Court File and Parties

COURT FILE NO.: FS-18-0137-00 DATE: 2023 09 29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christina De Longte v. Michael De Longte

BEFORE: Fowler Byrne J.

COUNSEL: Lorna M. Yates, for the Applicant James Milne, for the Respondent

HEARD: September 27, 2023

RULING – BROWNE v. DUNN OBJECTIONS

[1] The Respondent has requested a mid-trial ruling with respect to evidence he has adduced, and further evidence he wishes to adduce, in violation of the rule in Browne v. Dunn. I provided my ruling, with reasons to follow. These are those reasons.

[2] The key issues in this family law trial are the equalization payment owed and the income of the parties for support purposes. The most significant assets to be valued are the two corporations owned and operated by the Applicant. Germane to the valuation of the business is the Respondent’s allegation that the value of the business should reflect substantial unreported cash sales. If accepted, this could also influence my determination of the Applicant’s income.

[3] Both the Applicant and her bookkeeper, Francine Acocella, gave evidence regarding how the business was operated leading up to the date of separation and about their knowledge of unreported cash sales. These witnesses were also crossed examined by the Respondent. The Applicant’s case is now closed.

[4] The Respondent then commenced his examination in chief. Almost immediately, the Applicant raised a number of objections regarding the questions posed to the Respondent, which were in violation of the rule in Browne v. Dunn. Given the number of questions, and given the Respondent’s frank admission that he needed to adduce further evidence in violation of this rule, a ruling was sought. Counsel for the Respondent readily admitted that his failure to put the Respondent’s anticipated evidence on substantive issues to the Applicant in cross-examination, was an error on his part and not in any way a strategy of “trial by ambush”.

[5] The following is a summary of the areas of evidence given by the Respondent in chief, that were not put to the Applicant in her cross-examination. This list includes only those areas which involve the substantive issues before me. The challenged areas of the Respondent’s evidence are as follows:

a. His lack of involvement in the subject businesses prior to separation, including his attendance at the offices of the subject businesses and his participation in the “open balance meetings” prior to separation;

b. His level of involvement in the financial management of the subject businesses, as well as the prior business, Perfect Renovations Group, including the acceptance of cash payments, how much cash was kept at his home, and year end adjustments made to these companies, prior to separation;

c. His discussions with the Applicant and Francine Acocella had about the acceptance and collection of unreported cash;

d. His evidence regarding Francine Acocella’s practice of imputing and deleting invoices from the financial records of the subject businesses;

e. His evidence that the Applicant was aware of the presence of unrecorded cash receipts within the subject companies;

f. His evidence that the Applicant was involved with relaying information to Mr. De Longte regarding cash receipts;

g. His evidence that the Applicant was aware of and had access to funds from cash receipts acquired during the marriage;

h. His evidence that the Applicant was aware of cash payments made by customers to Mr. De Longte and helped facilitate them;

i. His evidence that the Applicant was aware that large amounts of cash, up to $200,000, were kept at the matrimonial home, and that she was aware of how it was spent;

j. His evidence that the Applicant received cash payments, specifically from Giuseppina Burzese, other than as identified in her affidavit;

k. His evidence that the Applicant accessed the Quickbooks accounting programme for THIG prior to separation.

[6] The Respondent has also filed various affidavits from employees or customers as evidence in chief, who participated in the cash sales or had knowledge of them. For the most part, the Applicant was aware of these allegations and was able to provide her response to this evidence in her examination in chief. To her credit, the Applicant’s counsel does not argue that there have been any violations of the rule in Browne v. Dunn with respect to these witnesses, as she had ample notice of the affiants’ evidence and could put it to her client herself. Where matters became difficult though, was when the Respondent gave further evidence related to the cash sales identified in these affidavits, which details were not included in the affidavits, which again were not put to the Applicant in her cross-examination. The Respondent gave evidence of this type on two occasions:

a. When he gave evidence that the Applicant was present at a dinner with Shane Nisble and the Respondent when a cash payment was made;

b. When he gave evidence that the Applicant was involved in the initial discussions to accept cash payments from Giuseppina Burzese and William Secnik, and with respect to Mr. Secnik, she actually directed the Respondent to go pick up the cash payments.

[7] The Applicant points a further violation with respect to the Respondent’s evidence of the residence of one of the children – Harrison. This relates to a four to five month period where the parties disagree on where the child lived.

[8] The Respondent was also questioned on his valuation of the contents of the matrimonial home, as well as his assets on the date of marriage, none of which put to the Applicant. While the Applicant alleged a violation of the rule in Browne v. Dunn with respect to this evidence, I do not agree. This is Mr. De Longte’s evidence of what he believes certain items are worth. This is not evidence adduced to test the credibility of the Applicant.

Law

[9] While more readily identified in criminal proceeding, the rule in Browne v. Dunn is equally applicable to family law trials. Some examples of its application can be found in Liu v. Huang, 2020 ONCA 450 at para. 13-25 and Alajalian v. Alajajian, 2019 ONSC 4678 at para. 17.

[10] The rule can be summarized as follows. If a party intends to impeach a witness called by the opposite party, the party who seeks to impeach must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence: Browne v. Dunn, at pp. 70-71; R. v. Quansah, 2015 ONCA 237 at para. 75.

[11] The rule in Browne v. Dunn is a rule that ensures trial fairness. It ensures fairness to the witness whose credibility is attacked, fairness to the party whose witness is impeached, and fairness to the trier of fact. With respect to the last principle, it ensures that the trier of fact will not be deprived of information that might show the credibility impeachment to be unfounded and thus compromise the accuracy of the verdict: Quansah, para. 77.

[12] As stated in Evidence in Family Law, by Harold Niman, at para. 7:15

If you intend to challenge the credibility of a witness you must put the disputed facts or documents to them in cross examination or run the risk of the ancient but still applied rule in Browne v. Dunne.

This is based upon the principle of fairness, so that every relevant witness shall have an opportunity to address important facts or documents. You are not permitted to “blindside” the other side of a case by remaining silent about an important and relevant fact or document which you intend to introduce in your part of the trial and thus rely upon as part of your own case. This is obvious if the “hidden” fact or document relates to credibility, but just as applicable to any other relevant portion of the case.

[13] In this case, a number of violations have been admitted. In these cases, I have the discretion to decide the remedy to be afforded for the breach. The remedy should depend on a number of factors and the circumstances of the case. These factors include the seriousness of the breach, the context of the breach, the timing of the objection, the position of the offending party, any request to recall a witness, and the availability of that witness for recall: Quansah, at para. 117.

[14] In a family law proceeding, two remedies are available. First, I could consider the breach of the rule when assessing a witness’ credibility and deciding the weight to attach to that witnesses’ evidence. Alternatively, I could allow counsel to recall the witness whose evidence was impeached without notice and allow them to give evidence on these narrow issues: Curley v. Taafe, 2019 ONCA 368 at para. 31.

Respondent’s Position

[15] The Respondent argues that given the years of litigation between the parties and the number of affidavits exchanged during its course, these issues should not come as a surprise to the Applicant. The “unfairness” is not significant as the parties had ample notice of the likely anticipated evidence.

[16] Nonetheless, the Respondent indicated that if the court finds a violation, the appropriate remedy would be to allow the Applicant and Ms. Acocella to be recalled. In the alternative, I could consider the violation of this rule when deciding how much weight to put to the evidence of the Applicant, Respondent and of Ms. Acocella on these substantive issues. He indicated that trial will not be delayed significantly as he was taking two witnesses off his list which will free up the required time.

Applicant’s Position

[17] The Applicant argues that if there was only a singular violation or minimal violations, the recall of her client and Ms. Acocella would be appropriate. In this situation though, she seeks that the Respondent’s evidence not be allowed on these points because of the sheer scope of the violation, and because the violation goes to the heart of the valuation and income issues. She claims that there was no cross-examination on any materials facts and that the testimony of the Respondent resulted in a trial by ambush. That being said, when making formal submissions on this motion, the Applicant provided no case law in support of the position that this offending evidence should be excluded.

Analysis

[18] It has been admitted that there has been a violation of the rule in Browne v. Dunn. That being said, I do not accept the Applicant’s position that the exclusion of evidence is the appropriate remedy. This is a rule of trial fairness, and not a rule of exclusion. In the end, it is important that the trial process be fair to all parties, and that I can fairly assess the credibility of all witnesses. Accordingly, appropriate remedy in this situation is for the Applicant to be recalled, as well as Francine Acocella.

[19] In making this determination, I have considered a number of factors. First, the Respondent’s counsel submitted, and I accept, that this was not intended to be a trial by ambush, but rather an oversight on his part. It would not be fair to the Respondent to have his testimony weighed in a negative manner when fairness could be restored by the recall of witnesses.

[20] I do find that the breach is serious, in that it involves the substantive issues at trial, and because of the sheer volume of the violations. I make this finding in spite of the fact that these issues have been live as between the parties for many years during this acrimonious litigation. While the Applicant should have been able to anticipate the Respondent’s contrary evidence on some issues, the Respondent too must have known that his client’s anticipated evidence would test the credibility of the Applicant. Until the trial begins, the Applicant does not fully appreciate the position the Respondent will take at trial until after the Applicant has closed their case. As well, the trier of fact does not have access to the numerous affidavits sworn in the course of the prior litigation -- only the evidence adduced at trial. Accordingly, it is incumbent on the Respondent to give the Applicant a chance to respond to the Respondent’s version of events as adduced at trial. He failed to do so. Given the severity of the breaches with respect to substantive issues, a simple reweighing of the evidence is an insufficient remedy.

[21] I have also considered that the objection was raised in a timely manner, and that both the Applicant and Francine Acocella are available to be recalled. The only concern I have is that at the start of this trial, an order was made to exclude witnesses. Ms. Acocella testified immediately after Ms. De Longte and has remained in the courtroom throughout the trial, hearing the testimony of Mr. De Longte and the objections regarding Browne v. Dunn. She was excluded again before this formal motion was argued, but I must consider this when assessing her testimony when and if she is recalled. I do note though, that despite her presence at trial, it was the Respondent who suggested that her recall would be an appropriate remedy.

[22] With respect to the evidence regarding the child’s residence, this issue is not as significant as it involves only a short period of time and will only impact whether I order full child support or off set child support for this period. If the other violations had not occurred, I would have been inclined to factor in the violation of Browne v. Dunn when assessing the weight of the evidence. Given though, that the Applicant is being recalled, I will allow her to address the Respondent’s evidence on this issue as well.

[23] Accordingly, after assessing these factors, I find that on the substantive issues of valuation and income and on the issue of the residency of Harrison, that the recall of the Applicant and Francine Acocella is the appropriate remedy. In the end, it is preferrable that all relevant evidence be heard by me, and that I have every opportunity to assess the credibility of all witnesses. If counsel believe there were other violations of this rule in relation to other lesser issues, I invite counsel to draw my attention to them in their final submissions and I will consider whether this should factor into the weight I give to the party’s evidence.

Conclusion

[24] Accordingly, based on the forgoing, I make the following ruling:

a. Without prejudice to the Applicant’s right to call any other proper reply evidence, the Applicant has a right to recall the Applicant and Francine Acocella to address to the evidence given by the Respondent on the following issues only, so as to remedy the breach of the rule in Browne v. Dunn:

i. His lack of involvement in the subject businesses prior to separation, including his attendance at the offices of the subject businesses and his participation in the “open balance meetings” prior to separation;

ii. His level of involvement in the financial management of the subject businesses, as well as the prior business, Perfect Renovations Group, including the acceptance of cash payments, how much cash was kept at his home, and year end adjustments made to these companies, prior to separation;

iii. His discussions with the Applicant and Francine Acocella had about the acceptance and collection of unreported cash;

iv. His evidence regarding Francine Acocella’s practice of imputing and deleting invoices from the financial records of the subject businesses.

v. His evidence that the Applicant was aware of the presence of unrecorded cash receipts within the subject companies;

vi. His evidence that the Applicant was involved with relaying information to the Respondent regarding cash receipts;

vii. His evidence that the Applicant was aware of and had access to funds from cash receipts acquired during the marriage;

viii. His evidence that the Applicant was aware of cash payments made by customers to the Respondent and helped facilitate them;

ix. His evidence that the Applicant was aware that large amounts of cash, up to $200,000, were kept at the matrimonial home, and that she was aware of how it was spent;

x. His evidence that the Applicant received cash payments, specifically from Giuseppina Burzese, other than as identified in her affidavit;

xi. His evidence that the Applicant accessed the Quickbooks accounting programme for THIG prior to separation.

xii. His evidence that the Applicant was present at a dinner with Shane Nisble and the Respondent when a cash payment was made;

xiii. His evidence that the Applicant was involved in the initial discussions to accept cash payments from Giuseppina Burzese and William Secnik, and with respect to Mr. Secnik, she actually directed The Respondent to go pick up the cash payments

xiv. His evidence on the residence of Harrison between the summer of 2021 and December 2021.

b. The Respondent shall pay the extra costs associated with the necessity of recalling the Applicant and Ms. Acocella, and the Applicant was asked to prepare a separate Costs Outline with respect to these costs incurred.

Fowler Byrne J. DATE: September 29, 2023