COURT FILE NO.: FS-19-41890

DATE: 2021 03 29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: K.A., Applicant

AND:

R.L., Respondent

BEFORE: Conlan J.

COUNSEL: Annette Nyland, Counsel for the Applicant

Andrew Kania, Counsel for the Respondent

HEARD: March 29, 2021

ENDORSEMENT

I. Introduction

The Motion

[1] The Motion before the Court is brought by the Applicant mother, K.A. Principally, she seeks an “Order that the Order of the Honourable Justice Miller, dated February 3, 2021, be enforced”.

[2] That Order of Miller J. was made on consent, in writing, and required the Respondent father, R.L., to produce specified disclosure (items 2 through 28).

The Background

[3] The parties were married in September 2007 and separated in August 2018. They share custody of two children, ages 13 and 11.

[4] K.A. works for TD Bank and earns about $50,000.00 per year. R.L. is self-employed as a real estate agent and owns other businesses as well.

The Positions of the Parties

[5] Attached as Exhibit “Q” to K.A.’s Affidavit sworn on March 12, 2021 is a chart that is alleged to show what disclosure remains outstanding. Unfortunately, the chart outlines 112 items and does not make reference to the clauses contained in the Order of Justice Miller.

[6] R.L. submits that he has fully complied with the February 3, 2021 Court Order.

II. Analysis and Conclusion

The Issue

[7] The question before this Court is simple: has R.L. complied with the Order of Miller J.?

The Law

[8] Notwithstanding that disclosure motions are the bane of a judge’s existence, even dependable sources of misery have attached to them important legal principles.

[9] The duty to disclose financial information is a fundamental aspect of family law. It is a basic obligation that is immediate and is ongoing throughout the entire proceeding. A party’s failure to respect that obligation only serves to impede the progress of the case, cause delay, disadvantage the other side, waste valuable judicial resources, increase costs, stall a final determination of the substantive issues on their merits, and generally make a mockery of the proper administration of justice. Roberts v. Roberts, 2015 ONCA 450, at paragraphs 11 and 12; Mullin v. Sherlock, 2018 ONCA 1063, at paragraph 32.

[10] Full and frank disclosure, however, does not necessarily equate with exhaustive disclosure. “Give me everything you got” is not helpful. Nor is it consistent with another basic tenet of disclosure – proportionality. Kovachis v. Kovachis, 2013 ONCA 663, at paragraph 34; Mullin, supra, at paragraph 33.

[11] I agree with my colleague, Justice Kiteley, when it was said that “[i]t is not consistent with the primary objective for the court to review the nitty gritty detail of whether a particular letter or a particular document fully responds”. There are instances where the most appropriate outcome is to require that counsel “proceed to cross-examinations on the disclosure each now has” and then, if necessary, pursue further undertakings during the questioning. Noy v. Noy, [2014] O.J. No. 6220 (S.C.J.), at paragraph 27.

[12] I would add something to what Justice Kiteley stated, and that is that the Court’s reluctance to microscopically examine whether a particular document fully responds to the disclosure request, or fully complies with the existing disclosure Order, only becomes stronger when the document is considered by the Court to be further and further removed from the core issues at hand.

The Law as Applied to Our Case

[13] Although I accept the submission by Ms. Nyland that the chart contained at Exhibit “Q” to her client’s original affidavit filed on the Motion is, generally, an accurate reflection of the Miller J. Order, but simply organized differently and “fleshed out”, I agree with Mr. Kania that it is the Order itself that must govern this Court’s analysis.

[14] I also agree with Mr. Kania that, where the moving party is demanding very strict compliance with the consent disclosure Order, it is also true that the moving party should not be entitled to add or read-in things to that Order. For example, contrary to K.A.’s position that the Order had a deadline for compliance of February 19, 2021, there is no deadline stipulated in the Order, Mr. Kania submitted. I agree. Further, contrary to K.A.’s position that there are some outstanding items of disclosure for the year 2020, many of the clauses of the Miller J. Order pertain to years ending in 2019, Mr. Kania submitted. Again, I agree.

[15] Having said that, and without having to review the “nitty gritty detail” of every document disclosed by R.L. to date, and there are stacks and stacks of them, I have concluded that there are some material deficiencies in what he has produced.

[16] First, R.L. was required by the Order to disclose his complete 2019 personal tax return (clause 2a of the Order). What he produced was his T1 General – Condensed, 2019. He has not complied with the Order. He must disclose his T1 General for that taxation year, or alternatively provide an explanation in writing as to why he cannot do so.

[17] Second, R.L. was required by the Order to disclose copies of any rent or lease agreements transacted upon with specified properties from 2015 to the present (clause 17 of the Order). What R.L. has done instead is assert that K.A. already has the information because she previously took five boxes of his records and, in addition, if desired he will make them available for inspection at his lawyer’s office. He has not complied with the Order. It is not for this Court to revisit whether a clause in a consent disclosure Order was appropriate to begin with. And there is no obligation on the part of K.A. and/or her counsel to attend for any inspection of the documents. The Order must be complied with.

[18] Third, R.L. was required by the Order to disclose copies of any and all bank statements held by his companies or him personally from 2015 to the present (clause 18 of the Order). Part of his response was that he is still waiting for certain documentation from TD Bank and from Royal Bank of Canada. He has not complied with the Order, and he shall, forthwith, follow-up with those institutions to reiterate his requests and to demand that the institutions expedite his requests.

[19] Fourth, R.L. was required by the Order to disclose copies of any receipts related to the improvement of the specified properties (clause 23 of the Order). What R.L. has done instead is assert that K.A. already has the information and, in addition, if desired he will make them available for inspection at his lawyer’s office. He has not complied with the Order. As stated above, it is not for this Court to revisit whether a clause in a consent disclosure Order was appropriate to begin with. And, again, there is no obligation on the part of K.A. and/or her counsel to attend for any inspection of the documents. The Order must be complied with.

[20] Fifth and finally, R.L. was required by the Order to disclose a detailed summary of all gross commissions earned within his companies between 2015 and 2019 (clause 11 of the Order). What R.L. has done instead is produce a series of T4A slips. He has not complied with the Order. A series of pieces of paper is not a “detailed summary”. This is a simple task; it can be done by way of a letter from Mr. Kania which sets out the name of the company, the year, and the gross commission received, if any. The Order must be complied with.

[21] Besides the five items outlined above, without spending hundreds of hours pouring over every document that has been disclosed to date, which I am not prepared to do and which I ought not to do, particularly given that questioning is scheduled to take place in the very near future, I am not persuaded on a balance of probabilities that R.L. has failed to comply with the Miller J. Order.

[22] As it turns out, this Endorsement addresses that category of documents that Ms. Nyland submitted is the most important to the support issues in this proceeding – those documents that are directly related to R.L.’s income.

[23] Part of the problem rests with the vagueness of some of the other clauses contained in the Order under review. As just one example, paragraph 25 states “[p]rovide a listing of any commission earned by the Companies or personally by R.L. on real estate transactions that would be considered below market rate, including a detailed explanation as to the rational for the reduced rates from 2015-present”. Is the “below market rate” referable to the transaction or to the commission? It is not clear to me. And why would the company earn a commission? I have no idea.

Order

[24] The Motion is, therefore, allowed in part. This Court orders that R.L. shall, within thirty (30) calendar days after March 30, 2021, comply with this Endorsement as it pertains to the five disclosure items referred to above.

[25] Nothing herein shall be taken as amending the Order made by Justice Miller. That Order stands. The Order made by this Court is a fresh one.

[26] The balance of the Motion is dismissed. Of course, either side is free to bring a/another disclosure motion depending upon what transpires at the upcoming questioning.

Costs

[27] If the parties cannot resolve the costs of the within Motion, I will hear brief oral submissions by Zoom. Counsel may arrange that through the trial office in Milton. Thirty minutes total shall be set aside for that purpose.

(“Original signed by”)

Conlan J.

Date: March 29, 2021