Howes v. Ciolfi, 2022 ONSC 3076

COURT FILE NO.: FS-18-006282

DATE: 20220524

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBERT HOWES Applicant

– and –

MARISA ELIANA CIOLFI Respondent

Amit Dror, for the Applicant

Daryl Gelgoot and Vanessa Amyot, for the Respondent

HEARD: April 12, 2022

M. D. FAIETA J.

REASONS FOR DECISION

1Each party has brought a motion seeking answers to undertakings, under advisements, and refusals from each other following their respective Questionings held in May 2021.

BACKGROUND

2The parties were married for two years before they separated in October 2018. They are the parents of a daughter who is four years old.

3The Applicant father operates his own cybersecurity business, Cyber Bully Investigations. The Respondent mother is a Senior Account Manager with the Herjavec Group.

4The issues raised by the pleadings include decision-making responsibility for their daughter and parenting time. Both parties claim child support, including section 7 expenses. Neither party claims spousal support as the Respondent withdrew her claim prior to Questioning.

5The Applicant claims a constructive trust in the matrimonial home owned by the Respondent based on his maintenance of the home.

ANALYSIS

6The primary objective of the Family Law Rules, O. Reg. 114/99, is to enable the court to deal with cases justly – by ensuring procedural fairness, by saving expense and time; by dealing with a case in ways that are appropriate to its importance and complexity, and by giving appropriate court resources to the case: see Rules 2(2), (3). The court is required to apply the rules to promote this primary objective and the parties and their lawyers are required to help the court promote this objective: see Rule 2(4).

7Each party has a duty to disclose their financial circumstances. It is governed by Rule 13 of the Family Law Rules. In Manchanda v. Thethi [2016] O.J. No. 6290, 2016 ONCA 909, at para. 13, the Ontario Court of Appeal stated that:

… the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11.) In 2015, Family Law Rule 13 was amended to emphasize a party's financial disclosure obligations. A party's non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.

8Rule 19(1) imposes a duty on a party to disclose relevant documents. It states:

Subject to subrule (1.1), every party shall, within 10 days after another party’s request, give the other party an affidavit listing every document that is,

(a) relevant to any issue in the case; and

(b) in the party’s control, or available to the party on request.

9Relevance depends on the facts in issue. For evidence to be relevant it must tend to “increase or diminish the probability of the existence of a fact in issue”. There is “…no minimum probative value required for evidence to be relevant.”: R. v. Arp 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, at para. 38.

10Proportionality must be considered in assessing the appropriateness of a request for disclosure. In Boyd v. Fields [2006] O.J. No. 5762, at para. 12, Justice Perell stated:

Full and frank disclosure is a fundamental tenet of the Family Law Rules. However, there is also an element of proportionality, common sense, and fairness built into these rules. A party's understandable aspiration for the outmost disclosure is not the standard. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact finding process are factors. I also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead or distract the trier of fact's attention from the main issues and unduly occupy the trier of fact's time and ultimately impair a fair trial. [Emphasis added.]

11Referencing this approach, the Ontario Court of Appeal in Kovachis v. Kovachis 2013 ONCA 663, [2013] O.J. No. 4954, at para. 34, stated:

Although full and frank disclosure is a necessary component of family law litigation, exhaustive disclosure may not always be appropriate. Courts and parties should consider the burden that disclosure requests bring on the disclosing party, the relevance of the requested disclosure to the issues at hand, and the costs and time to obtain the disclosure compared to its importance: … . Disclosure orders must be fair to both parties and appropriate to the case. [Emphasis added.]

12If a person being questioned refuses to answer a question, the court may, on motion, decide whether the question is proper and give directions for the person’s return to the questioning: see Rule 20(19).

13Accordingly, a person may refuse to answer a question or to produce a document if: (1) the question or requested document is not relevant to any matter in issue in the proceeding; or (2) the question or the demand for disclosure is not proper.

UNDERTAKINGS, UNDER ADVISEMENTS AND REFUSALS

14Below are my decisions regarding each undertaking, under advisement and refusal.

15Where I have ordered a party to answer a question, I have concluded that such question is relevant and proper in light of the principles described above.

Applicant’s Undertakings

1. Question 190. In a report prepared for an insurer, Dr. Karp opined that the Applicant has anger management issues. The Applicant has requested the report however it has not been provided.

The Applicant shall answer the undertaking at Question 190 and shall: (1) make a further request for this report; (2) provide the Respondent with all requests for this report that he has sent to Dr. Karp and any responses received from Dr. Karp.

2. Question 426. Answered.

3. Question 543. The Applicant shall answer the undertaking. It is relevant to whether travel expenses were business related. His travel pattern is also relevant to his parenting time claim.

4. Question 554. The Applicant shall answer the undertaking at Question 554 for same reasons as given for Question 543.

5. Questions 1025-1027. The Applicant shall answer the undertaking at Questions 1025-1027. The Applicant shall provide the Respondent with a copy of all requests that he has made for a copy of his marriage contract along with a copy of any replies received.

6. Question 1082. The Applicant shall answer the undertaking at Question 1082. The Applicant shall provide full details of his 2019 and 2020 income pursuant to section 21 of the Federal Child Support Guidelines.

7. Question 1154. The Applicant shall answer the undertaking at Question 1154. The Applicant shall provide full details and all receipts for his financial contributions to the maintenance and upkeep of the matrimonial home. The Applicant shall provide receipts and any other available documentary evidence of such contributions.

Applicant’s Under Advisements

1. Question 936. Answered.

2. Question 1153. The Applicant shall answer Question 1153. The Applicant shall provide full details and all receipts for his financial contributions to the matrimonial home in support of his claim for a constructive trust interest in the matrimonial home. The Applicant shall provide receipts and any other available documentary evidence of such contributions.

3. Question 1250. Answered.

4. Question 1401. The Applicant shall answer Question 1401.

5. Question 1404. The Applicant shall answer Question 1404 once the parties enter a Non-Disclosure Agreement for the purpose of the Applicant answering Question 1404. The parties shall make every reasonable effort to enter into a Non-Disclosure Agreement within 14 days.

6. Question 1405. The Applicant shall answer Question 1405.

7. Question 1421. Answered.

8. Questions 1422-1424. The Applicant shall advise the Respondent of what methodology was used by his valuator to calculate his income under Federal Child Support Guidelines.

9. Question 1425. Answered.

10. Question 1434-1436. The Applicant shall advise the Respondent of how determining what personal credit card expenses paid by CBI were reported on the company’s general ledgers for fiscal 2017 to 2020 is a serious time intensive and financial undertaking.

11. Question 1438. The Applicant shall provide a copy of CBI’s 2019 General Ledger once the parties enter a Non-Disclosure Agreement for the purpose of the Applicant answering this question. The parties shall make every reasonable effort to enter into a Non-Disclosure Agreement within 14 days.

12. Questions 1439-1440. The Applicant shall provide a copy of CBI’s 2017, 2020 and 2021 General Ledger personal expenses annotated once the parties enter a Non-Disclosure Agreement for the purpose of the Applicant answering this question. The parties shall make every reasonable effort to enter into a Non-Disclosure Agreement within 14 days.

13. Questions 1441-1442. Not proportional. Question need not be answered.

14. Question 1443. Answered.

15. Question 1444. Answered.

16. Question 1446. The Applicant shall provide a copy of CBI’s 2019 General Ledger once the parties enter a Non-Disclosure Agreement for the purpose of the Applicant answering this question. The parties shall make every reasonable effort to enter into a Non-Disclosure Agreement within 14 days.

17. Question 1447. The Applicant shall provide supporting details and all invoices in CBI 2019 General Ledger accounts, 5200 accounting and 5210 legal once the parties enter a Non-Disclosure Agreement for the purpose of the Applicant answering this question. The parties shall make every reasonable effort to enter into a Non-Disclosure Agreement within 14 days.

18. Question 1448. The Applicant shall provide details of all personal discretionary amount expenses, including travel, meals, vehicle, advertising and insurance for the 2019 fiscal year.

19. Question 1449-1451. The Applicant shall provide a copy of the unredacted cheque no.52 dated December 30, 2018 which has a description of “consulting service” and to confirm who this was paid to and what services they provided and indicate how this payment was reported on CBI’s fiscal 2019 General Ledger once the parties enter a Non-Disclosure Agreement for the purpose of the Applicant answering this question. The parties shall make every reasonable effort to enter into a Non-Disclosure Agreement within 14 days.

Applicant’s Refusals

1. Question 1355. The Applicant shall answer this question.

Respondent’s Undertakings

1. Questions 182-189. Answered.

Respondent’s Under Advisements

1. Question 88. The Respondent shall advise the Applicant of how much she has spent on legal fees in the past twelve months.

2. Question 92. The Respondent shall advise the Applicant of how much she has spent on forensic accounting fees in the past twelve months.

3. Questions 141, 143, 179. Not relevant. The Respondent’s bank statements since January 1, 2018 are irrelevant given that she is not claiming spousal support nor is she advancing a claim for historical section 7 expenses. The Respondent states that she has paid as all of their daughter’s section 7 expenses without contribution.

Respondent’s Refusals

1. Questions 243 and 247. Answered.

2. Question 249. Not relevant.

3. Questions 337, 338 and 339. Not relevant to the issue of decision-making responsibility for their child as suggested by the Applicant.

4. Question 355. Answered.

5. Question 363, 365-367, 369, 374-375. These questions regarding discussions that the Respondent may have had with a potential client of the Applicant’s business are not relevant to this proceeding. This is not a civil proceeding nor is the alleged interference with a potential business relationship relevant to the claims advanced in this proceeding.

ORDER

16The Order made in relation to whether each party is required to answer undertakings and refusals from their Questioning is described above. All of such documents and information shall be delivered within three weeks other than those answers which specifically require the signing of a Non-Disclosure Agreement before disclosure is made.

17If the parties cannot agree on a form of Non-Disclosure Agreement within two weeks, then I shall select the form of Non-Disclosure Agreement to be signed by the parties. To that end, within three weeks, each party shall deliver to the Court a copy of their preferred NDA and supporting written submissions, no longer than five pages. Disclosure that requires that the parties sign a Non-Disclosure Agreement shall be made within three weeks of the date that the Respondent signs the NDA agreed upon by the Applicant or the NDA imposed by this Court.

18The Settlement Conference that was scheduled to proceed on May 9, 2022, shall be held no earlier than August 3, 2022 at the parties’ earliest availability on a date to be set by the Trial Coordinator.