Court File and Parties

COURT FILE NO.: FS-3482-13

DATE: 2021/05/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Diane Alma Dutrisac v. Carl Gary Dutrisac

BEFORE: Ellies J.

COUNSEL: Shawn Hamilton, for the Applicant Dawood Ahmad, for the Respondent

HEARD: May 19, 2021

ENDORSEMENT

[1] In his notice of motion dated December 11, 2020, Mr. Dutrisac requests production of documents and information relating to two accounts in the name of Ms. Dutrisac.

[2] The first is an investment account. Mr. Dutrisac deposes that in December 2013 he found a statement from an RRSP investment account in Ms. Dutrisac’s name that she had never disclosed. He brought it to Mr. Ahmad, who wrote to Mr. Hamilton to request information. In a letter sent on December 24, 2019, Mr. Ahmad sent a copy of the statement and requested particulars of the investment.

[3] Mr. Hamilton replied on April 1, 2020, advising that he would provide the requested information, but he did not. It was only after Mr. Dutrisac brought this motion in March 2021 that Mr. Hamilton’s office provided a copy of a document that purports to relate to the investment account in issue.

[4] On behalf of Mr. Dutrisac, Mr. Ahmad submits that his client cannot be sure that the disclosed document relates to the investment account concerning which he requested particulars because there is no account number contained in the document. Indeed, he goes so far as to submit that the disclosed document reveals yet another undisclosed account. Clearly, that is incorrect.

[5] The fact that this document relates to the investment account in question is obvious on the face of the document. The “Client ID” number is the same on both the found and the disclosed documents. The investment adviser’s name is the same on both documents. Most importantly, the number of units of the investment held in December 2013 as shown in the disclosed document is identical to the number of units shown on the document Mr. Dutrisac says he found in September 2013. While the value of each unit differs somewhat between September and December of 2013, it is obvious from the rest of the disclosed document that the value of the units, like those of most investments, fluctuated over time.

[6] Based on this evidence, I am satisfied that the disclosed document sufficiently answers Mr. Dutrisac’s request and does not reveal the existence of another undisclosed account.

[7] The second account regarding which Mr. Dutrisac seeks information is a bank account held solely in Ms. Dutrisac’s name at RBC. On behalf of Mr. Dutrisac, Mr. Ahmad submits that Ms. Dutrisac produced a bank statement for this account for the first time following an order I made for production on August 7, 2019. The bank statement (a copy of which is found at tab 71K of the continuing record) covers the period from August 1, 2012, to August 31, 2013. It shows a number of deposits which do not correspond to any withdrawals from any account known to Mr. Dutrisac. As a result, Mr. Ahmad wrote to Mr. Hamilton on December 23, 2019, requesting copies of statements from the accounts from which the funds originated. Again, because Mr. Ahmad received no response, he brought this motion on behalf of his client.

[8] Mr. Ahmad submits that his client’s request for further information about the deposits into Ms. Dutrisac’s bank account is a legitimate request because Ms. Dutrisac was in charge of the couple’s finances during the marriage and Mr. Dutrisac alleges that Ms. Dutrisac diverted rent receipts to her own use. He submits that the bank statement was disclosed only in response to my August 2019 order and, therefore, could not have been the subject of questioning, which took place in March 2014, or earlier requests for further information in the nearly six years since this case began. This, too, is not correct.

[9] It is true that my August 7, 2019 order required Ms. Dutrisac to produce statements for the RBC account for the years 2010 to 2013, inclusive, and that the bank statement contained in the continuing record appears to have been generated on August 8, 2019. However, Ms. Dutrisac disclosed the existence of the RBC bank account in the very first financial statement she filed in this case, in September 2013. Further, in a certificate of financial disclosure dated October 17, 2018, Ms. Dutrisac certified that she also provided the respondent with a copy of a statement dated August 1, 2013, for the RBC account, as she is required to do under r. 13(3.3) of the Family Law Rules. Yet, according to the evidence filed on this motion, the first request for further information involving this account was Mr. Ahmad’s request of December 23, 2019. Clearly, such a request could have been made much earlier. The lateness of the request calls into question Mr. Dutrisac’s motives.

[10] Nonetheless, I am not quite satisfied with Ms. Dutrisac’s answer to the request. In response to the motion, Ms. Dutrisac deposes that she has no bank statements showing the withdrawal of the amounts deposited due to the fact that the “statements are approximately eight years old and the account was closed shortly after separation (August 2013)”. It is not clear to me whether she is saying that the RBC account into which deposits were made was closed, or whether the account from which the corresponding withdrawals were made was closed. This must be clarified in affidavit form, which affidavit shall be delivered on or before June 11, 2021.

[11] During the hearing of the motion, I requested the parties’ submissions on costs. On behalf of his client, Mr. Hamilton submits that, if successful, Ms. Dutrisac should be awarded costs in the amount of $7,500. He submits that his client has complied in a timely way with her financial disclosure obligations throughout, while Mr. Dutrisac has been slow to do so. He refers to Mr. Dutrisac’s repeated requests for further disclosure as nothing more than a “critique” of Ms. Dutrisac’s efforts at fulfilling her obligations.

[12] On behalf of his client, Mr. Ahmad submits that, if Mr. Dutrisac is successful, he should be awarded costs of $2,500. Costs of $7,500 are too high, he submits, regardless of who wins. He points out that the benchmark relied upon by Mr. Hamilton in support of his submission, the costs award I made in connection with the August 7, 2019 order, was made with respect to a much larger motion. He submits that this motion would not have been necessary had Mr. Hamilton followed through with his undertaking regarding the investment account.

[13] In part, I agree with the submissions of both counsel.

[14] I agree with Mr. Hamilton’s submission that Mr. Dutrisac seems to be focusing on Ms. Dutrisac’s efforts at fulfilling her disclosure obligations while failing to hold himself to the same standard. It appears he is trying to conduct an endless forensic audit of his matrimonial finances now that the parties have separated when he was perfectly content to leave all of the work regarding the finances to Ms. Dutrisac while the parties were together. I do not accept that the motion could have been avoided had Mr. Hamilton fulfilled his undertaking to provide the information sought regarding the investment account. Mr. Dutrisac was clearly not satisfied with the information provided and I have no reason to believe he would have been any more satisfied had it been provided earlier.

[15] I agree with Mr. Ahmad’s submission regarding quantum, but not solely on the basis of the complexity of the motion. While Mr. Dutrisac was largely unsuccessful, he did succeed to the extent that I have ordered better information regarding the RBC account. To that extent, the amount of the costs awarded should be reduced.

[16] For these reasons, the motion is dismissed as it relates to the investment account and allowed with respect to the RBC account only to the extent referred to above. Ms. Dutrisac will have her costs, which I assess in the amount of $2,000, all-inclusive. Those costs shall be paid forthwith out of the funds presently held in trust by the former law firm of Mr. Falconi, to be deducted from any proceeds that might ultimately be paid or credited to Mr. Dutrisac.

[17] Finally, during the motion I also canvassed with counsel their readiness for, and their expectations regarding the length of, the trial. Regarding trial readiness, Mr. Ahmad submitted that his client is entitled to production of information regarding student grants provided to Ms. Dutrisac as they relate to her claim for support. Mr. Hamilton has agreed to obtain his client’s instructions to produce this information and to leave the question of its relevance to be decided at trial. If those instructions are not forthcoming, a further motion may be necessary.

[18] Mr. Hamilton advises that his client may also be bringing a motion for an increase in the amount of interim spousal support.

[19] I hereby direct that no other motions may be brought in this case without leave being granted by the court and that, if either of these motions is to be brought, it must be brought no later than August 31, 2021.

[20] Based on the estimates of counsel and their availability, five days will be scheduled for trial, not to take place before the end of September 2021. It will be held before me.

[21] In addition, both counsel have indicated that a further settlement conference with Justice Boucher may be of assistance and I would ask the trial coordinator to arrange one at the convenience of counsel and the court.

M.G. Ellies R.S.J.

Date: May 25, 2021