Court File and Parties

COURT FILE NO.: FS-20-17896 DATE: 20220401 ONTARIO SUPERIOR COURT OF JUSTICE

RE: NOMAN ALI, Applicant AND: MELIKE PINAR SAYILGAN, Respondent

BEFORE: Justice Mohan D. Sharma

COUNSEL: Maddalena Fuller, for the Applicant Anthony V.R. Martin, for the Respondent

HEARD: March 31, 2022

Endorsement

[1] The respondent mother brings this motion for productions from the applicant father to better assess his income for child support purposes. She also seeks interim disbursements to paid by the applicant under r. 24(18) of the Family Law Rules. Her motion is brought within the context of the applicant father’s application for more parenting time with the parties’ children.

Factual Background

[2] The parties entered into a comprehensive separation agreement on October 19, 2016. It provided the respondent mother with sole custody of their two children and provided the applicant father with parenting time on two days per week and one day each weekend. It also contemplated one overnight once a week, and full weekend access every six months. At the time, the two children were aged 6 and 8. They are now aged 10 and 12.

[3] The separation agreement also specified how table child support was to be calculated. The respondent’s last three years of income were to be averaged, due to the nature of his pay fluctuating from year to year. He receives a base salary, plus bonuses and other forms of compensation. The three-year average was to be used for the purpose of calculating child support.

[4] The applicant father has worked for Manulife for over twenty years. He is now in the role of Senior Portfolio Manager. It is his only employment. There is no allegation that he has other employment. At the time of separation, and as reflected in the separation agreement, his salary was approximately $300,000 per year.

[5] It is not disputed that the applicant has provided his T4 to the respondent each year without being asked, and he has adjusted his support payments accordingly, pursuant to the separation agreement. He has also paid 100% of the children’s section 7 expenses.

[6] In the context of the applicant father’s application, the respondent is now challenging the sufficiency of the applicant’s financial disclosure and whether he has fully disclosed his income. This is the subject of the respondent’s motion before me, in addition to her claim for interim disbursements being to be paid by the applicant.

[7] The applicant seeks to have the respondent’s motion dismissed and seeks costs from a prior contested adjournment on February 3, 2022.

Issue #1: Has the applicant provided sufficient disclosure of his income for the purposes of calculating child support?

[8] The sufficiency of the applicant’s financial disclosure was discussed at previous attendances before this Court and various orders were made.

Order of Justice O’Brien, March 29, 2021

[9] Parties appeared before Justice O’Brien at a case conference on March 29, 2021. She ordered that the applicant shall provide disclosure of the following documents within 30 days:

a. Proof the applicant’s 2020 income, including T4 statement, income tax return and notice of assessment as each document becomes available; b. Last 3 year-to-date paystubs for 2021 c. Copy of any employment contracts that the Applicant has entered into with Manulife or any other employer d. Proof that the respondent is the irrevocable beneficiary of the applicant’s life insurance coverage, including proof of coverage amount and proof that the policy is in good standing.

[10] It is not disputed that these items have all been disclosed to the respondent, although with respect to item (c), it was a signed offer of employment, dated August 28, 2020, which was produced which constitutes his employment contract.

Order of Justice Kimmel, November 26, 2021

[11] The parties appeared before Justice Kimmel for a further case conference on November 26, 2021. In her endorsement, she ordered:

Within 60 days, the applicant will supplement his response to the respondent’s request for information, beyond what was provided on April 2, 2021, to provide a signed copy of his accepted offer of employment from Manulife, and whatever further information he has or is able to reasonably obtain to address the respondent’s concerns that there are non-taxable income components to his remuneration that are not captured in his T4 and other reported income for income tax filing purposes.

[12] On January 26, 2022, Mr. Douglas Craig, an income valuator with whom the respondent had contacted, wrote to the respondent listing preliminary information he requested to prepare an income determination of the applicant. His list was the following:

1. Personal income tax return for 2021, when available, including all supporting schedules and slips.
2. Notice of assessment and any reassessments for 2020 and 2021, when available.
3. Details of all compensation received from your employer for each year for 2017, 2018, 2019, 2020 and 2021, with supporting documentation, including (but not limited to): a) Regular pay. b) Incentive plan awards (immediate and/or deferred). c) Equity awards, including DSUs, RSUs, PSUs, stock options, etc (immediate and/or deferred). d) Employee benefits such as health, dental, life and disability insurance, parking, employee expense accounts, travel accounts, etc.
4. Copy of the benefit plan handbooks or similar documents, including (but not limited to) the Manulife Global Travel Policy and Global Employee Expense Policy, Manulife Group RRSP, RealChoice (Benefit Plan), Manulife DC Plan, Supplemental DC Plan, GSOP plan, and Executive Share Ownership Guidelines, VPs.
5. Supporting documentation for the Form 13 Financial Statement dated October 5, 2020, including (but not limited to): a) Statements for the following accounts: i) TFSA ii) Bank Account – CIBC ***490 iii) RRSP - CIBC **9394 iv) GSOP – Manulife ***5050 v) RPP – Manulife ***1010 b) Bank of Nova Scotia including Mortgage statements for the home located at 366 St Johns Road, Toronto. c) All other property investments and their mortgage statements.
6. Supporting documentation for items missing from the Form 13A Certificate of Financial Disclosure, including (but not limited to): a) Statements for all company pension plans for the years 2017, 2018, 2019, 2020, and 2021, including: i) Supplemental DC Plan. ii) Manulife Canadian Staff Pension Plan (Manulife DC Plan). iii) Executive Share Ownership plans. iv) DSU, RSU, PSU, stock option plans. b) All other assets held, including real estate, investments, etc.
7. Copy of all personal bank statements from January 1, 2017 to a current date.
8. Copy of all personal investment account statements, including TFSAs, RRSPs, GSOPs, RPPs, from January 1, 2017 to a current date.

[13] On February 16, 2022, parties appeared before Justice Lococo at a settlement conference. His endorsement indicates there was extensive discussion about the respondent’s disclosure requests. He ordered that by February 28, 2022, the applicant shall provide a response to the request for information set out in Mr. Craig’s letter of January 26, 2022, including an explanation as to any requested items not produced.

[14] On February 18, 2022, counsel for the applicant sent an email to the respondent in response to the preliminary information request from Mr. Craig and pursuant to Justice Lococo’s endorsement. Mr. Craig was copied on the email, as was the respondent’s counsel, Mr. Martin. I recopy it in full because it provides necessary context around the applicant’s efforts to comply with his financial disclosure obligations and the applicant’s position:

Dear Ms. Sayilgan,

This letter is being prepared in response to the preliminary information request provided by Douglas L. Craig , dated January 26 , 2022 , pursuant to the Endorsement of J. Lococo . Mr . Ali is on vacation from February 17th to February 26th, and so I will not likely be able to make or respond to requests until his return . I am copying Mr. Martin and Mr. Craig , as discussed at the settlement conference with J. Lococo , so as to make this process more efficient and transparent for everyone involved .

Despite hav i ng reviewed Mr . Craig's letter in detail at a settlement conference with J . Lococo , it is not clear what documents Mr . Craig may be seeking or what should be provided to satisfy you and Mr. Craig about Mr . Ali's compensation. Accordingly , we have agreed that I will reply to Mr. Craig's letter by February 28 , 2022 , and that ideally I will be permitted to speak with h i m , and your counsel , directly , so as to resolve the d i sclosure requests on consent. Please understand that I am not familiar with all of the acronyms being discussed and an omission on my part may be inadvertent and not intentional.

Accordingly , I will start by itemizing what documents have already been provided and are being provided again here, to avoid any confusion. I think it would be helpful for Mr. Craig to hav e received what we have already provided to you , as these documents do provide clarity about the issues that you have raised .

1. Mr. Ali will provide his 2021 Income Tax Return and all schedules , once available.
2. Mr. Ali will provide a Notice of Assessment for 2021 once available , and any r e assessments for 2020 or 2021 if applicable . 3 . It is not clear to me what further documents should be provided to satisfy the request for "details of compensation received from your employer for 201 7 - 2 021, with supporting documentation " The following documents have already been provided to you or are being provided now, which confirm (a) Mr. Ali's regular pay (b) incentive plan awards. (i) A signed copy of Mr . Ali's Offer of Employment , dated August 28 , 2020. This constitutes his employment contract. (ii) A letter confirming Mr . Ali's compensation as at September 1 , 2020, provided by Manulife. (iii) Copy of Mr. Ali's year-end pay stubs for 2021 (c) Mr. Ali has no stock options. (d) there is no booklet itemizing company benefits. (4) Copies of the benefit plan handbooks are attached here , including : (i) Manulife Group RRSP Plan (requested) (ii) Manulife Defined Contribution Member Booklet (iii) Executive Supp. Defined Contribution Plan (iv) GSOP Plan (requested) (v) Manulife "Understanding your Pay" Booklet , with relevant sections highlighted . Lastly, because I think it could be helpful, I am attaching Mr . Ali's detailed and itemized year end statements for the years 2017 , 2018 , 2019 and 2020 . (5) Because this application is related to income and the calculation of child support, we have prepared a Form 13 Financial Statement and nor a Form 13.1 Financial Statement. No property claims have been advanced , and so we are not concerned with the value of Mr. Ali's assets. Accordingly, I don't think it's necessary or helpful for me to provide you with supporting documentation for Mr. Ali's assets and accounts post separation . If Mr. Craig feels that these statements are necessary I would welcome an explanation from him and I will certainly cooperate to with (sic) him. However , I need to explain to Mr. Ali why this would be necessary. The sheer volume of very personal information going back five years does not strike me as reasonable. My understanding i s that the assets and accounts disclosed in the Form 13 are accumulated with income that has been disclosed and taxed , and that supporting documentation need not be provided. For these reasons , I will wait to hear from Mr. Craig before discussing the following requests with Mr. Ali : (a) Statements for October 5, 2020 for the TFSA , personal bank account , CIBC RRSP , Manulife GSOP, Manulife RPP ; (b) Bank of Nova Scotia Mortgage statement for 366 St. Johns Rd .; (c) All other property investments and their mortgage statements. There are none . (6) Statements for all company pen s ion plans for 2017 , 2018 , 2019 , 2020 , 2021 including the supplemental plan, Manulife CD Plan, Executive Share ownership plans, DSU , RSU , PSU and stock options. (7) Copies of all personal bank statements from January 2017 to the current date. (8) Copies of all investment account statements for TFSA , RRSPs, GSOPs, RPPs from January 1 2017 to the current date. For discussion purposes , I would like to explain the following from my perspective , all of which I have reviewed with a certified financial specialist. I have been told that the documents provided are sufficient to understand Mr. Ali's compensation and that no further documents are necessary . There is nothing additional that is discretionary to be analysed or valued. Mr. Ali's income consists of base salary and a bonus. Mr. Ali has a supplemental defined contribution plan , not to be confused with a deferred contribution plan. This is a retirement incentive program in which Manulife matches up to 10% of Mr. Ali's earnings , contributed at phantom (like earning credit with Manulife) , but which only vests to Mr. Ali upon his retirement or leaving the company. Mr. Ali has no discretion to determine when or how his bonus is paid to him, the amounts of which are based on his performance . The payment of all benefits is solely at the discretion of Manulife. I reiterate that Mr . Ali is more than willing to cooperate to resolve this matter and to provide what he can on consent. However, the fact that you refuse to formally retain a lawyer wh o c ould work with me , and that Douglas Craig has not likely not yet been provided with any of this documentation , and is also not permitted to speak with me, indicates that this is but a fishing expedition. I need to caution you about the next steps. If I am required to reta i n a professional to confirm and substantiate what I have already repeatedly explained, on a motion , I will be seeking full recovery of Mr. Ali's legal costs , the costs of our professional , disbursements and taxes going back to the date that you fi r st filed your notice of motion for this disclosure. I have already paid for a professional to review every last document with me , who confirms that I have not missed , or misunderstood anything and that nothing is being concealed.

Thank you,

Maddalen a

[15] Her email attached the following documents, some of which had already been previously produced:

a. The applicant’s signed offer of employment, dated August 28, 2020 b. Manulife’s Confirmation of Employment, dated January 28, 2022 c. The applicant’s year-end pay stubs for the years 2017, 2018, 2019, 2020 and 2021 d. Manulife’s Executive Supplemental Defined Contribution document e. Manulife’s Defined Contribution Member Booklet f. A document from Manulife titled “Understanding Your Pay”

Parties’ Position

[16] Notwithstanding this email and the productions given to the respondent, in addition to the Applicant’s sworn Financial Statement and his Certificate of Financial Disclosure, the respondent remains of the view that there are stock awards or stock bonuses that the applicant receives which do not appear in his T4 income, or that the applicant has exercised an option of deferring receipt of income to future years which he would otherwise be entitled to receive sooner.

[17] At the motion, and even though she was represented, I invited the respondent to explain why she held this view. She stated that the August 26, 2020 offer of employment references Equity Awards, and from this, she believes there are stock options that he is hiding and has not disclosed. The portion of the employment offer letter on Equity Awards reads:

You will be eligible to receive equity awards, the terms of which are determined from time to time by Manulife’s Boards of Directors. Whether you are entitled to an award in a given year and, if so, the grant value of the award you receive will be based on Manulife’s assessment of your individual performance and your potential. To align Officers with our share ownership philosophy, 10% of your pre-tax vested RSU and PSU equity payments will be issued as Manulife common shares purchased through the GSOP.

The terms and conditions of equity awards are determined on an annual basis. If you receive an award in a given year, its terms will be set out in an award agreement, which you will be required to accept in order for the award to take effect.

[18] The applicant’s position is that all of his income is included within his T4, which has been produced. He states his offer of employment fully sets out the particulars of his compensation. He states that there are no non-taxable components to his income, and that all sources of income, including his salary and bonus, are fully disclosed.

[19] He further states he has no stock options and that he has no discretionary option to defer the receipt of any party of his bonus. He says neither the amount, the format, or the payout date of his bonus is discretionary to him; it is determined solely by Manulife.

[20] He specifically described three aspects of his compensation, other than his base salary and bonus, some of which is referenced under the Equity Awards portion of the offer of employment letter:

a. Long-term Incentive Plan (LTIP). This is a deferred cash award based on his and Manulife’s performance. He does not have the option to opt out and receive the award in cash instead. It is automatically invested in Manulife Investment Funds and is subject to a 3-year vesting period. He states this deferred cash award is not income, but an employment incentive that translates into income when conditions are met and once it vests. At vesting, the after-tax amount is paid through payroll and denoted on his paystub. b. Restricted Stock Units (RSU). They are a stock-based employee compensation. RSUs are restricted during the vesting period, which may last several years as an incentive to stay with the company. RSUs only translate into income when they vest, at which point 10% of the award is contributed to his Global Share Ownership Plan (GSOP), and the remainder is paid in cash, after tax, through regular payroll. c. Manulife’s Defined Contribution Pension Plan and the Executive Supplemental Defined Contribution Plan. The former is a defined pension plan in which he contributes a portion of his pensionable earnings (2% or 5%). The latter is a retirement incentive program whereby Manulife matches 10% of his earnings, and which only vests upon his retirement or when he leaves the company.

[21] He states all of his income is reflected in his line 150 income, and that the LTIP and RSU, once they are paid out in cash, will one day appear on his line 150 income.

[22] He states that as of April 1, 2022, he will be issued a company parking space that is taxable to his income in a monthly amount of $162.95. He also has use of a company cell phone, which he values at $50 per month. He will be attributing both to income and increasing his child support accordingly.

[23] As set out in his counsel’s email to the respondent on February 18, 2022, he opposes production of his last 5 years of bank and investment statements as they will not disclose his income.

Law and Analysis

[24] In a claim for child support, a party is required to serve and file a financial statement (Form 13) along with income and financial information referred to in s. 21(1) of the Federal Child Support Guidelines (“Guidelines”) : see Family Law Rules rr. 13(1) and (3.1).

[25] The only issue in this case is whether the applicant has failed to disclose income from “any other source” other than what is reported on his T4.

[26] Caselaw emphasizes the importance of disclosure in family litigation: Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587, at para. 44; Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34. In Leitch, at para. 44, the Court of Appeal describes nondisclosure by the payor as being “antithetical to the policy animating the family law regime and to the processes that have been carefully designed to achieve those policy goals.” The obligation in family cases to disclose financial information is immediate, automatic, and ongoing: Roberts v Roberts, 2015 ONCA 450, [2015] O.J. No. 3236 (ONCA) paras 11 - 14.

[27] There is also the proportionality principle, which requires the court to deal with a case justly, including “in ways that are appropriate to its importance and complexity”: see Family Law Rules, rr. 2(2) and (3); Rules of Civil Procedure, r. 1.04(1.1). After full and comprehensive financial disclosure has occurred, the proportionality principle can be engaged to prevent endless disclosure requests and discourage fishing expeditions, with regard to the importance and complexity of the issues in a case.

[28] In my view, the amount of the applicant’s income is significant, and his executive role with its differing sources of compensation require that the applicant produce more than just his pay stubs, T4, tax returns and notices of assessment, as required under s. 21(1) of the Guidelines.

[29] However, I am satisfied that the applicant has met his obligation of producing all relevant income information to the respondent in this case commensurate with his executive position and the forms of compensation he receives. In addition to providing all that is required under s. 21(1) of the Guidelines, he has also provided his signed offer of employment, year end pay stubs for the past five years, booklets from Manulife describing the compensation, employee benefits, and defined contribution plans, as well as the RSU and explaining how the incentive plans work and when they are paid out, among other things.

[30] The applicant filed an affidavit and report of Karin Kidikian, a specialist in divorce accounting, who provided an opinion about the applicant’s income for support purposes. She reviewed his offer letter setting out the forms of remuneration he was to receive, his T4, the booklets from Manulife describing his compensation and benefits, and other documents. She described the forms of remuneration, including his base salary, bonuses, LTIP, RSUs, GSOP, his Defined Contribution Plan and Supplemental Defined Contribution Plan. She concludes:

All of Mr. Ali’s income through employment is reported on his pay stub and annual T4. Although he participates in employer deferred income plans, his participation in these plans is not optional and do not represent actual income in his pocket when received.

In my opinion, Mr. Ali’s line 150 income is reflective of his income for support.

[31] The respondent did not adduce evidence from Mr. Craig or another valuator to allow the court to reach a conclusion different from Ms. Kidikian.

[32] At the hearing, I inquired what was missing. The respondent stated she is not satisfied that there are not other forms of remuneration that Manulife provides to the applicant, namely stock options and awards because Equity Awards are referenced in the offer letter. I do not find this compelling. Sufficient material has been provided to the respondent by the applicant to allow her to be satisfied that the equity awards (RSU, PSUs and GSOP) referenced in the offer letter are forms of deferred compensation as determined by the employer, not the applicant, and as explained by Ms. Kidikian in her report. At some point, enough is enough.

[33] The respondent requested, but has not provided a sufficient basis for this Court to order, that the applicant provide a direction and authorization to allow the respondent to independently seek information from Manulife about the applicant’s compensation. There is nothing to suggest that the signed offer of employment, which similarly sets out all his remuneration, is not to be trusted. It is from Manulife, a reputable financial institution in Canada.

[34] As an alternative, applicant’s counsel proposed at the hearing that she write to Manulife, copying respondent’s counsel, seeking a signed .pdf letter from Manulife breaking down all forms of compensation the applicant receives, and request that they reply to her and to the respondent’s counsel directly. In my view, this is a sensible and proportionate solution that should finally put to rest any concerns the respondent could possibly have about the applicant under-reporting his income, and I so order.

[35] With respect to the balance of productions sought by the respondent in her Notice of Motion, the applicant has already committed to providing his income tax return and notice of assessment for 2021, when it is available. He has provided his 2020 notice of assessment. I am not satisfied he has stock options, so I make no orders with respect to stock options. He has already produced information about his other equity awards, details of his employee benefits, and handbooks.

[36] I decline to order production of items set out in paragraphs 1(h) to 1(k) of the respondent’s notice of motion. These deal with his assets (TFSA, bank accounts, pensions, and other plans that vest at a future date and do not amount to annual income). The obligation under s. 21(1) of the Guidelines is to disclose all sources of income, not assets which are relevant for a determination of equalization. Equalization is not an issue in this case. A person’s assets may be relevant for apportioning s. 7 expenses, but in this case, the applicant has paid for 100% of s. 7 expenses and there is no argument that he does not have the means to pay s. 7 expenses. The respondent has not produced evidence from Mr. Craig explaining how any of this information is relevant for the purpose of determining income. Like the applicant, I am also concerned that the respondent may use this additional information for the purposes of further unnecessary litigation and to launch unfounded attacks against the applicant, for reasons that I explain.

[37] For these reasons, I dismiss the respondent’s motion for further disclosure. However, to further satisfy the respondent, I order that applicant’s counsel write to Manulife within 30 days, copying respondent’s counsel, requesting a signed .pdf letter from them breaking down all forms of compensation the applicant receives, and request that they reply to her and to the respondent’s counsel directly.

Issue #2: Whether to order the applicant to pay interim disbursements to the respondent (a) in the amount of $80,000 to allow her to retain counsel for the remainder of these proceedings, and (b) in the amount of $10,000 to allow her to retain the services of an expert to provide an expert opinion on the applicant’s income?

Law and Analysis

[38] Rule 24(18) of the Family Law Rules provide that a Court may order a party to pay an amount of money to another to cover part of all of the expenses of carrying on the case, including lawyer’s fees.

[39] The exercise of the authority under rule 24(18) [previously r. 24(12)] is discretionary and is used to ensure the primary objective of fairness is met, or put differently, “to ‘level the playing field’ between the litigants.”: McCain v. Melanson, 2017 ONSC 916 at para 3, citing Ludmer v Ludmer, 2012 ONSC 4478 at para 14.

[40] A party seeking payment under r. 24(18) does not have to prove that exceptional circumstances exist. Rather, the party must satisfy the following factors:

1. On a balance of probabilities, the moving party’s claim/defence has sufficient merit.
2. The legal fees are necessary and reasonable given the needs of the case and the funds available.
3. The moving party is incapable of funding the requested amount: see McCain, at para 4, citing Stuart v Stuart (2001).

[41] The exercise of the court’s discretion is to ensure all parties can equally provide or test disclosure, make or consider offers, or go to trial if settlement is not achieved: Agresti v. Hatcher para 17.

Interim Disbursement for Income Valuator?

[42] For the reasons already given, I am not satisfied that the respondent’s claim for an accountant or valuator to provide an expert opinion on the applicant’s income has sufficient merit. Nor am I satisfied that the cost is reasonable and necessary given the needs of the case.

[43] This case is unlike Agresti where the party’s financial affairs were complex. The applicant in this case has a single job with a single employer, he does not have corporate shares or dividends, and any deferred compensation income would be received as income and reflected on his T4. From my perspective, the only remaining issue is whether he gets other income from his employer that has not been disclosed. An income valuator is unlikely to be required to determine this; all that is needed is confirmation from Manulife of all of his income sources. To assist in funding the respondent’s scorched earth approach of trying to find income to impute to the applicant for the sole purpose of determining child support (spousal support and equalization payments are not in issue in this case), would unduly and unnecessarily prolong this litigation. It would run counter to the primary objective of dealing with cases justly because it would add to expense and time in this case, without sufficient justification.

[44] For these reasons, I decline to order an interim disbursement of $10,000 to retain an expert to opine on the applicant’s income, although it is open to the respondent to do so with her own funds if she wishes.

Interim Disbursements for Legal Fees?

[45] I decline to grant an interim disbursement to cover legal fees for the balance of this proceeding for the following reasons.

[46] The issues in this case are parenting time and calculation of the applicant’s income for child support purposes. I have given my views on the reasonableness of the respondent’s position with respect to the applicant’s income. With respect to parenting time, the respondent’s opposition to the applicant’s motion to increase parenting time may have sufficient merit. The respondent swore an affidavit on March 28, 2022 reporting on a disclosure meeting with the Office of the Children’s Lawyer (OCL). The respondent indicated that the OCL recommended that the applicant’s parenting time should be as requested in the respondent’s Answer. This will be one factor for the trial judge to consider in the best interests of the children, and it may weigh in favour of the respondent’s position. However, the applicant in his affidavit has given evidence of other factors which may equally result in an outcome favourable to the applicant’s position, notably his bond and the activities he engages in with the children, the fact that the separation agreement specifically contemplated a certain parenting schedule “at this time” when the children were younger, and concerns about undue influence that the respondent may be exerting on the children. I am not deciding the issues that will be determined by the trial judge. In balancing the parties’ positions based on the evidence on this motion, I am satisfied that the respondent’s opposition to increased parenting time may have sufficient merit.

[47] Is $80,000 in disbursements for legal fees necessary and reasonable given the needs of the case and the funds available?

[48] To date, each side has racked up in excess of $40,000 in legal costs in this case, not including this motion. In my view, the issues in this case are not complex and could be resolved with the assistance of an experienced mediator, with the potential for resolution at a cost of $10,000 - $15,000 per party, and possibly less. However, to do so, will require both parties to act reasonably and be willing to engage in alternative dispute resolution.

[49] The evidence in this case shows a pattern of unreasonableness on the part of the respondent. It is non-sensical and inconsistent with the primary objective of the Family Law Rules to reward unreasonable conduct of a party by granting that party an interim disbursement. In this case, such an order would not level the playing field; it would give the respondent a licence to further litigate unreasonably. It is not in the children’s best interest, the parties’ interest, nor a prudent use of limited court resources to encourage this conduct by an interim disbursement.

[50] I point to the following evidence, which I accept as fact, to support my finding about the unreasonableness of the respondent’s conduct to date:

a. The respondent sends approximately 3 – 5 emails to the applicant’s lawyer each day, and sometimes upwards of 20 emails a day. b. The respondent refuses to approve draft orders prepared by the applicant’s lawyer. c. She has refused to consent to adjournments of four settlement conferences. d. She has scheduled motions on dates when she knows the applicant’s counsel is not available. e. She has engaged 10 different lawyers in aspects of this proceeding since it was commenced, less than two years ago. f. On multiple occasions, the applicant has produced and re-produced disclosure of his financial information in compliance with his disclosure obligations and court orders, to which the respondent consistently accuses the applicant of being non-compliant. g. On a motion scheduled before Justice Kraft brought by the applicant for summer holiday parenting time, she sought an adjournment that was denied, and only consented to two non-consecutive weeks of summer vacation on the day the motion was to be argued. She was ordered to pay $5,000 in costs from that motion. h. The applicant offered mediation in 2020, which was not taken up by the respondent, resulting in this application.

[51] In terms of the funds available, the applicant’s 2021 T4 shows he earned $386,186, and his 2020 income was $408,752. He has funds to pay. The respondent is a stay-at-home mother and in 2020, her income was $16,471 and she expects it to be approximately the same in 2021. The applicant pays her $5,350 in monthly child support. She lives in a detached home in High Park, with a value estimated by the applicant to be $2 million, with a mortgage of roughly $370,000. She states she would have to refinance the home and secure a mortgage at 9.99% to fund litigation. She is university educated. The separation agreement in 2016 contemplated that the respondent would return to the workforce, but she has not. I accept that the respondent may not have immediate funds available. However, she has an option of leveraging her equity in her home, clearly an expensive proposition, which is available to her if she wishes to continue to pursue this litigation unreasonably. She also has the option of renting units in her home to earn income, which had previously been rented out, or relying on her university education to secure a job.

[52] For these reasons, I am not satisfied that any interim disbursement for the respondent is necessary and reasonable given the needs of this case and the funds available. She has significant equity in her home, potential rental income, or the option of finding employment to support her litigation costs.

Issue #3: Is the applicant entitled to costs from the successful contested motion scheduled to be heard on February 3, 2022?

[53] The respondent originally scheduled this motion for February 3, 2022 knowing that the applicant’s counsel was going to be in Jamaica at a family wedding at a location without internet access on this date. Applicant’s counsel protested to this date in emails sent on January 21 and 27, 2022 to the respondent, explaining the reasons why she could not attend on February 3, 2022. On January 28, 2022, applicant’s counsel filed a detailed affidavit, with proof of travel, seeking an adjournment and advising that it was impossible to attend the motion due to the remote location. Not knowing whether the adjournment would be granted, and to participate on the motion, applicant’s counsel had to leave the location of the family wedding, rent a car, drive to Montego Bay, Jamaica, and reserve a hotel with conference facilities to accommodate a Zoom connection.

[54] I was assigned to hear the motion. I reviewed motion material the evening of February 2, 2022 and released an endorsement granting the contested adjournment at approximately 7:00 pm that day. By that time, applicant’s counsel had already undertaken the journey to Montego Bay and incurred the unnecessary expenses.

[55] The applicant seeks $2,500 for costs his counsel incurred in having to attend Montego Bay, not knowing at the time whether the adjournment would be granted.

[56] The respondent, in her affidavit sworn on March 28, 2022 on this motion, advises that she delivered a motion confirmation form on January 31, 2022 where she agreed to adjourn the motion on February 3, 2022. However, by this date, applicant’s counsel was already in the remote location in Jamaica, at the wedding, without internet access, and was unaware of this. The costs were incurred. Moreover, the respondent’s motion confirmation form was less than clear. In it, she advised the motion was proceeding on February 3, 2022 as a contested adjournment.

[57] In my view, the respondent’s conduct in scheduling this motion on February 3, 2022 when she knew applicant’s counsel would be away and without internet access was entirely unreasonable. Accordingly, I order that the respondent pay costs of $2,500 for the successful contested adjournment of the February 3, 2022 motion.

Issue #4: Applicant’s 14B Motion to amend his Reply.

[58] In the applicant’s Reply, the applicant states that he agreed with the respondent’s claim for costs at paragraph 50(19) of the respondent’s amended Answer.

[59] There was evidence on this motion that an articling student in the applicant’s counsel’s office made a typographical error, and that the applicant does not consent to paying the respondent’s costs.

[60] This issue is the subject of a 14B motion brought by the applicant, which the respondent is opposing. It will be determined by the judge assigned to deal with this motion. As such, I do not address it in my reasons.

Costs

[61] At the conclusion of the motion, I directed the parties to upload Bills of Costs to CaseLines by end of day.

[62] On a full recovery basis, the applicant has identified $22,398.03 in legal costs inclusive of HST, and $7,104.13 in disbursements.

[63] The respondent has identified $17,718 in legal costs, inclusive of HST. Her counsel has not identified any disbursements.

[64] I note that some of the disbursements identified by the applicant includes costs of a car rental and accommodations in Montego Bay, which I have already addressed in my costs order from the February 3, 2022 contested adjournment. In addition, some of the applicant’s billed time includes time spent for the contested adjournment. These amounts must be removed.

[65] Parties may submit 3-pages of cost submissions with any attachments they deem necessary. The applicant shall deliver his submissions within 14 days; the respondent shall deliver her submissions 14 days thereafter.

Justice Mohan D. Sharma Date: April 1, 2021