Court File and Parties

COURT FILE NO.: FC-22-763 DATE: 20240709 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amanda Filoso-Baglione, Applicant AND: Kyle Kendall Lawson, Respondent AND: Airelio Baglione, Non-party

BEFORE: The Honourable Madam Justice R.S. Jain

COUNSEL: Meghann Melito, Counsel for the Applicant Jodi L. Feldman and Golnaz S. Simaei, Counsel for the Respondent Greg Roberts, Counsel for Mr. Baglione

HEARD: July 4, 2024

Ruling on Motions

Introduction

[1] This is the Applicant’s motion and the Respondent’s cross motion regarding disclosure, refused undertakings, and non-party disclosure pursuant to r. 19 (11) of the Family Law Rules [1] (FLR) and costs.

[2] The Respondent brought the non-party disclosure motion against the Applicant’s father Mr. A. Baglione, who owns various corporate and real estate interests. The Applicant works for one of Mr. Baglione’s companies, as a property manager.

[3] The Applicant and the non-party oppose the Respondent’s motion and the Respondent opposes the Applicant’s motion. Except for the items they have already provided and/or consented to provide, all seek an order dismissing the other’s motion with costs. Both parties allege that the other has been unreasonable in this litigation by either causing delay due to their late answers to disclosure requests, and/or refusing to provide disclosure. Both also accuse each other of embarking on “fishing expeditions” for disclosure that is not relevant to the issues and/or is disproportional.

Background

[4] The Applicant and Respondent never married. They cohabited together for approximately 4 to 4.5 years from January 2018 until May 2022. They have one child together, namely Ana who is 4 years old. The Applicant is 30 years old and the Respondent is 42 years old. The litigation in this matter has been rife with conflict and has used a great deal of legal and judicial resources over the past two years (there are numerous endorsements from previous court attendances including urgent and non-urgent 14B motions, urgent and non-urgent motions – some without notice, and conferences).

[5] On September 26, 2022, Douglas J. conducted an Early Triage Conference and at that conference the Respondent agreed to pay the Applicant $10,000 per month (net) in undifferentiated support on a temporary and without prejudice basis. On June 15, 2023 Healey J. made an order after an argued motion expanding the Respondent’s parenting time varying the temporary parenting time order of Eberhard J. dated November 3, 2022 (also an argued motion). On January 25, 2024 the parties were able to consent to vary the Respondent’s parenting time. This matter was set to proceed to trial in the May 2024 sittings, however, the trial scheduling conference was adjourned from April 19, 2024 to September 24, 2024. Douglas J. endorsed on April 19, 2024 that the matter was to “proceed by way of trial during the Nov/24 sittings, peremptory upon all parties.” As the parties could not agree on the terms of the adjournment, Douglas J. made an additional endorsement on May 16, 2024 setting out a timetable for the Respondent’s motion regarding the expansion of his regular parenting time and for summer parenting time. I had this matter before me for the argued parenting time motion on June 27, 2024, (my decision was released July 2, 2024). On May 16, 2024 Douglas J. also set out a timetable for the financial disclosure motions (that are before me today) and made it peremptory. What was supposed to be a regular motion and cross motion on disclosure turned into a long motion, lasting over four hours.

[6] The Respondent owns Lawson Landscapes Inc. (“LLI) and two properties namely 9 Rose Point Road and 72 Rose Point Road in Seguin, Ontario (“the Rose Point properties”). The Respondent started his business when he was 18 years old and he works full-time running LLI which was incorporated in 2013. The Rose Point properties are solely owned by the Respondent who purchased them prior to meeting the Applicant.

[7] The Applicant has advanced child and spousal support claims, along with trust claims and joint venture claims against the Respondent’s business and assets. She has also advanced employment claims against LLI. The Applicant claims that during the relationship, she contributed significantly to the success of LLI, and she undertook extensive renovations on the Rose Point properties. She asserts that she “worked at LLI building the business with the Respondent with great success.” She asserts that she “renovated two luxury properties owned by the Respondent.” And finally, after Ana was born, she further asserts that she was “solely responsible for caring for Ana with the occasional assistance of paid caregivers who were in the home caring for Ana while I worked for the Respondent.” She asserts that the Respondent’s substantial wealth, (including the Rose Point properties and LLI) have increased significantly due to the Applicant’s substantial contributions. She says that the Respondent has significantly benefited from her contributions after the separation, while she was left with nothing after the separation and was “ousted from the family home and from the business.”

[8] The Applicant and Mr. Baglione assert that the Applicant is a full-time employee working as a property manager with one of Mr. Baglione’s companies called The Winchester Real Estate Investment Trust (“the REIT”). They assert that she is receiving a salary of $25,000 per annum. She also drives a vehicle owned by Mr. Baglione (and/or the business) who pays for her vehicle expenses, cell phone, and other miscellaneous business-related expenses. In addition, Mr. Baglione has been funding the litigation for the Applicant and has apparently “loaned” her over $260,000 to pay her legal fees. Neither the Applicant nor Mr. Baglione explained or provided any detail about the expertise and/or actual work the Applicant does, and why, she is paid so little (below minimum wage).

[9] The Respondent denies the Applicant’s trust claims and joint venture claims and her employment claims against his business, assets and properties. He is further opposed to the Applicant’s spousal support claims. He says that the Applicant, had and continues to have “significant money, resources and opportunities available to her especially from her father (Aurelio Baglione) who is extremely wealthy and a multimillionaire.” The Respondent asserts that the Applicant did not pay for any household expenses, rent, or utilities while they cohabited. The Applicant also had the use of his credit card to pay for her, Ana’s and their household expenses. The Respondent describes the Applicant as having a “relaxed approach to work” and asserts that she never worked full time for him. Instead, he asserts that the Applicant’s own evidence is that she worked 1-2 hours per day doing administrative work for his business, along with spending her day caring for Ana and helping with household chores. [2] During their relationship, the Respondent says that the Applicant “had the opportunity to and did complete her Ontario Secondary School Diploma and other numerous courses/certifications at university/college, and successfully qualified to be a bylaw officer.” He says that the Applicant’s father has and is funding her through the REIT by paying her a salary plus providing her with other unclaimed benefits (a vehicle, plus other personal and/or work expenses and other gifts and/or loans).

The Law

[10] The Family Law 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.

[11] The FLR already 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.

[12] In 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).

[13] More 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).

[14] The 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.

[15] Rule 30.10 (1) of the Rules of Civil Procedure provides that the court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

a) The document is relevant to a material issue in the action; and

b) It would be unfair to require the moving party to proceed to trial without having discovery of the document.

[16] Rule 19 (11) of the FLR provides as follows:

Document in Non-Party’s Control – If a document is in a non-party’s control, or is available only to the non-party, and is not protected by legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,

a) Order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and

b) Order that a copy be prepared and used for all purposes of the case instead of the original.

[17] Rule 20 (5) permits a court to order disclosure from a non-party by questioning, affidavit, or by another method, if:

1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.

2. The information is not easily available by any other method.

3. The questioning or disclosure will not cause unacceptable delay or undue expense.

[18] The Family Courts have adopted, to a large extent, the jurisprudence of r. 30.10 (1) of the Rules of Civil Procedure. (see: Himel v. Greenberg, 2010 CarswellOnt 8261, 2010 ONSC 2325). The factors to be considered in determining whether production should be ordered from non-parties under r. 30.10 (1) was set out by the Ontario Court of Appeal in Ontario (Attorney General) v. Stavro, 2007 ONCA 3509;

a) The importance of the documents in the litigation;

b) Whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness to the applicant;

c) Whether the discovery of the defendant with respect to the issues to which the documents are relevant is adequate and if not, whether responsibility for that inadequacy rests with the defendants;

d) The position of the non-parties with respect to production;

e) The availability of the document of their informational equivalent from another source which is accessible to the moving parties;

f) The relationship of the non-parties from whom production is sought to the litigation and the parties to the litigation. Non-parties who have an interest in the subject matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true stranger to the litigation.

g) Relevance alone is insufficient to warrant production. To order production, the judge must be satisfied it would be “unfair” to the moving party to go on with the case without the document.

[19] The onus is on the party requesting the non-party disclosure to establish that it would be unfair if he/she does not obtain the disclosure requested.

The rules are discretionary, and require the Court to consider the interests of all concerned in the exercise of its discretion, while being mindful that the underlying objective of the Family Law Rules is to resolve matters in the least contentious, least litigious manner possible. (see: Himel v. Greenberg at para. 25)

The Applicant’s Motion

[20] Counsel Ms. Melito submitted that the Respondent has delayed this matter by delaying or refusing production of disclosure without any basis. Further, she submitted that he has repeatedly refused to provide certain records and documents until the very last moment and then provides them immediately prior to the scheduled court date. The list of the Applicant’s requested disclosure is set out in great detail in Schedule “A” of her Notice of Motion items (a) through to (o). The list of the requested and refused undertakings are set out in Schedule “B” of her Notice of Motion. I will not be summarizing each counsels’ submissions on each item of disclosure requested or refused. I will simply indicate a “YES” or “NO” regarding my decision to grant or deny the disclosure requested.

[21] Generally, for the relief that I am granting, the reasons are because I deem them to be necessary and relevant and proportional to the issues before the court. I further deem them to be important to the Applicant’s case and in my view, it would be unfair for her to proceed to trial without them. If, however, I deny granting relief sought by the Applicant, it is because I have deemed it to be unnecessary, and/or irrelevant, and/or disproportionate.

Regarding Schedule “A” of the Applicant's Notice of Motion

[22] Item (a) Records of rental income: NO. Respondent has admitted there are no records. He has further already admitted to receiving cash income in the report of his income and business completed by Mr. Martin.

[23] Items (b) (c) (d) and (e): Current Appraisals of the Rose Point properties and documents produced in the process of the renovations of the Rose Point properties: NO. The Respondent has already provided appraisals for the properties as of the date of cohabitation and the date of separation. A current appraisal on either property is not relevant and in my view, is disproportionate. The itemized documents requested regarding the process of the renovations (receipts, invoices and expenses) are also disproportionate and irrelevant. Ms. Melito submitted that the Applicant “contributed to the construction, management of the trades, sourcing items, and selecting and designing and improving the properties.” However, there is no evidence that the Applicant contributed any funds to the renovations, or that she paid for any of the products, supplies, equipment or trades. In addition, no evidence was proffered to show what special skills, education, expertise or knowledge the Applicant contributed to the renovations. Further, when evaluating the increase in the value of the properties between the date of cohabitation and date of separation (2018 to 2022) and the contribution (if any) of the Applicant, the trial judge will also need to consider the effect of the fluctuation in the value of properties that took place during that time period (through the pandemic). In my view, the Applicant has not established a prima facie claim for unjust enrichment or joint family venture. The trial judge will decide whether her claims are valid, and/or how she will be compensated if she is successful.

[24] Item (f) (g) (h) (i) YES. An income report showing the Respondent’s 2023 income for support purposes is relevant to the issues of support. It can and should be provided at least 60 days prior to the trial sittings in November. The Respondent’s 2023 Income Tax Return with all schedules and attachments shall be provided immediately. The Respondent’s 2023 NOA shall be provided once it has been received. Further, evidence of the Respondent’s 2024 income year to date is relevant. He claims he is a T4 employee of LLI, so paystubs or proof of income should be available and shall be provided 60 days prior to trial.

[25] Items (j) (k) (l) NO. The logbooks, timecards and paystubs for employees and appraisals of the equipment and vehicles are over-reaching and disproportionate to the issues. The Respondent answered the Applicant’s request for the logbooks and advised that he does not have consistent logs of the Applicant’s hours worked. The logs are irrelevant to the issue of parenting. The parties have a s. 30 Assessment. Both parties submitted to questioning on these items and they may be further cross-examined at trial. Regarding the timecards and paystubs and appraisals of equipment and vehicles – enough is enough. The Respondent has provided significant disclosure on this request in addition to the valuation. Anything further in my view is either irrelevant and/or completely disproportionate to the issues.

[26] Item (m) was satisfied.

[27] Item (n) NO. Applications for credit – the Respondent has already answered it to the best of his abilities.

[28] Item (o) NO. Appraisal of 72 Rose Point by Matt Smith dated April 15, 2021 was real estate market valuation provided by a real estate broker. It is not an appraisal and it is not as of the relevant date.

[29] For the reasons set out above, order to go that the Respondent’s 2023 income shall be provided at least 60 days prior to the trial sittings in November 2024. Further, the Respondent’s 2023 Income Tax Return with all schedules and attachments shall be provided immediately. The Respondent’s 2023 NOA shall be provided once it has been received. Lastly, the Respondent shall provide evidence of his 2024 income year to date at least 60 days prior to the trial sittings in November 2024.

Regarding Schedule “B” of the Applicant’s Notice of Motion (the list of the requested and refused undertakings)

[30] Items 16, 18, 24, and 25 are requests in relation to job descriptions and payroll information regarding employees of LLI. They are further in relation to the Respondent’s corporation assets and logbooks. NO. I find these requests to be irrelevant and disproportionate for the same reasons as described above. I fail to see how these documents will show her contributions to Respondent’s business. She is basically asking him to prove her claims by showing what others did for the company. Further, some of this information may be confidential. Lastly, the Respondent has completed a business valuation. In my view, these requests simply defy logic and common sense and will provide little to no probative value to the Applicant’s claims.

[31] Items 26, 27, and 28 are requests in relation to para. 24 of the Respondent’s affidavit in relation to his previous lawyer’s advice to overhold Ana past the scheduled parenting time. NO. The Respondent is not waiving privilege. This incident occurred approximately two years ago. The Respondent has acknowledged he made a mistake. By indicating in the sworn document that he was acting on the advice of his previous counsel, he has not provided a blanket waiver of Solicitor-client privilege entitling the Applicant to further disclosure on this issue. In my view, it is not relevant to the issues in this case whether or not the Respondent was acting on bad legal advice. He made that poor decision on his own volition; nobody forced him to do anything. He admitted that he made the mistake. The trial judge will be the person who determines and evaluates the Applicant’s and the Respondent’s credibility and/or whether they have shown reasonable insight after that incident.

[32] I was the judge who received the urgent motions brought by the Respondent and Applicant during this incident. I am aware that the Respondent retained new counsel after the chaos of the overholding incident and that he withdrew his motions. The parties proceeded with an Early Triage Conference and a Motion. In my view, the incident is an example of poor decision making at that time. However, it hasn't happened again. It happened almost two years ago. An assessment has been completed on the issue of decision-making and parenting time. It still has to be tested in court, however, there is no evidence that the child is suffering as a result of this incident. It seems as though everyone has moved on except for the Applicant in regard to this incident.

[33] I do not see the relevance, necessity or proportionality of digging up that incident again by obtaining solicitor client communications on an issue that the father has already acknowledged was his own fault.

[34] Item 29 – NO. The Applicant is seeking the notes or records from Men’s Awareness Project to be released by David Deschambault. I find that the letter provided by Mr. Deschambault is sufficient. The Applicant has the right to call this person as a witness to test his evidence. I find it would be a violation of privacy and undermine the therapeutic relationship to order the disclosure. In my view, confidentiality and intimacy are very important to the effectiveness of therapy. The relationship must be protected. It will be up to the trial judge to determine any further disclosure is required.

[35] Items 31 and 32 of the Schedule B and Item 4 – Under Advisement: NO. I do not agree with counsel Ms. Melito that this is crucial evidence to prove the Applicant’s claims. The number of emails sent and received over the course of several years requested from the email account admin@lawsonlandscapes.com are likely numbering in the thousands. All the emails are not only the Applicant’s, nor were they all drafted by her. There is further confidentiality that needs to be protected. The Respondent claims that the Applicant is wanting to know confidential information about his business so she can cause damage to it because he says he is a competitor with her father. In addition, the Respondent asserts that the Applicant took the emails she wanted when she took a laptop with her at separation. I do not find items 31 and 32 to be crucial to the Applicant’s case. I further do not find it unfair to her to proceed without them.

[36] Item 2 – Under Advisement: NO. Back up documents for tax returns that were provided to the accountant are disproportionate. The income report is being delivered.

The Respondent’s Motion

[37] Counsel Ms. Feldman submitted that the Applicant and her Father Mr. Baglione have also refused production of disclosure without any basis. The Respondent’s Disclosure Request Chart from the Applicant is set out in great detail in Schedule “A” of his Notice of Motion items (1) through to (12). The list of the requested and refused undertakings from the Applicant’s questioning in October 2023 are items (13)-(15). The Respondent’s Disclosure Request Chart from Mr. Baglione is set out in Schedule “B” of his Notice of Motion. Again, I will not be summarizing each counsels’ submissions on each item of disclosure requested or refused. I will simply indicate a “YES” or “NO” regarding my decision to grant or deny the disclosure requested.

[38] Generally, for the relief that I am granting, the reasons are because it is either on consent, or I deem them to be necessary, relevant, fair and proportional to the issues before the court. I further deem them to be important to the Respondent’s case and in my view, it would be unfair for him to proceed to trial without them. If, however, I deny granting relief sought by the Respondent, it is because I am not satisfied that the Respondent has established it would be unfair were he not to obtain the disclosure requested. I have deemed it to be unnecessary, and/or irrelevant, and/or disproportionate.

Regarding Schedule “A” of the Respondent’s Notice of Motion

[39] The Applicant has already produced the documents that are available and/or already consented to a number of the disclosure items requested by the Respondent. However, Ms. Simaei submitted that the Applicant did not provide her consent to any of the disclosure until after the motion was served. In my view, this may mean that the Applicant has done exactly the same thing that she complained the Respondent has done, (Ms. Melito submitted that the Respondent has refused to provide certain records and documents “until the very last moment” and then provides the documents or consents to provide them immediately prior to the scheduled court date). In her affidavit of June 21, 2024, the Applicant asserted that she has already provided and/or has agreed to provide the items that the Respondent had requested from her in Schedule A. Further, she has consented to number #4 in the Respondent’s Notice of Motion as follows: “The Applicant shall produce any expert reports she intends to rely on at trial by no later than August 1, 2024, and that any expert report that she intends to rely on in regard to the Respondent’s 2023 income calculation be produced no later than 30 days prior to the November 2024 trial sittings.” Ms. Melito advised there are no other items outstanding.

[40] For this reason, Order to go that the Applicant produce the disclosure listed in the Respondent’s Disclosure Request Chart – Schedule A pursuant to the consents of the Applicant provided in her affidavit dated June 21, 2024.

Regarding Schedule “B” of the Respondent’s Notice of Motion - Non party disclosure

[41] The Respondent is requesting that Mr. Baglione produce the disclosure listed in the Respondent’s Disclosure Chart – Schedule B, and to the extent that Aurelio Baglione states that the Applicant’s consent is required, that the Applicant also provide the said disclosure. Items 1, 2, 4, 6, 7, 9, are all requests for evidence, information detailing the organization and running and shareholder registers of Mr. Baglione’s corporations and/or corporate interests. The Respondent says he needs this evidence in order to understand how Mr. Baglione “books” the loans and benefits that he provides the Applicant. Items # 3 and 5 are requests regarding a laptop that Mr. Baglione purchased for the Applicant after May 11, 2022. Item #8 is regarding credit card statements.

[42] Mr. Baglione’s position with respect to the Respondent’s requests are either that the requests have been satisfied; or the requests are irrelevant and amount to an unwarranted fishing expedition.

[43] The Applicant is working for her father Mr. Baglione. The Respondent asserts this has been the case since 2021 (during the relationship and prior to separation). The Respondent says that Mr. Baglione put her on payroll and he paid her and has maintained her on his payroll even when she was allegedly working for the Respondent as well. The Respondent asserts that the disclosure requested from Mr. Baglione is important evidence that goes towards his defence to the Applicant’s claims regarding financial abuse and her need for spousal support. The Respondent asserts that there are inconsistencies that show that the Applicant likely has more income than she is claiming.

[44] The only income claimed to be received by the Applicant from her father is a very modest $25,000 per year. The Applicant’s Income Tax Returns for 2021 and 2022 and 2023 do not show any car allowance or other benefits. The Applicant has repeatedly said she works full time for her father, (as she claims she did for the Respondent). In her Form 35.1 dated June 14, 2024 the Applicant claimed that she is only working part-time, however, Ms. Melito explains that was a “typo”.

[45] It is an undisputed fact that Mr. Baglione has advanced to the Applicant over $260,000 net to pay for legal fees. Both he and the Applicant claim this is a “loan” however, no proof of repayment or any other terms were provided. It is not clear how the Applicant earning only $25,000 per year will pay any of this “loan” back. The Respondent questions whether it is really a loan, or whether it is a gift, or maybe the Applicant is a shareholder or a beneficiary of a trust. Both Mr. Baglione and the Applicant have repeatedly answered the Respondent’s questions in this regard, asserting that, the Applicant does not hold an interest in any corporation in which Mr. Baglione holds an interest. The Applicant further answers this in her affidavit dated June 21, 2024 saying “I again confirm that I do not have an interest in any corporation, including any corporation owned by Aurelio Baglione. I have never had an interest in any corporation owned by Aurelio Baglione.” [3] Mr. Baglione has explained that he pays the Applicant a salary of $25,000 plus he provides her with a vehicle, vehicle expenses, cell phone as well as business related expenses. Mr. Baglione has also apparently “jokingly” stated that his financial support of the Applicant is “an advance on her inheritance.”

[46] It is admitted that Mr. Baglione is actively funding the Applicant personally and her litigation. What is unclear is whether it is through gifts, loans or legitimate full-time employment. In my view, the narrative that the Applicant is working full-time for her father (like she claims to have worked for the Respondent) but that she is earning less than minimum wage income defies common sense and logic. It will be interesting to see how the Applicant will reconcile this discrepancy at trial when giving evidence as to her means and needs regarding spousal support. It will further be interesting to hear how she reconciles her claim that her hard work, talents and expertise contributed so much to the success of the Respondent’s business and properties, while at the same time her full-time work as a property manager for her own father continues to be so undervalued, (because Mr. Baglione pays her less than minimum wage).

[47] Ms. Feldman argued that she cannot adequately advise her client and the court will not be able to make a proper decision at trial because of the Applicant and Mr. Baglione’s refusals. She described Mr. Baglione as an “invisible litigant” which is a family member or friend of a family law litigant “who insert themselves into the litigation process. They go beyond providing emotional support during a difficult time to become active participants in the litigation.” This interference can “introduce or reinforce a win-at-all-costs litigation mentality” and possibly even facilitate “the deliberate hiding of assets or income.” (see Leitch v. Novac, 2020 ONCA 257 at para 44 -45).

[48] In my view, while it is clear to the court that Mr. Baglione is supporting the Applicant, this doesn’t mean that he is an invisible litigant. The Applicant and the Respondent are adults who have been in control of their own behaviour and decisions since their separation. They have made decisions on the counsel they retained and on the claims they have made and continue to pursue. They have further made decisions on the direction, intensity of conflict and lack of cooperation in this litigation. They both have substantial finances at their disposal to litigate this matter and they have chosen to use those resources to fight, instead of cooperating and moving forward in their lives. Their decisions have led them down the path to a trial. In my view, the continued litigation history of this matter has proven what Eberhard J. said in her decision dated November 3, 2024, “Time has demonstrated these parties have not calmed down but choose the court as their new battleground and counsel who will fight their fight.”

[49] For the court to make an order for non-party disclosure, the requests need to be fair and the documents requested need to be relevant and proportional. The Applicant and Mr. Baglione have either answered the Respondent’s requests and questions about Mr. Baglione’s corporations definitively or they have consented to provide certain documents. Whether those answers will satisfy the trial judge regarding the Applicant’s need for spousal support remains to be seen. The trial judge may or may not impute income to the Applicant as a result of the evidence about her income and/or work.

[50] I find the majority of the requests made by the Respondent to Mr. Baglione are either irrelevant or over-reaching (a fishing expedition). The Respondent is wanting to know confidential information about Mr. Baglione’s businesses while at the same time he says he is a competitor with the Respondent. The Respondent himself complained about the Applicant’s requests being an invasion of his privacy. In my view, the Respondent’s requests actually create a feeling of “tit for tat” i.e., if the Applicant asks for unreasonable disclosure, then the Respondent will request unreasonable disclosure. If the Applicant wants confidential information that could be used to damage or sabotage the Respondent, the Respondent wants confidential information about the Applicant and/or Mr. Baglione that could be used to cause damage or sabotage. The court is not going to participate in this litigation strategy.

[51] Ms. Feldman submitted that the Applicant and Mr. Baglione are giving the Respondent the “run around” by refusing to provide clarity on how he is advancing the Applicant money. While I agree that it is unclear how Mr. Baglione is advancing her the money and there is clearly some intermingling of finances, I do not find the majority of the requests for non-party disclosure to be relevant or proportional. I do not find that the requests by the Respondent will advance his legal position in this proceeding and/or that it is logically probative to any issue at trial. The onus is on the Respondent to establish that it would be unfair if he does not obtain the disclosure requested, which, in my view, he has not established. If the trial judge finds that the Applicant’s disclosure is lacking, they will make adverse inferences against her. It will be dealt with at trial.

[52] The only requested item that I find is relevant, necessary and proportional to the issues are Items #3, 5, and 8 in Schedule B of the Respondent’s Notice of Motion. The Applicant has consented to provided Items #3 and 5. Item #8 refers to a request for a copy of all credit card statements for any and all company credit cards that the Applicant is using (from any of Mr. Baglione’s companies) showing all of the transactions made by the Applicant from April 15, 2021 to present. The Respondent agrees that transactions not related to the Applicant may be redacted. The Applicant stated that she stopped using the company credit card in February 2024. [4] In my view, these credit card statements are relevant to the Applicant’s means as they will likely show whether some of the expenses she charged since April 15, 2021 were truly work related, or if the use of the credit cards was a pattern of gifting which may be used to help calculate how much should be added back to the Applicant’s income when determining her means and need. In my view, the timing of when she indicated that she no longer used any company credit cards raises the courts interest in the statements, and in my view, adds to their relevance.

[53] For the reasons set out above, order to go granting the disclosure consented to by the Applicant and/or Mr. Baglione as set out in the Applicant’s affidavit dated June 21, 2024 and Mr. Baglione’s affidavit dated June 26, 2024. Further Order to go for Mr. Baglione to produce the receipt for the laptop he purchased for the Applicant after May 11, 2022.

[54] Lastly, order to go granting the disclosure of the credit card statements requested in Item #8 of Schedule B of the Respondent’s Notice of Motion. To the extent that Aurelio Baglione states that the Applicant’s consent is required, that the Applicant also provide the said disclosure. The Applicant and/or Mr. Baglione shall provide the Respondent with a copy of all credit card statements for any and all company credit card(s) that the Applicant is using or was using (from any of Mr. Baglione’s companies) showing all transactions made by the Applicant from April 15, 2021 to present. Transactions not related to the Applicant may be redacted.

Conclusion

[55] The 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. So much disclosure has been provided already for this matter. In my view, they have more than enough to proceed to trial to advance their claims. If I am wrong, the trial judge will make further orders regarding disclosure, and/or make adverse findings against the party accordingly.

[56] The claims made by the Applicant and Respondent involve large sums of money regarding property, trust claims and support. The Applicant is making claims that she not only was the primary caregiver for the parties’ young child, but she was also substantially responsible for the Respondent’s increase in wealth during their short relationship. The Respondent is making claims that the Applicant is not entitled to any interest in his business and property and that she is further not entitled to any spousal support. Both parties are making diametrically opposed claims regarding the primary residence and parenting plan for Ana and what is in her best interests. I do not find that either party has established a prima facie case in support of the orders they seek against each other. In my view, both have serious challenges to overcome in the trial. Further, in my view, at various times throughout the litigation, neither the Applicant nor the Respondent have conducted themselves in conjunction with the primary objective rule under r. 2 (2) to (5) of the FLR.

[57] The Applicant and Respondent have been provided with ample, necessary, relevant and proportionate disclosure. If the Applicant and/or the Respondent are still not satisfied with the disclosure, or, if they have found anomalies or unexplained/vague answers to their requests, they can cross examine each other regarding same during the trial.

[58] Unless the parties have consented, or I have ordered otherwise, I find the Applicant’s and Respondent’s additional requests for disclosure in their Notices of Motion are excessive, and/or unnecessary, and/or irrelevant and/or disproportionate. For these reasons and pursuant to r. 2 (2) to (5) of the FLR, the balance of the Applicant and Respondent’s motions are dismissed.

[59] Success on these motions has been mixed. If counsel cannot agree on costs, I will receive written submissions on a 7-day turnaround, commencing with the Applicant on or by July 19, 2024, followed by responding submissions on or by July 26, 2024, then reply submissions, if any, on or by August 2, 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 submissions shall be delivered via email through my judicial assistant at barriejudsec@ontario.ca. If no submissions are received within 30 days from the date of this endorsement, the issue of costs will be deemed to have been settled between the parties.

JAIN J. Date: July 9, 2024

Footnotes

[1] O. Reg. 114/99: Family Law Rules

[2] The Applicant’s timesheets found at Exhibit “A” to the Respondent’s Affidavit dated June 21, 2024.

[3] Applicant’s affidavit dated June 21, 2024 at para 9.

[4] Applicant’s affidavit dated June 21, 2024 at para 10.