Superior Court of Justice – Ontario (Family Court)
RE: Tracy Lee Brennan, applicant
AND:
Geoffrey Henry Fournie, respondent
BEFORE: MITROW J.
COUNSEL: Peter D. Eberlie for the applicant Kimberly L. Doucett for the respondent
HEARD: August 4, 2021; written submission due by September 14, 2021
ENDORSEMENT
INTRODUCTION
1This is a motion brought by the applicant, Tracy Lee Brennan (sometimes referred to as “Ms. Brennan”), for an order that the respondent, Geoffrey Henry Fournie (sometimes referred to as “Mr. Fournie”), shall comply with his undertakings given during oral questioning and compelling Mr. Fournie to provide documents that he refused to provide during oral questioning. In addition, the motion includes some requests that Mr. Fournie provide additional information arising primarily as a result of documents that he did produce pursuant to his undertakings.
2The parties are not married to each other. They cohabitated from approximately 1995 until 2016. They have two children, born in 1997 and 2002. This court case started in 2016 and there are numerous issues raised, as listed by Mr. Fournie in his affidavit, including claims by Ms. Brennan for decision-making responsibility, parenting time, child support, spousal support, a declaration that the parties were engaged in a joint family venture, occupation rent and sale of the jointly-owned matrimonial home.
3On August 4, 2021, when Ms. Brennan’s motion first came before me, some argument was heard on the motion, but it became apparent that the number of undertakings and refusals that comprised Ms. Brennan’s motion could not be heard due to insufficient time. Instead, with concurrence of counsel, it was ordered that counsel should provide written submissions according to a schedule, as ordered, with the applicant’s reply submissions due September 14, 2021.
4Also included in the order was that counsel would provide a hard copy of the transcripts of the oral questioning. I have received all the written submissions and transcripts.
5The order provided that, with respect to the undertakings that were argued on August 4, 2021, that the decision was reserved to be dealt with at the same time as the other undertakings and refusals.
6Both counsel assisted the court with thorough written submissions, which included submissions in relation to those undertakings and refusals that were part of the oral argument on August 4, 2021.
7These reasons are structured in accordance with Ms. Brennan’s motion and follow the same numbering sequence as set out in her motion.
DISCUSSION AND DECISION
i) Motion: paragraph 2(a) - regarding undertaking #53 to obtain source documents from Bard evidencing the amount of the respondent’s severance package
8In or about the mid 1990s, the parties moved to the U.K. as Mr. Fournie had accepted a position with C.R. Bard (“Bard”) in Ireland and the United Kingdom, a multinational developer, manufacturer and marketer of medical technologies.
9In or about 1998, Bard sold the division in which Mr. Fournie was working. Although Mr. Fournie had some options to continue his employment with Bard, the parties instead relocated to London, Ontario in or about late 1998. At that time, Mr. Fournie received a severance package and other compensation from Bard.
10While Ms. Brennan’s motion describes the undertaking as to “provide the original source documents from Bard evidencing the amount of the Respondent’s severance package”, the undertaking is described in the transcript (Mr. Fournie’s oral questioning January 30, 2020 at page 234) as follows: “To provide something from Bard or source documents showing what the severance was.”
11Mr. Fournie submits that he has satisfied this undertaking. He points to a lengthy list of documents that he provided in response to this undertaking, including his own calculation of the severance, bank statements, receipt for the sale of his car, various emails, faxes and correspondence and statements from his U.K. tax account.
12The main complaint of Ms. Brennan in that she interprets the undertaking to provide source documents as meaning documents directly from Bard. While Mr. Fournie correctly states that undertaking is to provide something from “Bard or source documents,” I find, in reviewing the transcript, that the questioning was directed at information from Bard.
13While Mr. Fournie did provide a number of documents, there is no evidence that he contacted Bard directly to ask for those documents, nor is there any evidence that he contacted his former U.K. solicitors at the time, Stevens & Bolton, to ask for their files.
14Further, in his affidavit, Mr. Fournie refers to providing a fax dated October 30, 1998 sent to his lawyer, Frank Angeletti, discussing elements of the severance package. It is understood that Mr. Angeletti is a London, Ontario lawyer. There is also no evidence as to whether Mr. Fournie contacted Mr. Angeletti to determine whether Mr. Angeletti’s files contained any documents from Bard regarding the severance package.
15It is my finding that, implicit in the undertaking, is that Mr. Fournie first would focus his efforts on source documents directly from Bard, prior to relying on other source documents regarding his severance. Also, Ms. Brennan deposes that a number of documents that were provided were not requested and were not responsive to the undertaking.
16I order as follows:
Within 30 days, the respondent shall request directly from Bard all source documents evidencing the amount of his severance package with Bard.
In addition, within 30 days, the respondent also shall request all his former solicitors at the time to provide all documents in their possession from Bard evidencing the amount of the respondent’s severance package, including, without limiting the generality of the foregoing, his U.K. solicitors, Stevens & Bolton.
Within 45 days, the respondent shall provide written confirmation to the applicant as to his compliance with paragraphs 1 and 2 of this order.
All documents received by the respondent, pursuant to paragraphs 1 and 2, shall be provided immediately to the applicant.
When requesting the documents as required by paragraphs 1 and 2 of this order, the respondent shall include a copy of this order signed and issued.
If the respondent has not received a response within 30 days of his request, then the respondent shall act diligently in following up on his requests.
ii) Motion: paragraphs 2(b) and 2(c) – provide the unredacted letter from Stevens & Bolton, solicitors, dated December 8, 1998 with respect to salary monies still owing by Bard to the respondent; and to provide the unredacted letter from Stevens & Bolton, solicitors, dated December 10, 1998
17These two requests are not related to compliance with an undertaking, nor a refusal. Rather, the requests follow from documents provided by Mr. Fournie, in relation to the matter already discussed above, relating to the undertaking for source documents from Bard respecting the severance package.
18In her written submissions, Ms. Brennan also seeks the unredacted letter dated December 9, 1998 from Stevens & Bolton. No such request was made in the motion. In any event, that letter, unredacted, has already been provided and a copy of same is included with Ms. Brennan’s written submissions at tab A1.
19Regarding the December 8 and 10, 1998 letters, sought to be produced, Mr. Fournie submits that he has provided whatever copies he has of that correspondence. Regarding the December 10, 1998 letter (which is also included in Ms. Brennan’s written submissions at tab A), it is not clear whether this is a redacted letter, or just a fax covering sheet.
20As to the letter dated December 8, 1998, it is not entirely clear whether the letter is from Bard or from Stevens & Bolton.
21This “December 8” letter is referred to in the letter from Stevens & Bolton dated December 9, 1998, at paragraph 16, which mentions “… some outstanding salary due from Bard (see attached letter of December 8, 1998) …” It is noted that the letter dated December 9, 1998 from Stevens & Bolton is addressed to a solicitor, Ian Day. Also, although there is reference to the “December 8” letter being attached, no such attachment has been produced by Mr. Fournie.
22The most efficient way for Mr. Fournie to have dealt with this matter was to have requested his former solicitors, Stevens & Bolton, to provide their clean copy of the December 10, 1998 correspondence and to produce the letter dated December 8, 1998, referred to in the Stevens & Bolton letter dated December 9, 1998 addressed to Mr. Ian Day. It appears that Mr. Fournie did not make those requests.
23I order as follows (with the numbering sequence in the paragraphs of the order being sequential throughout the balance of these reasons):
- Within 30 days, the respondent shall request his former solicitors, Stevens & Bolton, to provide to him:
(a) the complete unredacted copy of the letter dated December 10, 1998 from Stevens & Bolton;
(b) the letter dated December 8, 1998 relating to outstanding salary due from Bard, said letter being referred to in paragraph 16 of the letter dated December 9, 1998 from Stevens & Bolton to solicitor, Ian Day; and
(c) when making his request to Stevens & Bolton, the respondent shall provide to Stevens & Bolton a copy of the contents of tab A of the applicant’s written submissions on this motion.
Within 45 days, the respondent shall provide to the applicant written confirmation that he has complied with paragraph 7 of this order, and the respondent shall follow up in a diligent manner if no response is received within 30 days of the respondent’s request.
The respondent shall provide copies of all documents received pursuant to paragraph 7 of this order immediately on receipt.
iii) Motion: paragraph 2(d) – to provide proof of and particulars with respect to the respondent’s Bard pension referred to in the December 9 letter from Stevens & Bolton and the value of that pension as of April 12, 2016
24This claim relates to the mention of Mr. Fournie having a pension in the letter dated December 9, 1998 from Stevens & Bolton referred to earlier.
25In her initial affidavit, Ms. Brennan deposed that she was not aware of any such pension from Bard and that the pension was not disclosed in Mr. Fournie’s financial statements.
26Mr. Fournie responded that Ms. Brennan was aware of the pension and that the pension had been converted to a LIRA. A Bank of Montreal LIRA is disclosed in the excerpt from Mr. Fournie’s financial statement sworn March 15, 2018, appended as tab B to Ms. Brennan’s written submissions. No reference appears to have been made to paragraph 2(d) of the motion in the subsequent written submissions of both parties. It appears, therefore, that Mr. Fournie has satisfactorily responded to this request.
27I order as follows:
- The relief sought in paragraph 2(d) of the applicant’s motion relating to the respondent’s Bard pension is dismissed.
iv) The applicant’s motion as it relates to undertakings and refusals in relation to the respondent’s dealings with George Baran
28The issue relating to George Baran (“Mr. Baran”) is Ms. Brennan’s allegation, in relation to her claim for spousal support, that Mr. Fournie works for Mr. Baran and that the latter has loaned significant amounts of money to Mr. Fournie, which Ms. Brennan argues should be characterized as income for support purposes.
29Mr. Fournie deposes that he is currently employed by Mr. Baran’s corporation, Perfuse Medtec Inc. (“Perfuse”), earning approximately $250,000 annually. Mr. Fournie agrees that he has borrowed money from Mr. Baran, who he describes as his friend, indicating that they have known each other and have been friends since high school.
30Mr. Fournie initially borrowed $100,000 from Mr. Baran on terms set out in a promissory note dated November 1, 2017, signed by both Mr. Fournie and Mr. Baran. In April 2021, Mr. Fournie and Mr. Baran executed a memorandum of understanding, as an addendum to the promissory note, agreeing that all additional monies advanced since the execution of the promissory note were on the same terms as the promissory note and, further, agreeing that until Mr. Fournie’s “personal financial circumstances” stabilized, that “repayment and associated interest shall be deferred.”
31Ms. Brennan’s evidence is that the debt to Mr. Baran was $375,000 on July 19, 2019 and that it had increased to $870,000 by December 8, 2020.
32Mr. Fournie does not dispute this evidence and he attaches to his affidavit copies of four cheques from Mr. Baran, all dated subsequent to December 8, 2020, bringing the total debt to a little over one million dollars.
33Ms. Brennan argues that these payments are not true loans and, for that reason, all or part should be included in Mr. Fournie’s income.
34The amounts advanced by Mr. Baran are significant. In part, Mr. Fournie deposed that he needed financial assistance to meet his various expenses. However, he also deposed that some of the money advanced by Mr. Baran was used to purchase an interest in a farm property as an investment.
35As indicated earlier, the outstanding issues include spousal support. This means that Mr. Fournie’s source of funds subsequent to separation, whether characterized as income or otherwise, and his lifestyle and expenses are relevant. Ms. Brennan has a right to pursue her claim that the money advanced by Mr. Baran subsequent to separation should be characterized as income available to Mr. Fournie for spousal support purposes. Ms. Brennan has a right to receive disclosure from Mr. Fournie to pursue that claim.
36The sheer size of the total loan, the fact that the loan was used not only for alleged expenses, but was used to fund the acquisition of an income property, and the relationship between Mr. Fournie and Mr. Baran, can raise legitimate concerns, from Ms. Brennan’s perspective, as to whether some or all of the loans are disguised income, especially considering that, in less than four years, the total amount of the loan exceeds four times Mr. Fournie’s annual reported salary of $250,000.
v) Motion: paragraph 2(e) undertaking #19 – provide a breakdown on what the $100,000 loan from George Baran was spent on
37Much of Mr. Fournie’s position relating to refusals to provide information regarding loans from Mr. Baran is that this information is not relevant.
38I find that a breakdown as to what the initial $100,000 loan was spent on is relevant. While it may be Mr. Fournie’s view that this is not relevant, it is relevant to Ms. Brennan’s theory of the case. Mr. Fournie’s evidence2 was that he used this money for expenses such as house repairs, payments to the applicant and legal fees.
39Mr. Fournie deposes that he did not keep track of how he spent the money owned by Mr. Baran. However, Ms. Brennan, in reply, deposed that Mr. Fournie does keep track of expenses, including minimal expenses. She deposed further that this is borne out by his lists of expenses regarding the children and repairs and expenses regarding the farm.
40At paragraph 71 of her written submissions, Ms. Brennan submits, for example, that in relation to undertakings that included children’s expenses, that Mr. Fournie provided a 25 page summary, attaching 689 pages of receipts. A sample of those page summaries are appended at tab E of Ms. Brennan’s written submissions.
41Mr. Fournie corroborates the foregoing, as he deposes that he provided receipts for children’s expenses totalling approximately $235,000. In his written submissions, at paragraph 24, Mr. Fournie submits that he has provided “thousands of pages” in responding to all of his undertakings.
42While Mr. Fournie discussed in generalities some of the expenses paid for from the loans advanced by Mr. Baran, this evidence is not responsive to the specific information sought, which was to account for how the initial $100,000 loan was spent.
43The sample of expense summaries at tab E referred to above suggests that Mr. Fournie keeps meticulous records of his expenses.
44I am not persuaded that Mr. Fournie is incapable of complying with undertaking #19, which was taken under advisement at his oral questioning on April 17, 2018.
45I order as follows:
- Within 45 days, the respondent shall provide a breakdown as to what the $100,000 loan from George Baran was spent on.
vi) Motion: paragraph 2(f) undertaking #60 – provide bank statements showing the deposit of the loan from Mr. Baran and the expenditure of the money (page 264, Q. 1530)
46This undertaking is described in the transcript of Mr. Fournie’s oral questioning on January 30, 2020 and it is noted as a refusal.
47While the undertaking is described as relating to “the loan,” it is apparent from the transcript that the discussions relate to the initial $100,000 loan provided by Mr. Baran.
48The bank statements showing the deposit, and the expenditure of this loan, are relevant and should be produced. These documents are germane to the issue of what the loan proceeds actually were used for. This information is relevant in relation to Ms. Brennan’s theory of the case.
49I order as follows:
- Within 45 days, the respondent shall provide the bank statements showing the deposit of the $100,000 loan from Mr. Baran and the expenditure of that money.
vii) Motion: paragraph 2(g) undertaking #62 – provide copies of the cheques provided by Mr. Baran totalling $275,000 and details of what the monies were spent on and the amounts (page 271, Q. 1567)
50This undertaking, which is noted to be a refusal, relates to more cheques received from Mr. Baran, including a request to receive copies of the cheques and details as to what those monies were spent on.
51This disclosure is relevant for reasons similar to the disclosure in relation to the initial $100,000 loan.
52In his affidavit, Mr. Fournie, as mentioned earlier, did provide copies of some cheques that he received from Mr. Baran. It is not clear why Mr. Fournie would provide those cheques but then claim that other cheques are not relevant.
53I order as follows:
- Within 45 days, the respondent shall provide copies of the cheques provided by Mr. Baran totalling $275,000 and details of what the monies were spent on and the amounts.
viii) Motion: paragraph 2(h) undertaking #76 – advise monies Mr. Fournie has borrowed from George Baran, the timing, where monies were deposited and how it was spent; and paragraph 2(j) – provide documentary evidence of how the respondent’s debt to George Baran had increased from $375,000 on July 19, 2019 to $870,000 on December 8, 2020 – an increase of $495,000 over 17 months, of where those funds were deposited and of what those funds were spent on
54I deal with these two requests together. The request in paragraph 2(j) of the motion appears to relate to a request for further information after having received compliance with previous undertakings
55The context is that undertaking #76, taken under advisement, was given on January 30, 2020, which was the later of the two times that Mr. Fournie attended for oral questioning.
56Ms. Brennan’s evidence demonstrates that, over time, with each new financial statement and ongoing financial disclosure, that Mr. Fournie’s indebtedness to Mr. Baran was constantly escalating.
57It is apparent that Mr. Fournie continued to borrow money from Mr. Baran after the last day of oral questioning. Also, Mr. Fournie’s financial disclosure on December 8, 2020 revealed to Ms. Brennan that the debt to Mr. Baran stood at $870,000.
58As noted earlier, Mr. Fournie’s affidavit disclosed additional amounts borrowed from Mr. Baran. This included three cheques during 2021, the last of which was dated June 28, 2021, which was approximately one month prior to Mr. Fournie signing his affidavit.
59Ms. Brennan has a right to be concerned about this constantly escalating debt.
60Given the orders made so far, it has been determined that Ms. Brennan is entitled to know when the money was borrowed, the amount, where the money was deposited and how the money was spent.
61Also, as Mr. Fournie has demonstrated a pattern of constant borrowing, I find that Ms. Brennan is entitled to receive this information for the period up to and including trial.
62I order as follows:
14(a) Within 45 days, the respondent shall disclose all monies that he has borrowed from Mr. Baran, when the monies were borrowed, where the monies were deposited and how the monies were spent;
(b) the intent of paragraph (a) is to apply to all monies borrowed from Mr. Baran where the information required in paragraph (a) has not already been ordered;
(c) the disclosure order at paragraph (a) applies to monies borrowed by the respondent from Mr. Baran up to and including the date of this order;
(d) until trial, if the respondent borrows any further money from Mr. Baran, then within 45 days, the respondent shall disclose the amount borrowed, when it was borrowed, where the monies were deposited and, if any of the monies were spent, how the monies were spent; and
(e) regarding paragraph (d), to the extent that the money has not been spent, the respondent shall, within 45 days of spending any further monies, disclose how the monies were spent and this obligation applies up to and including trial.
ix) Motion: paragraph 2(i) – provide an explanation of what the November 8, 2020 cheque for $60,000 with the notation “loan as per previous agreement” was for
63In his ongoing financial disclosure, Mr. Fournie provided a copy of a cheque from Mr. Baran dated November 8, 2020 in the amount of $60,000.
64The evidence indicates that the information sought by Ms. Brennan, in relation to this cheque, has not been provided (there is no specific undertaking that relates to this information).
65It is apparent that this cheque formed part of the loan to Mr. Fournie and, hence, would be subject to orders already made to explain how the money was spent. However, for clarity, I make the order below.
66I order as follows:
- Within 45 days, the respondent shall provide an explanation of what the cheque dated November 8, 2020 from George Baran with the notation “loan as per previous agreement” was for.
x) Motion: paragraphs 2(k) and (l) – to provide copies of the invoices and expenses submitted by the respondent to Perfuse in 2015 and 2016; and 2(l) to provide 2017 and 2018 consulting invoices submitted to Perfuse and/or George Baran to support the respondent’s 2017 and 2018 tax returns
67The evidence indicates that Mr. Fournie, prior to being hired by Mr. Baran’s company, Perfuse, in 2018, provided consulting services to Mr. Baran and Perfuse.
68During his oral questioning on January 30, 2020, Mr. Fournie undertook to provide copies of invoices and expenses submitted to Perfuse in 2015 and 2016. The written submissions confirm that that undertaking was satisfied. According to Ms. Brennan’s written submissions, the information was received via email on August 3, 2021.
69The requests in paragraphs 2(k) and 2(l) of the motion are not related to undertakings but rather are fresh requests for further information.
70In relation to the consulting invoices for 2017 and 2018, Mr. Fournie submits that these are not required because his income from employment has been disclosed. I do not accept that submission. First, Mr. Fournie had no issue providing his consulting invoices for 2015 and 2016. Secondly, these consulting invoices are evidence that can assist in corroborating Mr. Fournie’s income while he was self-employed as a consultant. The consulting invoices are relevant and shall be produced.
71In relation to the expense statements for 2017 and 2018, it is noted that the notice of motion does not request the expense statements; only the consulting invoices are requested. However, in her affidavit3, Ms. Brennan requests all consulting invoices and expense statements for 2017 and 2018. She also repeats that request in her written submissions.
72No objection was taken by Mr. Fournie that the formal notice of motion did not refer to the expense statements for 2017 and 2018. I find, in the circumstances, that there was disclosure to Mr. Fournie and he was aware that the 2017 and 2018 expense statements also were being sought.
73In his written submissions, Mr. Fournie submits that he should not be required to produce the expense statements for 2017 and 2018 because they are confidential documents belonging to Perfuse and that Mr. Fournie is not at liberty to disclose those documents.
74There is no evidence from Mr. Fournie that those documents are confidential. Further, he had no issue producing the 2015 and 2016 expense statements.
75Accordingly, I do not accept the reason given by Mr. Fournie for non-production of his expense statements for 2017 and 2018.
76I order as follows:
- Within 45 days, the respondent shall provide his 2017 and 2018 consulting invoices and expenses submitted to Perfuse and/or George Baran to support the respondent’s 2017 and 2018 tax returns.
xi) Motion: paragraphs 2(m), (n) and (o) – relating to requests for the respondent’s bank statements as per undertakings #16, #17, #77 and #87
77There are three separate requests in the motion for production of Mr. Fournie’s bank statements. It is not necessary to set out in full the actual wording of the undertakings as they are overlapping and were not all given on the same day.
78The evidence on Mr. Fournie’s oral questioning establishes that Mr. Fournie has agreed to use April 12, 2016 as the date of separation4.
79Ms. Brennan’s request is to have Mr. Fournie produce all his bank statements from January 1, 2015 “to date.” I interpret “to date” to mean January 30, 2020, which was the date of Mr. Fournie’s last oral questioning. There was no specific request to keep providing bank statements on an ongoing basis.
80Mr. Fournie appears to take no issue with production of his bank statements for the period January 1, 2015 to the date of separation – April 12, 2016.
81Mr. Fournie argues that the bank statements subsequent to the date of separation are not relevant to the issues “properly before the court.”5 Mr. Fournie also relies on the submission that imputation of income has not been pleaded.
82Ms. Brennan, in reply, argues that whether or not the issue of income imputation has, or will be pleaded, is not a relevant issue on her motion before the court. She submits, further, that complete financial disclosure is required so that she can determine whether imputation of income should be put before the court on a later date.
83It is noted that this proceeding was commenced in 2016. Since then, significant new facts have evolved, including Mr. Fournie becoming employed by Perfuse and borrowing over one million dollars from Mr. Baran.
84I reject the submission that post-separation bank statements are not relevant. They are relevant. Spousal support is pleaded. This makes post-separation income of both parties relevant. If post-separation income is relevant, then the quantum of income is a live issue. Quantum of income may include, in appropriate cases, imputation of income.
85Without making any general statement of law as to whether imputation of income has to be specifically pleaded, I find, on the facts of this case, that imputation of income is a live issue, well known to both parties. It would be inefficient and would add unnecessarily to legal expenses if pleadings had to be amended now and then Mr. Fournie would have to attend for further oral questioning on the imputation of income issue.
86I would note that neither party provided any jurisprudence on the issue of whether imputation of income has to be specifically pleaded when spousal support is sought.
87There is reference to undertaking #87, referred to in paragraph 2(o) of the motion. That request is to provide bank statements for “account 447” from the date of separation “to date.” It is not clear why an order needs to be made regarding this undertaking (which was refused) given that the motion, at paragraph 2(n), includes an undertaking to provide Mr. Fournie’s bank statements from the date of separation to date, which presumably would include production for account 447.
88I order as follows:
17(a) Within 60 days, for the period commencing January 1, 2015 to January 30, 2020, the respondent shall provide copies of all his bank statements, including without limiting the generality of the foregoing, his bank statement for “account 447”; and
(b) paragraph (a) is without prejudice to the applicant’s right to bring a motion for production of the respondent’s bank statements for the period commencing January 31, 2020 and onwards, if the applicant first has made a written request for production of those bank statements and has not received same within 45 days.
xii) Motion: paragraphs 2(p) and (q) – undertaking #61 to provide reporting letter with respect to the farm property and evidence of what repairs have been paid for by Mr. Fournie on the farm property; and undertaking #64 to provide Desjardins mortgage application documents supporting the respondent’s request for a $250,000 mortgage to buy the farm, complete with any information provided as to the respondent’s income and debts
89In April 2018, Mr. Fournie, together with another individual, purchased a farm property for $340,000. Mr. Fournie agrees that he paid the $90,000 down payment and the balance was secured by a mortgage in the amount of $250,000.
90Mr. Fournie further deposes that he invested a further $200,000 in repairs relating to this farm property. Mr. Fournie describes the farm property as an investment, to be operated as a horse-riding school for children. He describes this business venture as “approximately self-sustaining at this point.” Mr. Fournie hopes that this investment soon will become profitable.
91The purchase of the farm property, from Ms. Brennan’s perspective, comes at a time when Mr. Fournie is stating that he needs to borrow money from Mr. Baran because of his inability to meet his regular ongoing personal expenses.
92Mr. Fournie has refused to provide the reporting letter for the farm purchase. He has also refused to produce his mortgage application to Desjardins. He submits that these documents are not relevant.
93These documents are relevant.
94I repeat, spousal support is an issue. Mr. Fournie’s lifestyle and expenditures are relevant, especially when he claims he cannot meet his expenses but yet, apparently, he is able to buy a farm.
95Regarding the mortgage application, I find that nothing could be more relevant than obtaining the document completed by Mr. Fournie representing his income and expenses to a financial institution in support of his application for a mortgage.
96Regarding the expenses related to the farm, it appears that some disclosure has been made; however, it is not entirely clear what the disclosure is and, hence, the order below includes that request made by Ms. Brennan.
97I order as follows:
18(a) Within 60 days, the respondent shall provide the reporting letter with respect to the farm property and, subject to paragraph (b), evidence of what repairs have been paid for by the respondent in relation to the farm property; and
(b) in relation to paragraph (a), as it relates to repairs on the farm property, the applicant shall, within 30 days, confirm in writing all information that she has already received, if any, regarding the repairs on the farm property, and the respondent shall provide evidence as to the remaining repairs.
- Within 45 days, the respondent shall provide the Desjardins mortgage application document supporting the respondent’s request for a $250,000 mortgage to buy the farm, complete with any information provided as to the respondent’s income and debts.
xiii) Motion: paragraph 2(r) – undertaking #63 to show what was paid and when on Mr. Fournie’s Mastercard, American Express and Triangle Mastercard in 2018 and 2019 (page 276, Q. 1600, January 30, 2020 transcript)
98This undertaking, which was a refusal, seeks disclosure as to the amounts that Mr. Fournie pays each month on his credit cards. There is no request to provide the details of the various expenses on the credit cards. Mr. Fournie deposes that he pays off the balance on all his credit cards each month. Mr. Fournie submits that the timeframe for the disclosure is post-separation and therefore the information sought is not relevant.
99It is relevant.
100Spousal support is an issue. If Ms. Brennan knows how much Mr. Fournie pays on his credit cards each month, then this information could assist Ms. Brennan in assessing the veracity of Mr. Fournie’s evidence regarding his income and expenses.
101I order as follows:
- Within 45 days, the respondent shall disclose the amounts paid, and when, on his Mastercard, American Express and Triangle Mastercard in 2018 and 2019.
xiv) Motion: paragraph 2(s) – to provide the respondent’s T4 slips and other supporting documents to prove his income as reported on his tax returns for 2018 to 2020 inclusive
102There was minimal evidence and few submissions regarding this particular request. However, the information sought is the type of financial disclosure that is routinely made and should be made.
103It is not clear whether Mr. Fournie already has provided this information. However, I include it in the order below in the event this information has not been provided.
104I order as follows:
- Within 45 days, the respondent shall provide his T4 slips and other supporting documents to prove his income as reported on his income tax returns for 2018 to 2020, inclusive.
COSTS
105It is apparent that Ms. Brennan has been successful and is presumptively entitled to costs.
106The parties are urged strongly to make best efforts to agree on costs.
107In the event that the parties are unable to agree on costs, the order below provides for written submissions.
108I order as follows:
- If the parties are unable to agree on costs, then written costs submissions may be served and filed. The costs submissions shall be filed with the trial coordinator. The applicant shall file her costs submissions by January 14, 2022, the respondent shall file his reply costs submissions by February 4, 2022 and the applicant shall file her reply costs submissions, if any, by February 18, 2022. The costs submissions shall not exceed three typed pages (two pages for reply), double-spaced, minimum font 12, plus copies of any offers, bills of costs and dockets. The costs should include the costs of preparing the submissions. If either party takes the position that any portion of a costs order should be deemed a support order, enforceable by the Director, then that shall be included in the written submissions. Any reference to jurisprudence shall be by hyper-link in the costs submissions. If the parties have agreed on costs, then counsel shall forward a letter to the trial coordinator advising same.
CONCLUSION
109An order shall issue as set out in these reasons.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: December 8, 2021
Footnotes
- That letter, on page 1, indicates the date as December 9, 1998. Although, for some reason, pages 2 and 3 of that letter show a date of December 10, 1998, the contents of pages 2 and 3 clearly are part of the same discussion and follow from page 1 of that letter.
- Transcript (April 17, 2018) question 426.
- Affidavit of Ms. Brennan sworn July 20, 2021, paragraph 59.
- Transcript – Mr. Fournie’s oral questioning on April 17, 2018, Q. 446, pages 73-74.
- Mr. Fournie’s written submissions, paragraph 19.