) from January 2019 to date, (iii) numerous items of financial disclosure, (iv) an Order requiring the parties to sign an authorization and direction to release the complete files of Dr. Saini (who completed a Voice of the Child Report) and Dr. Polak (who completed a Clinical Intake Consultation Report), including all of their notes and records and all of their communications with the parties, (v) an Order that M.C. provide her position, with documentary evidence where available, on what amount of support the father has actually paid to her since the date of separation and on what amount of section 7 expenses for the children the father has paid since the date of separation, (vi) an Order that the mother provide documentary evidence in support of her trust claim, and (vii) costs.
[9] Some of the relief sought by the father has already been resolved between the parties, leaving four substantive items that counsel for the father outlined for the Court during the hearing on March 9th: (i) the written communications between the mother and the children, (ii) the mother’s position about support paid by the father, (iii) the mother’s position about section 7 expenses paid by the father, and (iv) the mother’s documentary evidence in support of her trust claim.
[10] In his Confirmation (Form 14C) dated March 2, 2021, M.A.C. relies upon his Affidavit sworn on February 12, 2021, his Supplementary Affidavit sworn on February 16, 2021, and his Amended Factum dated March 4, 2021.
The Mother’s Position on the Father’s Motion
[11] Regarding the father’s Motion, in her Confirmation, the mother states that she opposes the relief being sought by the father because it would make the children witnesses in the proceeding, and their communications are inadmissible hearsay in any event, and she requires the disclosure that she seeks in her Motion before she can address the remaining items being sought by M.A.C.
II. Decision
[12] This trial could start as early as March 22nd, less than two weeks from now. The online file is already so large and convoluted that it will be extremely difficult for the assigned judge to manage the trial; I only hope that whomever is the trial judge will have an opportunity to speak with counsel before the trial starts to give explicit instructions as to how trial-related documents are to be filed.
[13] In any event, the looming trial date means that this decision needs to be made immediately. Hence, the analysis must be fairly brief.
The Mother’s Motion
The Police and the Crown Records
[14] Unopposed by the non-parties, the relief sought by the mother is granted. An Order shall issue as per clauses 1 through 7 of the mother’s draft Order that had been dated February 23, 2021.
[15] I have Mr. Mamo’s submission that the father has already consented to the disclosure of all police and Crown records from January 1, 2012 to the present, and I acknowledge further Mr. Mamo’s submission that any police involvement before January 1, 2012 appears to be limited to something that occurred in 1999, which is undoubtedly a long time ago and before either child was born.
[16] Nevertheless, I am satisfied on balance that what the mother seeks is relevant, and is material, and has potential probative value that outweighs any risk of prejudice or distraction, and will very likely not require any adjournment of the trial, and, finally, is proportionate in all of the circumstances.
[17] Remember, the mother’s theory includes very serious allegations of more than two decades of abuse and intimidation at the hands of the father. So much so that she seeks the extraordinary remedy of a permanent restraining Order against the father, and she also seeks to have implemented a highly guarded relationship between the father and the children. Domestic violence is an important consideration in determining the best interests of children and in making parenting decisions for them, as clearly exemplified by the very recent amendments to Canada’s Divorce Act.
The CAS Records
[18] Unopposed by the non-party, the relief sought by the mother is granted. An Order shall issue as per clauses 8-9 of the said draft Order referred to above.
[19] Mr. Mamo is correct that his client has already consented to the disclosure of all CAS records from January 1, 2012 to the present, and counsel for the father may also be correct that the only CAS involvement before January 1, 2012 took place in 2005, however, for substantially the same reasons as articulated above with regard to the police and the Crown records, I agree with Ms. Smithen that the trial judge ought not to be deprived of child welfare records that go even further back in time.
The Whitten, Dimitropoulos, and Henderson Records
[20] All of this relief being sought by the mother is denied.
[21] First, the name “Michael Clouse” of Diamond & Diamond is not included in the above subheading. There are good reasons for that. I am not entertaining any request for records from that lawyer because (i) the mother’s said draft Order is silent on that, and (ii) the mother’s said Confirmation is silent on that, and (iii) I accept Mr. Mamo’s comment that the said relief appeared to be abandoned by counsel for the mother at the last Court attendance, which likely explains why the Endorsement of the Justice then presiding does not mention Mr. Clouse.
[22] Second, regarding the lawyer David Whitten, I agree with Mr. Mamo that Rule 19(11) of the Family Law Rules, relied upon by the mother, does not, by its express wording, assist her in obtaining the disclosure that she seeks.
[23] Mr. Whitten, as an officer of the Court, has indicated that he previously provided to M.A.C. the full content of the employment law file that he handled for the father. Thus, it cannot be established on balance that the documents are “available only to the non-party”. Further, even assuming that the documents are “in a non-party’s control”, the mother has failed to demonstrate that the Whitten file “is not protected by a legal privilege”.
[24] As to whether “it would be unfair to a party to go on with the case without the document”, I acknowledge Ms. Smithen’s submission that the Whitten file may be relevant to the mother’s theory that the father has a history of sabotaging high-paying jobs and, thus, he should have income imputed to him for support purposes, but the requested disclosure is not at all necessary to advance that argument at trial. Given what Whitten has said about having provided the file contents to M.A.C. himself, Ms. Smithen can ask the trial judge to draw an adverse inference against the father for his failure to disclose documentation that clearly outlines the reason(s) for his employment termination.
[25] In short, the mother cannot meet the well-established test for non-party disclosure of the Whitten file, as set out by Justice Mulligan at paragraph 15 of His Honour’s decision in Bailey v. Bailey, 2012 ONSC 2486.
[26] Finally, I agree with Mr. Mamo that the materials filed on behalf of the mother do not meet the degree of specificity required for this type of non-party disclosure. Santilli v. Piselli, 2010 ONSC 2874, at paragraphs 8-12.
[27] Third, regarding the accountant, Mr. Dimitropoulos, I agree with Mr. Mamo that the correspondence from the accountant, found at Exhibit “N” to the father’s Affidavit sworn on February 12, 2021, is a complete answer to the mother’s disclosure request. Again, given that correspondence, Ms. Smithen can ask the trial judge to draw an adverse inference against the father for his failure to disclose “Notice of Assessments and Tax Returns from Jan 1, 2019 to present”.
[28] Fourth, regarding the lawyer, Stuart Henderson, it is simply not sufficient for the mother to argue that the Henderson real estate documents might have some relevance to something that the father might have done with the Oakville property in terms of remortgaging, or changing title, or something else, which is essentially the crux of the mother’s position when one examines her evidence and the Factum submitted by her counsel. That type of nebulous catch-all is the classic lure in the water that the law on disclosure is designed to discourage, particularly when we are effectively on the doorstep of the trial.
[29] In terms of the title on the Oakville property, the mother already has the undisputed facts that she needs to establish the starting point of her beneficial ownership trust claim. The property was transferred from the two parties jointly to M.A.C. alone in or around July 2016. Enough said.
The Bank Records
[30] This issue may be disposed of rather quickly. The father objects to any further disclosure beyond what he has already agreed to provide, that is anything further back than January 1, 2018. The mother, on the other hand, when one examines her said Draft Order, clause 12 therein, is only looking for another 18 months of records – starting on July 1, 2016.
[31] The parties separated in January 2019. With respect, I do not see it as unduly intrusive or at all unusual for a support and trust claimant to demand financial records of the other side going back 2.5 years before separation, including records of all electronic money transfers from the father to others, whether that other person is the mother or someone else.
[32] I know that Mr. Mamo points out that the mother has not made an equalization payment claim, but I am of the view that the said position is a tentative one and is not fatal to the disclosure being sought. I am also mindful of Mr. Mamo’s submission that only electronic money transfers from the father to the mother are warranted, but that is true only with regard to the mother’s claim that she has not actually received some of the payments that the father asserts he has made to her electronically. There is also the broader argument being advanced by the mother that the electronic transfer payments are relevant to support issues generally, including the father’s ability to pay, and to the mother’s trust claim. To limit the electronic transfer payment records to only those where the mother was the recipient is too narrow of a scope, in my opinion.
[33] The Order, however, should be made against the father, and not against the banks.
[34] This Court orders that the father shall produce the items referred to at (a) through (e) of clause 12 of the mother’s said Draft Order.
[35] In my view, that disclosure Order should not necessitate any adjournment of the trial.
Other Financial Disclosure
[36] The mother also seeks disclosure of documentation directly from the father regarding (i) his attempts, successful or otherwise, to sell the property in Oakville, Ontario, and (ii) how the mortgages obtained were spent between July 1, 2016 and today.
[37] The former relief is hereby granted and shall form part of the Order being made herein.
[38] The latter relief is denied as it is redundant; the said disclosure will undoubtedly be included in the bank records disclosure ordered immediately above and that disclosure already consented to previously by the father.
[39] As well, it is common ground between the parties that there exists a federally-incorporated company called “Bluushark”, which the father controls but for which no disclosure has been provided. I am of the view that the father can and should provide some disclosure regarding that company, even if it is dormant as suggested by Mr. Mamo in his oral submissions.
[40] Thus, this Court orders that, commencing on the same date as with the other financial disclosure ordered herein, that is July 1, 2016, through to the present day, M.A.C. shall produce whatever corporate records (including but not limited to Articles of Incorporation, By-Laws, Minute Books, Minutes from meetings, and Shareholders’ Resolutions) and whatever financial records (including but not limited to bank statements and Canada Revenue Agency tax documentation) that exist for the said company.
[41] Again, I do not see this disclosure Order as necessitating any adjournment of the trial.
Preservation Order
[42] I agree with Ms. Smithen that such an Order is required in this case, but I also agree with Mr. Mamo that the Order must (i) allow for the payment of any capital gains tax owing on the sale of the Oakville property, and (ii) allow for the payment of outstanding amounts owing to tradespersons and contractors on the date of sale, and (iii) provide that the funds in trust be held by a neutral professional and not by one of the two family lawyers involved in the case.
[43] Ms. Smithen is concerned that there may be no capital gains tax payable. If that is true, then no prejudice will result to either side.
[44] Ms. Smithen is also concerned that there may be illegitimate amounts paid out to tradespersons and contractors – alleged debts that are disputed by the mother. Again, that concern can be met with leaving it to the real estate lawyer to decide if the payment in question needs to be made immediately or not, or whether it can await the trial.
[45] Finally, I agree with Ms. Smithen that an advance payment to each side from the net proceeds of sale of $125,000.00 is in order. Mr. Mamo is correct that the said relief was not expressly requested in the mother’s original Motion, but there is no prejudice to the father because it was explicitly outlined in the mother’s said draft Order.
[46] I do not think that the $50,000.00 suggested by the father, although reasonable, is sufficient to place the mother on relatively equal footing to fund what will undoubtedly be a tough and lengthy trial.
[47] Surely, I can depend on two very good and experienced counsel to draft the wording for the preservation Order. It shall incorporate terms (i) and (ii) above, and it shall provide that the net funds will be held in trust by the real estate lawyer, and it shall provide for the $125,000.00 advance payment to each side.
The Father’s Motion
[48] In large part, the father’s Motion is granted.
[49] First, regarding the communications between the mother and the children, the relief sought is granted but is subject only to any such communications from the mother to either child or to both children. I repeat, no communications from either child or from both children to the mother shall be disclosed. Order accordingly.
[50] In the result, the father’s alternative position prevails.
[51] I have Ms. Smithen’s submission that two professionals and one Judge appear to have concluded that there is no evidence of parental alienation in this case, but that does not end the enquiry.
[52] The father has the right to advance that theory at trial, and he has agreed to strictly time-limit the communications being sought so as to minimize the intrusiveness of his request. I also think that he has outlined, at paragraphs 2 through 7 of his Supplementary Affidavit sworn on February 16, 2021, an adequate evidentiary foundation for his strictly-defined request, limited even further by the Order made herein.
[53] Second, this Court orders that the mother shall comply with the fairly simple requests that she provide her position, with documentary evidence where available, on (i) what amount of support the father has paid to her since the date of separation, and on (ii) what amount of section 7 expenses for the children the father has paid since separation, and (iii) that she provide documentary evidence in support of her trust claim.
[54] Ms. Smithen is concerned, not unjustifiably so, that her client’s answers to these demands will prove incorrect once the further disclosure ordered herein to be provided by the father is received and analyzed. So be it. No trial judge would hold that against the mother.
[55] Ms. Smithen may also be concerned that the Order being made herein is not reciprocal. That can be addressed through a simple request made of Mr. Mamo that the father also provide his positions on the three items delineated above. I am sure that, if made, that request would be fulfilled.
The Overall Result and the Issue of Costs
[56] For all of the above reasons, the mother’s Motion is allowed in part, and the father’s Motion is allowed in part.
[57] On its face, there has been some mixed success here. In any event, if the parties cannot resolve the issue of costs of the two Motions, I will accept brief written submissions from counsel. Each submission shall be limited to three pages, excluding attachments. Only because the mother filed her Motion first, she will file her costs submissions first, within thirty (30) calendar days of March 10, 2021. The father shall file his submissions within fifteen (15) calendar days of his lawyer’s receipt of the mother’s submissions. Without leave of the Court, no reply is permitted.
(“ Original signed by ”) Conlan J. Date: March 10, 2021