Superior Court of Justice – Ontario
COURT FILE NO.: FC-17-985
DATE: 2021/05/07
RE: Ruby Dagher, Applicant
AND
Jean Hajj, Respondent
BEFORE: Justice Sylvia Corthorn
COUNSEL: Emily Comor, for the Applicant
Jean Hajj, Self-represented Respondent
HEARD: December 11, 2020 by Zoom
AMENDED AMENDED ENDORSEMENT
The text of the Amended Endorsement of January 8, 2021 was amended on May 7, 2021 and the description of the amendments are appended.
Overview
[1] This case-managed application was scheduled for a settlement conference in early October 2020 before the case management judge. He concluded that the settlement conference could not proceed because of incomplete disclosure on the respondent’s part. The applicant was directed to bring this motion for disclosure. The trial of this application is on the January 2021 trial list.
[2] The parties married in October 2002 and separated in April 2017. They have four children ranging in ages from 10 to 16. Parenting issues were settled on consent in March 2019, with the exception of the issues of (a) renewal of the children’s passports, and (b) the applicant’s ability to travel with the children without the respondent’s consent.
[3] All other issues raised in the application and/or in the answer remain outstanding. Those issues include child support (retroactive and ongoing to be paid by the respondent), apportionment of Section 7 expenses, division of net family property, and the respondent’s claim for spousal support.
[4] The request by the applicant for additional disclosure from the respondent arises in the context of preparation for trial. The applicant alleges that the respondent is underemployed and/or hiding income earned over time. She submits that she is unable to properly prepare for trial without disclosure of the items requested. In her notice of motion, the applicant lists 22 disclosure items. The items relate in large part to the respondent’s income and overall financial status, both prior and subsequent to the date of separation.
[5] The applicant acknowledges that three of the 22 items were disclosed prior to the return of the motion. As a result, there remain 19 items to be addressed on the motion.
[6] Although not listed in her notice of motion, the applicant is also requesting that the respondent produce documentation related to his registration as a real estate broker in Toronto, Etobicoke, and Don Mills. Specifically, the applicant is requesting that the respondent disclose his real estate broker identification number in each of those areas.
The Issues
[7] The overall issue on this motion is the extent of the disclosure to which the applicant is entitled based on the claims made in the parties’ respective pleadings.
The Parties’ Respective Positions
[8] The applicant’s position is that the respondent’s disclosure to date is incomplete or inadequate. For example, what the respondent provides as a statement of account does not include the account balance over time, if at all. As another example, the respondent produced account statements for sporadic periods (i.e., not for the continuous period from January 2017 to the present). The applicant submits that where the respondent produced redacted copies of documents, unredacted copies must be produced.
[9] The respondent’s position is that he has produced complete copies of the majority of the documents. In some cases, the information sought by the applicant is said not to be available in ‘statement’ form. With respect to the redaction of documents, the respondent asserts his privacy rights; he submits that the applicant is not entitled to unredacted versions of the documents. The information redacted includes the respondent’s residential address, passport number, and the names and addresses of the respondent’s real estate clients.
[10] On the return of the motion, the respondent informed the court that he does not object to providing additional documents to bring the disclosure with respect to accounts that remain open up to date.
Preliminary Matters
[11] In his affidavit materials and on the return of the motion, the respondent made a request for certain disclosure from the applicant. The respondent was advised by the court that, because he had not delivered a notice of motion, his request for relief in that regard could not be addressed. He was directed to take the steps necessary to bring a motion for additional disclosure from the applicant.
Analysis
[12] The parties’ respective documentary disclosure obligations are set out in Rule 19 of the Family Law Rules, O. Reg. 114/99 (“FLR”). The process for documentary disclosure starts with a request by one party of the other for an affidavit of documents: r. 19(1). There is, however, an exception from this process for documents to be served in fulfilment of a party’s financial disclosure obligations: Rule 13. The majority, if not all, of the disclosure items addressed in this motion relate to the respondent’s financial disclosure obligations.
[13] Rule 13 of the FLR lists in detail the various forms of financial disclosure that are required when the issues to be addressed on an application include one or more of child support, spousal support, and division of net family property. I find that the disclosure items listed in the applicant’s notice of motion fall within the categories of financial disclosure required under Rule 13.
[14] Where one party believes that the other has made insufficient disclosure of financial obligations, the party seeking additional disclosure is required to make a request for the relevant items: r. 13(11)(a). If the items requested are not produced, then the requesting party may bring a motion: r. 13(11)(b). The motion in this matter is brought pursuant to r. 13(11)(b), as directed by the case management judge.
[15] Even without such a motion, the disclosing party has an obligation to correct or update and to address omissions in their financial disclosure: rr. 13(15), (16).
[16] This is not the first request that the applicant has made for disclosure. In June 2018, a consent order was made in which the respondent was ordered to provide the following disclosure no later than June 30, 2018:
a. Updated PayPal account statements;
b. RBC VISA statement of January 20 to February 19, 2018;
c. Desjardins account statements;
d. CIBC Mellon account statement;
e. 2017 Airbnb (Lukito) statements;
f. Best Buy Credit Card statements; and
g. Proof of loan from his brother and parents.
[17] All of the items except for item ‘f’ are included in the disclosure requested on this motion.
[18] For the sake of efficiency, the 19 disclosure items addressed on this motion are set out in chart form in Appendix ‘A’. The items are lettered in accordance with the lettering in the list of disclosure items in the applicant’s notice of motion. Also included on an item-by-item basis are the applicant’s request and/or position, the respondent’s answer and/or request, and the court’s ruling.
[19] Additional disclosure is ordered with respect to 16 of the 19 items. The three items for which additional disclosure is not ordered at this time are items ‘l’, ‘m’, and ‘n’. Items ‘l’ and ‘m’ relate to the income earned by the respondent as a real estate broker. Item ‘n’ relates to the respondent’s alleged indebtedness to his family members. I shall deal first with those items and then with the remaining 16 items.
Items ‘l’, ‘m’, and ‘n’
[20] The respondent produced documentation with respect to income earned as a real estate broker in 2019 and 2020. The documents are said by the respondent to address item ‘l’ (2019 year-end Statement of Earnings from Solid Rock Realty) and item ‘m’ (Year-to-date Statement of Earnings from Solid Rock Realty).
[21] The applicant’s evidence is that names and addresses related to some, if not all, of the transactions are redacted from the documents. Copies of the documents produced regarding the respondent’s earnings through Solid Rock Realty are not before the court. Without copies of the documents, and given the nature of the real estate business, it is not possible to tell whether the names and addresses of individuals other than the respondent himself are relevant and necessary. In addition, both the brokerage and the broker may have privacy obligations to their clients which preclude disclosure of the clients’ personal information.
[22] The refusal to order additional disclosure with respect to items ‘l’ and ‘m’ listed in the notice of motion is without prejudice to the applicant renewing her request for the additional disclosure upon filing additional evidence with the court. She may do so either prior to or at trial.
[23] Item ‘n’ deals with the respondent’s alleged indebtedness to his family members (brother and parents – see item ‘g’ in the June 2018 order at para. 12, above). The respondent produced a letter from his parents and two cheques said to be from his father. The applicant is skeptical of the documents as evidence of the alleged indebtedness. The respondent has the onus of establishing the existence of his indebtedness. The veracity of the respondent’s allegations and the applicant’s skepticism are best-addressed by way of evidence at trial, including cross-examination of the respondent with respect to the documents produced. No further disclosure is ordered at this time with respect to item ‘n’.
Items ‘a’-‘k’ and ‘o’-‘r’, and ‘u’
[24] Turning to the remaining 16 disclosure items, additional disclosure is ordered for one or more of the following reasons:
• The respondent’s assertion of his privacy rights is not relevant to the production of complete, unredacted copies of the documents requested. Therefore, where redacted copies of documents have been produced, the respondent shall produce complete, unredacted copies of them (subject to the privacy rights of non-parties, where applicable);
• For documents not yet produced, the respondent shall produce complete, unredacted copies of documents. He is not entitled to redact his address, an account number, etc.;
• The respondent’s income, financial circumstances, and general lifestyle are relevant to the issues to be determined on this application including the applicant’s claim for child support and contribution towards Section 7 expenses, the respondent’s claim for spousal support, and the division of net family property;
• Disclosure is ordered, as requested from January 2017 forward, for all accounts identified by the respondent in his September 2020 financial statement and as otherwise identified in the applicant’s affidavits (i.e., the latter based on a review by the applicant and/or her counsel of disclosure to date); and
• The Transaction History produced for PayPal identifies not only deposits, but withdrawals. For example, for December 8, 2018 to January 18, 2019, the Transaction History shows five withdrawals totaling over $10,645. I therefore draw an inference and find that there existed some form of an account ‘balance’ from which the respondent was entitled to withdraw funds. For that reason, additional disclosure from PayPal, including information about the account balance over time is ordered.
Additional Disclosure Requested by Applicant
[25] The applicant did not include in her notice of a motion a request for disclosure related to the respondent’s alleged registration as a real estate broker in Toronto, Etobicoke, and Don Mills. There is no evidence before the court to support a finding that the respondent is registered as a real estate broker (or agent) in those regions. In the absence of any evidence in that regard, there is no basis upon which to order the disclosure requested. It remains open to the applicant to pursue additional disclosure in that regard, either before or at trial.
[26] As the request for this disclosure item was not made in the notice of motion, it is not addressed in the order made below.
Disposition
[27] In summary, the court orders as follows:
The request for an order for disclosure of item nos. ‘l’, ‘m’, and ‘n’ in the applicant’s notice of motion is dismissed, without prejudice to the applicant to renew her request for disclosure of those items, before or at trial, and based on additional evidence.
The respondent shall, within 30 days of the date of this endorsement, provide the following additional disclosure (with the lettering below referencing the items listed in the applicant’s notice of motion and as they appear in Appendix ‘A’):
a) Complete, unredacted copies of the passport(s) held by the respondent from the date of separation to the present.
b) Complete, unredacted copies of account statements for the respondent’s CIBC Mellon account from January 1, 2017 to the present.
c) Complete, unredacted copies of account statements for the respondent’s ING savings account no. 319425494 from January 1, 2017 to the present.
d) Complete, unredacted copies of account statements for the respondent’s Desjardins accounts from January 1, 2017 to the present.
e) Complete, unredacted copies of account statements for the respondent’s RBC accounts from January 1, 2017 to the present.
f) Complete, unredacted copies of statements running from January 1, 2017 to the present for all credit cards held by the respondent or since the date of separation.
g) A complete, unredacted copy of a valuation of the respondent’s pension as of the date of separation.
h) Complete, unredacted copies of account statements for the respondent’s Freedom 55 and/or Quadros account from January 1, 2017 to the present.
i) Complete, unredacted copies of account statements for the respondent’s Airbnb accounts, including both the “Lukito” and the “Lukito and Jean” accounts, from January 1, 2017 to the present.
j) Complete, unredacted copies of account statements for the respondent’s PayPal accounts, including account balances, from January 1, 2017 to the present.
k) The respondent’s home address(es) and copies of the rental agreements, if any, for the respondent to rent out his home from the date of separation to the present, with the exception of the redaction of the personal information of third parties pursuant to the privacy laws of Canada, Ontario, or Quebec.
o) A complete, unredacted copy of the respondent’s 2019 T4RSP slip with respect to the withdrawal of funds in that year.
p) Complete, unredacted copies of account statements for the respondent’s RRSP accounts from January 1, 2017 to the present.
q) Complete unredacted copies of benefits submissions and responses received with respect to the respondent’s medical/dental benefits plan from the date of separation to the present.
r) A complete unredacted copy of the August 2020 letter from Manulife to the respondent with respect to the denial of his request for additional life insurance coverage (i.e., an additional $100,000).
u) The respondent shall advise the applicant whether any expenses, other than those already disclosed, were incurred by the respondent with respect to training as a real estate agent and, if so, the respondent shall produce complete, unredacted copies of records of the expenses incurred.
[28] I am not seized of the requests for disclosure – by either the applicant or the respondent. Further such motions, if any, brought before trial may be before any judge of this court.
Costs
[29] If the parties are unable to agree on the costs of the applicant’s motion, they shall make written submissions as follows:
a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs and any case law referred to in the submissions;
b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure;
c) The applicant shall deliver her costs submissions by 4:00 p.m. on the twentieth business day following the date on which this ruling is released;
d) The respondent shall deliver his responding costs submissions by 4:00 p.m. on the thirtieth business day following the date on which this ruling is released; and
e) The applicant’s reply submissions, if any, shall be delivered by 4:00 p.m. on the thirty-fifth business day following the date on which this ruling is released. Reply submissions shall comply with paragraphs (a) to (d) above.
Madam Justice Sylvia Corthorn
Date: May 7, 2021
APPENDIX
- The Respondent's name has been incorrectly spelled and has been changed from "Haaj" to "Hajj" in the Citation and Style of Proceeding both on the first page and backing page.
COURT FILE NO.: FC-17-985
DATE: 2021/05/07
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Ruby Dagher, Applicant
AND
Jean Hajj, Respondent
BEFORE: Justice Sylvia Corthorn
COUNSEL: Emily Comor, for the Applicant
Jean Hajj, Self-represented Respondent
amended AMENDED ENDORSEMENT
Corthorn J.
Released: May 7, 2021