COURT FILE NO.: FS-20-0025-00

DATE: 2021 04 13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MUBEEN QURESHI

Applicant

• and -

SHOUKAT QURESHI

Respondent

BEFORE: EMERY J.

COUNSEL: Laura Natalizio for the Applicant

Q. Adil Farooq, for the Respondent

HEARD: January 21 and 29, 2021, by video-conference

REASONS FOR DECISION

1The Applicant’s motion was heard in two parts over January 21 and January 29, 2021. The first part of the motion relating to the amendment of the Application (on an unopposed basis), request for a Certificate of Pending Litigation (“CPL”) and a preservation/non-dissipation order was heard and granted on January 21, for reasons to follow. Those reasons are set out in this decision.

2The motion seeking an order for expanded disclosure from the Respondent was the second part, which was heard on January 29 for approximately two hours. The time to hear this part of the motion exceeded the limit of one hour permitted to hear regular motions. This time was required even with the chart of disclosure items I directed counsel to prepare with inputs from counsel for the parties for the 75 items at issue.

Background facts relevant to the motion

3Much of the background to the relationship of the parties and the facts of the case are taken from the Applicant’s factum. The Respondent did not file a factum, and not much time was spent at the motion to provide the backdrop to the matters at issue.

The parties separate after a long marriage

4The parties were married on September 14, 1967 in Pakistan. Their marriage was arranged. The parties moved to Mississauga, Ontario, Canada, in September 1974. They had two children, now in their forties and independent.

5The Applicant alleges that the Respondent dominated the decision making over the family finances during their long marriage. She alleges the Respondent controlled their finances while she took a docile role over the years.

6The parties separated on July 22, 2019 with no prospect of reconciliation. The separation occurred after an incident of domestic violence thar resulted in charges being laid against the Respondent.

7The Applicant is currently 75 years old and the Respondent is 82 years old. Both are retired. The Applicant continues to reside in the matrimonial home at 5296 Naskapi Court, Mississauga, Ontario. Title to the matrimonial home is held jointly by the parties. Since the parties separated, the Respondent has moved to 350 Prince Royal Drive, Unit 1604, Mississauga, Ontario, LSB 4N1. Title to the Prince Royal Drive property is held solely by the Respondent.

8Both parties currently receive Old Age Security and Canadian Pension Plan benefits. The Respondent also receives rental income and income generated from various stocks, investments and registered accounts. Although these assets are held in the Respondent's name, the Applicant claims they were purchased with joint funds. The parties also invested in properties they have rented during the marriage as income producing assets, one of which is located at 646 Best Road in Milton. The Applicant alleges that she has not had access to income from any rental property or investment account since the date of separation.

9The Applicant states that the Respondent has refused to provide the Applicant with the disclosure she has requested in this case. She claims that the Respondent has advised her that he had changed banking institutions following their separation.

10The Applicant further claims the Respondent has refused to provide an explanation as to why he changed banks.

11She also alleges that the Respondent removed $570,000 from two joint lines of credit which were secured against the matrimonial home in Mississauga, and the property at 646 Best Road. After removing these funds, the Respondent refused to make regular monthly contributions towards the interest and carrying costs.

12The Applicant acknowledges that she also removed the combined amount of $530,000.00 from the two lines of credit after learning about the Respondent’s drawdown of $570,000. She made her withdrawal for two reasons. First, she removed these funds to prevent the Respondent from accessing, removing, and utilizing the credit available as it was secured against the matrimonial home and rental property. Second, the Applicant took this step to ensure that she had funds accessible to her pending a motion for spousal support so that she was able to pay her own expenses.

13It came to the Applicant's attention through a family friend In and around February 2020 that the Respondent had sold the rental property located at 646 Best Road. The Applicant had no prior knowledge that the Respondent intended to sell this property.

The Application is commenced, and disclosure required

14Upon separating, the parties engaged the elders in their religious community to assist with resolving their issues about the division of assets. When those efforts were unsuccessful, the Applicant brought this Application in February 2020 for divorce and other relief, including her requirements for proper disclosure.

15After the Application was served, the Respondent requested an extension of time to file his Answer. Counsel for the Applicant wrote back to agree to the extension request, at which time full disclosure and other terms were requested.

16The Applicant's counsel thereafter emailed counsel for the Respondent on March 25, 2020 to serve her disclosure brief. This disclosure contained the Applicant's income tax returns, and all supporting documentation for the entries on her sworn Financial Statement dated February 13, 2020.

17Counsel for the Applicant received two emails from the Respondent's counsel on April 1, 2020 which attached limited disclosure from the Respondent. Those emails put forward an explanation that, because of the Covid-19 pandemic, the Respondent was prohibited from producing his disclosure and completing his financial statement in a timely manner.

18The Applicant's counsel responded on April 13, 2020 as follows:

"While we recognize that the current circumstances surrounding Covid-19 pandemic are not ideal, the request for your client's disclosure was made months ago wherein Mr. Qureshi should have already compiled the required disclosure and completed his Financial Statement pursuant to the Family Law Act. The request for financial disclosure is not new to Mr. Qureshi as the parties have been separated since July 2019, and both parties had previous counsel assisting them in compiling the relevant disclosure in order for the parties to negotiate a settlement. The continued delay on the part of Mr. Qureshi regarding the production of his financial disclosure is unacceptable as financial disclosure is one of the underlining principles of the Family Law Act. This delay is the very reason why Ms. Qureshi had no alternative but to commence a court application. As a courtesy my client thereafter provided Mr. Qureshi with additional time to complete the production of his disclosure, suspending the timeline for service and filing of his Answer. Mr. Qureshi has now failed to provide his disclosure by the March 30, 2020 extended timeline. While Ms. Qureshi can appreciate that Mr. Qureshi's ability to physically attend a banking institution may be compromised, the banking institutions are considered an essential service and remain open wherein documentation can be requested via telephone and email. Your client is therefore not precluded from obtaining the disclosure as required".

19Counsel for the Applicant sent a subsequent letter to counsel for the Respondent on May 13, 2020 to advise that the disclosure initially provided by the Respondent was severely lacking. The letter further stated that the disclosure contained documents that had already been produced by the Applicant. Given the continued delay on the part of the Respondent, the Applicant instructed counsel to proceed with the scheduling of a Case Conference.

20A second letter was sent to the Respondent’s counsel on May 13, 2020, enclosing a detailed list of the disclosure that remained outstanding. No response this letter was received from the Respondent.

21A follow-up letter was sent to the Respondent’s counsel on June 8, 2020 requesting a due date for the delivery of the Respondent's outstanding disclosure.

22A response was received from counsel for the Respondent on June 11, 2020; however, the bulk of the Respondent's disclosure remained outstanding. It appears that the Respondent had taken it upon himself to conclude that a number of the requested documents were irrelevant.

23The Applicant takes the position that she has made all financial disclosure to satisfy her own obligations. On June 19, 2020, the Applicant forwarded an email to counsel containing responses to disclosure requested by the Respondent, including a comprehensive chart of disclosure with explanations. The Applicant's counsel has not received any correspondence from Counsel for the Respondent detailing what specific documentation she has failed to provide.

24The Applicant had therefore satisfied all disclosure requested by the Respondent on June 19, 2020, except for producing her 2019 Notice of Assessment and her Equifax report. These documents were later provided on July 8, 2020. Counsel for the Applicant further explained that she would not be providing banking statements from 2000 or 2010 as requested, as documents from 19 years prior to separation were inaccessible to her. The Applicant did, however, provide banking statements from approximately a year and a half prior to the date of separation to the date of disclosure.

25On June 29, 2020, the Applicant's counsel received correspondence from counsel for the Respondent indicating that documentation under five tabs (specifically numbers 6, 12, 14, 15 and 16) within the Applicant's disclosure brief was missing. The Applicant's counsel responded on June 30, 2020 to confirm that no documents were missing and directing counsel for the Respondent to refer to the disclosure chart provided on June 19, 2020 for an explanation of these items. The Applicant's counsel again requested confirmation as to when the Respondent's outstanding disclosure could be expected.

26A subsequent letter was sent to counsel for the Respondent on July 6, 2020 that again detailed the Respondent's outstanding disclosure. Out of approximately 16 requested items at that time, only two (2) have been satisfied: the Respondent's 2019 Income Tax Return, and Schedule "A" to the Respondent's financial statement dated April 9, 2020 which had not been enclosed with the Respondent's financial statement.

27The parties attended a virtual Case Conference on August 11, 2020 before Justice Bielby, who made orders in his endorsement for both parties to provide disclosure to each other.

28A response was received from the Respondent’s counsel on September 18, 2020. Despite the endorsement made by Justice Bielby, the Respondent took the position at that time:

a. Refusing to provide banking statements following the date of separation despite our Endorsement and despite the fact that the Respondent had previously acknowledged changing banking institutions post separation wherein a tracing of assets is required, especially in light of my equitable claims regarding our familial assets post-separation;

b. Continuing to request confirmation of what documents remained outstanding, despite my counsel's comprehensive letter dated September 10, 2020, sent to Mr. Farooq days prior detailing what disclosure remained outstanding;

c. Taking the position that disclosing the value of his assets on his sworn financial statement dated August 2, 2020 at current date, without producing any supporting documentation, satisfies the Endorsement of the Honourable Justice Bielby and he therefore need not produce supporting documentation regarding current date values; and

d. Taking the position that he has provided valuation reports for the properties acquired in his name solely since the date of separation in satisfaction of the Endorsement of the Honourable Justice Bielby, however, the documents produced were not formal appraisals but opinion letters from realtors and comparables.

29The Respondent continued to allege that Applicant's disclosure was deficient but failed to detail what disclosure items she was still required to produce. No further requests to produce further documents have been made of the Applicant since she produced documents in June and July 2020.

30Counsel for the Applicant sent a follow up letter on October 23, 2020 detailing the Respondent's outstanding disclosure. For clarity, the Applicant's counsel again confirmed that the Applicant's disclosure had been fully satisfied as required by the endorsement of Bielby J. This disclosure detailed notations with respect to the transfer of funds between accounts indicated in the Applicant's financial statement dated February 13, 2020.

31In her factum, the Applicant summarizes her evidence on the motion about how the parties owned investment properties during their marriage that the Respondent would customarily control. She states that:

“These investment properties included five (5) semi detached homes purchased in the early 1990s. The initial down payment for these five properties came from income earned through the Applicant's employment with the Immigration and Refugee Board and through joint marital assets. These properties were fully paid through the rental income and unencumbered at the time of sale and were sold over a 10-year period during the marriage. The proceeds of sale from these semi-detached properties were placed into various investment accounts, the majority of which remain in the Respondent's name solely; with nominal financial contribution made to the Applicant's spousal RRSP which value has been disclosed.”

32The Applicant further states in her factum that:

“The parties owned two (2) rental properties on the date of separation. These properties are located at: 444 Henderson Drive, Milton, Ontario L9T 2X5 wherein the Respondent holds a 33% interest (hereinafter referred to as the "Henderson Property") and 646 Best Drive, Milton, Ontario, L9T 0H6 wherein the Respondent held 100% interest (hereinafter referred to as the "Best Road Property"). The Best Road Property was unilaterally sold by the Respondent in February 2020. In addition, the Respondent purchased his current residence located at 350 Prince Royal Drive, Unit 1604, Mississauga, Ontario, L5B 4N1 post­ separation, accessing funds from either the investment accounts and/ or the parties joint Line of Credit (hereinafter referred to as the ‘Prince Royal Property’). To the best of the Applicant's knowledge, this property is remains unencumbered.”

33The Applicant is making claims of an equitable nature with respect to all three rental properties as well as to an equitable interest in Prince Royal Drive. She is also making claims to the Respondent’s bank and investment accounts. She points out that the Respondent has acknowledged he has changed banks, and transferred funds between accounts at Scotiabank, TD Canada Trust and Bank of Montreal since the parties separated.

34In addition to making equitable claims against properties and accounts, the Applicant is claiming spousal support and equalization from the Respondent. She intends to trace funds between properties and accounts to determine her entitlement under those claims. The Applicant brings this motion to obtain orders to preserve property owned or controlled by the Respondent over which she asserts those claims. She also seeks disclosure orders for information and documents from the Respondent relevant to her ability to prove those claims.

The CPL

35The Applicant obtained leave to amend her Application, on consent, to claim a CPL to register against title to 350 Prince Royal Drive in Mississauga to ensure the Respondent does not encumber or dispose of that property pending trial.

36The Respondent acquired the property at 350 Prince Royal Drive after the parties separated on July 22, 2019. The Respondent purchased this property with funds he withdrew from the joint line of credit he operated with the Applicant, and proceeds from selling shares that he may or may not have held beneficially with the applicant. The respondent admits in his affidavit dated January 12, 2021 that he sold 646 Best Road in January 2020. He explains that he sold the property at 646 Best Road and used those proceeds to purchase shares which he then sold to purchase 350 Prince Royal Drive. This differs from the submissions of counsel at the hearing that he used the sale proceeds to repay the funds he borrowed from the line of credit to purchase that property. However, the effect is the same: the equity in 646 Best Road was transported directly or indirectly into 350 Prince Royal Drive.

37The Applicant has claimed in her pleadings that she has a claim for a constructive trust in 350 Prince Royal Drive. In making that claim, the Applicant is claiming to have a proprietary interest in that property that is recognizable as an interest in land. A claim for a constructive trust is a claim to an interest in land under what is now s. 103 of the Courts of Justice Act to obtain a CPL: Bajada v. Bajada, 1991 CarswellOnt 252.

38The court must be satisfied that the claim to an interest in land is reasonable. To be reasonable, the claim must be recognizable in law and have a reasonable prospect of success. A party need not establish that she or he will likely succeed on the claim for an interest in the property to obtain a CPL. The moving party need only show that she or he has a triable issue with respect to the claim: Baker v. Jakobek, 2008 CarswellOnt 3311 (SCJ).

39The Applicant has provided evidence in her affidavit that the Respondent purchased 350 Prince Royal Drive with funds drawn from the joint line of credit in both their names. She also alleges in her evidence that 646 Best Road in Milton was a property they had both acquired during the marriage as a rental property, even though that property was registered in the name of the Respondent alone. She alleges that the Respondent sold that property unilaterally in February 2020 without her knowledge, and the proceeds were used in whole or in part to purchase 350 Prince Royal Drive. Even if the Respondent has repaid money drawn from the line of credit, he did so with sale proceeds that belonged equally to the Applicant. This evidence is sufficient for the Applicant to make a claim for an interest in the property by way of a constructive trust.

40The evidentiary threshold to show a reasonable claim to an interest in land is a low one. I am satisfied on the evidence and on the applicable law that the applicant has made out a reasonable claim to an interest in the property at 350 Prince Royal Drive to have a CPL issue in her favour.

41The order for leave to issue a CPL was granted accordingly.

Preservation of Assets

42The evidentiary record is unequivocal that the Respondent sold 646 Best Drive without the knowledge of the Applicant. There is also evidence that he purchased another property with the proceeds or used those proceeds to repay funds he borrowed from a line of credit he held with the Applicant, also without her knowledge.

43I note that the record is replete with evidentiary references about various transfers by the Respondent not only between bank accounts and investment accounts since the date of separation, but also between such accounts at two different banks. The diversity of the accounts held in the Respondent’s name is evident from the accounts listed in the Amended Notice of Motion. These accounts are specified by the Applicant in her prayer for relief for a preservation order over those accounts, and for an order requiring disclosure.

44I am satisfied on the evidence that the Applicant has had little, if no access to the assets except the matrimonial home. Those assets acquired during the marriage, except title to the matrimonial home, were placed in the Respondent's name, if not under his sole control. On the date of separation, the two remaining rental properties and the large investment accounts between them remained in the name of the Respondent. The Respondent has had unfettered access to the funds in these accounts and the equity in the rental properties to the exclusion of the Applicant as a result.

45In view of the Respondent’s possession or control of assets since the date of separation, the Applicant is seeking a more detailed preservation order. She seeks orders under s. 12 and s. 40 of the Family Law Act to prevent the depletion or dissipation of assets or interests in property by the Respondent until the conclusion of the case. The Applicant seeks a preservation order to protect her interests under s. 12 as they relate to her claim for property based claims, and an order under s. 40 to restrain the Respondent from depleting property in his name that would impair or defeat her claim for spousal support. For the purposes of this decision, the reasons I give for granting one order shall apply equally to the other.

46An order under s. 12 order is a discretionary order. The court may make an order under this section upon balancing the relevant three factors under a contextual approach to the facts. The three factors are succinctly summarized in Bronfman v. Bronfman 2000 CanLII 22710 (ON SC), [2000] O.J. No. 4591 (Ont. S. C.) as follows:

The relative strength of the case made out by the moving party;

The balance of convenience (or inconvenience); and,

Irreparable harm.

47Under the first factor, the court assesses the strength of the moving party's case for financial claims, including claims to interests in property. The primary consideration for the court to weigh on this branch of the test is the likelihood that the moving party will be entitled to receive a judgment at trial. Preservation orders are most often brought prior to the final determination of questions of entitlement and the determination by a court of any amount one party is to pay another. A fact-driven analysis must be made by the court to ascertain whether one party will likely owe funds to the other party under the Family Law Act, or for an equitable claim. This analysis is often limited by the evidentiary record before the court, and allowances must sometimes be made having regard to the stage of the case at which the moving party has been brought and any obstacles the moving party has encountered in obtaining disclosure from the other side.

48The Applicant has referred the court to the case of Both v. Both, [2008] O.J. No. 1358. In Both v. Both, Backhouse J. found that the wife had raised a prima facie case that she is entitled to a substantial equalization payment. Although the parties' affairs were "very complex and the record is undeveloped" which made "the quantum of the wife's equalization payment very difficult to assess even on a preliminary basis", there was a common understanding that the husband would owe the wife a fairly significant sum of money.

49In Bronfman, Sachs J. held that "there are certain cases where the factual record, and the applicable legal principles, make it very clear that a spouse will be entitled to an equalization payment in a particular amount". In such cases, the first factor will be given heavier weight than perhaps the other two remaining branches of the test. Although the record was not fully developed, Justice Sachs ultimately granted a preservation Order as both sides had not been in a position to obtain their valuations of assets.

50In this case, it is abundantly clear from the evidence that the Respondent shall owe a significant equalization payment to the Applicant because of the rental properties and bank and investment accounts in his name at the date of separation. It is equally clear on the facts in evidence that there is a strong likelihood the Applicant will obtain an order for spousal support. Accordingly, I find the Applicant has a sufficiently strong case to justify a preservation order.

51In the second part of the test, the court is required to look at the inconvenience the order would cause to the Respondent, balanced against the effect, or risk, that would be caused to the Applicant if the assets were disposed of before trial.

52Justice Kiteley in Adler v. Adler, 2016 ONSC 2414 wrote that the objective of a preservation order is to "[respond] to the need to create a situation where the Applicant's claims for an equalization payment are protected, and her claims for support are not impaired or defeated".

53In Adler, the court stated that the more complex and the more need the responding spouse has for unfettered flexibility in his financial affairs, the greater the need to make an order pursuant to sections 12 and 40. Kiteley J. explained that, while the court appreciates the responding party's necessary transactions, such freedom cannot be unlimited under the guise of 'convenience' to the extent where the moving party would be prejudiced. This is particularly highlighted in cases, such as the present one, where there has been a flagrant disregard of court orders.

54I find that the effect, or risk to the Applicant on the motion before me outweighs the inconvenience to the Respondent. On the facts, the Respondent has already sold 646 Best Road, and he is living at 350 Prince Royal Drive as his principal residence. He has already transferred funds between accounts and from one bank to another. There is no evidence that he will be inconvenienced by a preservation order at this time. In contrast, the Applicant is at risk that her ability to enforce her property based claims or her claims for spousal support could be impaired or defeated if the Respondent was not restrained from encumbering or disposing of property.

55For the third and final factor, the court must examine any crucial or negative effect that a preservation order will cause to either party. Under this factor, the court also considers whether either party will suffer significant harm if the order is not made.

56The Applicant refers again to the decision of Backhouse J. in Both v. Both that featured a risk analysis to determine irreparable harm. In the case of Both, the husband had encumbered the matrimonial home with a $2M mortgage after separation without the wife's consent, even though he knew or ought to have known her consent was required. The motions judge found that the husband had orchestrated additional large encumbrances and the movement of property from one corporation, in which the wife held an interest, to a corporation in which she did not. The court held that there "is a real risk that if the requested order is not made, that the wife's equalization claim could be defeated".

57The evidence shows the Applicant in this case faces a similar risk of suffering harm of an irreparable nature if the Respondent is not restrained from disposing of property he acquired both during the marriage, and after separation. The Respondent has demonstrated that he considers himself at liberty to dispose of property without regard to the Applicant or her rights. The Applicant has shown that the Respondent could again transfer or conceal property that should be preserved until the interests of the parties can be determined by the court.

58I therefore conclude that, on the application of the factors to the evidence before the court, an order is necessary to protect the Applicant’s interests with respect to property.

59I also conclude that an order is necessary to restrain the Respondent from depleting his property to prevent him from impairing or defeating her claim to spousal support. The Respondent states in paragraph 73 of his affidavit that his major source of earning is his investments. There was a sufficient basis to make a preservation order under s. 40 on January 21, 2021 for these reasons.

Disclosure

60An order was made by Bielby J. on August 11, 2020 at the Case Conference that day. In his endorsement, Bielby J. observed that disclosure issues are yet to be resolved. He made a number of procedural orders that were general in nature, including permission for the parties to bring motions, a mutual non-dissipation order, an order that the parties disclose all assets in their possession and control and the value of those assets as of the date of separation, as well as their debts.

61Justice Bielby’s order also specified that if any new assets have been acquired by either party since separation, the asset is to be disclosed, along with its value and the source of funds used to acquire the asset.

62The parties were given 45 days to complete the disclosure required under the order dated August 11, 2020. Therefore, the parties had until September 26, 2020 to make the disclosure to each other.

63The Applicant brings this motion because the respondent either did not comply with Justice Bielby’s order to provide disclosure, or he has not made that disclosure sufficiently. Although she seeks an order striking the Respondent’s Answer for his non-compliance, the Applicant recognizes that this is a remedy of last resort.

64This motion is brought in part to expand on the order made at the Case Conference. Disclosure is essential in any family law case to provide the same access to relevant evidence to both parties, and by doing so to allow the parties a fair and equal opportunity to litigate the issues. The requirement for fulsome disclosure is also intended, through the adversarial process, to produce a full evidentiary record on which the court is to make the necessary findings of fact and to apply the law to render judgment at trial.

65The Court of Appeal in Roberts v. Roberts, 2015 ONCA 450 took the opportunity to emphasize the fundamental principle that the duty of each party to make financial disclosure is the most basic obligation in family law, and that the failure to disclose that information impedes the progress of the case. The failure of one party to make required disclosure delays the litigation process and keeps the other party at a disadvantage.

66I am of the view that the disclosure obligations of the Respondent in this case arise from three sources: the law that requires proper disclosure in a family law case generally, the initial order made by Bielby J., and the continuing principles for disclosure on which the Applicant relies for this motion. The fact that one source has been invoked does not displace the force and effect of any other.

67The Applicant has pleaded several claims in the Application. She seeks equalization between net family properties from the Respondent. She also claims that she holds a proprietary interest in three properties and several investment and other accounts acquired by the Respondent as a joint family venture, or by way of a constructive or a resulting trust. This pleading casts a wide net for the relevancy of her requirements for disclosure.

68The Respondent takes the position that he has provided complete financial disclosure, despite the fact that the Applicant has demonstrated the bulk of her requests have gone unanswered. The Respondent continues to evade the production of documents and instead advances allegations that the Applicant has been deficient in her own disclosure obligations. This is a curious strategy to follow as I have been given no authority that one party is entitled to withhold disclosure from another in such a case. In any event, the Respondent has failed to itemize what documents remain outstanding.

69Whatever disclosure the Respondent has produced to date has been made in a fashion that has frustrated the progress of this family law case. It would appear the Respondent has intentionally produced disclosure in what the Applicant’s counsel describes as “dribs and drabs.” This approach has caused the Applicant to incur unnecessary legal costs and has impeded the ability of both parties to engage in settlement discussions. The Respondent's continued response and his failure to abide by the endorsement of Bielby J. has caused considerable delay in the progress of this case.

70In the course of making her submissions, counsel for the Applicant modified the disclosure requested on the motion in several respects. Similarly, the Respondent’s counsel conceded certain positions on certain items as the motion was argued. My determination on each of them incorporates those submissions.

71In view of the numerous items at issue, I have made my ruling on whether the Respondent is to produce, or provide information in the ADD about, or to dismiss each item as they are described in the furthest right hand column on the disclosure chart. For the purpose of preparing any order, I propose to refer only to the item number shown for each of them in the furthest left-hand column on each page on the understanding that the item number extends to the description for that item. For instance, the Applicant indicated on the motion that she is satisfied with the disclosure given to date of item numbers 5,6,45,47,54 and 56, and they are marked “abandoned”. That order extends to the description given for each of those items.

72The disclosure ordered in paragraph 74 is subject to the following limits and allowances:

a. Where a document or information ordered for each year is shown on the disclosure chart as required since or before 2016, the Respondent need only produce the disclosure ordered starting on January 1, 2017;

b. For any document or information the Respondent does not disclose, he shall provide an affidavit of documentary disclosure (ADD) setting out the steps he took to obtain the document or information, the reason he cannot produce that document or information, and an explanation of what may be required to obtain that document or information to comply with this order;

c. For those items requesting the Respondent to update every three months, the Respondent need only produce the information, with any supporting documents as of the date of this order. The parties already have an obligation to file their updated financial statements with the court before each step in the family law process, including trial, under Family Law Rule 13(12);

d. The dismissal of any order for disclosure is made without prejudice that the information was available to the Respondent at trial; and

e. Each of the following subparagraphs correspond to the same paragraph numbers in the disclosure chart. I have not appended the disclosure chart to these reasons because of the confidential nature of the account information it contains. Counsel are therefore expected to read that disclosure chart together with these reasons.

73The Respondent is ordered to disclose the following information, with supporting documents where applicable, on or before May 31, 2021:

1. Produce an updated financial statement. Where values were previously estimated, they are to be replaced with actual or appraised values.

2. Produce, along with further information about the current tenancy provided in the ADD.

3. Produce, or include any explanation for not doing so in the ADD.

4. Dismissed. The Applicant had access to the bank locker.

5. Abandoned.

6. Abandoned.

7. Dismissed. The Applicant has provided no legal authority for an order that would require the Respondent to trace funds from one or more sources to one or more assets.

8. Dismissed, for the same reason as in #7.

9. Produce.

10. Produce, on consent.

11. Produce, on consent.

12. Produce, on consent.

13. The Respondent is to include in the ADD:

a. confirmation that this account is closed, if true;

b. these statements were ongoing statements, if true;

c. the statements are the most recent for this account, if true.

14. On consent, same as #13.

15. Produce.

16. Produce.

17. Produce, on consent.

18. Produce, up to December 31, 2020 (even if produced before).

19. Produce, as in #18.

20. Produce, as in #18.

21. Produce, as in #18.

22. Produce, as in #18.

23. Produce, as in #18.

24. Unopposed, produce again.

25. Unopposed, the ADD is to include disclosure of fund transfers involving this account, with supporting documents, or produce the bank statements for the account, if found. It is further ordered, but not on an unopposed basis, that the Respondent sign the necessary authorizations for Scotiabank/Bank of Nova Scotia to produce the account statements for this account as a non-party.

26. Unopposed, with the same order as in #25.

27. Unopposed, with the same order as in #25.

28. Unopposed, with the same order as in #25.

29. On consent, to produce again.

30. Unopposed, with the same order as #25.

31. Unopposed, with the same order as in #25.

32. On consent, the Respondent will use his best efforts to produce the requested Visa statements.

33. Unopposed, with the same order as in #25.

34. On consent, to produce again. These statements are relevant to the Applicant’s claims for asserting claims for a) constructive/resulting trust in the Prince Royal Drive property and investment accounts; b) an equalization payment; and c) spousal support.

35. Produce, as in #34.

36. Produce, as in #34.

37. Produce, as in #34.

38. Produce the entire account statement or include in the authorizations to be given under #25.

39. ADD to include verification, if true, that the line of credit registered against title to 646 Best Road was paid when that property was sold. The Respondent is to produce the account statement for this line of credit showing the balance of the line of credit account as of the date of separation, the account statement showing the line of credit was closed, and if it is still open, the most recent account statement for this line of credit.

40. On consent, produce again.

41. Produce, as in #40.

42. Produce, as in #40.

43. On consent, produce these investment statements and:

a. if the account was closed since the date of separation, include that explanation in the ADD;

b. if the account was opened on the date of separation or was newly opened in 2020, provided the monthly statements since that time for that account.

44. Produce, as in #43.

45. Abandoned.

46. Produce, as in #43.

47. Abandoned.

48. Produce, as in #43.

49. Produce, as in #43.

50. Produce, as in #43.

51. Produce, as in #43.

52. Produce, as in #43.

53. Produce, as in #43.

54. Abandoned.

55. Produce, as in #43.

56. Abandoned.

57. Produce, as in #43.

58. Produce, as in #43.

59. The ADD is to include proof that this account was closed in 2017. Otherwise, the Respondent shall produce these investment account statements from RBC.

60. Unopposed, produce.

61. The ADD shall include the Respondent’s justification that he has already disclosed all of his accounts, and that the Applicant’s allegations in this respect are baseless and without merit. The ADD shall also include the Respondent’s evidence whether he has disclosed all accounts in his name alone, or jointly with another person since January 1, 2017.

62. On consent, the Respondent is to provide evidence in the ADD as to the source of described deposits to the accounts specified.

63. On consent, provide as in #62.

64. On consent, produce if the Respondent has the cheque, a copy of the cheque or cheque images in his possession, power or control, and if he does not, to provide an explanation in the ADD.

65. Dismissed, as in #7. The Respondent is only required to provide proper disclosure of factual information or documents, but not to provide a tracing function. Here, he is only required to disclose evidence about bank and investment accounts at relevant banks, and to explain when and where funds were moved between those accounts.

66. Dismissed, as in #65.

67. The ADD to include the nature of this account. The Respondent is also to produce the opening statement and the current statement for this account. If it is an account for a charitable foundation, the Respondent is to produce the constating document that sets up the charity.

68. Provide this evidence, as in #67.

69. The ADD is to include confirmation that 634 Best Road was misdescribed and is the same property as 646 Best Road in Milton, if true.

70. Provide this evidence, as in #69.

71. On consent, produce again.

72. On consent, produce again.

73. Dismissed, as in #65.

74. Provide this evidence in the ADD, and produce supporting documents. The Applicant has established this information is relevant to her claims for a constructive/resulting trust, equalization, and for spousal support.

75. Dismissed. This information is not relevant to the matters at issue.

74The Applicant requests an Order that the court strike the Respondent’s Answer if he fails to comply with this Order, especially in view of his non-compliance with the Order of Bielby J. dated August 11, 2020. However, she does not seek an Order for failing to comply with Justice Bielby’s order itself. It would seem the remedy she seeks is intended to build in an incentive for the Respondent to avoid a breach that has not yet occurred.

75I also observe that Justice Bielby noted in his endorsement that disclosure issues have yet to be resolved, despite his general order for both parties to make disclosure to the other within 45 days.

76The Order I am making that requires the Respondent to provide detailed disclosure to the Applicant resolves those issues. The Order provides definitive terms for the Respondent to satisfy by a specific date, and a “triggering event” if he does not.

77A "triggering event" justifies the striking of pleadings. The court in Bennett v Davoodian, 2017 ONSC 4087 (SCJ) characterized the Respondent's failure to comply with two Orders to produce financial disclosure as a "triggering event". This kind of Order may be the subject of a further motion to enforce this Order if it is necessary to bring.

Conclusion and costs

78The motion is granted, with orders granting leave to issue a Certificate of Pending Litigation, to preserve assets, and for the Respondent to make the required disclosure by May 31, 2021.

79Should the Respondent fail to produce any document or information he has been ordered to produce, or to give evidence in an affidavit for disclosure he cannot produce to comply with this order, the Applicant may bring a motion on notice to the Respondent for the appropriate order. This relief may include any one or more of the Orders enumerated under FLR 1 (8).

80The parties are strongly encouraged to resolve the issue of costs for this motion between them. If either party seeks costs, they may file written submissions by May 7, 2021. The opposing party shall then have until June 4, 2021 to file written submissions in response. No submission in reply shall be permitted, without leave. Each of those written submissions shall be limited to no more than two typewritten pages, not including any bill of costs or offer to settle. All submissions may be filed by email to my judicial assistant at melanie.powers@ontario.ca.

Emery J.