COURT FILE NO.: FS-18-00015500-0000
DATE: 20210923
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kristine Hill, Applicant
AND:
Albert (Ed) Green, Respondent
BEFORE: Justice D.A. Broad
COUNSEL: Matthew Lambert, for the Applicant
Elliott Birnboim and Hailey Corrigan, for the Respondent
HEARD: July 28, 2021
ENDORSEMENT
Parties and Pleadings
[1] The parties married on September 28, 2013 and separated on November 1, 2015. The parties do not agree on the total length of their relationship, specifically when they commenced living together prior to marriage. The respondent says that he and the applicant commenced cohabiting in early 2003 which the applicant denies. She says that the respondent did live with her for a few months in 2004 but did not begin living with her permanently until the summer of 2007. The parties had no children together.
[2] The applicant brought an Application seeking a divorce only on March 28, 2018. The respondent filed an Answer on April 30, 2018 in which he advanced claims for 1) a declaration that all assets obtained by either party during the course of the relationship were accumulated together as a joint family venture and that he holds an equitable interest in the parties’ assets accumulated during the relationship by way of a joint family venture and arising from unjust enrichment and 2) for an order for damages arising from unjust enrichment of the applicant. He also advanced claims for an unequal division of the parties’ net family properties and spousal support and associated relief.
[3] The applicant filed a Reply dated May 24, 2018.
[4] At a Case Conference held on September 13, 2018 the applicant was granted leave to amend her Application to make a trust claim in respect of property municipally known as 1482 Tuscarora Rd. Ohsweken, Ontario. She filed an Amended Application on September 21, 2018 in which she advanced a claim for a declaration that she is a one-half beneficial owner of the property municipally known as 1482 Tuscarora Rd. Ohsweken, Ontario and that she has a one-half beneficial ownership interest in any dwelling or buildings located on that property. She also advanced a claim for spousal support.
[5] The respondent filed an Amended Answer on November 23, 2018 responding to the applicant’s claims for a beneficial interest in the 1482 Tuscarora Rd. property and buildings and for spousal support.
Motions
[6] The parties each brought motions on April 13, 2021, originally returnable May 28, 2021.
[7] In her motion the applicant sought the following orders:
(a) that the respondent comply with his undertakings, refusals and under advisements given at his questioning held on August 30, 2019;
(b) that Greg Hill and Francis (also known as Frank) Montour be added as parties to the proceeding, or in the alternative, that they attend for questioning in relation to the issues in the proceeding.
[8] In his motion the respondent sought the following orders:
(a) that the applicant provide extensive disclosure, as particularized below, within 30 days;
(b) that the applicant re-attend for further questioning within 60 days; and
(c) fixing a date for a Settlement Conference/Trial Management Conference within 90 days.
[9] Both motions were adjourned on May 28, 2021 to permit service of the applicant’s motion materials on the proposed added parties Greg Hill and Francis (Frank) Montour. The motions came back on for hearing on July 28, 2021, at which time counsel for Greg Hill and Francis (Frank) Montour, Kaelan Unrau, appeared and requested and was granted an adjournment of the applicant’s motion to add them as parties or that they submit to questioning, to a date to be fixed by the Trial Coordinator.
[10] Counsel for the applicant Mr. Lambert withdrew the applicant’s motion in respect of the respondent’s undertakings, refusals and under advisements given on his questioning.
[11] The matter proceeded on the respondent’s motion for disclosure by the applicant, that the applicant re-attend for further questioning and that a date for a Settlement Conference/Trial Management Conference be set.
Factual Context for the Respondent’s Disclosure Motion
[12] The respondent submitted that there are complicating factors in the proceeding which distinguish it from a usual family law matter. He says that the proceeding concerns a 15 - year cohabitation concluding with a two-year marriage. (The 15-year period of cohabitation mentioned in the respondent’s Factum appears to represent a miscalculation as he later asserted that the parties met in the summer of 2002, started cohabiting in 2003 and separated in November, 2015, which would suggest a period of cohabitation of approximately 12 years not 15).
[13] The respondent also says that assets were primarily acquired in the name of the applicant despite what he characterized as the vast majority of the funds and essentially all of the “sweat equity” having been contributed by him. He says that this results in a skewed equalization payment pursuant to the Family Law Act and has required him to seek relief by way of resulting trust and joint family venture claims.
[14] Both parties are “Status Indians” pursuant to the Indian Act, R.S.C. 1985 c. I-5. This factor is relevant to the proceeding in two respects: first, that the applicant was exempt, by virtue of the Indian Act from a requirement to file tax returns in respect of income earned on the Six Nations Reserve and she did discontinue filing personal income tax returns following the 2015 tax year, and second, in relation to the manner in which ownership of lands on the Reserve is acquired, transferred and registered on the Six Nations Reserve pursuant to the Indian Act. I have utilized the term “Indian” in this context rather than the more appropriate term “Aboriginal” as it is the term employed in the Act.
[15] The respondent submits that much of the equity, to which he contributed, is bound up in assets registered to the applicant by Certificates of Possession located on the Reserve, described as follows:
(i) 1044 Highway 54 Ohsweken, Ontario;
(ii) 1052 Highway 54 Lot 57-2 and Lot 57-3, Ohsweken, Ontario;
(iii) 1086 Highway 54, Lot 58-2, Ohsweken, Ontario; and
(iv) A business, “Route 54 Variety and Gas” located on certain of these premises.
[16] The respondent submitted that for the first seven years of their cohabitation, the applicant worked as a Federal Government employee and he worked as an itinerant ironworker. After about seven years the respondent decided to start a gas and retail business operating as “Route 54 Variety and Gas” and did so with the benefit of a loan from his cousin Greg Hill in the sum of approximately $1.75 million advanced over time, which was used to purchase the property adjacent to the parties’ home. He said that he personally did much of the construction, oversaw the crew, and was instrumental in getting the business set up. The applicant was in charge of much of the paperwork for the acquisition of the properties and the books and records of the business as she was more educated than the respondent. He said that she arranged for the various legal transactions and placed title to the property, pursuant to a Certificate of Possession, in her name.
[17] The respondent asserted that the applicant quit her job to operate the variety store and gas bar on a day-to-day basis and he started a second business on an additional adjacent property operating a training facility for standardbred horses. The respondent says that the properties for the horse training business were also put into the applicant’s name. In or about 2008, using the profits from the horse business and with further borrowed funds from Greg Hill, the respondent says that he set up a tobacco farming and production business on the same property.
[18] Many of the factual assertions of the respondent are denied by the applicant. In particular, she denied that the respondent borrowed money from Greg Hill to start the gas and retail business and stated that the decision to start the business was hers and not that of the respondent. The applicant denied that the businesses had anything to do with her holding Certificates of Possession for the properties described as 1052 Highway 54 Lot 57-2, Lot 57-3 and 1086 Highway 54, Lot 58-2, Ohsweken, Ontario and that her holding title to those properties resulted from certain prior family relationships.
[19] The applicant asserted that the only properties which were acquired during the relationship consisted of two lots at 534 Bateman Line.
[20] The respondent deposed that it is common practice for persons operating businesses on the Six Nations Reserve to not keep detailed records with respect to their business operations. However, she maintains that her failure to maintain these records was not part of any deliberate attempt to frustrate the legal proceeding but was the result of there being no requirement for her to file income tax returns.
Disclosure Sought by the Respondent
[21] The respondent submitted a draft order setting forth a list of the specific disclosure which he seeks from the applicant on his motion. Counsel for the parties utilized this list in their submissions as particularizing the disclosure sought by the respondent in his Notice of Motion, as follows:
General Disclosure
a. A breakdown of all sources of income received, including any cash income received, from January 1, 2012 to today’s date;
b. All credit and lending applications the Applicant has submitted to a financial institution for credit or borrowing of any kind from the period from January 1, 2012 to the present;
c. A copy of all net worth statements prepared for any purpose, including those that have been filed by the Applicant with any bank or other lender in support of any application for credit made by the Applicant or on her behalf, for the period from January 1, 2012 to today’s date.
d. A complete copy of each Corporate Notice of Assessment and Reassessment for any business in which Ms. Hill has an interest the past four (4) fiscal years;
e. A complete copy of all Financial Statements (inclusive of all notes) for any business in which Ms. Hill has an interest in the past four (4) fiscal years;
f. RBC Joint Chequing Account #4780 from January 1, 2012 to April 1, 2012 and from May 4, 2016 to today’s date;
g. RBC Account #6829 from January 1, 2012 to September 11, 2013 and from November 10, 2018 to today’s date;
h. RBC Account #5002 from January 1, 2012 to January 1, 2013, from December 1, 2015 to January 1, 2016 and from November 1, 2016 to today’s date;
i. RBC US Visa Dollar Gold Account #1292 from January 1, 2012 to August 9, 2013, from March 8, 2016 to April 9, 2016, from May 9, 2016 to July 9, 2016 and from December 8, 2016 to today’s date;
j. RBC US Chequing Account #2415 from January 1, 2012 to August 11, 2016 and from December 9, 2016 to today’s date;
k. RBC Visa Infinite Account #7993 from January 1, 2012 to August 6, 2013 and from September 6, 2016 to today’s date;
l. RBC Royal Mutual Funds Inc. Investment Account #8970 from January 1, 2012 to July 1, 2013 and from December 31, 2016 to today’s date;
m. RBC RRSP Account #9242 from January 1, 2012 to July 1, 2013 and from December 31, 2016 to today’s date;
n. RBC Business Account #8994 from January 1, 2012 to August 20, 2013, from May 20, 2014 to June 20, 2014 and from November 18, 2016 to today’s date;
o. RBC Visa Credit Line Account #8971 from January 1, 2012 to September 10, 2013 and from November 7, 2016 to today’s date;
p. RBC Account #4780 from January 1, 2012 to November 10, 2015, from March of 2016 and from May 11, 2016 to today’s date;
q. RBC Account #4780 copies of cheques from January 1, 2012 to January 2016 and from February of 2016 to today’s date;
r. An updated client profile associated with every client card that the Applicant owns
s. A complete copy of all business credit instrument statements for the period from January 1, 2012 to date;
t. A complete copy of all business bank account statements for the period from January 1, 2012 to date;
u. A valuation of Ms. Hill’s properties located at 1044 Highway 54 Ohsweken, ON, N0A 1M0, 1052 Highway 54 Lot 57-2 and Lot 57-3, Ohsweken, ON, N0A 1M0 and 1086 Highway 54 Lot 58-2, Ohsweken ON, N0A 1M0;
v. A valuation of the Applicant’s RBC Locked-In and Balance Pension Accounts;
w. All supporting documentation related to the acquisition of all properties owned by the Applicant, including correspondence, lawyers’ files, trust ledgers, cheques or other supporting documentation to the acquisition;
Examination for Discovery / Cross Examination of Kristine Hill on October 29, 2019
x. P. 154, Q. 1020: A complete copy of the Applicant’s personal Income Tax Returns and Notices of Assessment, including all slips and schedules, from 2015 to today’s date;
y. P. 13, Q. 77: Further documents for financial arrangements for the 2016 Chevrolet pickup truck other than what is contained in the Purchase Agreement dated November 25, 2015;
z. P. 11, Q. 64: RBC Visa Infinite Avion #4173 from December 31, 2016 to October 6, 2018 and from September 5, 2019 to today’s date;
aa. P. 11, Q. 64: RBC US Dollar Visa Gold #0666 from December 8, 2016 to December 11, 2018 and from September 9, 2019 to today’s date;
bb. P 84-85, Q. 573: To provide all invoices or statement of accounts from the gas supplier Bradshaw for purchases since separation;
cc. P. 85, Q. 576: To provide copies of all invoices for products purchased for the gas and variety store since separation;
dd. P. 92-93, Q. 626: To provide a valuation of the Applicant’s real estate interest and business interest as at the date of separation;
ee. P/ 76, Q. 516: To answer how much Ms. Hill paid Henein Hutchinson law firm for legal services in the Burtch Litigation;
ff. P. 76, Q. 517: To answer where the money came from for the Applicant to pay Henein Hutchinson law firm for legal services in the Burtch Litigation;
gg. P. 76, Q. 518: To answer whether there was an approximate $320,000 payment that the Applicant had to make to the opposing party in the Burtch Litigation;
hh. P. 76, Q. 519: To answer where the Applicant obtained $320,000 to make that payment to the opposing party in the Burtch Litigation;
ii. P. 77, Q. 521: To advise when the Applicant made an approximate $320,000 payment to the opposing party in the Burtch Litigation;
jj. P. 77, Q. 522: To advise whether the Applicant has already made an approximate $320,000 payment to the opposing party in the Burtch Litigation;
kk. P. 78, Q. 524: To provide a corrected Financial Statement to include any payments made in regards to the Burtch Litigation;
ll. P. 78, Q. 525: To advise whether the Applicant obtained any loans to assist her in making these payments, the payments to her lawyer or the opposing party in the Burtch Litigation;
mm. P. 81-82, Q. 552: To provide an Affidavit from Brian Poreva in regards to the loaned funds;
nn. P. 81, Q. 552: To provide a trust ledger from Henein Hutchinson setting out all the payments that the Applicant ahs made to tat firm, the timing of those payments and any indication of the source of those payments;
oo. P. 110-111, Q. 776: To advise how much the Applicant paid counsel in regards to the litigation in relation to the kilns and how that was paid (cash or cheque);
pp. P. 162, Q. 1062: To provide the total amount and proof of how payment was made for Mr. Shriller’s fees;
qq. P. 164, Q. 1069: To provide a breakdown of the hundreds of thousands of dollars that the Applicant claims were at stake with respect to the Burtch property;
rr. P. 172, Q. 1132: To advise whether the Applicant hired a security guard to supervise the Burtch property;
Other
ss. An updated sworn Financial Statement (including to the present date), listing all debts;
tt. An Equifax report showing all of the Applicant’s applications for credit.
[22] It is apparent from a review of the respondent’s list that the disclosure sought falls into four general categories as follows:
(a) Information and documentation which would shed light on the applicant’s business revenue and personal income during the relevant period;
(b) information and documentation respecting business expenses including invoices for the purchase of products and inventory for the gas and variety store operation;
(c) valuations of the applicant’s real estate holdings, business interests and pension accounts, and transactional documentation respecting the acquisition of real properties owned by the applicant; and
(d) sources of funds for legal and other expenses and costs paid to opposing parties in respect of two litigation proceedings in which the applicant was a party, characterized as the “Burtch Litigation” and the “Kiln Litigation”;
Guiding Principles Respecting Disclosure
[23] The Court of Appeal in the case of Roberts v Roberts, 2015 ONCA 450 succinctly confirmed the central role that timely, complete and accurate financial disclosure plays in family litigation, stating at paragraphs 11 to 13 as follows:
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. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.
Financial disclosure is automatic. It should not require court orders […] to obtain production.
[24] Justice F.L. Myers, in the case of Manchanda v. Thethi, 2016 ONSC 3776 (S.C.J.) at paras. 1-22 comprehensively reviewed the extent of and the rationale for the obligation for early, voluntary, and complete financial disclosure on parties involved in family law proceedings.
[25] At para. 4 Myers J. emphasized that “it is the duty of the parties to produce documents to establish their incomes, expenses, assets and liabilities as at various valuation dates depending on the specific relief that is claimed in the proceeding” and “even where valuing one’s property may be inconvenient or expensive, the duty to obtain all necessary valuation expertise required to do so lies on the party who owns the particular property.”
[26] At para. 5 Myers, J. quoted from the decision of Czutrin, J. in Blaney v. Blaney, 2012 ONSC 1777 (S.C.J.) at paras. 3-5 where it was stated, inter alia, that soon after parties separate, or even in anticipation of separation, parties will be advised by family counsel that they need to start gathering documentation to deal with property and support issues. Particularly where a party is self-employed they should know that, for support purposes, their Income Tax Returns may not be enough to establish income and that the value of their interests in a company or business will need to be established by the use of and the need for experts in many instances. The obligation and onus to satisfy the court as to income and the value of assets and debts is on the person whose income or asset or debt is called into question.
[27] With respect to the obligation for financial disclosure on a person who is exempt from a requirement to file Income Tax Returns by virtue of the Indian Act, reference is made to the decision of MacLeod-Beliveau, J. in the case of McMurter v. McMurter in which she noted at para. 87 that, although such a party does not have to keep accurate accounting records for income tax purposes, he or she does however have to produce proper accounting records for his or her businesses for court purposes.
[28] Rule 13(3.3) 5 of the Family Law Rules provides that, in relation to a claim under part 1 of the Family Law Act, if a party had an interest in a sole proprietorship or was self-employed on the valuation date, such party is obliged to serve on the other party, for each of the three years preceding such date, the financial statements of the party’s business and a copy of every personal income tax return filed by the party, including any materials that were filed with the return.
[29] Rule 13(5.0.1) of the Family Law Rules provides that, in relation to a motion to change a temporary or final support order or support agreement, if a party is not required to and has chosen not to file an Income Tax Return because of the Indian Act (Canada), some other proof of income must be served. Although this provision is stated to apply specifically to motions to change, in my view it has application, by analogy, to originating applications such as the case at bar.
Position of the Respondent
[30] The respondent’s fundamental position is that, even though the applicant may not be required to prepare financial statements for the purpose of income tax reporting, she is obliged to produce financial statements or equivalent documentation for the purposes of the family litigation. She is also obliged to provide valuations of her business and properties prepared by qualified business valuators and property appraisers. In the absence of production by the applicant of financial statements for her business, income tax returns and notices of assessment and valuations of the business, it is necessary that she make full production of all records relating to the revenue and expenses of her business so that as accurate a picture of the net income of the business in each relevant year may be captured. The maintainable net income of the business is crucial in order to inform an appropriate valuation of the business.
[31] Although the applicant produced monthly account statements of the personal and business accounts, no analysis or breakdown was provided with respect to the source of the funds deposited to the accounts or the purpose for or recipients for withdrawals from the accounts, as no financial statements have been produced. Moreover, the respondent maintains that there were gaps in many instances where the closing balance of a monthly statement did not match the opening balance of the next monthly statement produced, calling for the production of a transaction history for each account disclosing all incoming and outgoing funds for each bank and credit card account.
[32] The respondent also submits that, in order to assist in the determination of the value of the applicant’s business, all invoices or statement of accounts from the gas supplier Bradshaw as well as copies of all invoices and statements of account of suppliers for products purchased for the gas and variety store since separation should be produced. If the applicant is no longer in possession of these documents she should be required to make reasonable efforts to obtain them from Bradshaw and the other third-party suppliers.
[33] Given that the applicant has failed to produce required financial statements and valuations the respondent says that she should be required to produce all credit and lending applications and net worth statements that she has submitted to any and all financial institutions for borrowing of any kind, which would provide insight into her income, assets and liabilities as she reported them for credit purposes. The respondent points out that on May 1, 2019, in answer to the respondent’s counsel’s disclosure request letter, she responded that she had not submitted any applications for credit or financing. However, on questioning she revealed that she had submitted an application for credit in order to finance the purchase of her 2016 Chevrolet pickup truck. In the circumstances, the respondent requires production of an updated Financial Statement listing all debts and an Equifax report showing all of her applications for credit.
[34] The respondent points to two legal proceedings in which the applicant was involved, in which she was required or did make significant payments. In the “Burtch Litigation” in which the applicant claimed to have a right to farm certain lands, she was found in contempt and was ordered to pay $320,000 in costs. This amount was exclusive of her own legal fees. The “Kiln Litigation” concerned a dispute as to the ownership of certain kilns used to dry tobacco located on the properties. The applicant ultimately settled the litigation following separation by means of a significant payment to the opposing party.
[35] The respondent submits that in the circumstances of her failure to make proper disclosure of her income, assets and liabilities the applicant should be required to give an explanation and provide full particulars respecting the source of the funds paid to her own counsel and to the opposing parties in connection with two litigation matters. This information goes to the “means” of the applicant at relevant times which he says is crucial to establishing the quantum of his property and support claims. The respondent submits that he does not seek information which would be subject to solicitor-client privilege which would be restricted to advice given to the applicant by her counsel.
Position of the Applicant
[36] The applicant submitted that she did not keep records with respect to all sources of income she received other than what is shown in the bank statements produced. She did not have financial statements of her business prepared for any year after 2015 and filed no income tax returns after 2015. Her income tax returns for the years 2012 to 2015 have been produced. She did indicate in submissions that she is in a position to review her business and personal bank accounts and identify the source of deposits.
[37] The applicant argued that applications made to lending institutions prior to separation are not relevant and moreover an obligation to produce such applications going back eight years is not proportionate to the litigation. Moreover, she says that she has never prepared any net worth statements.
[38] There are no corporate notices of assessment or reassessment as no corporations exist.
[39] With respect to the banking records produced, the applicant maintains that most, if not all, have been provided. She banked exclusively at Royal Bank of Canada which has advised that records are not available for any period going back more than seven years. The applicant believes that if any monthly statements are missing it is because there is no activity during those months.
[40] The applicant stated that although financial statements for the business do not currently exist, she is in the process of having financial statements for the 2019 and 2020 financial years completed by a third-party professional for the purpose of having a business valuation of the business carried out by a Certified Business Valuator.
[41] With respect to valuations of her real estate holdings, the applicant stated that she produced evaluation report from Mr. Brian Porter, an architect, with respect to the value of real estate in respect of which she holds Certificates of Possession. She has been able to locate a certified property appraiser to prepare a further valuation report and expects to be in a position to serve that report shortly.
[42] The applicant submitted that she has provided the respondent with the statement of her locked-in retirement account with Royal Bank of Canada. The value of the account is set out in the statement. The value of the account fluctuates with the market. It is not a pension under the Pension Benefits Act that can be further valued.
[43] The applicant stated that she is unable to produce any documentation with respect to transactions relating to her acquisition of properties for which she holds Certificates of Possession. She has produced the Certificates and nothing else is available. On the Reserve lawyers are generally not required for the completion of land transactions on the reserve and most of the properties were acquired through family and friends
[44] With respect to the request on questioning for production of further documents respecting the financial arrangements for the 2016 Chevrolet pickup truck, the applicant stated that she has received additional documentation from the Royal Bank of Canada which she will produce.
[45] With respect to certain of the RBC Visa accounts, the applicant advised that the account numbers changed and all account statements during the period December 2016 to April 2021 have been produced.
[46] The applicant advised that the statements from the gas supplier Bradshaw have been provided to the date of questioning in October 2019. She says that production of statements subsequent to that time is not relevant nor proportionate to the litigation. She maintained the records of not been kept with respect to products purchased for the gas and variety store since separation.
[47] The applicant states that her involvement in the Burtch Litigation is not relevant to the proceeding.
[48] With respect to the respondent’s request for an affidavit from Brian Poreva regarding funds loaned by him to the applicant, the applicant is prepared to use best efforts, but Mr. Poreva has to date declined to provide an affidavit as he does not wish to become involved in the litigation.
[49] The applicant is not prepared to produce any further information or documentation with respect to the two litigation matters as it is irrelevant and privileged.
[50] The applicant is prepared to provide an updated sworn Financial Statement, an Equifax report, and to attend for further questioning, but says that these obligations should be mutual.
Discussion
[51] The jurisprudence summarized above clearly establishes the importance of timely, complete and accurate financial disclosure in family litigation where issues of support, equalization and entitlement to property interests are involved. Disclosure promotes opportunities for settlement, which not only benefits the parties but also reduces strain on the court system and on scarce judicial resources. Proper disclosure is also crucial to achieving the primary objective of the Family Law Rules which is to enable the court to deal with cases justly as set forth in sub-rule 2(1.1). Pursuant to sub-rule 2(4) the court is required to apply the rules to promote the primary objective, and the parties and their lawyers are required to help the court to promote the primary objective.
[52] The progress of this proceeding to settlement or to final adjudication has been severely frustrated by the choice that the applicant has evidently made not to keep accurate records of the income and expenses of her business. Production of these records would allow the parties to assess their settlement positions on the issues of spousal support and property division and for the Court to ultimately make just determinations on those issues based upon reliable evidence.
[53] The applicant has stated that she did not keep records relating to her business for the years subsequent to 2015 as she was exempt from filing income tax returns by virtue of the Indian Act. Neither party has requested the court to make a determination of the jurisdiction of the court to order the applicant to file income tax returns for the years subsequent to 2015.
[54] As noted in McMurter, although the applicant may not have had to keep accurate accounting records for income tax purposes after 2015, she is not relieved of the obligation to produce proper accounting records for her businesses for the purpose of the proceeding. The respondent is entitled to seek disclosure from the applicant which would reasonably achieve the purposes served by production of proper financial statements and valuation of business and real property interests, even though, as stated by Myers, J. in Manchanda the exercise may be inconvenient and expensive.
[55] The applicant has advised that she has retained a third-party professional to prepare financial statements in respect of her business for the 2019 and 2020 years. In my view, financial statements should also be produced for the 2016 to 2018 years. It is acknowledged that this will take time and order for production should take this into account.
[56] In my view, in the circumstances of the failure of the applicant to produce proper records of her income and valuation of her assets, the respondent’s request for particulars and supporting documentation in respect of payments made by the applicant for legal expenses, security guard expenses, costs awards made against her and payments to opposing parties in connection with the Burtch Litigation and the Kiln Litigation, including the dates and amounts of such payments, and the sources of the monies paid is reasonable and necessary. This information may provide insight into the means of the applicant at the times of the payments which is relevant to the issues in the proceeding. This obligation shall not extend to any documentation which would tend to disclose legal advice given by the applicant’s counsel in those proceedings.
[57] The applicant’s obligation for disclosure extends to making reasonable and necessary inquiries from non-parties for documentation not in her possession respecting her income, expenses and the acquisition of property including statements and documents from financial institutions, invoices and account statements from gas and other suppliers to the gas station and variety store business, and documentation submitted to, or in the possession of, the Six Nations Band Council in relation to transfers of Certificates of Possession to her in relation to properties on the Reserve.
[58] I am satisfied that the applicant, in all of the circumstances, should be obliged to submit to further questioning, if requested, following completion of her disclosure obligations, produce an updated Financial Statement listing all debts, and produce an Equifax report showing all of her applications for credit. However, I am not satisfied that that the applicant has demonstrated justification for such obligations being made reciprocal. This relief has not been sought by the applicant in her motion. In my view, follow up questioning in family proceedings following completion of undertakings is not automatic but remains within the discretion of the court.
Disposition
[59] In order to give effect to the foregoing, it is ordered as follows:
- The applicant shall produce the following within 60 days hereof:
(a) a breakdown and particulars of the source of all deposits to her personal and business bank accounts from January 1, 2012 to the present;
(b) all applications of credit submitted to any lender from January 1, 2012 to the present;
(c) transaction histories for all personal and business bank accounts and credit card accounts for the period January 1, 2012 to the present including transaction histories available to her upon reasonable request made by her to the relevant financial institution(s);
(d) all documentation in the possession of the applicant or available to the applicant upon reasonable request made to the Six Nations Band Council related to the acquisition of all properties on the Reserve owned by the applicant, including, without limitation, and any and all correspondence, lawyers’ files, trust ledgers, cheques, and documents submitted to the Six Nations Band Council;
(e) invoices and account statements from gas and other suppliers to the gas station and variety store business from the date of separation, including all such documents available to the applicant upon reasonable request made by her to such suppliers; and
(f) particulars and supporting documentation in respect of payments made by the applicant for legal expenses, costs awards, security guard expenses and payments to opposing parties in connection with the Burtch Litigation and the Kiln Litigation, including the dates of such payments, the amounts of such payments and the sources of the monies paid, including any loans obtained from third parties. This obligation shall not extend to any documentation which would tend to disclose legal advice given by the applicant’s counsel in connection with those proceedings; and
(g) an Equifax report showing all of the applicant’s applications for credit.
- The applicant shall produce the following within 120 days, provided that the applicant is given leave to move for a reasonable extension of this time, within supporting evidence justifying such a request for extension:
(a) Financial Statements for any business in which the applicant has an interest for the financial years 2016, 2017, 2018, 2019 and 2020;
(b) valuations by a qualified business valuator for any business in which the applicant had an interest as of the date of separation; and
(c) valuations by a qualified real estate appraiser of the applicant’s properties located at 1044 Highway 54 Ohsweken, ON, N0A 1M0, 1052 Highway 54 Lot 57-2 and Lot 57-3, Ohsweken, ON, N0A 1M0 and 1086 Highway 54 Lot 58-2, Ohsweken ON, N0A 1M0 as of the date of separation.
The event that the applicant claims that she has been unable to obtain any documentation ordered to be produced and not in her possession she shall provide affidavit evidence of her reasonable efforts to obtain such documentation from relevant non-parties.
The applicant shall provide an updated Financial Statement including to the present date, disclosing all debts within 60 days hereof.
The applicant shall attend for further questioning, upon request by the respondent, on her productions and disclosure ordered hereby.
A date for a Settlement Conference/Trial Management Conference shall be scheduled by the Trial Coordinator within 150 days hereof, if possible, subject to the availability of judicial resources.
Costs
[60] The parties are strongly urged to settle the issue of the costs of the motion.
[61] If the parties are unable to do so, the respondent may make written submissions as to the costs of the motion within 21 days of the release of this Endorsement. The applicant has 14 days after receipt of the respondent’s submissions to respond. The written submissions shall not exceed four (4) double-spaced pages exclusive of Bills of Costs, Offers to Settle and authorities. All such written submissions are to be forwarded to me via email to the Trial Coordinator at Brantford, at the same email address as was utilized for the release of this Endorsement.
[62] If the parties are able to settle the question of costs or if a party does not intend to deliver submissions on costs, counsel are requested to advise the Trial Coordinator in writing accordingly.
D.A. Broad, J.
Date: September 23, 2021