Court File and Parties

COURT FILE NO.: FS-22-44912-0000 DATE: 2024 03 01

SUPERIOR COURT OF JUSTICE – ONTARIO 491 Steeles Avenue East, Milton ON L9T 1Y7

RE: P.M. AND: B.M.

BEFORE: Conlan J.

COUNSEL: H. Cassells, for the Applicant P.M. E. Birnboim, for the Respondent B.M.

HEARD: February 29, 2024

ENDORSEMENT

I. The Background

[1] On February 29, 2024, this Court heard two motions, one brought by each side.

[2] The Respondent wife, B.M., in her Notice of Motion dated 20 February 2024, moves for an order that the Applicant husband, P.M., produce his answers to all of his undertakings, under advisements, and refusals given at his out-of-court examination on 08 January 2024.

[3] P.M., in his Notice of Motion dated 21 February 2024, as narrowed by his counsel, Ms. Cassells, during oral argument, moves for an order that B.M. provide “unredacted and unaltered” statements for her CIBC Aventura VISA Infinite Account (“CIBC VISA”) for the period from August 19, 2021 to present and ongoing to trial.

[4] There is no time to waste in this Court releasing its decision as the case could be called for trial as early as March 2024.

[5] According to the Trial Scheduling Endorsement Form completed as recently as 27 February 2024, the issues for trial do not include any parenting issues but do include (i) a divorce, (ii) equalization of net family property, (iii) child support including section 7 expenses, (iv) spousal support claimed by B.M., (v) the sale of the matrimonial home (per P.M.), (vi) exclusive possession of the matrimonial home and its contents (claimed by B.M.), (vii) occupation rent (per P.M.), (viii) post-separation adjustments, (ix) the division of household contents, (x) B.M.’s civil claim for damages for tortious conduct including alleged assault and domestic violence, and (xi) a restraining order claimed by B.M.

[6] It would appear to be a case headed for a lengthy and difficult trial, estimated at 12 days minimum. There is a separate civil court action that was commenced by B.M. which will be tried together with the family law proceeding. A further judicial pretrial conference is set for March 19, 2024.

II. The Law

[7] There is no disagreement between the parties about the governing law. The dispute lies in its application to the facts of this case.

[8] The most basic obligation in family law is the duty to disclose financial information. That duty is immediate and ongoing. Failure to abide by that duty frustrates the administration of justice, causes delay, impedes the progress of the proceeding, disadvantages the other side, and wastes judicial resources. Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, [2015] O.J. No. 3236 (C.A.), at paragraphs 11-13.

[9] Although full and frank disclosure is a necessary component of family law litigation, exhaustive disclosure may not always be appropriate. The relevance of the disclosure request to the issues at hand, proportionality, the cost and time required to obtain the disclosure compared to its importance, and the burden that disclosure brings on the disclosing party are all items that should be considered by the court. Mullin v. Sherlock, 2018 ONCA 1063, at paragraph 33, citing, among other cases, Kovachis v. Kovachis, 2013 ONCA 663, at paragraph 34.

III. B.M.’s Motion

[10] First, in terms of refusals of questions asked of P.M., the following directions of this Court coincide with the seven items listed on page 11 of the document filed by counsel for B.M., titled “List of Undertakings, Under Advisements and Refusals”, hereinafter referred to as the “Chart”.

[11] Number 1 – copies of P.M.’s paystubs for the year 2024, to the date of trial – this Court orders that P.M. shall provide that disclosure. It is relevant to P.M.’s income for support purposes which, on my review of the Trial Scheduling Endorsement Form, is an issue for trial. I disagree with P.M. that the request is overly broad in that he has already agreed to provide his three most recent paystubs for three pay periods prior to trial. The time and cost to P.M. in providing the additional paystubs are negligible. The burden on him in complying with the disclosure request is insignificant.

[12] Number 2 – a copy of P.M.’s last paystub issued immediately before trial – that is subsumed within number 1 above.

[13] Number 3 – copies of statements for a joint line of credit registered against the matrimonial home and used to invest money on behalf of P.M.’s holding company for as far back as possible – this Court makes no disclosure order for that item. It may be relevant to the issues for trial, however, (i) B.M. can obtain the statements herself as it is a joint account, (ii) the request is too broad, and (iii) the time for asking P.M. questions about whether and to what extent funds in the said account were used to invest money on behalf of P.M.’s holding company was during his out-of-court examination and, again, that time will arise at trial.

[14] Number 4 – a copy of the lawyer’s file acting for P.M. on the sale of his shares and any documentation with respect to the transfer of his holding company’s shares to someone else – this Court orders that P.M. shall provide that disclosure. It is relevant to the financial issues for trial. I disagree with P.M. that the request is overreaching, even if it is correct that the shares were sold before the parties separated. If P.M. is concerned about privileged information in the lawyer’s file, a point raised in his affidavit material, then he and his counsel in this proceeding may redact certain information before it is disclosed. If the redactions are complained about by counsel for B.M., then the matter can be raised with the trial judge or at a further motion before trial, which motion hopefully will not become necessary.

[15] Number 5 – to identify the document that P.M. asserts is a negotiation over the purchase price of his shares in the holding company – the Court makes no order as P.M. has already identified the document in his affidavit sworn on 23 February 2024, at page 11 and at Exhibit “C” thereto.

[16] Number 6 – to provide a breakdown of all child support payments made by P.M. since separation – the Court makes no order as P.M. has already answered the question and confirmed that no such payments were made by him (see his affidavit referred to immediately above, at page 11).

[17] Number 7 – to provide specified information for “NW14”, another company that P.M. previously had an interest in – this Court makes no order as (i) the premise for the “critical” importance of the said information, that is that the said transaction was “directly in response to the separation”, according to B.M.’s counsel’s notes in the Chart, is not a fact that, on the evidence filed, this Court can find, and (ii) P.M. has already provided the details sought at pages 11 and 12 of his affidavit referred to above.

[18] Second, in terms of undertakings given during P.M.’s out-of-court examination, reference below is to the Chart, pages 2-6.

[19] Number 2 – P.M.’s paystubs – already dealt with above.

[20] Number 4 – P.M.’s credit card statements - this Court orders that P.M. shall provide that disclosure. I disagree with P.M.’s assertion at page 5 of his affidavit referred to above that he has satisfied the undertaking to produce copies of monthly credit card statements, from three years pre-separation to the present, for the three credit cards stipulated. He clearly has not. While he has provided statements for the Canadian Tire MasterCard from August 2023 to February 2024, he must still provide the remaining statements for the whole period of time in question. While he has provided a screenshot of something from USBank about the alleged unavailability of certain statements for that account, he must produce a letter or electronic mail from the institution which states that. While he has requested but not yet received certain statements not already provided for the CIBC Aeroplan VISA, he must follow-up with the institution on his request.

[21] Number 5 – that is subsumed within number 4 above. Counsel for B.M. has the Applicant’s sworn evidence that it is the same CIBC account. That evidence can be challenged at trial if there is a legitimate basis to challenge it.

[22] Number 6 – P.M.’s holding company’s bank account statements – the Court makes no order as it appears that B.M. has signing authority for the CIBC corporate bank account and, thus, can obtain whatever statements she wishes to obtain.

[23] Number 7 – supporting documentation for P.M.’s alleged business investment loss, et cetera – the Court makes no order as (i) I cannot, on the evidence filed, make any reliable finding of fact as to whether the documents are inside the matrimonial home, and thus outside the reach of P.M., or not, and (ii) I do not even understand what specifically is being sought by B.M. I might have understood it better if the Court had a transcript of the questioning of P.M., but none was filed.

[24] Number 8 – particulars of P.M.’s bonus – the Court makes no order as the particulars sought are outlined at pages 6-7 of P.M.’s affidavit referred to above.

[25] Number 9 – bank account statements that are relevant to the two motor vehicles purchased by P.M. after separation – the Court makes no order as the undertaking has been satisfactorily answered at page 7 of P.M.’s affidavit referred to above.

[26] Number 10 – this Court orders that P.M. shall, forthwith, confirm, or ask the pension plan administrator to confirm, whether his pension plan is a defined contribution plan or a defined benefit plan or something else.

[27] Number 11 – this Court orders that P.M. shall, forthwith, provide an updated Financial Statement, Form 13.1.

[28] Third and finally, in terms of matters taken under advisement during P.M.’s out-of-court examination, reference below is to the Chart, pages 6-10.

[29] Number 2 – P.M.’s T1 Returns and all attachments thereto from 2018 to present – this Court orders that P.M. shall provide that disclosure. If he does not have the documents at his ready disposal, he shall, forthwith, request them from the Canada Revenue Agency.

[30] Number 3 – P.M.’s Solium account – this Court orders that P.M. shall, forthwith, confirm in an affidavit, or have his employer confirm in a letter or electronic mail, that the said account is the same as what was disclosed by him on 21 February 2024.

[31] Number 4 – P.M.’s application for the Canadian Tire credit card – the Court makes no order as I accept P.M.’s evidence that he has requested the same and will provide it immediately upon receipt.

[32] Number 5 – P.M.’s products with CIBC – this Court orders that P.M. shall, forthwith, provide a fresh customer profile from CIBC, with all of the details listed in terms of his products, services, and signing authorities, that is current to March 1, 2024.

[33] Number 6 – subsumed within undertaking number 6, above.

[34] Number 7 – counsel can work this out by Mr. Birnboim providing a copy of Exhibit “A” to Ms. Cassells and then P.M. providing, forthwith, a response to the matter taken under advisement.

[35] Number 8 – financial statements and income tax returns for P.M.’s holding company – this Court orders that P.M. shall, forthwith, request from the Canada Revenue Agency copies of all documents in its possession regarding the holding company commencing with the tax year 2018. Upon receipt of the documents, P.M. shall, forthwith, disclose copies of them to B.M.

[36] Numbers 9 and 10 – information regarding the funds invested for the child in P.M.’s name – this Court orders only that P.M. shall, forthwith, confirm the date that the CIBC GIC account was opened for the benefit of the child.

[37] Number 11 – subsumed within number 3 above.

[38] Numbers 12, 13, and 14 – information regarding matters for P.M. worked on by lawyer, Mr. Rumack – this Court is satisfied that P.M. and his counsel have attempted, genuinely, to obtain the information and documentation from Mr. Rumack, with no success. This Court orders only that P.M. shall, forthwith, provide a signed authorization and direction permitting counsel for B.M. to obtain all of the information and documentation requested directly from Mr. Rumack.

[39] The end result is that B.M.’s Motion is granted in part.

IV. P.M.’s Motion

[40] The Motion by P.M. is dismissed.

[41] Given the very serious allegations of domestic violence in this case, and given the uncontroverted criminal history of P.M. as evidenced with the peace bond and probation orders made against him, I see nothing unreasonable about B.M. not wanting to disclose the precise locations of the places where she makes purchases.

[42] I wish to be clear, however. The redactions to B.M.’s CIBC VISA statements in question must be as limited as possible. There is no need to redact the name of the store or shop or vendor. Only information that will disclose the location of the store or shop or vendor may be redacted . No other redactions are permitted.

V. Costs of both Motions

[43] Unless resolved between the parties, written submissions on costs may be filed with the Court. Each submission shall not exceed two pages in length excluding necessary attachments. No reply is permitted. The Respondent shall file her written submissions within thirty (30) calendar days after March 1, 2024, and the Applicant shall file his written submissions within fifteen (15) calendar days after his counsel’s receipt of the Respondent’s submissions.

Conlan J. Released: March 1, 2024