Court File and Parties
COURT FILE NO.: FS-18-00015500-0000 (Brantford) DATE: 2022/03/22 SUPERIOR COURT OF JUSTICE-ONTARIO
RE: KRISTINE JILL HILL, Applicant -and- ALBERT EDWARD GREEN, Respondent
BEFORE: Gibson J.
COUNSEL: Matthew Lambert, Counsel for the Applicant Elliot Birnboim, Counsel for the Respondent Katherine Hensel, Counsel for the proposed Added Parties, Greg Hill and Francis Montour
HEARD: December 3, 2021
Endorsement
Overview
1The applicant Kristine Hill (“Hill”) and the respondent Albert Green (“Green”) cohabited for some 10 years commencing in 2003, and were married on September 28, 2013. They separated on November 1, 2015. The applicant commenced this proceeding with an Application for Divorce only, on March 28, 2018. The respondent delivered an Answer dated April 30, 2018. The applicant’s Reply was dated May 24, 2018. The applicant subsequently amended her Application to make a trust claim against the property municipally known as 1482 Tuscarora Road in Oshweken, Ontario. The respondent thereafter delivered an amended Answer dated November 3, 2018.
2The applicant was questioned on October 29, 2019. The respondent was questioned on August 30, 2019.
3Both parties were ordered to submit Undertakings, which they have been exchanging with each other. Both parties take the position that the other has not fully completed their Undertakings.
4The parties are both “Status Indians”, within the meaning of that term pursuant to the Indian Act, R.S.C. 1985, c.I-5. The issues in dispute between them concern four “on reserve” properties on the Six Nations Reserve: 1044 Highway 54 Oshweken, Ontario, N0A 1M0; 1052 Highway 54 Lot 57-2 and Lot 57-3, Oshweken, Ontario, N0A 1M0; 1086 Highway 54 Lot 58-2, Oshweken, Ontario, N0A 1M0; and a business, Route 54 Variety and Gas, located on these premises. These properties comprise a variety store and gas station, a racetrack and two horse stables, and a tobacco farm.
5By her Notice of Motion dated April 13, 2021, the applicant sought: an Order that Francis Montour be added as a party to the proceeding, and attend for questioning; an Order that Greg Hill be added as a party to this proceeding, and attend for questioning; an Order that the respondent shall provide an address for service for Francis Montour and Greg Hill; an Order that the respondent re-attend for questioning with respect to Undertaking 42 given at his questioning held August 30, 2019; and costs.
6By His Notice of Motion dated April 13, 2021, the respondent sought an Order for a variety of enumerated financial disclosure, for an updated sworn Financial Statement, and that the applicant re-attend for questioning within 60 days. He also sought an Order dismissing the applicant’s motion to add parties and for disclosure.
7Both 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 for a hearing on July 28, 2021, at which time counsel for Mr. Hill and Mr. Montour requested and was granted an adjournment of the applicant’s motion to add them as parties, or that they submit to questioning. 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. The decision on those issues, Hill v. Green, 2021 ONSC 6242, was released by Broad J. on September 23, 2021.
8The remaining issues in the applicant’s motion to add Mr. Hill and Mr. Montour, and to order questioning, were argued before me in a Zoom hearing on December 3, 2021.
Adding Parties
9The applicant Ms. Hill contends that her relationship with the respondent Albert Green ended when she discovered he was having affair with Emilee Montour, who is the daughter of Francis Montour. The respondent has indicated that he now resides with Emilee Montour at 1482 Tuscarora Road, Oshweken, Ontario. Two Certificates of Possession for this property are held by Francis Montour. The applicant has made a claim for a one-half beneficial ownership interest in this property as well as the residence built on it, two large outbuildings and 42 kilns located on the property. She asserts her belief that the respondent paid all or most amounts to construct the residence on this property, as well as the outbuildings.
10The respondent has denied having any ownership interest in this property.
11The respondent has also denied any ownership interest in the tobacco farming business of Greg Hill.
12Counsel for the proposed added parties Francis Montour and Greg Hill also attended and made submissions opposing the request to add them as parties. They submit that the applicant has not met the threshold for adding non-parties to the proceeding; and that, in any event, the motion to question non-parties is premature.
13Subrule 7(5) of the Family Law Rules states that a court may make an order to add any person that should be added as a party.
14The test for adding parties to a proceeding was set out in Noik v. Noik: can the issue between the applicant and the respondent be effectually and completely settled without the addition of the non-parties; and, will the relief sought by the applicant directly affect the non-parties?
15I agree with the submission of counsel for Mr. Hill and Mr. Montour that although they may have information or knowledge that may aid the applicant Ms. Hill in her claims against Mr. Green, this does not elevate them to party status. The dispute between the applicant and the respondent can be resolved without the addition of Mr. Montour and Mr. Hill as parties, and without an order from this Court requiring them to submit to questioning.
16The claims made by the applicant concerning Mr. Montour lack an evidentiary basis. The applicant claims that the respondent used matrimonial monies to build a residential dwelling and two outbuildings, but has not provided any evidence that Mr. Green contributed to those buildings. Mr. Green does not have any proprietary interest in the property in question.
Questioning
17Subrule 20(5) of the Family Law Rules permits the court to order the questioning of non-parties, if it would be unfair to the party who wants the questioning or disclosure to carry on with the case without it; the information is not easily available by any other method; and the questioning or disclosure will not cause unacceptable delay or undue expense.
18The Court in Sera v. Sera, 2004 ONSC 395, held that the thrust of Rule 20(5) is that questioning should be a last resort, a step taken only after all reasonable requests for documentary disclosure have been attempted and exhausted.
19Mr. Hill and Mr. Montour submit that Ms. Hill has brought this motion prematurely. Similar to the facts in Sera, there are disclosure issues between Ms. Hill and Mr. Green. However, Mr. Hill and Mr. Montour indicate that they have not received requests from Ms. Hill nor her counsel for information material to the dispute between the parties to these proceedings.
20In this circumstance, I agree that the motion for questioning is premature.
21The applicant’s motion to add Francis Montour and Greg Hill as parties, and for questioning of them, will be dismissed.
Order
22The Court Orders that:
1The applicant’s motion requesting an order for Francis Montour and Greg Hill to be added as parties, or to attend for Questioning, is dismissed.
Costs
23The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and also to Kitchener.SCJJA@ontario.ca. The respondent and the two proposed added parties, Mr. Hill and Mr. Montour, may have 14 days from the release of this decision to provide their submissions, with a copy to the applicant; the applicant a further 14 days to respond; and the respondent and the two proposed added parties a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the respondent’s and the two proposed added parties’ initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.
M. Gibson, J.
Date: March 22, 2022