Court File and Parties

COURT FILE NO.: FS-11373679-001

DATE: 20220117

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

EDELMIRA STRAUSS Applicant

– and –

JONATHAN ROBERT STRAUSS Respondent

Jaret Moldaver, for the Applicant

Julie K. Hannaford, for the Respondent

HEARD: In writing

M. D. FAIETA j.

ENDORSEMENT

[1] The Respondent brings this Form 14B motion for disclosure of financial documents for the purpose of establishing that there has been a material change in circumstances that would justify a reduction in the amount of spousal support that is paid to the Applicant. The Applicant submits that this motion should be dismissed. Both parties seek their costs.

Should this Form 14B Motion be Heard?

[2] The Applicant asserts, without reasons, that there is no jurisdiction to hear this motion under Rule 14(10) of the Family Law Rules as a Form 14B motion is “… limited to procedural, uncomplicated or unopposed matters …”.

[3] The Consolidated Provincial Practice Direction provides further guidance regarding the scope and use of Form 14B motions however those provisions are inapplicable in the Toronto Region. The Toronto Region Practice Direction does not address the scope and use of a Form 14B motion.

[4] The word “or” in Rule 14(10) is disjunctive and thus the phrase “procedural, uncomplicated or unopposed matters” captures a wide variety of matters including an order for the production of documents and an order for the enforcement of a production order.

[5] Nevertheless, given the court’s limited resources, not all procedural, uncomplicated or unopposed matters are appropriately heard as a Form 14B motion. The application of Rule 14(10) is informed by the Rules 2(4) and 2(5) which oblige a court to promote the primary objective of the Rules, namely, to justly deal with cases.

[6] The impacts on the administration of justice caused by the failure to comply with the fundamental obligation to disclose financial information are well recognized: See Roberts v. Roberts, 2015 ONCA 450 (Ont. C.A.) , at paras. 11-12. In this case, each party has filed a brief affidavit which describes the disclosure requested and outstanding. Rather than await a case conference or motion sometime in the future, I find that it is just to deal with the Respondent’s motion.

Should the Disclosure Order be Granted?

[7] The parties separated in 2010. On November 13, 2014 the parties signed Minutes of Settlement which, amongst other things, provides that: (1) the Respondent would pay the Applicant the sum of $10,000.00 per month for spousal support commencing on December 1, 2014; (2) spousal support may be varie din the event of a material change of circumstances that meets certain thresholds.

[8] In January 2021 the Respondent filed an Application to change his spousal support obligation and for financial disclosure, including the Applicant’s efforts to become self-sufficient since separation. In her Answer, the Applicant claims a retroactive increase in spousal support from December 1, 2016 and a prospective increase in spousal support.

[9] On July 27, 2021, the Respondent delivered a letter requesting various items of financial disclosure.

[10] At a case held on July 28, 2021, the parties were ordered to respond to their respective disclosure requests by October 5, 2021.

[11] On October 15, 2021 the Applicant delivered a letter that attached various items of financial disclosure. No bank statements for the period prior to December 2018 were provided. Further, in respect of two properties that the Applicant identified in her Financial Statement as having a shared ownership interest, the Respondent did not confirm the ownership interests, the value of the properties or the amount of rental income generated by each property.

[12] On December 22, 2021, the Applicant received a draft copy of the Respondent’s 14B motion with a view to obviating the need to serve and file the 14B motion in early 2022. The Applicant’s counsel was on vacation and did not become aware of this correspondence until January 4, 2022. The Applicant was also served with this Form 14B motion on January 4, 2022.

[13] On January 7, 2022, delivered further financial disclosure and a chart that summarized the disclosure provided.

[14] The Applicant states that she is agreeable to providing the Respondent with the outstanding bank statements upon receipt.

[15] In Kovachis v. Kovachis, 2013 ONCA 663, at para. 34, the Ontario Court of Appeal outlined the competing interests to be considered in making an order for financial disclosure:

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: see Chernyakhovsky v. Chernyakhovsky (2005), 2005 CanLII 6048 (ON SC), 137 A.C.W.S. (3d) 988 (Ont. S.C.J.) [2005 CarswellOnt 942 (Ont. S.C.J.)] at paras. 8, 15; Boyd v. Fields (2006), [2007] W.D.F.L. 2449 (Ont. S.C.J.) [2006 CarswellOnt 8675 (Ont. S.C.J.)] at paras. 12-14. Disclosure orders must be fair to both parties and appropriate to the case.

[16] Given each party’s the scope of each party’s retroactive claims for spousal support, I find that it is just to order that the Applicant shall provide the following disclosure, to the extent not already provided, in accordance with the Respondent’s disclosure request dated July 27, 2021 within 30 days:

a) Statements for TD Private Banking Account ***2105 for the period January 1, 2014 (or account opening, if later) – December 30, 2018 and September 30, 2021 – present;

b) Statements for TD USD Daily Interest Chequing Account ***9933 for the period January 1, 2014 (or account opening, if later) – September 30, 2020 and October 13, 2021 - present;

c) Statements for Assante Wealth Management RRSP ***6635 for the period January 1, 2014 (or account opening, if later) – December 31, 2019 and October 8, 2021 - present;

d) Statements for Assante Wealth Management LIRA ***3214 for the period January 1, 2014 (or account opening, if later) – December 31, 2019 and October 8, 2021 – present;

e) Statements for Assante Wealth Management TFSA ***6569 for the period January 1, 2014 (or account opening, if later) – December 31, 2019 and October 8, 2021 - present;

f) Statements for TD Green VISA ***3550 for the period January 1, 2014 (or account opening, if later) – December 6, 2018 and September 14, 2021 – present;

g) Statements for American Express credit card ***005 for the period January 1, 2014 (or account opening, if later) – December 31, 2018, January 1, 2021– March 13, 2021 and September 14, 2021 – present;

h) Statements for American Express credit card ***008 for the period January 1, 2014 (or account opening, if later) – December 31, 2018, January 1, 2021– March 20, 2021 and September 21, 2021 – present;

i) Statements for the period January 1, 2014 – present for any and all further accounts that were open at any financial institution during this time period;

j) Correspondence from American Express confirming the complete list of the accounts that the Applicant holds there; and

k) Documentation confirming the ownership of the two properties that the Applicant has an interest in in Belize, a realtor’s opinion of value confirming the current value of the properties, any tenancy agreements associated with the properties and confirmation of any rental funds received from the properties, whether they are declared as income or not.

[17] There shall be no costs to either party. The Applicant is not entitled to costs as the Respondent was the successful party. The Respondent is not entitled to costs as this 14B motion might have been unnecessary. The draft motion was delivered on the cusp of the Winter Break. It should have seemed strange that neither Mr. Moldaver or his office did not respond at all to the draft material. Accordingly, when no response was forthcoming, it would have been more appropriate for the Respondent’s counsel to send a follow-up email asking for a response to the draft motion rather than file this motion with the court. Both counsel are senior members of the family law bar and I expect that they would have been able to resolve this matter between themselves. If not, then the appropriate time for filing this 14B motion would have been after that step had been taken.

Mr. Justice M. D. Faieta

Released: January 17, 2022

COURT FILE NO.: FS-11-373679-001

DATE: 20220117

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

EDELMIRA STRAUSS Applicant

– and –

JONATHAN ROBERT STRAUSS Respondent

REASONS FOR DECISION

Mr. Justice M.D. Faieta

Released: January 17, 2022