Court File and Parties

COURT FILE NO.: FC-21-577 DATE: 2024 04 26

SUPERIOR COURT OF JUSTICE - ONTARIO FAMILY COURT

RE: Lisa Suzanne Recker-Perera, Applicant AND: Sujeeth Priyantha Perera, Respondent

BEFORE: The Honourable Justice M. Bordin

COUNSEL: J. Bula, for the Applicant M. Hoy, for the Respondent

HEARD: April 24, 2024

Endorsement

The Motion

[1] This three-hour motion was an exercise in futility.

[2] In essence, the applicant sought production of financial information and an advance on equalization to “level the playing field”. The orders for production are granted but the motion could have been avoided by four short letters. The motion for an advance fails for lack of evidence.

[3] The motion was plagued by issues that are all too common in the “electronic” court era since COVID-19 changed the way courts operate.

[4] All materials in this motion were required to be uploaded to CaseLines. Motion confirmation forms are required to be filed by all parties no later than 2 p.m. three days before the hearing. [^1] The applicant uploaded an up-to-date motion confirmation form to CaseLines. The respondent did not. [^2]

[5] As required, the applicant uploaded a draft order setting out the relief sought at the hearing. The respondent did not look at it and often made submissions about relief that was no longer being sought.

[6] The applicant seeks orders for: a. Production of the respondent’s 2020 T1 tax return with schedules; b. A TD Canada Trust (“TD”) summary statement showing all accounts held with TD; c. A statement showing the value of the respondent’s Sun Life shares at the date of separation; d. Disclosure requested by the applicant’s expert Robert Plenderleith of DJB Chartered Forensic Accountants (“DJB”); e. An Order for advancement of the sum of $50,000, by the respondent to the applicant on account of equalization.

[7] In her confirmation form the applicant indicates that she relies on the following evidence in support of her motion: a. Affidavit of the applicant dated April 28, 2023; b. Affidavit of the applicant dated June 12, 2023; and c. A memo to court with a chart of an amended request for disclosure submitted on April 17, 2024.

[8] In the most recent confirmation of motion filed in CaseLines by the respondent from December 2023, the respondent indicates that the court will be referred to the following materials: a. Affidavit of the respondent dated May 19, 2023; b. Affidavit of the respondent dated July 12, 2023; c. Affidavit of the respondent dated August 16, 2023; d. Affidavit of the respondent dated September 19, 2023; e. The transcript of Lisa Suzanne Recker-Perera; f. Affidavit of the respondent dated December 21, 2023;

[9] At the motion the respondent provided a new motion confirmation form. It referred to the same evidence.

[10] I was not able to locate the affidavit of the respondent dated August 16, 2023 in CaseLines. Counsel could not direct me to it. I was never provided with a copy. Without that affidavit, the respondent was relying on approximately 775 pages of material. This has become known colloquially in the era of electronic hearings as a “document dump”. [^3] None of the respondent’s affidavits were hyperlinked to the exhibits. [^4] A number of the exhibits were mislabeled.

[11] The applicant’s materials were a more modest 82 pages and were hyperlinked.

[12] Both counsel conceded that the affidavits they told the court they would rely on contained a lot of material that was not relevant. They did not advise the court of this in their confirmation forms. Most of the material was not referred to in submissions at all. In fact, it became clear during the hearing that despite the volume of materials, there was little evidence relevant to the issues that the court was required to determine. [^5]

[13] In the Central South region, factums are required for all long motions. [^6] Neither party filed a factum. They did not file a summary of argument or law. A factum would likely have prevented counsel from attempting to lead evidence “from the counsel table” which resulted in numerous objections. [^7]

[14] In Central South the notice to the profession requires a compendium on long motions which is to contain excerpted portions of the cases and the evidence to which the party intends to refer during the hearing. A compendium must be uploaded to CaseLines. [^1] In St. Catharines and Welland, there is a local practice that compendiums are not required in family matters notwithstanding the practice direction. However, on January 4, 2024 Standryk J. ordered the respondent to prepare a compendium. The respondent did not do so. One would have been useful where a party files 775 pages of materials. A compendium, properly prepared, focuses the lawyer on the key evidence and legal principles. In turn, that assists the court on focusing on the issues to be decided. [^9]

[15] The failure to comply with filing requirements and directions of the court was a sufficient basis to adjourn the motion until at least the applicant complied with her obligations. However, in order not to delay the matter yet again, on the fourth time this motion came before the court, I heard the motion on terms. The terms were that I would only review the documents and evidence which were specifically drawn to my attention. [^10] Anything else would not be considered. [^11]

[16] The hearing of the motion was lengthened by the fact that four years after the start of COVID-19 and the advent of electronic court hearings, and despite that judges no longer have paper files in front of them and rely on CaseLines, counsel did not have computers or CaseLines tab or page references to the materials to provide to the court. Further, CaseLines was not organized in any sensible fashion. This necessitated repeated pauses in submissions and delay while I searched Caselines for the relevant document and then scrolled through the document in CaseLines [^12] to find the right page or downloaded the document to scroll through a PDF until finally arriving at the place counsel wished to direct me. [^13]

Production of Documents

[17] The parties submitted no law on the production issue. They agreed that the requested production must be relevant and proportional.

[18] Bale J. in Tonogai v. Tonogai, 2021 ONSC 2366, at paragraph 25 summarized the considerations with respect to proportionality:

In addition to relevance, in assessing requests for additional financial disclosure, the court must also consider the concept of proportionality. That is, the burden of the disclosure request upon the disclosing party, including the time and expense involved in producing the information, must be assessed in the context of the relevance and importance of the content. This involves a balancing of fairness to the parties on the specific facts of each case: Kovachis v. Kovachis, 2013 ONCA 663 at para. 34, Boyd v. Fields, [2006] O.J. No. 5762 at para. 12, Chernyakhovsky v. Chernyakovsky, 2005 ONSC 6048 at para. 8, Morton v. Morton, 2015 ONSC 4633 at para. 75. These considerations of fair process, expense and time, importance and complexity, and allocation of resources are all fundamental components of the court’s positive obligation to promote the primary objective of the Family Law Rules, Rule 2(2), 2(3), and 2(4).

2020 T1 and Schedules

[19] There is no issue that the respondent is obligated to produce his 2020 tax returns and schedules.

[20] The respondent says he has produced this information. He has not quite done so. What the respondent has produced is the notice of assessment, a printout from CRA of the line items in the T1, and a schedule which lists the tax slips and box value for those slips. The respondent submitted that this is what was produced to him by his accountant. There was no evidence to support this statement in the respondent’s materials. The respondent acknowledges that the actual T1 and schedules were produced for the other relevant tax years. There is no valid explanation for why the same could not be done for 2020. There is no evidence that it is not available.

[21] Proof of a letter to the accountant making the request for the missing tax information and any response from the accountant for why it was not available would have gone some way to providing some evidence and explanation.

[22] The 2020 T1 and schedules are to be produced and if not available, the respondent is to provide the applicant with an affidavit from his accountant explaining why.

TD Summary Statement of Accounts

[23] The TD summary statement of accounts is relevant and has not been produced. The respondent does not deny the information is relevant but asserts it has been produced. Obtaining this information likely would only require a letter to TD seeking a statement of the accounts held by the respondent and his corporation S.P. Perera Physiotherapy, Professional Corporation.

[24] The respondent said that the request for the TD summary was a new request by the applicant which had just been made. That is not true. The request was made in the notice of motion served a year ago.

[25] The respondent said the applicant was overreaching and that he has produced all his bank statements and credit card statements. That is not the same as having the financial institution produce the record of accounts in his name. This was conceded by the respondent in submissions.

[26] A TD summary statement listing all the personal and corporate accounts held by the respondent at TD for the years 2019-2022 shall be requested of TD by the respondent and produced and if not produced, the respondent shall tender proof to the applicant of the request having been made and any response by TD.

Sun Life Shares

[27] The plaintiff seeks the value of the Sun Life shares held by the respondent at the date of separation. This information is relevant. Obtaining it is proportional.

[28] The respondent submitted that the requested value of his Sun Life shares was produced. As evidence, the defendant referred to paragraph 2 of his September 19, 2023 affidavit which states: “I have obtained the Sunlife statement as of the date of separation for some shares which were owned by me, attached hereto is exhibit 2.” However, that is not what is attached at Exhibit 2. What is attached at Exhibit 2 is a statement as of September 15, 2023 – three years after separation.

[29] The respondent then took the court to Exhibit 14 of his December 21, 2023 affidavit which contains the above-referenced September 15, 2023 statement with a faint handwritten note at the bottom with a different value for the shares and a date of 2020-09-18 [^14]. The respondent submitted that he made that note after making inquiries of the value of the Sun Life shares. However, there is no evidence to support this statement in any of the respondent’s affidavits and exhibits.

[30] A simple letter requesting the information from the respondent’s investment company or advisor could have been sent and produced.

[31] Finally, the respondent says that the applicant also owned the exact same kind of Sun Life shares and that she disclosed such shares in her financial statement. However, there is no evidence that the shares are the same type of shares or that there is only one kind of Sun Life share. Such evidence should have been readily available to put before the court if that was the case.

[32] A statement of the value of the respondent’s Sun Life shares on the date of separation is to be produced by the respondent.

Documents Requested by DJB

[33] By the time of the motion, there were seven outstanding items requested by DJB: a. General ledgers of S.P. Perera Physiotherapy, Professional Corporation for the fiscal years ended November 30 for the years 2017 to 2020 and a detailed Excel file prepared by the respondent based on the forensic report of Pettinelli Mastroluisi LLP dated August 3, 2023; b. A summary of any non-operating assets/liabilities that are included in the financial statements of S.P. Perera Physiotherapy, Professional Corporation for each of the fiscal years ended November 30 (2017-2020); c. A summary of related party salaries/wages by person expensed in the financial statement of S.P. Perera Physiotherapy, Professional Corporation for each of the fiscal years ended November 30 (2015-2020); d. Fair market value of the services provided by related party/non-arm’s length parties to S.P. Perera Physiotherapy, Professional Corporation, including duties and job titles; e. A summary of the charitable donations expenses in the financial statements of S.P. Perera Physiotherapy, Professional Corporation; f. A summary of non-business and/or personal expenses that are included in the financial statements of S.P. Perera Physiotherapy, Professional Corporation for each of the fiscal years ended November 30, 2015 to 2020 and the interim year to date periods ended September 18, 2019 and 2020; and g. A summary of any non-recurring/unusual expenses or revenues that are included in the financial statements of S.P. Perera Physiotherapy, Professional Corporation for each of the fiscal years ended November 30, 2015 to 2020 and the interim year to date periods ended September 18, 2019 and 2020.

[34] The applicant has made property and support claims. In submissions the wife advised that she is only pursuing an equalization claim. The applicant seeks to obtain a business valuation of the respondent’s business, S.P. Perera Physiotherapy, Professional Corporation and a critique of a valuation of that business by Pettinelli Mastroluisi LLP. The value of the respondent’s business holdings is relevant.

[35] Except for a. and e. above, the respondent did not argue the information requested is not relevant. The respondent says the requested information does not exist. There is no evidence of this before me. One week ago, the respondent provided a response to a chart prepared by the applicant in which the respondent indicates the items requested in b., c., d., f., and g. do not exist because there are no such assets, liabilities, salaries, wages, services, or expenses. In my view, this is not satisfactory. The applicant is not required to accept the respondent’s unsworn statement about this. A brief letter from the respondent’s accountant stating whether there are such assets, liabilities, salaries, wages, services, or expenses would address the issue. This was not requested from the accountant.

[36] The respondent is to produce the information requested in b., c., d., f., and g. or, if there is no such information, to provide an affidavit from the accountant to the applicant that this is the case.

[37] The applicant submits that the general ledger and Excel spreadsheet requested in a. are not relevant. I do not agree that the general ledger is not relevant. It is. Producing it would not require a great deal of effort. It is to be produced. However, the respondent is not required to create an Excel spreadsheet, unless it was a spreadsheet that had been created and produced and provided to Pettinelli Mastroluisi LLP for the valuation conducted by Pettinelli Mastroluisi LLP, in which case the respondent must produce it.

[38] The evidence indicates that the charitable donations are nominal. The respondent is not required to produce this information.

Advance on Equalization

[39] The applicant seeks an advance payment of $50,000. In submissions she said this was to allow her to pay for the costs of the critique/valuation to be prepared by DJB. In support of her position the applicant relies on Duncan v. Buraconak, 2023 ONSC 5998 and Parente v. Parente, 2023 ONSC 907.

[40] Rule 24(18) of the Family Law Rules gives the court discretion to order a party to pay an amount of money to the other to cover all or part of the expenses of carrying the case, including lawyer's fees. Interim disbursements should be ordered to "level the playing field" and ensure each party can equally provide or test disclosure. The court's discretion should be informed by fairness and balance between the parties to avoid distorted or unfair litigation outcomes. [^15]

[41] In Stuart v. Stuart, 2001 ONSC 28261, the court set out principles that apply in determining whether to release funds: a. The ordering of interim disbursements is discretionary. b. A claimant must demonstrate that absent the advance of funds for interim disbursements, the claimant cannot present or analyse settlement offers or pursue entitlement. c. It must be shown that the expenses are necessary. d. Is the claim being advanced meritorious? e. The exercise of discretion should be limited to exceptional cases. f. Interim costs in matrimonial cases may be granted to level the playing field. g. Monies might be advanced against an equalisation payment. [^16]

[42] In Parente v Parente the court, referencing Stuart v. Stuart, at paras 11-14, summarizes the principles applicable to an advance payment as follows: a. Proof of the necessity of the requested interim disbursements is required; it must be demonstrated that the disbursements are necessary and reasonable given the needs of the case and the funds available; b. The claimant must demonstrate that he or she is incapable of funding the requested amounts; c. The claims being advanced in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the request for disbursements; and d. The order for interim disbursements should not be limited to cases where it would be taken out of an equalisation payment.

[43] The applicant has provided no evidence as to the costs she will incur going forward. The applicant has tendered no evidence as to the costs of DJB for the critique or valuation.

[44] While it appears the respondent controls significant funds, I am not satisfied that the applicant is not capable of funding the valuation.

[45] The applicant received the sum of $476,300 on account of her share in the matrimonial home and applied it toward a down payment for the purchase of her residence which required a mortgage of $300,000. The applicant earns a monthly income comprised of a pension of $4,575.49 and employment income is $3,246.55. Her annual income is $90,000.

[46] She asserts she could not buy furniture for herself but had to use furniture taken from the matrimonial home. In December of 2021 the applicant had to purchase “the cheapest Lexus (UX 250h) with financing”. She deposited the proceeds of sale of her older Lexus in the amount of $30,000 into her bank account.

[47] The respondent led evidence that the applicant also received another $100,000. The applicant concedes this in submissions but says the money was spent.

[48] The applicant’s financial statement sworn July 5, 2022 lists a TFSA of $6,817. The applicant’s financial statement also indicates she has $91,152 in an RRSP.

[49] It would have been helpful for the party seeking either an advance on equalization or advance of disbursements (the applicant’s position is not clear), to draw the court’s attention to a Comparison of Net Family Property Statement, so that the court would have, at minimum, a clear understanding of each party’s respective ‘best day in court’ position.

[50] The applicant has not led sufficient evidence to address the principles in the cases she relies on. The motion for an advance on equalization is dismissed.

Order

[51] The respondent is ordered to produce: a. His 2020 T1 and schedules and, if not available, the respondent is to provide the applicant with an affidavit from his accountant explaining why; b. A TD summary statement listing all the personal and corporate accounts held by the respondent at TD for the years 2019-2022 shall be requested of TD by the respondent and produced, and if not produced, the respondent shall tender proof to the applicant of the request having been made and any response by TD; c. A statement of the value of the respondent’s Sun Life shares on the date of separation is to be produced by the respondent; d. General ledgers of S.P. Perera Physiotherapy, Professional Corporation for the fiscal years ended November 30 for the years 2017 to 2020 and any Excel file prepared by the respondent that was provided to Pettinelli Mastroluisi LLP dated August 3, 2023; e. A summary of any non-operating assets/liabilities that are included in the financial statements of S.P. Perera Physiotherapy, Professional Corporation for each of the fiscal years ended November 30 (2017-2020); f. A summary of related party salaries/wages by person expensed in the financial statement of S.P. Perera Physiotherapy, Professional Corporation for each of the fiscal years ended November 30 (2015-2020); g. The fair market value of the services provided by related party/non-arm’s length parties to of S.P. Perera Physiotherapy, Professional Corporation, including duties and job titles; h. A summary of non-business and/or personal expenses that are included in the financial statements of S.P. Perera Physiotherapy, Professional Corporation for each of the fiscal years ended November 30, 2015 to 2020 and the interim year to date periods ended September 18, 2019 and 2020; and i. A summary of any non-recurring/unusual expenses or revenues that are included in the financial statements of S.P. Perera Physiotherapy, Professional Corporation for each of the fiscal years ended November 30, 2015 to 2020 and the interim year to date periods ended September 18, 2019 and 2020.

Costs

[52] Success on the motion was divided. The parties failed to comply with filing requirements and directions of the court. I order that neither party shall be entitled to costs of the motion.

M. Bordin, J. Date: April 26, 2024

Footnotes

[^1]: Notice to the Profession, Parties and Public for Central South Region Effective February 1, 2024 [^2]: Earlier endorsements by the court on this motion demonstrate that the parties had repeatedly failed to file confirmation forms as required and directed to. [^3]: A document dump refers to a volume of documents being tendered by a party which is beyond the capacity of anyone to review and assimilate prior to a hearing, and which is made up of largely irrelevant or unnecessary documents that are not referred to in submissions. Essentially, it is an abdication of the role of advocate in favour of a “kitchen sink” form of lawyering in which the party tendering hopes that there might be something useful somewhere in the reems of information which might have to be referred to. [^4]: Respondent’s counsel says she no longer has anyone in her office who knows how to hyperlink the exhibits. [^5]: This is an all-too-common occurrence on long motions. [^6]: Consolidated Practice Direction for the Central South Region [^7]: Counsel had to be repeatedly reminded that they could only rely on evidence that was contained in the affidavits filed. [^9]: If counsel had prepared a compendium, counsel may have recognized the shortcomings in the evidence addressed in these reasons. [^10]: Consolidated Provincial Practice Direction for Family Proceedings at the Superior Court of Justice Amended February 1, 2024: I. Materials Relied Upon Must Be Referenced During Hearing The oral hearing is the opportunity for parties to succinctly set out their arguments. Parties must bring to the attention of the court all relevant material facts and the authorities that they are relying on at the hearing. It is not sufficient to merely upload filed materials to CaseLines. Materials that are not brought to the attention of the judicial officer at the hearing may not be considered. Judicial officers’ judgment writing time is not sufficient to permit it to be used as an extension of the time allocated for oral argument. [^11]: A judge is not a data processing machine into which lawyers and parties feed reems of documents in the hope that the machine will do what they did not do and find relevant information and law and give them the result they desire. [^12]: CaseLines is notoriously slow when scrolling. [^13]: I note that, if counsel wish to use paper records for submissions, they can print the document from CaseLines, and it will print the CaseLines reference on the paper copy of the document making it a simple matter to refer the court to the correct page. [^14]: Which is the date of separation. [^15]: Duncan v. Buraconak, 2023 ONSC 5998, para 46. [^16]: As cited in Duncan v. Buraconak, 2023 ONSC 5998, para 47.