NEWMARKET COURT FILE NO.: FC-19-58939-00

DATE: 20210723

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Christine Doreen Ferguson, Applicant

AND:

Kyle Robert Ernest Ferguson, Respondent

BEFORE: The Honourable Mr. Justice R. Kaufman

COUNSEL: C. Mota, Counsel for the Applicant

Respondent – Self-represented

HEARD: In Chambers

ruling on motion

[1] The Applicant has filed an Affidavit for an Uncontested Trial dated June 21, 2021. The relief she seeks is that the matrimonial home be transferred into her name solely and that the Respondent has no rights or claims to same. She also seeks a divorce and an Order for costs.

[2] The parties have been separated since 2019. The file indicates attempts by the Applicant to secure financial disclosure from the Respondent prior to the commencement of legal proceedings. At numerous intervals, the Applicant consented to extensions of time to enable the Respondent to respond to correspondence and deliver his responding materials.

[3] At issue in much of the correspondence between original counsel for the parties was the Applicant’s request for an income analysis and a valuation of the Respondent’s sole proprietor business and the Respondent’s reluctance to incur the expense.

[4] At a Case Conference on January 10, 2020, the parties entered into a Consent, without prejudice Minutes of Settlement regarding a number of issues but in particular, service of Requests for Information by January 20, 2020, to be responded within 30 days of service. The parties were then both represented by counsel. It appears that the Respondent started acting in person on or about February 12, 2020. The Applicant’s counsel continued to correspond regarding the outstanding disclosure without an appropriate response.

[5] At a Settlement Conference in August 2020, the Respondent was again ordered to provide the outstanding disclosure with a further extension of 30 days.

[6] On January 26, 2021, following yet a further Settlement Conference, Justice Bruhn ordered the Respondent to file a fresh Financial Statement with all attachments by March 1, 2021. It is submitted that the Respondent has not filed any of the required documentation.

[7] On May 18, 2021, Justice Bruhn, following a 14B Motion, ordered the matter to continue on an Uncontested Trial basis on the financial issues. The Court noted that the Respondent had failed to provide financial disclosure contrary to the Family Court Rules and prior Court Orders. Pursuant to Rules 1(8) and 1(8.1), the Respondent’s pleadings were struck, and the Applicant was permitted to proceed by way of 23C (Uncontested Trial) on the support and property issues. The Costs of the 14B were fixed at $250. A copy of the Court’s Endorsement and the Applicant’s 23C were to be served on the Respondent and proof of service filed.

[8] On June 30, 2021, the Applicant served the Respondent by email with the Endorsement of Justice Bruhn, the 14B Motion, the 23C and a draft Order.

[9] By 14B dated July 7, 2021, the Respondent seeks an extension of time to comply with the disclosure Order dated January 26, 2021 from March 1, 2021 until August 31, 2021. He indicates that the following disclosure will be provided:

(a) an up-to-date Form 13.1 Financial Statement with the required attachments;

(b) 2017 to 2019 personal, and, if applicable, corporate Income Tax Returns with all enclosures and Notices of Assessments;

(c) 2017 to 2019 business Financial Statements;

(d) proof of his total income from all sources in 2020;

(e) account statements for any bank accounts in his name alone or with another person, either personally or for a business, from January 1, 2017 to present;

(f) credit card statements for any credit card accounts in his name alone or with another person, either personally or for a business, from January 1 2017, to present;

(g) any credit card applications made either in his name along or with another person, either personally or for a business, from January 1 2017, to present;

(h) a copy of his credit report for Equifax Canada or Trans Union Canada;

(i) proof of the value of all his assets and debts, in his name alone or with another person, either personally or for a business, at the date of marriage;

(j) proof of the value of all his assets and debts, in his name alone or with another person, either personally or for a business, at the date of separation; and

(k) proof of the value of any excluded property he is claiming and the basis for the exclusion.

[10] The Respondent has filed an Affidavit in support of his 14B Motion indicating that he has retained counsel on a limited-scope basis to assist him and that he requires until August 31, 2021 to comply with the January 26, 2021 Order. The Affidavit is commissioned by Ms. Warner, his former counsel of Record.

[11] The Respondent indicates that he has reasonable grounds as to why he did not comply with the Court Order of January 26, 2021 by the required time frame of March 1, 2021. His reason is that when he attempted to send the disclosure ordered to the Applicant via email he was unable to do so given the size of the attachments. The Respondent indicates that he is content to have the divorce split off from the other issues but that he opposes the balance of the relief sought by the Applicant by an Uncontested trial.

[12] By 14B dated July 9, 2021, the Applicant seeks an Order rejecting the Respondent’s 14B Motion dated July 7, 2021 and seeks costs of $1,000.

[13] In support of her Motion, the Applicant has filed an Affidavit detailing her efforts to secure disclosure from the Respondent prior to commencing her Application and thereafter, pursuant to three different Court Orders, all of which have been ignored by the Respondent.

[14] She also indicates that in the Court Order of January 26, 2021, the Court indicated that if the Disclosure was not provided, the Respondent had to provide an Affidavit by May 31, 2021 explaining the reasons why he was unable to comply with the Court Order. To be accurate, the Court ordered the Affidavit to be filed by March 1, 2021. There was non-compliance with that term as well.

[15] The Applicant submits that this Court consider the decision of Justice Quinn in Gordon v. Starr[^1] wherein it was stated in an oft-quoted comment that Court Orders are not made as a form of judicial exercise. An Order is an Order and is not a suggestion. Non-compliance must have consequences.

[16] The Applicant also submits that the child support that she receives is based on his verbal representation of what he earns. Further, her legal fees attributed to the Respondent’s refusal to comply with Court Orders has created significant legal bills that have created financial hardship for her and the children.

[17] The Applicant requests that the Respondent’s most recent attempt to further delay this matter should be dismissed and she requests costs of $1,000 plus HST.

[18] Not to be undone, the Respondent has delivered a response to the Applicant’s 14B. He indicates that he opposes the Applicant’s request for an Uncontested Trial, that he has retained counsel on a limited scope retainer and that he has received legal advice and understands that he must file his financials, or an Order will be granted against him. He indicates that he now understands the severity of the matter and is already working to obtain his disclosure. He repeats that he attempted to comply with the Court Order of Justice Bruhn but that the size of attachments in his email to the Applicant’s counsel would not send as it was too large.

[19] He requests yet another opportunity to file his financials to enable the matter to be determined based upon its merits as otherwise, if the matter is determined on the Applicant’s 23C alone will not allow for it to be dealt with in a just manner. The purpose of the request for an extension is to enable his counsel to review the disclosure that he has and to ensure that there is nothing outstanding.

Analysis

[20] In Percaru v, Percaru,[^2] the Ontario Court of Appeal noted that pleadings should be struck in exceptional circumstances where no other remedy would suffice. The adversarial structure of a proceeding should be maintained whenever possible. The remedy imposed should not go beyond that which is necessary to express the court’s disapproval of the conduct in issue.

[21] In Roberts v Roberts,[^3] it was stated that the most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. In this decision, the Court of Appeal upheld a decision of Justice Vallee wherein pleadings were struck after numerous breaches of Court Orders.

[22] Rule 2 of the Family Law Rules[^4] states that the primary objective of these rules is to enable the court to deal with cases justly which requires the court to ensure that the procedure is fair to all parties and gives appropriate resources to a case while taking into account of the need to give resources to other cases. The Court, the parties and their counsel are, in essence, partners in promoting the primary objectives of the rules.

[23] In this case, the Respondent has flaunted his role in the partnership. He has ignored no less than three if not four Court Orders requiring him to provide basic disclosure to enable this case to resolve or, at a minimum, be adjudicated fairly and in a just manner. The very relief he seeks in requesting another opportunity to delay this matter is identical to the relief that the Applicant has been seeking from the date of separation, a fair and just result.

[24] The Respondent’s pleadings have been struck by Justice Bruhn on property and financial matters. He has not requested relief in that regard. He has not appealed that Order. He has not sought relief under Rule 25(19), using the excuse that his materials were too bulky to be emailed to the Applicant’s counsel. Instead, although he would have this Court believe that the materials were all prepared and ready for delivery over four months ago, he now indicates that he has already started on his disclosure (the same disclosure that he states was ready to be delivered) and that he wants an extension until August 31 to be certain that he has fully satisfied his disclosure requirements (notwithstanding that he has sworn that the disclosure was ready to go). The fact that he states that he now understands the gravity of the situation would suggest that he has never been told by his lawyer that the result he is now facing was lurking around the corner of the halls of justice. He is not to be believed.

[25] The only merit in allowing the Respondent an opportunity to participate in the financial issues before the Court would be to allay the Applicant’s concerns that the Respondent has been underpaying his support and that he will continue to do so in the future. The Respondent shall be granted one further chance to participate in this matter, but it will not be on his terms. He shall be required to do the following, without exception and without further extension:

1. He shall provide all of the court-ordered disclosure by August 13, 2021.

2. He shall provide a written acknowledgement from a Certified Business Valuator that that individual has been retained to complete a valuation of the Respondent’s business and an Income Valuation of the Respondent. The letter shall confirm that this individual has received a sufficient retainer to proceed and shall provide a time estimate for the expected completion of the two-assigned tasks. This written acknowledgement shall be provided by August 16, 2021.

3. He shall pay to the Applicant an advance towards her legal fees incurred to date in the sum of $10,000. These funds will be accounted for as the matter proceeds. If there is an overpayment, the Respondent shall receive a credit in due course. The funds shall be paid by August 6, 2021.

[26] The Respondent must understand that if there is a breach of any of these terms, the Applicant shall proceed by 14B, on notice, with an Affidavit setting out the breach and this Court will then proceed to adjudicate upon the 23C that remains before it. The 14B shall be filed with the Court but a copy shall be emailed to my Judicial Assistant: Nurit.suzana@ontario.ca.

[27] This Ruling is effective immediately as an Order of this Court. The Applicant is at liberty to submit an Order for signature of the Court in due course. It need need not be approved.

Justice R. Kaufman

Date: July 23, 2021

[^1]: 2007 35527 (ON SC).

[^2]: 2010 ONCA 92 at para. 47&49.

[^3]: 2015 ONCA 450 at paras. 11-12.

[^4]: O.Reg. 114/99, (as am).