Court File and Parties
NEWMARKET COURT FILE NO.: FC-20-656-00 DATE: 20230925 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Massimo Tari, Applicant AND: Maria Darolfi, Respondent AND: D & R Electronics Co. Ltd. (Respondent for this motion only)
BEFORE: The Honourable Mr. Justice G.A. MacPherson
COUNSEL: P. Virc, Counsel for the Applicant R. Niman, Counsel for the Respondent Maria Darolfi R. MacGregor, Counsel for the Respondent D & R Electronics Co. Ltd.
HEARD: September 18, 2023
Ruling on Motion
Relief Requested
1The Applicant advances a motion requesting the following relief:
(a) an Order striking the Answer filed by the Respondent on the grounds that she has failed to follow the rules and Orders in a related case;
(b) an Order that the Respondent is not entitled to any further Order of the court;
(c) an Order for directions, specifically,
i) that discovery evidence obtained in the civil action may be used in this proceeding and vice versa but is otherwise subject to the deemed undertaking rule;
ii) a refusal in a civil action is also a refusal in the matrimonial proceeding and vice versa;
iii) failure to answer an undertaking in the civil action is also a failure to answer an undertaking in this proceeding and vice-versa; and
iv) compliance or non-compliance with a disclosure Order or a production Order or an Order to deliver answers to undertakings in the civil action is compliance, non-compliance, as the case may be, with a disclosure Order or production Order or an Order to deliver answers to undertakings in this proceeding and vice versa;
(d) an Order appointing an expert to value the Respondent’s shares of D & R Electronics Co Ltd. and the Respondent’s income for the years 2020, 2021, and 2022 derived from corporate income of D & R Electronics Co. Ltd., personal or discretionary expenses paid by D & R Electronics Co. Ltd. for the Respondent and others in her household from D & R Electronics Co. Ltd. and the value of benefits provided between the Respondent and D & R Electronics Co. Ltd. as well as a deadline for same; the apportionment of costs; and
(e) an Order that the Notice of Motion on D & R Electronics be dispensed with and validating service by email on D & R Electronics’ counsel.
2The Respondent advances a Cross-Motion requesting the following relief:
(a) an Order under Rule 7(5) of the Family Law Rules adding as parties to this proceeding, the following: Luigi Tari, Anna Maria Tari, Adriano Tari, Alida Tari and Grace Tari;
(b) in the alternative to (a) an Order requiring Luigi Tari, Anna Maria Tari, Adriano Tari, Alida Tari and Grace Tari to disclose information by way of affidavit, attaching all relevant exhibits, and to be questioned by the Respondent regarding:
i) any real property that was in their possession, power or control, whether directly or indirectly, at any point between the date of marriage and present, in which the Applicant has or had an interest, whether future, vested or contingent;
ii) any real property with a value in excess of $1,000 that is or was within their possession, power or control, whether directly or indirectly at any point between the date of marriage and present, in which the Applicant has or had an interest, whether future, vested or contingent;
iii) any bank accounts that are or have been held jointly in their name and the name of the Applicant at any time between the date of marriage and present including the name of the financial institution and the account number; the date the account was opened; the date the Affiant/Applicant was added to the account, if it was not always joint; the date on which the affiant and/or the Applicant was removed from the account, if applicable; the date the account was closed; attaching exhibits all account statements for any period during which the account was in the Applicant’s name;
iv) any credit cards or other credit instruments in their name that have been used by the Applicant between the date of separation and the present including the name of the financial institution and the credit card number or account number;
v) for Anna Tari, Luigi Tari, Alida Tari and Adriano Tari, Bank of Nova Scotia account *6225 including a description and purpose or typical use of the account; the dates on which the Applicant was added or removed from the account, if applicable; any payments over $1,000 to or on behalf of the Applicant made out on this account since separation; an explanation why the Applicant is the only member who is not an account holder;
vi) for Anna Tari, Luigi Tari, and Adriano Tari, regarding the property known as 34 Roseview Avenue, Richmond Hill, whether the Applicant has ever had an interest of any kind, direct or indirect, whether legal or beneficial, vested or contingent in the property; the Applicant’s role with respect to the property prior to its sale in 2019 and any documentation reflecting that role; and a copy of the real estate file with respect to the sale of the property;
vii) for Alida Tari, regarding the property known as 300 Bloor Street East, Unit 709, whether the Applicant has ever had an interest of any kind, direct or indirect, whether legal or beneficial, vested or contingent in the property; any period of time exceeding a week during which the Applicant stayed at the property; the individuals who are ordinary residents at the property; an explanation who paid for the household expenses in relation to the property and how these expenses were paid since the date of purchase; and a copy of the real estate file with respect to the purchase of he property; and
(c) the disclosure set out in schedule “A” attached to the Respondent’s Notice of Motion.
Brief Background Facts
3The parties were married on December 3, 1988 and they separated February 26, 2020 (Applicant) or February 29, 2020 (Respondent).
4There are two children of the marriage namely, Christopher Tari born February 7, 1993 and Nicholas Tari born June 7, 1995. Both children are over the age of majority.
5From in or about 1993 until February 29, 2020 (just before separation), the Applicant worked for D & R. By contrast, the Respondent remained at home and raised the children. The Respondent has a 50% interest in the Class A common shares of D & R.
6The Respondent also has a 25% interest in 1520365 Ontario Inc. and a 25% interest in 2408624 Ontario Limited.
7The Applicant has a 50% interest in Darta Enterprises; a 25% interest in 1520365 Ontario Inc. and a 25% interest in 2408624 Ontario Limited.
8In his Application, the following relief is requested:
(a) divorce;
(b) spousal support;
(c) equalization of net family properties;
(d) an Order for occupation rent; and
(e) an Order for the sale of the matrimonial home.
9In her Answer, the following relief is requested:
(a) divorce;
(b) spousal support;
(c) an unequal division of net family properties;
(d) exclusive possession of the matrimonial home and contents;
(e) freezing assets;
(f) a restraining Order;
(g) damages for the infliction of emotional distress;
(h) a tracing of all funds from January 1, 2016;
(i) setting aside all transfers pursuant to the Fraudulent Conveyances Act; and
(j) security for financial obligations.
Civil Action
10It is noteworthy that as a result of his employment termination the Applicant commenced a civil action (CV-20-640010) on April 24, 2020. As I understand the evidence, the Applicant in the civil action requests findings of oppression; a request for a buy back of his shares and wrongful dismissal.
11The Defendants in the civil action include: the Respondent, D & R Electronics Co. Ltd. (hereinafter “D & R”); Darta, the holding corporations that own land; Alfredo Darolfi, Patrizia Joann Bizzotto; Rinaldo Darolfi; and Enrichetta Darolfi.
12The Defendants in the civil action commenced a civil action (CV-20-640914) requesting damages for fraud; conspiracy; unjust enrichment; breach of fiduciary duty and oppression. The named Defendants include: the Applicant, Luigi Tari; Anna Maria Tari; John Doe and John Doe Corporation.
13The two civil claims were merged and are proceeding to a three-week trial in Toronto in September 2024.
Applicant’s Motion
Striking Pleadings
14At the outset of the motion I indicated to the parties that I was dismissing the request advanced by the Applicant to strike the Respondent’s pleadings. I made that determination based on the reasons that follow.
15Rule 1(8) of the Family Law Rules states:
Failure to Obey Order
(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) on motion, a contempt order.
16The basis of the Applicant’s request to strike the Respondent’s pleadings, as I understand the Applicant’s evidence, is the Respondent’s alleged breach of Orders and undertakings in the related civil file. It is puzzling why the motion to strike pleadings was not advanced in the civil proceeding rather than in this family proceeding.
17The Court of Appeal held that on a motion to strike in a family case due to non-compliance with a court order, the court must consider whether the default is wilful and whether an order to strike is the only appropriate remedy. [1] Further, the Court in Kovachis v. Kovashis held that if a party has made disclosure which is substantial in relation to the issues in the case, and although not entirely complete, the striking of pleadings is not the appropriate remedy. [2]
18The following framework and considerations apply when assessing whether a party’s pleadings should be struck for failure to comply with Court Orders:
a. The judge must be satisfied that there has been non- compliance.
b. If there has been non-compliance, the court must assess the most appropriate remedy based on the particular facts of the case. In doing so, the court should consider the following:
i. The relevance of the non-disclosure, including its significance in hindering the resolution of the issues in dispute
ii. The context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance of non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness
iii. The extensiveness of existing disclosure
iv. The seriousness of efforts made to disclose and the explanations offered by a defaulting party for the inadequate or non disclosure; and
v. Any other relevant factors. [3]
19How can this court, in the family proceeding, consider the framework set out above as it relates to the civil proceeding?
20This court is unable to determine the relevance of any non-disclosure in the civil proceeding.
21This court is unable to assess an appropriate remedy based on the particular facts of that case.
22Rule 1(8) of the Family Law Rules permits the court to make an Order based on a person’s failure to obey an Order in a case or a related case. However, the striking of pleadings is discretionary and only to be considered as a final resort. The superior location for the Applicant to advance such a request is in the civil action. It would be a curious result to strike pleadings in the family matter as a result of actions taken in the civil matter, while the civil action itself proceeds to trial. I am not prepared to be the author of such a result.
Directions – Deemed Undertaking Rule
23The Applicant requests an order that discovery evidence obtained in the civil action be used in this proceeding and vice versa.
24At the outset of the motion, I indicated that I would not be making an Order that the evidence from the family proceeding be used in the civil action. There are two reasons for this: a) the civil matter has been scheduled for trial; and b) absent consent, I must be satisfied that the interests of justice outweighs any prejudice. I am not privy to the civil matter proceeding in Toronto and am unable to conduct this analysis.
25It is noteworthy that the parties, over the past three years, did not advance a motion to combine the civil proceedings with the family proceedings.
26Pursuant to Rule 30.1 of the Rules of Civil Procedure, the use of evidence and information gathered in one proceeding is not to be used in another proceeding.
27The evidence filed by both the Applicant and the Respondent suggested that they were receptive to having some of the disclosure in the civil matter available in the family proceeding. The parties were afforded time to draft a consent. Specifically, the parties consent to the following:
The deemed undertaking rule does not apply to use in this proceeding of the evidence obtained to date under RCP 30.1.01 (1) in Massimo Tari v. Alfredo Darolfi et al. CV-20-00640010-00CL (“Civil Action”), specifically:
a) Any affidavits of documents and supplementary affidavits of documents and productions exchanged by the parties in the Civil Action can be used in this family case, to extent relevant;
b) Any Transcripts of discoveries (plaintiff and defendants) in the Civil Action can be used in this family case, if relevant.
c) Any answers to undertakings provided by the parties in the Civil Action can be used in this family case, if relevant.
d) Any productions from non-parties in the Civil Action which have been produced can be used in this family case, if relevant.
Expert to Value the Respondent’s Shares and Income from D & R Electronics Co Ltd.
28The Respondent has a 50% interest in the Class A common shares of D & R. D & R is a business that sells parts.
29The Applicant requests an Order that the Respondent value her shares in the business, D & R, and to provide an income report for the years 2020, 2021 and 2022.
30The Respondent takes the position that her shares in D & R are excluded property. Despite that position, the Respondent has, quite appropriately, retained Tim Martin of Verity Valuation Group to value her shares. I am told that the draft report is prepared and the report can be made available no later than September 30, 2023. The valuation does not include an income stream.
31In terms of spousal support, pursuant to section 15.2 of the Divorce Act, a court may make an Order requiring a spouse to secure or pay, or to secure and pay, such lump sums or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
32The Applicant and the Respondent have both advanced spousal support claims.
33The income of both parties is required to make a determination of entitlement and quantum.
34The Ontario Court of Appeal in Mason v. Mason, 2016 ONCA 725, confirmed that in determining income for the purpose of spousal support, the child support guidelines in respect of determining income are relevant.
35Pursuant to section 16 of the Child Support Guidelines, the starting point in determining income for support purposes is the payor’s line 150 of their Income Tax Return.
36The Applicant argues that the Respondent’s line 150 is not the fairest way to determine income and that it does not fairly reflect all the money available to her. There are two significant reasons for this: a) despite being a 50% shareholder in D & R, the Respondent claims she receives no dividends; and b) the Applicant states that many of the Respondent’s personal expenses are paid for by D & R.
37The Child Support Guidelines provide for different methods of determining income when the starting point is not the “fairest determination of that income” [5] does “not fairly reflect all the money available to the parent or spouse” [6] or when a court “imputes such amount of income to a spouse as it considers appropriate.” [7]
38Section 18 of the Child Support Guidelines states:
Shareholder, director or officer
- (1) Where a parent or spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the parent’s or spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the parent or spouse for the payment of child support, the court may consider the situations described in section 17 and determine the parent’s or spouse’s annual income to include,
(a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or
(b) an amount commensurate with the services that the parent or spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income. O. Reg. 391/97, s. 18 (1) .
39By virtue of the use of the word ‘may’ in section 18 of the Child Support Guidelines, the court has discretion to add all or part of a corporation’s pre-tax income to a payor’s income if the payor’s annual income, as determined under section 16 of the Child Support Guidelines, does not fairly reflect all money available to the payor for the payment of support. An income stream analysis of corporate pre-tax income is necessary to determine why pre-tax income, if any, is being retained in D & R and what amount is being retained. As the Respondent is a 50% owner, her ability to control the payment of dividends is a relevant consideration.
40Personal expenses being paid by D & R for the benefit of the Respondent are also a very relevant consideration when determining the Respondent’s income.
41Section 19(1) of the Federal Child Support Guidelines, SOR/97-175 reads as follows:
Imputing income
19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
42In terms of imputation of income, there is evidence that many of the Respondent’s daily expenses are paid for by D & R and these benefits are not reflected in her Income Tax Return. These expenses include cell phone, travel, gym, health and dental benefit insurance, and car insurance.
43It is noteworthy that the Respondent’s sworn Financial Statements are light on income and heavy on expenses.
44On April 14, 2021 Justice Jarvis made the following comments:
“There are significant inconsistencies in the wife’s evidence about the parties’ financial affairs…..”; and “I am going to draw an adverse inference that non-employed family members in the wife’s family company received compensation or other benefits through the company.”; and “There was no evidence from the wife or her father about how the shareholders of the business are or were compensated, even though, as I said a few moments ago, it was clearly flagged by the husband as an issue. It is inescapable as an inference, in my view, that the wife’s evidence about her financial relationship with the family company is opaque, and it is tactically advanced to financially straightjacket the husband in this plethora of family litigation.”
45The income of both parties is necessary for the court to make determinations of spousal support entitlement and quantum. The obligation is on the Respondent to establish the value of any personal and/or discretionary expenses that are paid for by D & R for the benefit of the Respondent and/or other family members and for her to establish the pre-tax corporate income of D & R. Accordingly, Tim Martin of Verity Valuation Group, shall examine the financial records of D & R and provide an income stream report for the Respondent for the taxation years 2020, 2021 and 2022. The cost of the report shall be the Respondent’s responsibility.
Respondent’s Cross-Motion
Adding Parties
46The Respondent requests an Order adding the following individuals as parties to the proceeding: Luigi Tari, Anna Maria Tari, Adriano Tari, Alida Tari and Grace Tari. They were all served with the Respondent’s request.
47Pursuant to Subrule 7(5) of the Family Law Rules the court may order that any person who should be added as a party shall be added as a party.
48The onus is on the Respondent to establish that Luigi Tari, Anna Maria Tari, Adriano Tari, Alida Tari and Grace Tari should be added as parties. [8]
49Because someone may have relevant evidence in a case that does not elevate them from witness to party status. [9]
50The test to determine whether to add a party to a proceeding was considered in Noik v. Noik [10] and is as follows:
a) can the question between the parties be effectively and completely settled without the addition of the prospective party?; and
b) will the relief sought by the moving party directly affect the party to be added, not in its commercial interest, but in the enjoyment of its legal rights?
51I am not satisfied, on the evidence before me, that it is necessary to Luigi Tari, Anna Maria Tari, Adriano Tari, Alida Tari and Grace Tari as parties to resolve the issues.
52Luigi Tari, Anna Maria Tari, Adriano Tari, Alida Tari and Grace Tari may have evidence that will assist the court in resolving the financial issues between the parties. Evidence, from the individuals aforementioned, may be obtained in advance of the trial by bringing a motion for documents in a non-party’s control pursuant to subrule 19(11) of the Rules. Further, any individual with evidence relevant to the disposition of the case may be called as a witness. The issues outstanding can be resolved without the addition of the individuals aforementioned as parties. Any relevant information they have can be provided at trial.
Disclosure from Luigi Tari, Anna Maria Tari, Adriano Tari, Alida Tari and Grace Tari
53The Respondent requests an Order that Luigi Tari, Anna Maria Tari, Adriano Tari, Alida Tari and Grace Tari provide information by way of affidavit and to attend questioning pursuant to Rule 20(5) of the Family Law Rules.
54Pursuant to Rule 20 (5) of the Family Law Rules, the court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:
a) it would be unfair to the party who wants the questioning or disclosure to carry on with the case without it;
b) the information is not easily available by any other method: and
c) the questioning or disclosure will not cause unacceptable delay or undue expense.
55It is noteworthy that Luigi Tari, Anna Maria Tari, Adriano Tari, Alida Tari and Grace Tari were served with the notice requirements set out in Rule 20(9) of the Family Law Rules.
56The Respondent advances the proposition that the Applicant is sheltering money through his relatives. In support of the proposition, the Respondent states that: a) the Applicant falsely claimed that he has never has a credit card and b) that he falsely claimed that he never had a joint bank account with any of his family members.
57The Applicant states that he did not lie in respect of him not having a credit card. He states that the credit card he has currently has only been in use since November 2021. When asked the question in early 2021 the credit card did not exist.
58In respect of the ‘lie’ that the Applicant made when he denied having a joint account with anyone else, the Applicant states that it was an account opened in 2006 and closed in 2011. He states he forgot about it. The information required is readily available through the Applicant.
59The Respondent also questions the beneficial ownership of 34 Roseview Avenue, Richmond Hill. Pursuant to the parcel register, this property was purchased in 1987 and the titled owners are the Applicant’s parents and brother. The property has been rented out for years. The suspicion, as to beneficial ownership in 34 Roseview, arises from the Applicant: a) assisting his parents with collecting rent and sometimes depositing them into his account; b) paying some expenses for 34 Roseview from his own account; and c) the Respondent’s contention that the Applicant advised that he owned it and would pass it to their sons some day.
60The information regarding 34 Roseview is readily available. The Applicant has already answered questions regarding 34 Roseview and he has provided an accounting of receipts and expenses which are approximately equal. He states that he hopes to have a share of the home as part of an inheritance. The Respondent has already provided the information desired.
61The Respondent is certainly entitled to contact these individuals and ask them questions. While they are not under an obligation to answer questions, they might. The Respondent is also entitled to call these witnesses (or some of them) at trial.
62The Respondent is entitled to have suspicion that the Applicant is sheltering money through family members. However, her suspicion is insufficient to make out the test under Rule 20(5).
63The onus is on the Respondent to establish that a) it would be unfair to carry on the case without disclosure and questioning of the individuals requested; b) that the information is not easily available by any other method; and c) that the questioning or disclosure will not cause unacceptable delay or undue expense.
64It is noteworthy that the Respondent is proceeding to trial in the civil matter on her claim that the Applicant defrauded D & R. The Applicant’s parents are parties to the civil action. As stated, that matter is scheduled for trial.
65This court spent an inordinate amount of time listening to arguments, from both parties, that centered around issues in the civil file. While there may be some overlap, counsel are advised to resist the urge to conflate the issues in the civil file with the issues in the family file.
66The Respondent, in the family matter, has not met the onus in establishing that a) it would be unfair to carry on with the case without this information and that b) the information is not easily available by any other method such that Luigi Tari, Anna Maria Tari, Adriano Tari, Alida Tari or Grace Tari should provide information and be questioned.
Disclosure
67The Respondent requests an Order that the Applicant provide the disclosure set out in schedule A of her Notice of Motion.
68The schedule consists of many standard disclosure items that should not be at issue. As an example, the Respondent requests:
(a) an updated sworn Financial Statement;
(b) Income Tax Returns for the years 2020, 2021, and 2022; and
(c) Notices of Assessment for the years 2020, 2021, and 2022.
69The duty to provide financial disclosure is incorporated into Rule 13 of the Family Law Rules, which requires a party to serve and file a sworn Financial Statement along with their Answer. It also requires a party who serves a Financial Statement to provide supporting financial disclosure and to update their Financial Statement at regular intervals. Rule 13 (3.1) of the Family Law Rules also requires parties, where support is requested, to provide the income and financial information contained in subsection 21 (1) of the Child Support Guidelines.
70Section 21 of the Child Support Guidelines, O. Reg. 391/97, states:
Obligation of applicant
- (1) A parent or spouse who is applying for an order for the support of a child and whose income information is necessary to determine the amount of the order must include with the application,
(a) a copy of every personal income tax return filed by the parent or spouse including any materials that were filed with the return for each of the three most recent taxation years;
(b) a copy of every notice of assessment and reassessment issued to the parent or spouse for each of the three most recent taxation years;
(c) where the parent or spouse is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime, or, where such a statement is not provided by the employer, a letter from the parent’s or spouse’s employer setting out that information including the parent’s or spouse’s rate of annual salary or remuneration;
(d) where the parent or spouse is self-employed, for the three most recent taxation years,
(i) the financial statements of the parent’s or spouse’s business or professional practice, other than a partnership, and
(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent or spouse does not deal at arm’s length;
(e) where the parent or spouse is a partner in a partnership, confirmation of the parent’s or spouse’s income and draw from, and capital in, the partnership for its three most recent taxation years;
(f) where the parent or spouse controls a corporation, for its three most recent taxation years,
(i) the financial statements of the corporation and its subsidiaries, and
(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length;
(g) where the parent or spouse is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s three most recent financial statements; and
(h) in addition to any information that must be included under clauses (c) to (g), where the parent or spouse receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year or, if such a statement is not provided, a letter from the appropriate authority stating the required information. O. Reg. 391/97, s. 21 (1) ; O. Reg. 446/01, s. 7; O. Reg. 25/10, s. 5.
Obligation of respondent
(2) A parent or spouse who is served with an application for an order for the support of a child and whose income information is necessary to determine the amount of the order, must, within 30 days after the application is served if the parent or spouse resides in Canada or the United States or within 60 days if the parent or spouse resides elsewhere, or such other time limit as the court specifies, provide the court, as well as the other spouse, an applicant under section 33 of the Act or the order assignee with the documents referred to in subsection (1). O. Reg.391/97, s. 21 (2) .
71Much of the disclosure requested is standard. An updated sworn Financial Statement; Income Tax Returns for three years; and Notices of Assessment for three years are required by statute when, like here, the Applicant is advancing a claim for spousal support and defending against a claim for spousal support.
72In fairness to the Applicant, there is no objection to the production of the aforementioned disclosure, the objection to the court granting an Order is that he says much of the requested disclosure has already been provided. The Respondent admits that some of the disclosure may have been provided although he is unsure precisely what. The Respondent asks the Applicant for a record of the dates and times when the disclosure was provided.
73It is discouraging for the court to expend limited judicial time on these types of arguments. The Cross-Motion dated April 5, 2023 was served on even date and the supporting affidavits were filed in anticipation of being heard during the May 2023 trial sittings. This long motion was not reached. The court would have expected the Respondent to know precisely what disclosure was received and what remained outstanding prior to the motion. Indeed, over five months has passed since the motion for disclosure was served and the response received. There is no reason why the disclosure request was not narrowed such that the court would have confidence in knowing what disclosure was received and what is objected to.
74Pursuant to Rule 2 of the Family Law Rules, the primary objective of the Rules is to enable the court to deal with cases justly.
75Dealing with cases justly includes:
a) ensuring the procedure is fair to all parties;
b) saving expense and time;
c) dealing with the case in ways that are appropriate to its importance and complexity; and
d) giving appropriate resources to the case while taking account of the need to give resources to other cases.
76Pursuant to Family Law Rule 2(4), while the court is required to apply the rules to promote the primary objective, the parties and their lawyers are also required to help the court promote the primary objective (emphasis added).
77While I am making a disclosure Order, for items that are relevant and proportionate, the Applicant is not required to re-serve disclosure and is not required to provide a date and time disclosure was sent absent a chart, prepared by the Respondent, indicating what has been received and what is outstanding. The Applicant, of course, has an obligation to serve any disclosure that is ordered and that has not yet been provided.
78The Applicant shall, within 30 days, provide to the Respondent (if he has not already done so) the following disclosure:
(a) an updated sworn form 13.1 Financial Statement;
(b) Income Tax Returns with all forms and schedules for the taxation years 2020, 2021 and 2022;
(c) Notices of Assessment for the taxation years 2020, 2021 and 2022;
(d) BMO bank account *1438 for the period March 3, 2020 to April 1, 2020; and November 23, 2020 to present;
(e) BMO Account *7201 for the period March 3, 2020 to April 1, 2020; and November 23, 2020 to present;
(f) RBC RRSP Account *7613 CAD for the period January 1, 2020 through April 1, 2020;
(g) RBC RRSP Account *7613 US for the period January 1, 2020 through April 1, 2020;
(h) RBC RRSP *7931for the period January 1, 2020 through April 1, 2020;
(i) a complete TransUnion Credit History Report;
(j) proof of income received from all sources from January 1, 2020 to date; and
(k) an affidavit outlining his job search efforts from November 1, 2020 until he became employed in his current job.
79The balance of the disclosure requested is not ordered because it is not relevant to this action or it is not proportionate.
Order
In respect of the Applicant’s Motion and on consent of the parties:
- The deemed undertaking rule does not apply to use in this proceeding of the evidence obtained to date under RCP 30.1.01 (1) in Massimo Tari v. Alfredo Darolfi et al. CV-20-00640010-00CL (“Civil Action”), specifically:
(a) any affidavits of documents and supplementary affidavits of documents and productions exchanged by the parties in the Civil Action can be used in this family case, to extent relevant;
(b) any Transcripts of discoveries (plaintiff and defendants) in the Civil action can be used in this family case, if relevant;
(c) any answers to undertakings provided by the parties in the Civil Action can be used in this family case, if relevant; and
(d) any productions from non-parties in the Civil Action which have been produced can be used in this family case, if relevant.
In respect of the Applicant’s motion and not on consent of the parties:
The Applicant’s request for an Order striking the Answer filed by the Respondent is dismissed.
The Applicant’s request for an Order that the Respondent is not entitled to any further Order of the court is dismissed.
Tim Martin of Verity Valuation Group, shall examine the financial records of D & R and provide an income stream report for the Respondent for the taxation years 2020, 2021 and 2022. The cost of the report shall be the Respondent’s responsibility.
In respect of the Respondent’s Cross-Motion:
The Respondent’s request for an order adding Luigi Tari, Anna Maria Tari, Adriano Tari, Alida Tari and Grace Tari as parties to this proceeding is dismissed.
The Respondent’s request that Luigi Tari, Anna Maria Tari, Adriano Tari, Alida Tari and Grace Tari disclose information by way of affidavit and to be questioned by the Respondent is dismissed.
The Applicant shall, within 30 days, provide to the Respondent (if he has not already done so) the following disclosure:
(a) an updated sworn form 13.1 Financial Statement;
(b) Income Tax Returns with all forms and scheduled for the taxation years 2020, 2021 and 2022;
(c) Notices of Assessment for the taxation years 2020, 2021 and 2022;
(d) BMO bank account *1438 for the period March 3, 2020 to April 1, 2020; and November 23, 2020 to present;
(e) BMO Account *7201 for the period March 3, 2020 to April 1, 2020; and November 23, 2020 to present;
(f) RBC RRSP Account *7613 CAD for the period January 1, 2020 through April 1, 2020;
(g) RBC RRSP Account *7613 US for the period January 1, 2020 through April 1, 2020;
(h) RBC RRSP *7931for the period January 1, 2020 through April 1, 2020;
(i) a complete TransUnion Credit History Report;
(j) proof of income received from all sources from January 1, 2020 to date; and
(k) an affidavit outlining his job search efforts from November 1, 2020 until he became employed in his current job.
- If the parties cannot agree on the issue of costs regarding this motion, I shall consider the request for costs. The Applicant shall serve on the Respondents and file electronically, through the Trial Coordinator, written submissions, limited to three pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Respondents shall serve on the Applicant and file electronically, through the Trial Coordinator, written submissions, limited to three pages exclusive of the Bill of Costs and Offers to Settle within 10 days thereafter. There shall be no right of Reply.
The Honourable Justice G.A. MacPherson Date: September 25, 2023
[1] Kovachis v. Kovashis, 2013 ONCA 663 at para 33 [2] At para 28 [3] Mullin v Sherlock, 2018 ONCA 1063 (C.A.) at para 44 [4] Mason v. Mason, 2016 ONCA 725 [5] Section 17 of the Child Support Guidelines [6] Section 18 of the Child Support Guidelines [7] Section 19 of the Child Support Guidelines [8] Children’s Aid Society of Toronto v. M.E., 2021 ONCJ 412 [9] See: Noik v. Noik (2001) R.F.L. (5th) 370 (Ont. S.C.J.) [10] Supra, at para 30