Court File and Parties

Court File No.: FC-22-471 Date: 2024-05-03 Superior Court of Justice – Ontario

Re: Brenda Lynn Frost, Applicant And: Roger Anthony Frost, Respondent

Before: The Honourable Madam Justice R.S. Jain

Counsel: John Craig, Counsel for the Applicant Alison L. Pengelley, Counsel for the Respondent

Heard: May 2, 2024

Ruling on Motion

1This is the Respondent’s motion seeking relief regarding alleged breaches of court orders and non-compliance with r. 13 of the Family Law Rules (FLR) regarding disclosure. The Respondent is further seeking an unopposed order for non-party disclosure pursuant to r. 19 (11) and costs.

2The Applicant opposes the Respondent’s motion and seeks an order dismissing the Respondent’s motion with costs. Counsel Mr. Craig submitted that his client, has complied with the court orders and the FLR regarding disclosure.

3The parties were married on March 23, 2005 and separated on March 17, 2022. The outstanding issues in this matter are equalization and spousal support. The Respondent is seeking to exclude property from the equalization. The Applicant is seeking spousal support, and she is seeking unequal division of the net family property based upon the Respondent’s significant “stock trading losses”. The equalization issues involve hundreds of thousands of dollars. The spousal support issue is not less important, however, given the ages of these parties it will not be as significant as the equalization issues.

4Ms. Pengelley has set out (with significant detail) the Respondent’s requests in the Notice of Motion and “Schedule A”. The Respondent is requesting an Affidavit of Documents and compliance with court orders and the Family Law Rules. Ms. Pengelley further prepared a 15-page chart entitled “Schedule A” - “Outstanding Disclosure Required from the Applicant.” In this chart she referred to each alleged outstanding item and submitted that she was relying on the Form 8.0.1 Automatic Order dated May 9, 2022, and the order of Krause J. dated July 26, 2022, and r. 13 and r. 19 of the FLR. She submitted that her requests were all relevant to the issues.

Regarding the Non-Party Motion for TD Waterhouse Investment Account Screenshots and/or any other Records

5Ms. Pengelley correctly gave notice to the non-party (TD Waterhouse Canada Inc.) and fulfilled the requirements under r. 19 (11) of the FLR. TD Waterhouse Canada Inc. has confirmed that it does not take any position on the Respondent’s motion. The Respondent is seeking screenshots and/or records for account number 379W38 from August 1st 2011 to July 31st 2012 and from January 1st to 31st 2013 (in the Applicant’s name); and screenshots and/or records for investment account number 388997 (in the Respondent’s name). Ms. Pengelley advised the court that once TD Waterhouse Canada Inc. receives the Order (if any), they will action it.

6The Respondent asserts that he requires the non-party disclosure from TD Waterhouse Canada Inc. to help trace his claims for an exclusion. The Applicant replied to the Respondent’s requests for the TD Waterhouse Canada Inc. wealth statements. The Applicant’s response was that she was advised by TD that they no longer have the statements in their system for the time period requested. As the records being requested are over seven years old, I find this response was reasonable. The Respondent made some further enquiries and was advised that some limited records may be available (screenshots).

7The order sought against the non-party is unopposed. As both parties agree that the equalization issues involve large sums of money, I find the orders sought regarding the non-party disclosure are relevant, reasonable and proportional. The Respondent has fulfilled the requirements for r. 19 (11). I find that the disclosure requested from TD Waterhouse Canada Inc. is relevant to the equalization issues (tracing and possible significant exclusions). For these reasons, I will grant the unopposed order sought for the non-party disclosure. The draft order provided by the Respondent shall issue.

Regarding the balance of the Respondent’s Motion

8The rules serve to provide consistency in the production of financial disclosure and to curtail demands that are unreasonable and disproportionate. There is no question that full and frank financial disclosure is required in family law matters. However, with ever-expanding requests for disclosure in family law matters, proportionality has become a fundamental principle that cannot be ignored. No procedural decisions should be made without specifically addressing the principle of proportionality, and without first considering whether the request is a deviation from the requirements of r. 13 of the FLR.

9Rule 13 (3.1) and (3.3) mandate significant mandatory disclosure obligations. The pursuit of additional disclosure by regular motion is expensive and the costs of the motion may be disproportionate to the probative value of the disclosure that is obtained. Once comprehensive disclosure has been provided, the FLR were designed to address ongoing disclosure that is either irrelevant or disproportionate to the issues before the court.

10In Boyd v. Fields 2006 CarswellOnt 8675 Justice Perell made the often quoted statement “the fundamental question is whether the various items of information are relevant or whether they have a semblance of relevance having regard to the material issues in this case” (see para. 11).

11More importantly, Justice Perell provided the following:

Full and frank disclosure is a fundamental tenant of the Family Law Rules. However, there is also an element of proportionality, common sense, and fairness built into these rules. A party’s understandable aspiration for the outmost disclosure is not the standard. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact-finding process are factors. I also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead or distract the trier of fact’s attention to the main issues and unduly occupy the trier of fact’s time and ultimately impair a fair trial (see para.12).

12The words of Justice Perell are to be used in conjunction with the primary objective rule under r. 2 (2) (2) to (5) of the FLR. The primary objective rule is to ensure that all cases are to be addressed justly including saving expense and time and dealing with the case in ways that are appropriate to its importance and complexity.

13The FLR require the court to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court promote the primary objective.

14Ms. Pengelley repeatedly said that she and her client did not wish to be “ambushed” at trial. The tone of her submissions attacked the Applicant’s credibility and made it sound as if the Applicant should be admonished by the court for not providing all the disclosure requested by the Respondent. However, in my view it is the Respondent that should be admonished for some of the disclosure requests that have been made. Specifically, I am referring to the requests numbered 47 – 51 in the “Schedule A” of the Respondent’s Notice of Motion. These items refer to the Applicant’s divorce from her ex-husband Brad Wagner. When the court asked counsel about the relevance of these documents, Ms. Pengelley advised the court that the relevance of these documents speak to the validity of the parties’ marriage. She asserted that the Applicant hasn’t provided any evidence that she was properly divorced and therefore, this may affect the validity of the parties’ marriage (and all the property claims). In my view, raising this issue now (when it hasn’t been properly pled), amounts to a “fishing expedition” on the eve of trial and is a complete waste of the parties’ time and the court’s resources.

15The evidence of both the Applicant and the Respondent shows that the Applicant has in fact provided significant financial disclosure in compliance with the FLR and the court orders. Further, in my view, the Applicant has responded reasonably to the multiple additional requests for further disclosure. Questioning was completed and the Applicant answered the undertakings within a couple of weeks. Mr. Craig advised the court that the Applicant has been served with five Requests for Information on this file. In his experience, this appeared excessive. I agree.

16The Respondent requests that the Applicant provide an affidavit of documents pursuant to r. 19 (1) of the FLR so that he not be “ambushed” at trial. Pursuant to r. 19 (1.1) (b) of the FLR, the requirement for an affidavit of documents does not apply to documents required to be served under r. 13 (financial disclosure). Pursuant the TSC Endorsement, the parties have already provided their exhibit books in preparation for trial. In my view, there will be no “ambush” at trial because a party cannot rely upon a document they haven’t already disclosed. For these reasons I will not order the Applicant to provide an affidavit of documents.

17In my view, the Respondent has been provided with ample, necessary, relevant and proportionate disclosure. If the Respondent is still not satisfied with the disclosure, or, if he has found anomalies or unexplained entries in the financial statements and/or bank documents, they can cross examine the Applicant regarding same during the trial.

18I find the Respondent’s additional requests for disclosure in the Respondent’s Notice of Motion are excessive, unnecessary, and/or irrelevant and/or disproportionate.

19For these reasons and pursuant to r. 2 (2) (2) to (5) of the FLR, the balance of the Respondent’s motion is dismissed.

Costs

20Pursuant to r. 24 of the Family Law Rules, O. Reg. 114/99, it appears the Applicant is the successful party and is presumed to be entitled to costs. If the parties cannot agree on costs, I will receive written submissions commencing with the Applicant serving and filing her submissions on or by May 17, 2024, followed by the Respondent serving and filing his submissions on or by May 24, 2024, then the Applicant’s reply submissions, if any, served and filed on or by May 31, 2024. Cost submissions shall be no more than 2 pages in length (12 pt. font size, regular 1-inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submission shall be delivered via email at: barriejudsec@ontario.ca. If no submissions are received by May 31, 2024, the issue of costs will be deemed to have been settled between the parties.