COURT FILE NO.: FC-21-450

DATE: 20240726

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

E.L.R.

Applicant

– and –

D.M.S.

Respondent

-and-

E.W.C. and E.C.M.

Added Parties (Respondents)

Joan Cushon, agent for the Applicant

Unrepresented

Raymond A. Goddard and Timothy Lee

HEARD: May 18, 19, 23, 24, 25, 26, 29, 30, 31, June 1, 2, October 17, December 4, 5, 6 and 7, 2023, January 19 and March 15, 2024.

REASONS FOR DECISION

J.P.L. McDermot, J.

INTRODUCTION

[1] Nothing has been easy for anyone involved in this family law litigation, which has been intense and bitter throughout. Depending on whose version of events is to be believed, these parties separated on January 15, 2018 or November 2, 2017. They have one child, E.G.D., who will be 18 this October. The Applicant Wife is E.L.R. and the Respondent Husband is D.M.S. The added parties, E.W.C. and E.C.M. are the Applicant’s parents who have made a claim against the equity in the former matrimonial home which has been sold.

[2] Because E.L.R. is a lawyer practicing family law in Durham region, Kaufman J. ordered on November 17, 2020 that case management be transferred to Simcoe County with the matter to be heard in Oshawa by a Newmarket judge. The eventual cessation of circuiting by family court judges made it necessary for this focused hearing to be heard in Barrie by a Barrie judge. Kaufman J. also ordered the initialization of the parties’ and the child’s names also for the sake of confidentiality.

[3] Kaufman J.’s order was not the first order or agreement made between the parties. When they initially separated, they signed several interim separation agreements. Then they agreed to go to arbitration with the Honorable Craig Perkins, a former family court judge. That broke down when D.M.S. claimed that he had not been properly pre-screened by the arbitrator for power imbalances and the arbitrator eventually resigned.

[4] In all of this, the litigation has been ongoing, in one form or another, since early 2018. It has been bitter, acrimonious and enormously expensive for all of the parties involved; D.M.S. says that he has paid over $500,000 in legal fees[^1] and found himself unrepresented at the hearing. I can do no better than to repeat, in the words of Justice Eberhard who said in an endorsement on February 17, 2022 that, “seldom in my long judicial career have I seen such disproportional, wasteful, costly energy spent in arguing about putting forward the basic factual basis of claims and defences.”[^2] Justice Jain, who case managed this matter, expressed her frustration in an TSC endorsement dated August 31, 2022 where she stated that “due to the allegations of non-compliance with the court orders and outstanding disclosure, I am further unable to hold a meaningful settlement conference on the outstanding issues or comment on the parties offers to settle.” She noted that the parties “continue to go around in circles on this matter using up valuable court resources and getting nowhere.”

[5] On that date and because of the lack of progress, she set this down for a focused hearing on two issues:

a. The Applicant’s claim to strike the Respondent’s pleadings for failure to provide court ordered disclosure; and

b. The Respondent’s claim that the temporary separation agreements and arbitration awards be set aside pursuant to s. 56 of the Family Law Act[^3] and ss. 5 and 6 of the Arbitration Act.[^4]

[6] Not unexpectedly, this was a focused hearing that was completely unfocused. The hearing was 18 days long including submissions. This was largely a documents case and D.M.S. brought his material into court in a box, unindexed and unbound; it took court staff a day to put his materials into a useable form for the hearing. There was a 2.5-day voir dire to address surreptitious recordings that D.M.S. made of conversations with E.L.R. which he sought to enter into evidence, most of which were excluded. Ms. Cushon’s and Mr. Goddard’s cross-examination of D.M.S. took four days to complete, largely because D.M.S. found it difficult to answer questions in any sort of direct or forthright manner. The final submissions had to be adjourned from the date scheduled for January 14, 2024 because counsel discovered that D.M.S. had obtained and was using transcripts of the hearing in his submissions without disclosing this to the other parties or providing copies of the transcripts. Although D.M.S. was unrepresented and might be excused because of his lack of knowledge of trial advocacy and civility, his litigation behaviour lengthened this trial considerably and frustrated the intentions of Justice Jain for an expeditious determination of the preliminary issues noted above.

[7] This was a case that largely relied upon the testimony and evidence proffered by the Respondent, D.M.S. The onus was on him to provide evidence sufficient to prove his allegations of duress, imbalance of bargaining power and intimidation upon which he relied upon to set aside the various agreements. Moreover, based upon the disclosure provided, it was his evidence that was crucial as to his compliance with the two disclosure orders in issue. I will therefore review the veracity and credibility of the Respondent Husband’s evidence and then I will address the issue of the agreements. Finally, I will review the Applicant’s and the Third Parties’ claim to strike the pleadings of D.M.S. because of his failure to obey court orders.

Result

[8] For the reasons set out below, I have determined the following:

a. The Respondent’s claim to set aside the agreements and awards is dismissed;

b. The Respondent’s pleadings are struck. The Respondent shall have, however, 60 days to comply with the disclosure orders or to explain, through 14B motion, his compliance with the orders and his good faith efforts to comply with the orders.

EVIDENCE OF D.M.S.

[9] In a vain attempt to shorten the length of this hearing, Justice Jain ordered that the parties’ evidence in chief be entered by affidavit evidence with brief oral testimony. The evidence in chief of D.M.S. was led largely through his affidavits sworn on October 21, November 7 and November 14, 2022 and May 2, 2023. The first two affidavits had to be redacted prior to being entered into evidence as a result of the exclusion of the majority of the Respondent’s surreptitious recordings and certain exhibits to his October 21, 2023 affidavit which were the subject matter of a voir dire held at the commencement of the hearing.[^5]

[10] Pursuant to the August 31, 2022 endorsement of Justice Jain, D.M.S. gave oral evidence in chief and addressed the pertinent portions of the affidavits filed in support of his claims to set aside the agreements in question. He also addressed his compliance with the disclosure orders that he is accused of breaching. He was then cross-examined by both Ms. Cushon, agent for the Applicant, E.L.R. and Mr. Goddard who was counsel for the added parties.

[11] The cross-examination was long and difficult. Both counsel cross-examined him on both issues which were before the court, his claims to set aside certain agreements as well as his failure to provide the disclosure previously ordered. As I have mentioned in previous endorsements, the cross-examination was overly long because D.M.S. found himself unable to answer questions in a clear and honest manner. On numerous occasions, when confronted with a fact that was contrary to his interests, D.M.S.’s memory failed him and he answered questions on numerous occasions with the proverbial “I can’t recall”. His memory was selective and D.M.S. was often only able to recall facts which were in his favour.

[12] As well, the evidence of D.M.S. was confusing and inconsistent. At one point, in testifying about the various agreements that he wished to set aside, he initially said that several of the arbitration agreements need not be set aside. The Applicant also said that the first two separation agreements entered into by the parties prior to the arbitration could be set aside because “they don’t matter any more”. However, notwithstanding this position it became apparent when D.M.S. was giving evidence that he was continuing with his claim to set aside those arbitration agreements. D.M.S. also said that he was not seeking to set aside the arbitration agreement dated September 14, 2018;[^6] however, he later said that Arbitrator Perkins’ failure to properly pre-screen the parties for the arbitration agreement was a major grounds for setting aside the various arbitration awards. Notwithstanding the position of the Applicant that the two initial separation agreements no longer mattered, D.M.S. continued to lead evidence about duress concerning those agreements throughout the focused hearing, forcing the Applicant to respond to those claims even though she confirmed that the agreements no longer mattered (and they didn’t).

[13] Moreover, nine days into the hearing during his cross-examination by Mr. Goddard, D.M.S. withdrew a claim to set aside Minutes of Settlement dated May 22, 2019; this may have been largely self-serving because he had received an advance of a portion of the net proceeds of the matrimonial home under those Minutes and he may have been concerned that he may have to pay those funds back if the Minutes were set aside. I found D.M.S.’s evidence to be inconsistent and confusing throughout.

[14] D.M.S. was also an evasive witness. He had to be admonished on almost a daily basis when he refused to answer a question put to him by counsel. When cross-examined about his compliance with the agreements that he entered into and the arbitral awards, his answers were evasive. For example, when cross-examined about having “buyer’s remorse” concerning the separation agreement dated January 28, 2018, D.M.S. did not answer the question; instead he talked about the Applicant’s threat to prevent access. At another point, when asked why he closed a joint account into which the funds from his medical and dental plan were to be deposited, D.M.S. said that it didn’t matter that he did that because there was nothing in the account. That was not the point; he breached an agreement which required him to pay the funds from those plans into that joint account that he then closed. His evidence made it plain that he did not care about breaching agreements and court orders and was more than willing to excuse those breaches because he felt that the agreements or orders did not matter.

[15] He was similar in his evidence about the disclosure. In explaining why he did not provide the disclosure, he was critical of the requirements for disclosure imposed by Justices Jain and Eberhard. He did not seem to understand that once he had agreed or was ordered to provide disclosure, he was not able to explain his way out of clear breaches of those orders or agreements. It was apparent from his testimony that he felt that he could do as he wants based upon his own opinion of the obligation in question.

[16] In sum, I found D.M.S.’s evidence to be inconsistent and evasive. I found him to be a belligerent witness, failing to properly answer questions put to him. His failure to provide evidence in a forthright manner dragged his cross-examination out over four days. I therefore did not find him to be a credible witness. I therefore find his evidence to be unreliable and questionable throughout.

ANALYSIS

[17] The first issue to be addressed is the Respondent’s claim to set aside certain agreements and arbitral awards as set out in the endorsement of Justice Jain dated August 31, 2022. I will then address the claim to strike D.M.S.’s pleadings made by both the Applicant and the Added Parties. That claim is based upon the breaches by the Respondent of the disclosure orders made by Justices Jain and Eberhard.

Claim to Set Aside Agreements and Awards

[18] This claim is based upon the breathtakingly long Amended Answer filed by Mr. Ludmer on behalf of the Respondent, D.M.S. That answer was more than 60 pages long and the detailed request for relief asked for 117 orders.

[19] Those agreements and awards were set out on consent in Justice Jain’s amended endorsement dated August 31, 2022 as follows:

a. The separation agreement dated January 28, 2018 (Trial Ex. 8);

b. The separation agreement dated April 3, 2018 (Trial Ex. 9);

c. The separation agreement dated May 6, 2018 (stated to be a schedule to the January 28, 2018 separation agreement) (Trial Ex. 10);

d. Minutes of Settlement made in arbitration dated May 23, 2019 (Trial Ex. 12) (claim to set aside abandoned nine days into the hearing);

e. Email consents to Kenya trip dated November 15, 2019 (Trial Ex. 13);

f. Arbitral Award on motion dated December 21, 2018 (Trial Ex. 14);

g. Arbitral Award re costs dated April 10, 2019 (Trial Ex. 15);

h. Arbitral Award (supplementary to December 21, 2018 award) dated April 14, 2019 (Trial Ex. 16);

i. Arbitral Award based on Minutes dated May 23, 2019 outlined in (d) above dated February 24, 2020 (Trial Ex. 17) (claim abandoned after eight days of trial);

j. Arbitral Award based on email consents re Kenya trip outlined in (e) above and dated February 29, 2020.

[20] Concerning the agreements, the Respondent relies upon s. 56 of the Family Law Act to set aside the domestic contracts. That section reads as follows:

(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

[21] In Harnett v. Harnett, 2014 ONSC 359, McGee J. conducted an analysis of the factors which may lead, pursuant to s. 56(4) to an agreement being set aside. She noted that the essence of duress and unconscionability is an inequality of bargaining power and taking unfair advantage of that inequality. She said at paras. 92 and 93 that:

[92] The court must look not at which party made the better bargain but rather, to whether one party took advantage of their ability to make a better bargain. In that taking of advantage is to be found the possibility of unconscionability. See Rosen v. Rosen (1994), 1994 CanLII 2769 (ON CA), 3 R.F.L. (4th) 267 (ONCA)

[93] The test for unconscionability is not weighing the end result, but rather the taking advantage of any party due to the unequal positions of the parties. See Mundinger v. Mundinger (1968), 1968 CanLII 250 (ON CA), [1969] 1 O.R. 606 (Ont. C.A.); Rosen v. Rosen (1994), 1994 CanLII 2769 (ON CA), 3 R.F.L. (4th) 267 (Ont. C.A.).

[22] Magee J. also said in the same case that the onus to provide evidence to prove unconscionability is on the party seeking to set aside the agreement. At para. 94, she stated:

The onus is on the party seeking to set aside the domestic contract to demonstrate that at least one of the circumstances set out in subsection 56(4) has been met; then the court must determine whether the circumstances complained of justify the exercise of the court's discretion in favour of setting aside the contract. It is a discretionary exercise. See LeVan v LeVan, 2008 ONCA 388, 2008 CarswellOnt 2738, ONCA.[^7]

[23] Therefore, in the present case, the onus lies on D.M.S. to provide sufficient evidence to satisfy the court as to the imbalance of bargaining power to set aside the agreements in question and that the court should exercise its discretion to set aside the agreements in issue.

[24] In LeVan v. LeVan(2008), 2008 ONCA 388, 90 O.R. (3d) 1 (C.A.), the Court of Appeal confirmed that the court must proceed by way of stages. The first stage is to firstly determine whether any of the factors set out in s. 56(4) are present. The second stage, and perhaps the most important of the two, is whether the court should exercise its discretion to set aside the agreement in question.

[25] There are three different “separation agreements” signed by the parties prior to the submission of the dispute to mediation and arbitration and the signing of the Mediation / Arbitration Agreement dated September 14, 2018. Those agreements were temporary separation agreements and were largely superseded by interim decisions made in the arbitration. There were, as well, three contested arbitration decisions made by Arbitrator Perkins; different considerations apply to these awards as they are not agreements or covered by s. 56(4). Finally, there are two consent arbitration awards; the first based upon Minutes signed by the parties on May 23, 2019 and the second on an email consent to a school trip to Kenya dated November 15, 2019. Nine days into trial, the Respondent abandoned his claim to set aside the Minutes of Settlement dated May 23, 2019 and the corresponding consent arbitration award. The only consent arbitration award that remains in issue was the decision by Arbitrator Perkins to permit E.G.D. to travel to Kenya on a school trip which the Respondent initially consented to, but later withdrew that consent; that trip was allowed and has long since taken place. I shall consider these three different awards and/or agreements separately.

Separation Agreements Dated January 28, April 3 and April 14, 2018

[26] These agreements were signed between the parties shortly after separation. They were all prepared by the Applicant and it is undoubted that the Respondent signed them without having obtained legal advice.

[27] The first agreement was dated January 28, 2018. The parties had only recently separated when the agreement was signed. The agreement is temporary and addressed parenting time and decision-making concerning the parties’ daughter E.G.D. It also addressed the date of separation of the parties and temporary financial arrangements concerning the parties’ assets, child support and the section 7 expenses of E.G.D.

[28] A second agreement was signed by the parties on April 3, 2018. This one addressed the filing of tax returns for 2017 and payments concerning several businesses owned by the parties.

[29] There was a final “Schedule A” to the January 28, 2018 agreement. It was signed by D.M.S. and E.L.R. respectively on April 29 and May 6, 2023. It addressed D.M.S.’s parenting time to E.G.D.

[30] The issues raised by the Respondent concerning these agreements is defined by his Amended Answer filed on his behalf by his then counsel, Brian Ludmer. As noted, that answer was extremely lengthy, being more than 60 pages long with claims for 117 heads of relief. The answer alleges that D.M.S. was told that he would not have parenting time with E.G.D. if he did not sign the agreement. It also states that the Respondent had no input into the contents of the agreement and that there was an imbalance of bargaining power between himself and E.L.R. He says that E.L.R. mislead him as to the nature and effect of the agreement and that he was under “complete duress” when he signed the agreement. He sums up his objections to the agreement in paragraph 39 of the answer:

As a result of all of the foregoing, [D.M.S.] seeks an Order setting aside the Separation Agreement dated January 28, 2018 on the basis of duress, unconscionably (sic.), non est factum, material representation, mistake, lack of independent legal advice, and as prescribed in the provisions of the Family Law Act (Ontario) concerning domestic contracts.

[31] He repeats this paragraph in his answer in seeking to set aside the April 3 and May 6 agreements. I shall address the agreements according to the headings in the Respondent’s factum filed for this proceeding.

[32] I was confused as to whether this actually remained an issue for the parties. Early on in the hearing, the Applicant said that none of these agreements really mattered at this point in time and could be set aside. This seems to have been quickly forgotten by the Respondent as he continued to lead evidence on these agreements and attacked them in his final submissions and in his factum. The Applicant also forgot her position that the agreements could be set aside and responded to the Respondent’s evidence and defended the agreements. It certainly appeared that the three agreements remained in issue throughout. I have therefore considered the claim to set these agreements aside as originally requested by D.M.S.

Duress

[33] The Respondent says that he signed the agreement under duress from the Applicant. He says that this duress constituted the Applicant’s threats to withhold his access or parenting time to his daughter, E.G.D. He says that these threats were a course of conduct leading to parental alienation of his daughter and that the Applicant has, over time, managed to destroy his relationship with his daughter. He says that prior to separation he and E.G.D. had an excellent and close relationship. Now E.G.D. will have nothing to do with him and based upon her views and preferences, D.M.S. abandoned his parenting claims after a conference held before Jain J. on January 12, 2022.

[34] The Applicant says that D.M.S is wholly responsible for his problems with his daughter. She cites an embarrassing incident at the horseback riding stables where the Respondent berated E.G.D.’s instructors in the presence of E.G.D. She also cites another incident involving parenting time in a restaurant where E.G.D. was abandoned there by the Respondent and was forced to find her way to her counsellor’s office to await her mother. E.G.D. has alleged that D.M.S. had sexually abused her and recently testified at a criminal trial addressing those allegations; D.M.S. was acquitted of all charges. However, E.G.D. told her lawyer appointed through the OCL that she wished no parenting time with D.M.S. who accepted that position and abandoned his parenting claims in this proceeding.

[35] In many negotiations, especially in the matrimonial context, the going can get tough. The parties in negotiating an agreement often make threats or attempt to intimidate the other side. For example, in the present case, the Respondent testified that the Applicant threatened that if he did not sign one of the agreements, he would end up paying more than $70,000 in legal costs[^8] (he says he ended up paying more than $500,000). Consequences and even threats are unfortunately frequent in the negotiation of family law agreements.

[36] Those threats are, however, not duress if the claimant reasonably believes that he has a choice whether or not to sign the agreements in issue. Pressure brought to bear by one party against the other on its own does not automatically mean that there is duress: see S.A. v. A.A., 2017 ONCA 243 where the Court of Appeal adopted the test set out in Hill v. Forbes, 2007 ONCA 443, 225 O.A.C. 74, at para. 12, citing the earlier case of Stott v. Merit Investment Corp (1988), 1988 CanLII 192 (ON CA), 63 O.R. (2d) 545 (C.A.), at para. 48:

But not all pressure, economic or otherwise, is recognized as constituting duress. It must be a pressure which the law does not regard as legitimate and it must be applied to such a degree as to amount to "a coercion of the will", to use an expression found in English authorities, or it must place the party to whom the pressure is directed in a position where he has no "realistic alternative" but to submit to it, to adopt the suggestion of Professor Waddams (S.M. Waddams, The Law of Contract (2nd ed., 1984), at p. 376 et seq.). Duress has the effect of vitiating consent and an agreement obtained through duress is voidable at the instance of the party subjected to the duress unless by another agreement or through conduct, either express or implied, he affirms the impugned contract at a time when he is no longer the victim of duress.

[37] D.M.S. says that he was subjected to duress on several fronts. He says that the Applicant was violent and threw a Coke can at him during an altercation in 2017. He says that she was heightened in her responses and so emotional that she constituted a threat to both himself and the child; to prove this, he filed a recording of a meeting that he had with the Applicant during nested parenting time on February 25, 2018. He says that this recording and another set of text messages from May 7, 2018 also shows similar threats to withhold parenting time concerning E.G.D. He testified that the Applicant said that he could not have parenting time with E.G.D. unless he signed the agreement. He says that on July 7, 2018, E.L.R. threatened him that he would pay $70,000 in legal fees and get “no further ahead” in his fight for his parental rights.[^9] He testified that the duress included the parental alienation of E.G.D. from him which he described during testimony as “domestic violence” perpetrated on himself and E.G.D. which would warrant a finding of duress.

[38] In all of this, D.M.S. has asked for a finding of parental alienation irrespective of whether it factors into the validity of the agreement. He wants this, according to his factum, because he wants his daughter to eventually know the truth about the breakdown of his relationship with her. Although he was charged with sexual assault and sexual interference, he has been acquitted by the criminal courts largely, he says, because the evidence of E.G.D. was based on coercion and influence on her by the Applicant. He asked to reopen evidence based upon the acquittal; by that time, the parties had already been at this “focused hearing” for 15 days of evidence and I refused the request based upon the fact that the criminal proceedings and the findings in those proceedings were largely irrelevant to the issues before the court in the focused hearing.

[39] The requested “stand-alone” finding of parental alienation is not part of the mandate of this focused hearing as set down by the case management justice. D.M.S. did not say that he wished that finding prior to making his final submissions and this type of litigation behaviour is one of the reasons that this focused hearing eventually took more than 18 days to complete. He cites A.M. v. C.H., 2019 ONCA 764 as authority that I can make a finding of parental alienation without in-depth psychological evidence including a s. 30 assessment.

[40] In A.M. v. C.G., the trial judge made an alienation finding in aid of the father’s request for a time-sharing reversal based upon his contention that he had been alienated from his child. When the finding was made, the father’s claim for the parenting time reversal was a live issue before the court. D.M.S has now abandoned his parenting claims based upon the recommendations of OCL counsel. D.M.S. therefore wants a finding in the absence of any underlying parenting claim. A.M. v. C.G. is not authority that a finding can be made in the absence of any parenting claim being made by the claimant; the appeal was of a parenting reversal ordered by the trial judge which is not in issue in this proceeding.

[41] If it is necessary to consider parental alienation concerning the setting aside of the agreements, it may then be addressed. But this court is not a forum for making findings where there is no remedy to be granted considering the age of the child (nearly 18) and considering D.M.S.’s abandonment of the child related issues. The court does not deal with hypotheticals or findings for the purpose of eventually demonstrating the “truth” to children or anyone else; the court instead deals with findings of fact relevant to the remedies sought in the proceeding. There is no jurisdiction for the court to make stand-alone findings simpliciter unless those findings are relevant to the issues in the focused hearing.

[42] The issue of the three agreements does surround parenting of the child at the time of those agreements, soon after separation (whether in November 2017 as advocated by D.M.S. or January 2018 as advocated by E.L.R.). At the time of the agreement, the parties had agreed to “nesting” parenting time to the Respondent in the matrimonial home where E.G.D. lived with the Applicant. E.G.D. was then 11 years old and was seeing her father. If there was alienation, it had not yet manifested itself as outlined in the materials; between the agreements and the present, there were refusals and difficulties with parenting time, a course of reconciliation counselling and then a final breakdown of the counselling and D.M.S.’s relationship with E.G.D. Those issues were only beginning to be manifested on July 7, 2018 in the meeting in the barn when E.G.D. says that she does not want her father to be at the barn and does not want to go to visit him for the upcoming long weekend. D.M.S. alleges that E.G.D. knew too much and was just parroting statements made by the Applicant.

[43] However, other than the transcript of the February 25, 2018 recording (admitted as part of the Applicant’s November 7, 2022 affidavit), D.M.S. did not lead any evidence regarding parental alienation other than the fact that he had a good relationship with E.G.D. prior to the separation and that it deteriorated substantially after the fact. He says the fact of his acquittal on the sexual assault charges concerning E.G.D. is relevant to that, but that was a finding of a criminal court using a different standard of proof than in these civil proceedings. There is no expert evidence from any therapist of parental alienation, and, to prove that there were flaws in the arbitration process, D.M.S. led evidence that Arbitrator Perkins refused to make a finding of parental alienation. The earliest evidence provided to me of E.G.D.’s reluctance to see D.M.S. is as of July 7, 2018, well after the last agreement was signed. I do not find that, leading up to the three agreements being signed, that parental alienation was a factor to be taken into account in any duress leading to the Respondent’s signing of these agreements.

[44] D.M.S. asks that I make a finding that parental alienation is domestic violence. I was not provided with any authority, legal or otherwise, that parental alienation constitutes “family violence” as defined under s. 2 of the Divorce Act.[^10] That section defines family violence as conduct “that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct”. I agree with the Respondent that parental alienation of a child is reprehensible and harmful behaviour by a spouse, and it is conduct that could lead a party to fear that there would be emotional harm to a child. I do not agree, however, that this was proven as D.M.S. failed to lead evidence that the child was being harmed emotionally or otherwise through E.L.R.’s actions. Although the Respondent says that the argument between the parties where the Applicant was emotionally heightened took place in the presence of E.G.D., E.L.R. said that the child was in another room with noise cancelling headphones on at the time. In any event, each party is as responsible as the other for the argument in E.G.D.’s presence. Moreover, the child’s views and preferences as expressed to Ms. Stewart, counsel for the OCL, appeared to be sufficiently independent and consistent to convince the Respondent to withdraw his parental claims in this matter.

[45] I therefore do not find that parental alienation is a factor leading to a finding of duress in the negotiation and execution of the three separation agreements signed by the parties in 2018.

[46] However, apart from parental alienation, the Respondent says that the Applicant had threatened to withhold his parenting time if he did not sign the agreement in question.

[47] This general allegation is the entirety of the evidence from D.M.S. regarding withholding of access. He provided no evidence of when this statement was made or how it was made. He did not disclose whether there were threats of withholding access made at the time the parties met to sign the agreement, before the parties signed the agreement or whether it was after. The Respondent’s allegation of the threat to withhold access is without specificity or context.

[48] The Respondent did lead evidence which he said shows that the Applicant had subsequently said that she would withhold access in order to wring financial concessions from him. During his cross-examination of the Applicant, D.M.S. put to the witness a series of text messages from May 7, 2018. In that set of text messages, the Applicant asks the Respondent for a cheque of $9,098.98 as security for his compliance with the April 3, 2018 agreement. The Applicant expresses her doubts as to whether she can trust the Respondent to comply with the agreement and says that she is concerned as to whether a subsequent agreement can be arrived at as a result. Presumably that agreement contained parenting time provisions concerning E.G.D. as the Respondent then asserts that, “You are threatening me with withdrawal of access terms for a promissory note” and that “So whenever I don’t agree with you over some marginal issue you are going to blackmail me over access time with [E.G.D.]?”[^11]

[49] However, there was never a threat to “withdraw access” to E.G.D. All that the Applicant says is that, without the three agreements that the Respondent was attacking, there is no indication that she is “agreeable to anything but nesting”. There is no intention to withhold access and she is saying that the nesting would continue if there was no further agreement. In fact, the day before that conversation, E.L.R. had already signed an agreement prepared by her providing D.M.S. with parenting time with E.G.D. at his home in Brampton. There was no evidence of withdrawing or withholding access in exchange for financial concessions from D.M.S.

[50] Finally, while this exchange does confirm that the Applicant was willing to connect the child’s access to D.M.S. to the completion of an agreement, it only took place after the execution of the last agreement in issue which provided for parenting time for D.M.S.

[51] Furthermore, D.M.S. failed to act like someone who was subject to duress in the execution of these agreements. For example, he filed a recording of an exchange between himself and the Applicant which took place during nesting parenting time on February 25, 2018. He said that this recording showed that he had good reason to fear the Applicant, citing her heightened emotional state during the exchange.

[52] The recording showed, however, nothing of the sort. It is correct that the Applicant was extremely emotional and upset during the conversation. But it appeared to me that the person in control of the situation was D.M.S. At one point, the Applicant expresses that the Respondent “scares the shit of me”. D.M.S., on the other hand, expresses no fear whatsoever. At times, he gaslights the Applicant, stating that she has mental health problems and suggesting that she needs help. Throughout the conversation, he is calm and collected, while E.L.R. is escalated and upset. It is apparent that she is upset about the end of the relationship and at one point D.M.S. threatens to move to Edmonton, upsetting her even more. The Respondent does not act like someone who is afraid of E.L.R.; in fact it is just the opposite. The person who is not in control, who is most upset about the situation, is the Applicant.

[53] Moreover, there was evidence that the separation agreement signed on January 28, 2018 was a negotiated agreement, not something that the Respondent was forced to sign. The exhibit shows that the Respondent was given the opportunity to make handwritten changes to the separation agreement which were submitted to the Applicant. For example, the Respondent did not like the term in the original agreement stating that E.L.R. would have “sole custody” of E.G.D. He had inserted that he would have interim “joint custody” of E.G.D.[^12] E.L.R. changed the agreement to remove the term sole custody but left out joint custody. What this showed was both that D.M.S. understood the term “sole custody” and he asked that it be replaced with “joint custody”. E.L.R. changed the agreement with a primary residence term which was a compromise. That indicates that this was a negotiation, not a forced agreement where the Respondent had lost his right to informed consent.

[54] As well, D.M.S. says in paragraph 50 of the facts that he relied upon in his Amended Answer that the Applicant had presented to him the third agreement signed by E.L.R. on May 6, 2018 with a preamble which “contained several false allegations, in particular, statements made about sexually explicit videos.” The Respondent says in that paragraph that, when he objected to this preamble being in the agreement, E.L.R. tore up the agreement and presented him with an agreement without the preamble in it. Although D.M.S. led no evidence concerning that incident, that statement appears to be an admission that he had input into the terms of the agreement which E.L.R. acceded to in the preparation of the final draft of the impugned agreement.

[55] Duress has been defined as a “a threat of wrongful and immediate force in the formation of a contract”: see McLeod & Mamo, Annual Review of Family Law, 2013 at p. 1062. An example of this would be a party who has an agreement shoved under his nose at a meeting who is told that this is his only opportunity, for example, to see his child and if he walks out, that opportunity would be lost. Those circumstances were not described to me in the present case; D.M.S. complains that he was told this, but the circumstances of that statement were not disclosed in evidence. D.M.S. had input into certain clauses in both the January 28 and May 6 agreement which were adhered to by E.L.R. The May 6, 2018 agreement was signed by D.M.S. on April 29, 2018 and E.L.R. only signed it seven days later; D.M.S. had that amount of time to withdraw that agreement. That is anything but the exertion of “immediate force” against D.M.S. as there appeared to be adequate opportunity to negotiate the terms of those agreements.

[56] D.M.S. has therefore failed to prove duress concerning the negotiation of the three agreements in issue. I do not find that the agreements were signed as a result of duress imposed on D.M.S. or that he was, in any way forced to sign the agreements in issue.

Unconscionability / Imbalance of Bargaining Power

[57] As pointed out by McGee J. in Harnett v. Harnett, supra, the essence of unconscionability is “the taking advantage of any party due to the unequal positions of the parties”. D.M.S. says that there was clearly an inequality between these parties, taking into account the fact that E.L.R. was an experienced family law lawyer while D.M.S. was a software engineer with no knowledge of the law.

[58] D.M.S. cited in his factum Rick v. Brandsema, 2009 SCC 10 in support of his contention that the agreements are unconscionable. The Respondent provided a quote from that case in his factum (para. 193 of the Amended Factum), but my review of the case confirmed that this quote was not actually part of the decision of Abella J. in Rick v. Brandsema. However, Abella J. confirmed in that case [at para 44] that there are two elements to the inquiry as follows:

Where, therefore, “there were any circum­stances of oppression, pressure, or other vulnera­bilities”, and if one party’s exploitation of such vul­nerabilities during the negotiation process resulted in a separation agreement that deviated substan­tially from the legislation, the Court in Miglin[^13] concluded that the agreement need not be enforced (paras. 81-83).

[59] In his factum, D.M.S. says that he was “situationally disadvantaged” as the Applicant was an “senior family law lawyer” and he was not. He says that the unconscionability of the agreement is based upon the unequal bargaining position of the parties and what he says were exploitative terms incorporated into the agreement:

ELR forcing the signing of agreements, her own denial of the separation date on the agreement she wrote, her false reporting of her income on the agreement, not reporting her parents alleged interest in the matrimonial home on the agreement, and the guileful language granting her sole custody all indicate her own lack of respect for the Jan 28 2018 agreement.

[60] I am going to examine each of those contentions to determine whether any or all are confirmed by the evidence in this extremely lengthy hearing:

(a) Forced Signing of Agreement

[61] I have already determined that no one was forced to sign the agreement or that there was duress sufficient to deprive D.M.S. of his informed consent to the agreement. There was no evidence that D.M.S. was forced to sign the agreement and there was insufficient specificity in the allegations of D.M.S. concerning the deprivation of his access to E.G.D.

(b) Denial of Separation Date

[62] The agreement made by the parties on January 28, 2018 does not “deny” the separation date proposed by D.M.S. What it said in the background paragraphs was the following:

[D.M.S.] told [E.L.R.] he wished to separate on November 2, 2017. The parties will agree upon the date of separation. If they cannot agree then they shall use November 2, 2017 as the default.[^14]

[63] What is notable is that the parties still have not agreed on the date of separation. In fact, it was E.L.R.’s position, as set out in her application, that the date of separation was actually January 15, 2018. The “default” date of separation in the January 28 agreement was actually November 2, 2017 which is D.M.S.’s position on the date of separation. The agreement effectively concedes that D.M.S.’s date of separation would be used if the parties could not agree. There is no “denial of separation date” as alleged in the Respondent’s factum.

(c) False Reporting of Income

[64] The Applicant noted in the first agreement that her “line 150 income” in 2016 was $45,169.48. That reported income to the Canada Revenue Agency was not a falsehood as this is the income she reported from her legal practice.

[65] There is no misrepresentation of E.L.R.’s actual income; the agreement represents her line 150 income. D.M.S. pointed out in his evidence that the gross income from E.L.R.’s legal practice was substantially more. However, evidence was provided during the hearing that E.L.R. had acknowledged that her income was actually closer to $90,000 per annum and that an income valuation had confirmed this amount. D.M.S. disagrees with that figure, but the fact that an income figure is contested does not make either party’s position on that income amount a misrepresentation of anyone’s income.

[66] It also appears that the amount of income was irrelevant, for the purposes of the agreement, to the division of expenses. The section 7 expenses for E.G.D. were agreed to be equally divided even though D.M.S. made more than did the Applicant. The expenses of the jointly held condominium were also to be equally divided. The relative incomes of each of the parties does not affect the terms of the agreement in any way. I do not find this to be a material misrepresentation made by the Applicant in the negotiation of the January 28, 2018 agreement.

(d) Failure to Report the Added Parties’ Alleged Interest in the Matrimonial Home

[67] The Respondent claims he was kept in the dark about the claims by the Applicant’s parents against the farm property. That is, apparently, the reason that they are in the litigation. They received a modest cash payment when the matrimonial home was sold.

[68] There was little evidence provided by either party as to when the claims were made by the Applicant’s parents against the home. Certainly, by the time that the Mediation and Arbitration Agreement was signed on September 14, 2018, they had come into the litigation as their signatures are on that agreement.

[69] If D.M.S. was unaware of the claims of E.W.C. and E.C.M. at the time of the signing of these agreements, it is unclear to me as to how this should vitiate the agreements or as to how it made the agreements unfair. The only term concerning the farm property in the January 28 agreement is the equal sharing of the expenses of the matrimonial home where E.L.R. would be living with E.G.D. According to the agreement, those payments were being made in exchange for payments of child support. There was no evidence that the Applicant’s parents were asked to pay the expenses of that home nor any suggestion that they should have been paying those expenses. Even if the claims of the Applicant’s parents were undisclosed at the time of the signing of the agreement (and there was no evidence of this before the court at this focused hearing), that is not connected to any of the terms of the agreements in issue.

(e) “Guileful” Language Granting E.L.R. Sole Custody

[70] The January 28 agreement does not grant E.L.R. “sole custody” (in present day terms, sole decision-making). Although the original draft did provide E.L.R. with sole custody, D.M.S. had that removed in the negotiations leading up to the signing of the agreement. All that the agreement does is to say that E.L.R. can make day to day decisions concerning E.G.D. Respecting major decisions, they are to be agreed upon and if there is no agreement, E.L.R. had the final say. However, that was also subject to the decision being reviewed in mediation and arbitration which the parties were apparently contemplating when the January 28 agreement was signed. In fact, the Respondent never accepted the suggestion that E.L.R. had “sole custody”. He always disagreed with that, and at one point attempted to prevent E.G.D. from travelling to Kenya with her school resulting in the arbitrator determining that issue, exactly as contemplated by the agreement.

[71] There is no provision in any of the agreements granting the Applicant sole decision-making concerning E.G.D. This is not a basis for setting aside the agreements.

(f) Conclusion re Unconscionability

[72] None of these agreements are particularly complicated. They are interim agreements and contain no releases of rights by either party. Other than funds paid by either party pursuant to the agreements in issue, the agreements had no permanent effect. Although there were parenting provisions in the agreement, these were also not permanent; if D.M.S. is correct, the loss of his relationship with E.G.D. lay with the attempts by the Applicant to alienate the child’s affections and not because of the terms of the agreement. Although the Applicant claims in his October 21, 2022 affidavit that the agreement “has proven to be harmful to E.G.D”, nowhere does he explain in that affidavit how the agreement was harmful to her.

[73] In Rick v. Brandsema, Abella J. points out that oppressive conduct is only part of the test. She also notes that it is unlikely that an agreement will be set aside if the agreement meets the objectives of the legislation. For example, in Rick v. Brandsema, the negotiated agreement was extremely unfair and the wife had accepted a payment which was $649,680 less than her entitlement under the applicable British Columbia legislation. It was a clearly unfair agreement. D.M.S. has demonstrated nothing of the sort concerning the three agreements he seeks to set aside. He has not demonstrated that any of the payments to be made under the agreements or the parenting terms are unfair or not in accordance with either the Divorce Act or the Family Law Act.[^15] In the words of Abella J., there is no evidence that the agreements “deviated substantially” from the legislation governing these parties’ matrimonial affairs.

[74] I therefore do not find unconscionability or inequality of bargaining power as suggested by D.M.S.

Non Est Factum

[75] D.M.S. did not specifically address the claim of non est factum in his evidence or submissions. It is mentioned without explanation in the Respondent’s Amended Answer. In his factum dated February 16, 2024, D.M.S. explains:

The applicant is a senior family law lawyer, and wrote the separation agreements. I was told I would not see our daughter if I did not agree to the agreements as written (recordings and transcripts in my October 21 2022 affidavit). I did not have legal advice. As a lawyer, the applicant was in complete control of my understanding, perception and mechanics of family law. ELR is the sole architect of the agreements. For reasons of Non Est Factum, ELR should be held responsible for the bad separation agreements.[^16]

[76] This paragraph speaks of both duress and unconscionability as discussed above. It does not speak to a defence of non est factum. That term is defined from the Latin as meaning “it is not my deed,”[^17] and is a defence available “when there is evidence that a party is not sufficiently aware of what she is signing so as to make an informed decision to enter into the relevant contract”: see Duca Community Credit Union Ltd. v. Fulco Automotive Ltd., [1994] O.J. No. 1162 (Div. Ct.) at para. 32. For example, as in Duca, if someone thinks he is signing a guarantee while she is actually signing a mortgage, that party has a defence of non est factum which is a claim which is related to not understanding the nature of the document that was signed rather than the terms of the document itself.

[77] Nowhere does D.M.S. say that, in signing the three impugned agreements, he thought he was signing anything other than an agreement related to the parties’ separation. He complains of oppressive conduct; he complains that there were misrepresentations and facts hidden from him and he complains that he was under undue pressure to sign the agreements. He never said in his evidence that he did not know the type of agreement being signed. He has not proven the defence of non est factum in this focused hearing.

Material Misrepresentation

[78] Under this heading in his factum dated February 16, 2024, D.M.S. mainly complains of the Applicant’s failure to disclose her parents’ claim against the matrimonial home. He says in that factum that the Applicant “did not disclose that she knew about or agreed that her parents falsely believed still had a large interest (over $400,000) in the matrimonial home property even though they had voluntarily removed themselves from title in an equitable trade in January 2004, orchestrated by the applicant, who presumably had her parents interests at heart.”[^18] In his affidavit, the Respondent complains that the “separation agreement says nothing about the $440,000 interest in the matrimonial home that the applicant’s parents claim they have.”[^19]

[79] The Respondent was cross-examined about the failure to disclose. He was asked by Ms. Cushon about that issue and she asked D.M.S. about how this would have affected the expenses of the home, the only place where the home is mentioned in the January 28, 2018 agreement. He responds that he did not know why it should have been in the agreement; she said something to the effect of “I don’t know, it should have been in there. Now we are in a field of wreckage”.

[80] Left out of this analysis of material misrepresentation is the word, “material”. The misrepresentation must be material to the agreement in issue. Nowhere does D.M.S. relate the failure to disclose this claim to the terms of the agreement. He seems to say that the agreements should have been a vehicle to disclose the Applicant’s parents’ claim to D.M.S. and without that disclosure being in any of the three agreements, they should have been set aside. However, there is nothing in those agreements about that claim. The Respondent has failed to prove that the lack of disclosure of this claim is material to the agreements in issue.

[81] Moreover, D.M.S. has failed to prove that the Applicant knew of her parents’ claim at the time of the negotiation of the agreement. In fact, he was unclear in his evidence as to when he first became aware of the claim; as noted above, the evidence of the first appearance of E.C.M. and E.W.C. in these proceedings was when the mediation and arbitration agreement was signed in September of 2018. He provided no evidence of when he knew that E.L.R. knew that her parents were making a claim against the property. D.M.S. did raise this issue in the cross-examination of E.L.R. but he never asked her when and how she became aware of the claim. He does not raise the issue of whether E.L.R. knew about the claim at the time of the negotiation of any of the three agreements or when or how she became aware of that claim. He also failed to cross-examine E.C.M. on this issue.

[82] The only other alleged misrepresentation by E.L.R. that D.M.S. alleges is her income set out in the January 28, 2018 agreement. In that agreement, she says that her Line 150 income for the most recent year for which taxes were done was $45,169.48, E.L.R. acknowledges that her income is actually substantially higher and the income valuation expert, Steve Ranot, has confirmed that her income is actually in the range of at least $90,000 per annum. However, the only place this is material to the agreements is the equal sharing of expenses for the condominium, the matrimonial home and the section 7 expenses for E.G.D. And an equal sharing of those expenses does not seem unfair considering that under any measure, D.M.S. makes at least the same amount as does E.L.R. There is no suggestion that E.L.R.’s line 150 income for 2016 was anything other than that stated in the agreement and that income figure is immaterial to the agreement itself.

[83] The Respondent has failed to meet his onus to prove any misrepresentation by the Applicant which is material to the terms of the agreement as negotiated.

Lack of Independent Legal Advice

[84] This specifically addresses whether the Respondent understood the “nature and effect” of the agreements that were signed. There is no issue that at the time of the signing of the agreements that the Applicant was an experienced family law lawyer and the Respondent was not. There is also no suggestion that the Respondent had independent legal advice when he signed the agreements. In fact, at one point, the Respondent suggests that when he said that he should talk to a lawyer prior to signing, the Applicant threatened that there would be no agreement and that the Respondent would not have access to his daughter. The essence of the Respondent’s claim regarding independent legal advice is set out in paragraph 133 of his affidavit sworn March 20, 2020:

I believe that one of the most inappropriate abuses of her position as a senior family lawyer. was in the negotiation of our Separation Agreement. [E.L.R.] prepared an agreement that was very one-sided and gave it me at a very transitional point in my life, when I was just moving out of the condo and starting a new job. Although [E.L.R.] claimed that this agreement was "negotiated", this is absolutely untrue. [E.L.R.] discouraged me from seeking my own independent legal advice and said that I should "trust" her. There were no revisions or amendments considered. In fact, I do not even know how I could "negotiate" a Separation Agreement against a senior family law lawyer. I was comfortable signing the agreement as I truly believed, as [E.L.R.] had told me, that she was working in our family's best interests. However, it ended up being a very one-sided document. For instance, I had no idea that the agreement granted sole custody to [E.L.R.].[^20]

[85] I have already addressed the issue of joint as opposed to sole custody under the discussion of the duress issue. The agreement does not give anyone sole custody and the Respondent was aware of the difference between sole and joint custody as indicated in his notes on the first draft of the agreement submitted back to the Applicant when the January 28, 2018 agreement was being negotiated. As well, this speaks to the fact that the parties were able to negotiate the clauses contained in the January 28 agreement.

[86] As well, the Applicant does not provide any specifics of the conversation where the Respondent stated that he should trust the Applicant and in discouraging the Respondent from obtaining independent legal advice. It is a general statement and it is unknown where and when this was stated. The onus is on the Respondent to prove that his lack of independent legal advice resulted from threats by the Applicant and he fails to provide sufficient details for the court to determine that the statement was made.

[87] The Applicant complains that the third agreement signed by him on May 6, 2018 gave E.G.D. an “out” concerning parenting time when it allowed her parenting time to be subject to her “views and preferences”. However, the paragraph complaining of this in his March 20 affidavit makes it apparent that he understood this clause: he said that “Not being a lawyer and given the fact that [E.G.D.] and I had such a loving relationship, I never imagined that it would end up being invoked.”[^21] In fact, the views and preferences of a child are a crucial part of whether the child would have parenting time with a parent: see the Divorce Act, s. 16. The agreement basically stated that a child may very well determine, as did E.G.D., that she was refusing to have parenting time with a parent. Moreover, as stated a number of times above, the Respondent blames the Applicant’s alienating behaviour, not the agreements, for his deteriorating relationship with E.G.D. In short, the Respondent understood the clause and thought that E.G.D. would never have determined that she did not want to see him. In fact, E.G.D. was expressing doubts about seeing the Respondent on May 7, 2018, a day after he signed, and the Applicant expressed in that conversation that the parties could ignore the agreement and go back to the original agreement made on January 28.

[88] The Respondent also complains about s. 4.5 of the January 28 agreement which allowed him to pay the expenses of the home in lieu of child support. The provision says that D.M.S. has “no guideline child support obligation to [E.L.R.] for [E.G.D.] for so long as he is jointly sharing in the expenses for the Farm, condo, TD VISA and PC Mastercard.”[^22] D.M.S. says in his affidavit that “As I did not have independent legal advice, I did not realize this provision could be ignored and child support could still be awarded.”[^23]

[89] As noted, the January 28, 2018 agreement is a temporary separation agreement. Paragraph 8 on page 1 of the agreement reads as follows:

They [E.L.R. and D.M.S.] agree to be bound by this temporary Agreement which settles the issues set out between them. The Agreement shall be reviewed in 6 months unless the parties agree otherwise.[^24]

[90] D.M.S. does not say anything about this clause in the agreement. He did not testify that he was unaware of the temporary nature of the agreement or the right to review the clauses in the agreement including the child support clause. The agreement on its face allowed the Applicant to request that the Respondent pay full guideline child support instead of the matrimonial home expenses once the six months had expired. If the Respondent did not know that the court could “ignore” that clause, the agreement was clear on its face that it was temporary and subject to review in six months (on or after July 28, 2018) and D.M.S. did not testify that he was unaware of the temporary nature of the agreement.

[91] D.M.S. also complains of the payments owing under the second agreement dated April 3, 2018 which concerns the filing of the parties’ 2017 income tax returns and payment of expenses concerning a number of businesses operated by the parties. He complains about the $9,098.98 owing under that agreement and states that it was a payment extracted from him by the Applicant while he received no legal advice concerning these figures.

[92] Although D.M.S. asserted that the payment was unfair, he does not explain why this was the case. He did not complain about the amount of the payment on May 7, 2018 in the text message exchange which D.M.S. refers to as the “cash for access” discussion; he does not want to provide a cheque but he does not complain about the amount, just the suggestion that the access agreement might be called into question because he refused to provide a cheque to the Applicant. There is no evidence that the April 3, 2018 payment is unfair or oppressive in any way.

[93] These are simple agreements that are temporary in nature. They were intended to address the immediate issues concerning the parenting of E.G.D. and the financial arrangements between the parties which appear to have been intertwined at the time the parties separated. There is no evidence of unfairness in the agreements and the agreements contained no releasees of rights. I do not find that the lack of independent legal advice to D.M.S. was harmful to the Respondent or that it caused in an unfair result to D.M.S.

Exercise of Discretion

[94] I have determined that none of the grounds in s. 56 of the Family Law Act are applicable to the three “separation agreement” signed by the parties. However, even if I found that any of them did, then the court must determine whether, under the circumstances, it should exercise its discretion to set aside the agreements in issue: see LeVan v. LeVan, supra.

[95] At the time that D.M.S. testified in chief early in the hearing, the Applicant acknowledged that none of the agreements “matter any more.” And this is correct. The agreements were temporary in nature and since entered into, the parties have gone through a course of mediation and arbitration between September 14, 2018 and April 19, 2020 when Arbitrator Perkins resigned. The matrimonial home and condominium have been sold and D.M.S. purchased a home in Brampton with his new partner. These proceedings were then commenced. There have been arbitration awards addressing parenting issues concerning E.G.D., child support and an interim distribution of funds from the matrimonial home. The Respondent abandoned his parenting claims based upon the recommendations of the OCL on January 22, 2022. Other than the date of separation (and the first agreement acknowledges that the date to be used is the date advocated by the Respondent) and perhaps the Applicant’s claim for retroactive child support, the agreements are all largely irrelevant today. The Applicant as much as acknowledged this when she said early on during the trial that the agreements didn’t matter and could be set aside.

[96] Therefore, as with the Respondent’s request for a finding of parental alienation, the court is being asked to deal with a hypothetical issue as the Applicant acknowledges that the agreements don’t matter at present. Although he says that these agreements were highly prejudicial to him (without any real explanation), the evidence is clear that if they were harmful to him, they were only prejudicial early on in the separation of the parties. They have been largely overtaken by the arbitral awards and the Respondent’s abandonment of his parenting claims. Other than as a matter of principle, the setting aside of the agreements would be completely irrelevant to the parties today.

[97] I have spent a great deal of effort examining the circumstances which might justify setting these agreements aside. However, in any event of that result and because the agreements are irrelevant to the circumstances of the parties today, I would not exercise my discretion to set aside these agreements because the court does not deal with hypotheticals. There must be a purpose to a hearing which, in the present case, has used an enormous amount of the parties’ resources. In the present case, there is, unfortunately, no purpose to this exercise. Even if there were grounds to set aside the agreements, I would not exercise my discretion to set aside these agreements under the circumstances.

[98] The Respondent’s claim to set aside the three agreements in issue is therefore dismissed.

Arbitral Awards Dated December 21, 2018, April 10 and April 14, 2019

[99] D.M.S. seeks to set aside these awards, all of which were made on a contested basis by arbitrator Perkins. The first award dated December 21, 2018 was made after a motion argued before the arbitrator and addressed parenting issues and parenting time to D.M.S. as well as child support. The second award involved the costs of the motion and the third award dated April 14, 2019 is supplementary to the December 21 award and dismisses the Applicant’s claim for some penalties and awarded support insurance in favour of the Applicant.

[100] The Respondent was clear in his evidence that he was not seeking to set aside the Mediation and Arbitration Agreement dated September 14, 2018. He is also clear that he feels that the pre-screening for domestic violence by Arbitrator Perkins was flawed. He relies upon a subsequent independent screening by Hilary Linton which took place at the request of Mr. Ludmer and based on a referral by Arbitrator Perkins dated March 30, 2020.[^25] Arbitrator Perkins resigned after that pre-screening took place. The report of Ms. Linton was not entered into evidence at the hearing but D.M.S. says that the second pre-screening along with the arbitrator’s resignation makes it self-evident that the initial pre-screening was flawed.

[101] D.M.S. also says that when the arbitrator discovered that E.L.R. had conflicted out a number of therapists suggested by him for reconciliation therapy, he should have immediately resigned.[^26] It is unclear from the Respondent’s evidence as to when the Applicant conflicted out the reconciliation therapists or when Arbitrator Perkins was made aware of this allegation.

[102] The awards in question are not based upon agreements between the parties and are not subject to the considerations that the court reviewed concerning the agreements earlier signed by the parties. This is also not an appeal of the awards; that is a process that had to commence within 30 days of the award and was not. The Respondent confirmed that he was not intent upon setting aside the Mediation and Arbitration agreement and that would have been a challenge in any event considering that the agreement was completed with independent legal advice and it complied with the Arbitration Act, the Family Law Act and the arbitration regulations made under the FLA. Therefore, the only jurisdiction to set aside the awards is under s. 46(1) of the Arbitration Act which reads as follows:

On a party’s application, the court may set aside an award on any of the following grounds:

1. A party entered into the arbitration agreement while under a legal incapacity.

2. The arbitration agreement is invalid or has ceased to exist.

3. The award deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement.

4. The composition of the arbitral tribunal was not in accordance with the arbitration agreement or, if the agreement did not deal with that matter, was not in accordance with this Act.

5. The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.

6. The applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party’s case, or was not given proper notice of the arbitration or of the appointment of an arbitrator.

7. The procedures followed in the arbitration did not comply with this Act.

8. An arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias.

9. The award was obtained by fraud.

10. The award is a family arbitration award that is not enforceable under the Family Law Act.

[103] The only provision which may be applicable in this matter is subparagraph 6 of s. 46(1) which provides that an award may be set aside where the party was not “treated equally and fairly”. There is no evidence that any of the other factors in s. 46(1) apply to this case.

[104] I disagree with D.M.S. when he says that the failed pre-screening with Hilary Linton is necessarily evidence that the process was unfair to D.M.S. That pre-screening was confidential and was not provided to this court. However, as noted by the Applicant in her evidence, the Respondent was not the only person dissatisfied with the process. E.L.R. also says that she was not happy with the arbitration process and said in her Request to Admit dated March 21, 2022 that she had “repeatedly” said to the Hillary Linton that she “was not happy continuing in arbitration” because it did not offer the protections that the court process offered to herself and the child.[^27] There was no response by D.M.S. to that request to admit filed at the hearing and no evidence of any response by D.M.S. to the request to admit.[^28] This results in the facts contained in that request to admit being admitted to be true for the purposes of the hearing: see r. 22(4) of the Family Law Rules.

[105] The Applicant points out in the request to admit that the Respondent continued to participate in the arbitration well after the awards that the Respondent has placed in issue. She points out that the Respondent filed extensive materials for a hearing scheduled for April 27, 2020, including a 414-page affidavit dated March 20, 2020 and affidavits by seven other witnesses. She notes as well in the request to admit that there was nothing in any of the extensive evidence filed by the Respondent complaining of unfairness in the process.

[106] The Respondent was represented by counsel throughout the arbitration process and in the execution of the Mediation and Arbitration Agreement. He led no evidence as to how the arbitrator’s pre-screening was flawed other than the failed subsequent Hilary Linton pre-screening. Notwithstanding the fact that D.M.S. had requested a further pre-screening that failed, he has not satisfied me that it failed because of domestic violence or imbalances of bargaining power inflicted on him by the Applicant as she was also concerned about continuing with the arbitration for similar reasons and also complained about the process to Ms. Linton. He has also not satisfied me on the balance of probabilities that the impugned awards are the result of an unfair process or as a result of the conduct of the Applicant and he never complained of unfairness until Arbitrator Perkins had asked for a further pre-screening on March 30, 2020. There is insufficient evidence to make a finding that the arbitration process was in any way unfair to the Respondent.

[107] Therefore, I do not find that there are grounds to set aside the above arbitral awards in issue. That claim is dismissed.

Arbitral Award Dated February 29, 2020

[108] This award was originally to be made on consent. It involved a school trip by E.G.D. to Kenya. D.M.S. agreed to the trip and signed a consent to that effect. He then changed his mind, expressing concerns about the prevalence of rabies in Kenya and in Africa. Notwithstanding the withdrawal of the consent, Arbitrator Perkins determined that the travel could take place on February 29, 2020. This could best be described as a “hybrid” claim, involving both an agreement and the arbitral process.

[109] The school trip has already taken place and E.G.D. returned safely. There is no purpose to setting aside this award as the issue is complete and is not presently before the court.

[110] I decline to consider this issue as it is clearly being placed before the court as a matter of principle which is plainly no longer relevant. It is a hypothetical issue only. The claim to set aside the February 29, 2020 arbitral award is dismissed.

Claim to Strike the Pleadings of D.M.S.

[111] E.L.R. stated in her request to admit the arbitration hearing that she did not want to continue with that process. She says that the Respondent’s actions required the powers of enforcement that court proceedings provide.

[112] Unfortunately, the Applicant says she has not found satisfaction in that regard. She says that D.M.S. has wilfully breached several of the court orders that have been made. She and the Added Parties also ask to strike pleadings as a result of D.M.S.’s failure to follow the Family Law Rules.[^29] As a result, the Applicant and her parents, the Added Respondents, seek an order striking the pleadings of D.M.S.

[113] The orders that the Applicant and her parents say have been breached are as follows:

a. Order of Kaufman J. dated November 17, 2020 preventing any of the parties discussing “any outstanding issues on social media”;

b. Order of Eberhard J. dated February 17, 2022 for disclosure; and

c. Order of Jain J. dated March 28, 2022 for disclosure.

[114] As well, the Applicant and the Added Parties ask for an order striking the Respondent’s pleadings by reason of his failure to follow the Family Law Rules regarding disclosure, the Respondent’s delay of the proceedings and his alleged vexatious litigation behaviour.

[115] The authority to strike pleadings for breach of an order arises from r. 1(8) of the Family Law Rules which states:

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

[116] Rule 1(8.1) extends the powers of the court under r. 1(8) to address any breach of the Family Law Rules (other than the power to hold a party in contempt, not sought in this case).

[117] In Ferguson v. Charlton, 2008 ONCJ 1, at para. 64, Spence J. suggested a three-stage process to address breaches of court orders in a proceeding:

As may be apparent from the foregoing, I have approached the non-compliance issue by following a three-step process:

• First, the court must ask whether there a triggering event that would allow it to consider the wording of either subrule 1(8) or subrule 14(23). That triggering event would be non-compliance with a court order “in the case or a related case” [subrule 1(8)] or an order “made on motion” [subrule 14(23)].

• Second, if the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8), or by ordering that subrule 14(23) does not apply. My review of the foregoing case law suggests that this discretion will only be granted in exceptional circumstances. In my view, the court’s decision whether or not to exercise its discretion in favour of a non-complying party, ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.

• Third, in the event that the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with a very broad discretion as to the appropriate remedy pursuant to the provisions of either subrule 1(8) or subrule 14(23).

[118] In Mullin v. Sherlock, 2018 ONCA 1063 [at para. 44-46], Pepall J.A. of the Ontario Court of Appeal determined that the court should follow the following process concerning enforcement of a disclosure order under r. 1(8):

44 First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.

45 Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:

• the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;

• the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;

• the extensiveness of existing disclosure;

• the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and

• any other relevant factors.

46 Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception.

[119] The common theme in these cases is that, if there is a request to enforce the breach of a court order, particularly with respect to disclosure, only in exceptional circumstances would the court do nothing. In the now-famous words of Quinn J. in Gordon v. Starr, 2007 CanLII 35527 (ON SC), [2007] O.J. No. 3264 (S.C.J.), orders are not suggestions but must be obeyed. The policy of the court is to impose the appropriate sanction to encourage compliance with the court orders in issue and to encourage respect for the process of the court. I can only repeat Pepall J.A.’s statement in Mullen v. Sherlock, supra, that “[f]ully compliant disclosure is the expectation, not the exception.”

[120] However, the exactitude to the exercise in striking pleadings goes both ways. The Applicant and the Added Parties seek an order that would remove D.M.S. from the litigation. If the order is granted, he would no longer be entitled to lead evidence or have input into the remedies sought against him. Rule 2(8) contains a list of consequences for the failure to follow the rules or to obey a court order including the striking of pleadings. These are in the nature of both curing the problem and to sanction a party who fails to obey court orders. Although this is not a motion for contempt requiring proof beyond a reasonable doubt of a wilful or intentional breach of the order (see L.(A.G.) v. D.(K.B.), 2009 CanLII 14788 (ON SC), [2009] O.J. No. 1342 (S.C.J.)), the court is still making an enforcement order and determining sanctions for a failure to follow a court order. The breach of the order must therefore be clearly proven on the balance of probabilities and ambiguity in whether the order was followed must, in my view, be resolved in favour of the responding party because of the severity of the sanctions involved. It is not enough to suggest that the Respondent “maybe” breached the order; the breach must be clear from the evidence.

[121] Finally, I note that one of the most ineffective submissions in a case where there are alleged breaches of an order is to excuse non-disclosure or non-compliance by criticizing the order. D.M.S. did this on a number of occasions in his evidence, excusing his failure to properly disclose. He says, for example, that the Eberhard J. order respecting medical disclosure concerned an issue that was never raised by him, being his mental capacity to enter into the agreements and arbitration process that he sought to set aside. He also complained that the Eberhard J. order was “incredibly intrusive”. That is not the issue for this court at this stage of the process. The order was duly made by the court and, assuming no appeal of the order, it must be enforced. It is not my job under this rule to weigh the validity of the order; this court assumes the validity of the order in enforcing it and only reviews whether the order is sufficiently clear to allow an order to be made under r. 1(8). It is only under the exercise of discretion in imposing a consequence under r. 1(8) that the court determines the importance or seriousness of the breach of the order and whether the breach or breaches are worthy of the requested remedy.

[122] A number of issues were raised by the Applicant and the Added Parties during this focused hearing. They led evidence about delays by the Respondent, his insistence on settling the terms of an order where that was completely unnecessary or his hacking into the email account used by E.L.R. in the conduct of her legal practice. None of these were the subject matters of either court orders or can be seen as a breach of the rules; they can properly be characterized as litigation conduct. Where this may come in is in the question of costs or the background of the matter in determining whether to exercise the courts discretion to strike pleadings. As suggested by Spence J. in Ferguson v. Charlton, supra, the court should “take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party” in crafting a remedy or in exercising its discretion.

Is D.M.S. in Breach of the Rules or Court Orders?

[123] I am therefore going to concentrate on the issue of non-compliance with the various court orders in this matter. If necessary, I will go on to address any alleged breaches of the Family Law Rules.

[124] The first issue is whether there is a “triggering event” or an actual breach of court orders or the rules as advocated by the Applicant and her parents. If a breach or breaches are found, the next question is the remedy; should the court exercise its discretion to strike pleadings, thereby removing the Respondent from the litigation under the circumstances.

[125] For much of the evidence of the Respondent’s failure to comply with court orders, the Applicant relies upon a request to admit served on the Respondent on September 2, 2022.[^30] The Respondent served no response to this request to admit. In addressing this issue, the Applicant relies upon r. 22(4) of the Family Law Rules which provides that,

The party on whom the request to admit is served is considered to have admitted, for purposes of the case only, that the fact is true or that the document is genuine, unless the party serves a response (Form 22A) within 20 days,

(a) denying that a particular fact mentioned in the request is true or that a particular document mentioned in the request is genuine; or

(b) refusing to admit that a particular fact mentioned in the request is true or that a particular document mentioned in the request is genuine, and giving the reasons for each refusal.

[126] D.M.S. contradicts his admissions by failing to respond to the Request to Admit in his October 21, 2022 affidavit, where he said that he provided further responses to the requirement for his medical files on April 22 and June 8, 2022. However, he failed to provide any detailed evidence of those responses. He only provided one email from April 22, 2022 purporting to provide responses from eight more doctors. He failed to provide copies of the responses that he provided. He failed to provide his June 8 email wherein he said he provided further responses. He admits that he failed to provide medical evidence from at least three physicians.

[127] In testimony, the Respondent stated that he did not respond to the Request to Admit because he was overwhelmed by the numbers of the Applicant’s requests and their complexity and length. The evidence shows that the Applicant sent the Respondent four different requests to admit, only two of which were responded to by the Respondent.

[128] The caselaw indicates that admissions of fact, such as those deemed to be made by the Respondent concerning disclosure, are fairly well entrenched and “cannot easily be withdrawn”: see Serra v. Serra, 2005 ONCA 105 at para. 111. The Request to Admit in this matter is concerning the disclosure made by the Respondent in response to the two court orders noted above. The Respondent, by failing to respond to the facts contained in the request to admit is, under r. 22, is “considered to have admitted, for the purposes of the case only, that the fact is true”. Therefore, I find that the Respondent has admitted the truth of the facts contained in the Applicant’s request to admit the disclosure he has made.[^31]

[129] Even if the Respondent wished to withdraw these admissions, there is a process to follow. He cannot just provide testimony contrary to his admissions or complain about the requests to admit. He must bring a motion to withdraw his admissions or extend the time for filing a response which would then have allowed the Applicant to respond to that motion. That would permit the court to give fulsome consideration to whether it was in the interests of justice to permit the withdrawal. The court must conduct a hearing as to the reasons for permitting the withdrawal of the admissions or the failure to properly respond to the Request to Admit: see r. 22(5). Certainly, the court should not deprive a party from the use of a request to admit unless there is good reason to do so such as inadvertence or an abuse of process.

[130] D.M.S. did not follow this process; he just complained in testimony about the number of and complexity of the requests to admit served by the Applicant and then gave some testimony contradicting his own admissions. I cannot find, in that behaviour, a formal request by the Respondent to withdraw his admissions concerning disclosure.

[131] I would finally note that in his testimony, the Respondent acknowledged that the majority of the facts contained in the Request to Admit were accurate. He did not actually contradict that the disclosure attached to the request to admit was not what he provided but chose to complain about the order itself, or state that the disclosure that he provided was, in fact, responsive to the court order.

Order of Kaufman J. dated November 17, 2020

[132] The Applicant began these proceedings days after the resignation of Arbitrator Perkins by an application filed on April 27, 2020 in Oshawa, the judicial district in which E.L.R. and E.G.D. lived.

[133] One of the major issues for E.L.R. was her privacy and that of her daughter. By the time this application was issued, it was apparent to all that this had become a high conflict case involving sensitive and embarrassing evidence. This was an issue for E.L.R. as she was a lawyer practicing family law in Durham region.

[134] The privacy issues were canvassed by Justice Kaufman on a 14B motion brought by E.L.R. On November 17, 2020, he issued an endorsement. In addition to ordering that the matter would be case managed in Bracebridge and tried by a Newmarket justice in Oshawa and in response to a request that the file be sealed, he ordered that “no party to this proceeding shall discuss any of the outstanding issues on social media from this day forward.” He also said, in making this order, that:

A breach of this Order would have the effect of potentially impacting the child either now or in the future and will be viewed quite seriously by the court.

[135] The Applicant says that the Respondent has, indeed, breached that order. She says that he has discussed the issues as disclosed by the evidence of a friend or acquaintance of the parties, Samantha Kerr, who lives in the Northwest Territories and is active on social media.

[136] Ms. Kerr’s affidavit discloses that after the parties separated, she began to receive communications from D.M.S., D.M.S.’s mother and Wendy Baker, D.M.S.’s partner. Ms. Kerr blocked D.M.S. after receiving communication that she “did not believe or consider appropriate.”[^32]

[137] On December 31, 2020, soon after the order was made by Kaufman J., she received a communication from a Facebook friend, Lance Hogue. Mr. Hogue said that he had received communication from D.M.S. which was attached as an exhibit to her affidavit. D.M.S. had told Mr. Hogue that E.L.R. was “withholding access” to E.G.D. and asked Mr. Hogue to reach out to Ms. Kerr to have her speak to E.L.R. regarding his access. D.M.S. complained that he had not seen E.G.D. for 850 days and that Ms. Kerr had blocked him due to “false allegations”. D.M.S. asked Mr. Hogue to ask Ms. Kerr to “challenge her those own beliefs” and reach out to E.L.R. about seeing E.G.D.

[138] There was a lot of talk during the trial about whether the Respondent reaching out through Facebook Messenger was a breach of the order preventing him from “discussing” the issues in this litigation on social media. However, Facebook Messenger is facilitated through Facebook which is a social media platform. The order prevents “discussing” and does not speak to posting on social media. If sent after the Kaufman J. order, this would clearly be a breach of the order.

[139] However, the message from Mr. Hogue is undated. He does not tell Ms. Kerr when the message was sent to him. He does not even say anything like “I just got this” or “this was just sent to me”. I do not have clear evidence that D.M.S. sent the message after Kaufman J.’s order and he did not acknowledge that in his testimony.

[140] Because there is no proof of when D.M.S. reached out to Mr. Hogue, I do not find the communications to Mr. Hogue to be a breach of the court order in this matter.

Order of Eberhard J. dated February 17, 2022

[141] On February 17, 2022, the parties argued disclosure motions brought by both E.L.R. and D.M.S. before Justice Eberhard of this court. She made a comprehensive disclosure order against both Applicant and Respondent.

[142] Large portions of that order were repeated by Justice Jain about a month later, effectively to change the date to provide disclosure based upon the adjournment of a temporary motion for which the disclosure was necessary.

[143] Justice Eberhard, in her endorsement, commented that in nearly four years of litigation, firstly before Arbitrator Perkins and then before this court, no comprehensive disclosure had ever been ordered. She approached the situation as she would have approached a first case conference as it was largely unclear as to what had been disclosed and what had not. She ordered child support against D.M.S. who was not, at the time of the motion, paying support for E.G.D. She finally ordered disclosure against both parties. The items considered here will be the disclosure she ordered (later repeated in Justice Jain’s order of March 26, 2022).

(a) Fresh Financial Statement

[144] Eberhard J. ordered that the “Applicant and Respondent shall each file a fresh Financial Statement by March 30, 2022”. According to the evidence, that financial statement was not received from D.M.S. until the day after it was due, March 31, 2022.[^33]

[145] According to the Applicant, the financial statement was “not in accordance with Rule 13 no supporting documentation”. As well, the Applicant says that the financial statement did not correct the “errors the Respondent undertook to correct as required by Justice Jain on June 25, 2021.” [^34]

[146] I have reviewed the endorsement of Justice Jain made on June 25, 2021. The only errors that she said had to be corrected in both parties’ financial statements were the failures to properly initialize the names of the parties and the child. There was nothing else in that endorsement that required the correction of errors in the Respondent’s financial statement; the majority of that endorsement concerned the Applicant’s request for the removal of Mr. Ludmer as solicitor for D.M.S. due to a conflict of interest and scheduling that motion (which was never heard because the Respondent signed a Notice of Change in Representation).

[147] A review of Justice Eberhard’s endorsement dated February 17, 2022 indicates that the Applicant and Respondent were both asked to file fresh financial statements. From the endorsement, it appears that this provision in the order was intended to address the Respondent’s contemplated child support hardship motion which was scheduled for April 28, 2022. Again, as far as I can see, this motion never went ahead and the Respondent continues to pay the child support under the order of Eberhard J. of that date.

[148] The Applicant alleges numerous errors in in the Respondent’s financial statement that was filed in response to this provision of the Eberhard J. order.[^35] She submits that these errors or inconsistencies in the financial statement constitute a breach of the Eberhard J. order requiring the Respondent to file a “fresh” financial statement.

[149] However, the inconsistencies or defects in the Respondent’s financial statement sworn April 28, 2023 is not the issue. The issue is whether the Respondent complied with the Eberhard J. order requiring him to file a fresh financial statement. The Applicant acknowledges that D.M.S. did file a financial statement, albeit a day late. No one entered as an exhibit at this hearing the financial statement that the Respondent had last filed and referred to in the endorsement of Justice Jain dated June 25, 2021. The August 31 financial statement was also not made an exhibit at this trial and I have no way to review whether it was “fresh” as opposed to the earlier financial statement filed by D.M.S. I therefore cannot find a breach of the Eberhard J. order to determine whether the Respondent complied with this provision in the order.

[150] I therefore do not find the Respondent to be in breach of para. 6 of the order of Eberhard J. dated February 17, 2022. I note that this does not necessarily mean that the Respondent’s financial statements are compliant with r. 13, which is another issue. However, as far as I can determine, the Respondent filed a fresh financial statement for his hardship motion that never went ahead and accordingly was in compliance with the Eberhard J. order.

(b) Medical Files of Respondent from January 1, 2018 to April 18, 2020

[151] On February 17, 2022, Eberhard J. ordered that the D.M.S. provide his OHIP billing summary for the time period of January 1, 2018 to April 18, 2020. As well, she ordered that the Respondent disclose “his medical file as maintained for all medical professionals that treated him for the period January 1, 2018 to April 18, 2020 (the period of time when the Respondent has put his mental capacity at issue) or a detailed report from the principal medical professional in charge.”

[152] This was in connection to D.M.S.’s claim to set aside the agreements and the arbitral awards already considered (and dismissed) in this endorsement. There was no evidence led by either party during this hearing as to D.M.S.’s mental capacity to sign the agreements or to participate in the arbitration.

[153] D.M.S. disputed the findings of Justice Eberhard that he had ever put his mental capacity in issue. He said that the order resulted from misrepresentations made to the court by E.L.R. He calls the Eberhard J. order for medical disclosure a “an unimaginably intrusive violation of my medical privacy.”[^36] However, that issue is not for me to determine; nor is it relevant to this inquiry. The order was not appealed and therefore stands. The order has not been set aside under any applicable rule. The only thing that I need to determine at this stage is whether the Respondent is in breach of this order.

[154] As it turns out, there was no medical professional in charge during this period of time. Nor did D.M.S. have a family doctor at this time. According to his medical summary that he provided in response to the Eberhard J. order, D.M.S. saw 13 physicians. He said that the affidavit that the response was his “compliance with best efforts to obtain the disclosure required by [Justice Eberhard’s order].”[^37]

[155] By the due date set out in Eberhard J.’s order, D.M.S. was able to provide medical disclosure from 4 of the 13 doctors that he saw during the relevant time period. According to his affidavit, he eventually provided some medical disclosure regarding other physicians and deposed in his October 21 affidavit that he had provided disclosure from 11 of 13 physicians. He attaches an email dated April 22, 2022 which apparently provided notes from 8 medical professionals (the disclosure itself was not provided during trial). He said he provided more disclosure from three other doctors by email dated June 8, 2022 (also not provided).

[156] The Applicant provided, through the request to admit, prima facie evidence that the Respondent had only provided medical disclosure for 4 of 13 doctors that he consulted with during the pertinent period of time. The Applicant’s request to admit was served on September 1, 2022 and was never answered. The Request asked the Respondent to admit that this answer to that provision of the Eberhard J. order was his response to her order for medical disclosure and that “[b]etween April 1, 2022 and August 31, 2022, DMS has provided no other disclosure related to his disclosure obligations under the Orders of… Justice Eberhard dated February 17, 2022”.

[157] That evidence is therefore conclusive as to the Respondent’s disclosure based upon r. 22(4) of the Family Law Rules

[158] I find that D.M.S. is in breach of the medical disclosure provision from the order of Eberhard J. and remains in breach of this provision.

(c) Personnel file from the Respondent’s employer, General Motors of Canada

[159] Justice Eberhard’s order required the Respondent to produce his own human resources file with his employer, General Motors of Canada, between January 1, 2018 to April 18, 2020. Again this was concerning the claim that the Respondent did not have the mental capacity to address the agreements and arbitration process. Also, again, this was not a “best efforts” or “reasonable efforts” order; it was unequivocal and mandatory.

[160] It is acknowledged that the file was not produced. D.M.S. testified that when he tried to obtain the file, he was told by his employer’s HR department that they required a court order to produce the file.

[161] He refused to obtain a court order. He testified that it was unreasonable to expect him to sue his own employer. He also again claimed that he never put his mental capacity in issue and that this order was obtained through misrepresentations by the Applicant to the court.

[162] A motion for third party disclosure under r. 19(11) is not the same as suing your own employer. It is a requirement to obtain disclosure or documentation from a non-party and, in fact, D.M.S. was invited by his employer to obtain that court order. There is no evidence that a third party disclosure motion would have put his employment in jeopardy. Notwithstanding his obligations under the Eberhard J. order and the lack of proven risk to obtaining a disclosure order from his employer, D.M.S. failed to take all reasonable steps to obtain the personnel file that he was obligated to provide.

[163] D.M.S. was therefore required to produce the personnel file and did not take all reasonable steps to obtain that documentation. He is in breach of this provision of the Eberhard J. order.

Order of Jain J. dated March 28, 2022

[164] Justice Eberhard’s February 22, 2022 order contained extensive disclosure requirements for D.M.S. concerning “the issue of child support and the Respondent’s claim for spousal support from the Applicant, E.L.R. (the “Applicant”)”. That disclosure was due under that order “30 days before any motion to readjust the temporary order for child support”. That presumably was going to be the Respondent’s hardship motion then set down for April 28, 2022.

[165] On March 28, 2022, Justice Jain considered three 14B motions. One of these was brought by D.M.S. to adjourn his hardship motion. Justice Jain granted this order. She also ordered that the disclosure ordered by Eberhard J. concerning the motion be provided by April 22, 2022. She did this by re-ordering the disclosure previously ordered by Justice Eberhard:

On or by April 22, 2022, the Respondent DMS shall serve all the items of disclosure listed at number 1 (a) - (m) and ordered by Eberhard J. in her endorsement dated February 22, 2022.

[166] E.L.R. has suggested that the order that the Respondent is now in breach of is that of Justice Jain dated March 28, 2022. However, as Justice Jain adopted the Eberhard J. order in extending the time for the provision of disclosure, to determine breach, reference has to be made to the provisions of the latter order.

(a) Accounting of the $200,000 received through Minutes of Settlement signed on May 23, 2019

[167] These monies were paid to the Respondent pursuant to Minutes signed as part of the arbitration process noted above. Arbitrator Perkins made these Minutes into an arbitration award on February 24, 2020.

[168] It may be recalled that D.M.S. had originally sought to set these minutes aside, but changed his mind nine days into the hearing and abandoned that claim. I subsequently ordered that Arbitrator Perkins’ February 24, 2020 award be converted into a court order pursuant to s. 59.8 of the Family Law Act.

[169] By the time of the disclosure motion, most if not all of the $200,000 was gone. D.M.S. said that he owed a substantial amount of legal fees and that he bought a home. Dissipation of exigible funds by the Respondent is an emerging issue. Justice Eberhard ordered that D.M.S. provide “a full accounting for the $200,000 that he received in May 2019 under the Minutes of Settlement executed May 23, 2019”.

[170] All that D.M.S. provided pursuant to this item of disclosure was a series of bank statements from May 1 to October 31, 2019 for his Scotiabank Power Chequing Account ending with **5725. Although the bank statements showed the funds (after legal fees) being deposited, they only disclose unspecified transfers and withdrawals without any explanation of where the money went.

[171] An accounting is defined as a “detailed statement of the debits and credits between parties to a contract or to a fiduciary relationship; a reckoning of monetary dealings.”[^38] Disclosure of the Respondent’s bank accounts is not an accounting where the funds are withdrawn or transferred without any specific evidence of or explanation as to the destination. Disclosure of ‘debits and credits” implies that there must be an explanation as to the source of funds and where the funds went.

[172] That was not provided. For example, there were, on May 30, 2019, payments from that account on account of the Respondent’s various credit cards. There was no accounting of what these credit card debts were in relation to, which an accounting would have addressed. Although some credit card statements were provided,[^39] they do not contain an explanation of the expenditures paid by the withdrawals from the account and D.M.S. said that he only provided credit card statements showing payments of legal fees. An example is that the Scotiabank chequing account shows a May 30, 2021 payment of $25,187.26 made on account of one TD Visa credit card and $26,225 on account of a second TD Visa credit card, neither of which are explained. It is unknown as to which of his two TD Visa credit cards were addressed by each of these payments. The TD Visa credit card statements provided were illegible and incomplete. There were other unexplained payments to the credit cards, but no explanation is provided. An accounting would have traced those funds back to the credit cards which were repaid in May, 2019; that was not done. What was provided by D.M.S. was no accounting by any stretch of the imagination.

[173] An accounting involves an explanation of where the funds went. All that the Respondent provided was some raw data so that the Respondent and Added Parties could conduct their own accounting. That is not an accounting; it is nothing other than the first step in the accounting. Moreover, the information provided was incomplete and even if the Respondent and Added Parties were expected to conduct their own accounting using that data, they could not have done so.

[174] D.M.S. in his testimony was unrepentant about his failure to provide the accounting, stating only that he complied with the court order. Unfortunately, he did not.

[175] D.M.S. is in breach of the requirement in both Eberhard J.’s order and Justice Jain’s order requiring a full accounting of the $200,000 received pursuant to the May 23, 2019 Minutes of Settlement.

(b) Credit Card Statements

[176] Again in connection with the Applicant’s child support claim and the Respondent’s spousal support claim, Justice Eberhard ordered disclosure concerning a number of the D.M.S.’s credit cards. Justice Eberhard ordered that the Respondent produce “full copies of the Respondent’s unredacted credit card statements showing the purchases made to incur debts that the Respondent lists for each of the following credit cards on his financial statement sworn January 6, 2022.” The credit cards are listed in the order.

[177] I note that no one saw fit to enter the January 6, 2022 financial statement referred to by Justice Eberhard as an exhibit. I was provided, however, with D.M.S.’s October 24, 2022 financial statement; it indicates that several of the credit cards did not exist on Valuation Day and that the credit card balances were low on both Valuation Day and on October 25, 2022. I am safe, therefore, to assume that the balances noted by Justice Eberhard in her decision were as of January 6, 2022, the date of the swearing of the financial statement which was before her at the motion.

[178] D.M.S. did provide some but not all statements as ordered. By way of general comment, the incomplete statements provided did not entirely (or at times at all) prove the debt. Although unredacted, a number of the statements were illegible and could not be read. Moreover, D.M.S. is clear in his explanatory covering memo for the disclosure that he is only including statements “paying out for legal services”, a limitation not set out in Justice Eberhard’s disclosure order which required proof of all payments made leading up to those balances. Particulars are as follows:

i. TD Canada Trust VISA account ending 1153 in the amount of $27,156

[179] D.M.S. provided two statements for this credit card. The first was the March 21, 2021 statement; the second was the statement for April 27, 2021.

[180] The first statement shows an opening balance of $5,718.25. The purchases leading to that opening balance are unexplained. That statement does show purchases which resulted in a closing balance of $14,268.07; however, the list of purchases is largely not legible and cannot be read.

[181] The same applies to the second statement. It shows an opening balance of $14,268.07. It shows purchases leading to a closing balance of $25,366.63. Again, much of the statement is blurred and cannot be read. The statement does not disclose what it was supposed to under the Eberhard J. order, which is to disclose the “purchases made to incur” the Respondent’s debts claimed on his financial statement. Again, there is no limitation that all that D.M.S. had to disclose were the legal fees paid by the credit card.

[182] The disclosure never shows a TD Visa debt of $27,256. No explanation was offered by the Respondent of this discrepancy and there was no clarity as to which of the Respondent’s two TD Visa credit cards each payment was made.

[183] When cross-examined about the statements, he said that they were blurred to keep the documents below a certain number of megabytes. As I understand it, he said that he was ordered to provide documents by PDF (as opposed to links which the Applicant alleged had introduced a virus to her computers) and because of this, clearer documents could not be sent. He also said that the documents could be read.

[184] My review of the TD Visa statements attached to the unanswered request to admit is that they cannot be easily read and at least one page of the April 27 statement is completely unreadable. There was nothing preventing D.M.S. from providing hard copies of the disclosure rather than by PDF; in fact, he was alleged to have provided a box full of unorganized documents on the eve of this trial. D.M.S. claimed when he cross-examined E.L.R. that he had provided legible statements that day (December 6, 2023); E.L.R. answered that he had provided some legible statements. Copies of the legible statements that he said were provided were not put to the witness by D.M.S. and never brought into evidence.

[185] Based on the evidence before me, D.M.S. was and remains in default of the obligation to provide the TD Visa credit card statements as ordered for the purposes intended by the order of Eberhard J.

ii. TD Canada Trust VISA account ending 9945 in the amount of $25,617

[186] Concerning this card, the Respondent provided more than two statements. He provided statements going back to July 16, 2018. He also provided statements for August 15, 2018, September 17, 2018, October 15, 2018, November 15, 2018, December 17, 2018, August 15, 2019, September 15, 2019, January 15, 2020, April 15, 2020 and May 15, 2020 summarized as follows:

Statement Date

Opening Balance

Closing Balance

July 16, 2018

$1,581.80

$5,999.12

August 15, 2018

$5,999.12

$906.46

September 17, 2018

$906.46

$2,999.46

October 15, 2018

$2,999.46

$5,594.43

November 15, 2018

$5,594.43

$14,742.10

December 17, 2018

$14,742.10

$25,324.57

August 15, 2019

-$0.26

-$0.48

September 19, 2019

-$0.48

$3,687.84

January 15, 2020

$3,360.02

$6,358.40

April 15, 2020

$6,273.47

$19,348.41

May 15, 2020

$19,348.41

$24,361.62

[187] Although the statements are slightly more legible than the statements for the card ending in 1153, the disclosure makes little sense. The statements were intended to show the purchases leading to the balance owing of $25,617 as of the date of the swearing of the Respondent’s financial statement. The earlier statements from 2018 and 2019 appear to be irrelevant to this issue as the balance due on the credit card in the statements from August 15 and September 15, 2019 show no balance owing. The September 15 statement shows a closing balance of $3,687.84 but the next statement provided is from January 15, 2020 which has a different opening balance of $3,360.02. After that date, the balance builds up to May, 2020 of $24,361.62. That amount is not the amount set out in D.M.S.’s financial statement. There is no statement as of January 6, 2022, the date the financial statement in issue was sworn. It appears that most of the payments made on this credit card are relating to the Respondent’s legal, arbitration and pre-screening costs in this matter and this is in accordance with the Respondent’s narrative attached to the disclosure.

[188] Again, a review of the statements does not provide me with clarity as to all of the Respondent’s expenditures leading to the balance that was owing as set out in the Respondent’s financial statement. Although the balances that were paid from the Respondent’s Scotiabank chequing account were similar to the credit card balances, how those balances that were repaid was not accounted for by these statements, neither of which showed the payment bringing the card down to zero. This is all related to the Respondent’s failure to provide the accounting concerning the money received by him under the consent arbitral award. However, disclosure is intended to answer certain questions, which was, in this case, to arrive at the purchases made to arrive at the balance set out in the Respondent’s financial statement. That question remains only partially answered. I find that the Respondent has failed to comply with the order of Eberhard J. concerning this particular credit card.

iii. Scotiabank VISA account ending 6037 in the amount of $23,397

[189] These statements are entirely readable.

[190] The Respondent supplied, in response to this part of the court order, statements as follows:

Statement Date

Opening Balance

Closing Balance

December 4, 2018

$10.99

$6,540.07

January 3, 2019

$6,540.07

$10,770.31

February 4, 2019

$10,770.31

$20,307.84

September 4, 2019

$152.82

$777.88

December 2, 2020

$9,805.47

$20,625.26

February 2, 2021

$22,648.87

$23,391.17

July 5, 2021

$23,511.59

$23,119.35

[191] Although these credit card statements could have assisted in the accounting that D.M.S. was ordered to provide (as they partly show how the balance paid off in May, 2019 was arrived at), they do not achieve the purpose that Justice Eberhard gave to this disclosure, which was to show the purchases leading to the balance owing as shown in the Respondent’s January 6, 2022 financial statement. There is no explanation or statements to show how the opening balance in the December 2, 2020 credit card statement was arrived at. There were no statements for January, 2021 or March, April, May and June of 2021 and nothing after July 5, 2021. The balance shown on July 5, 2021 is not the same as deposed to by D.M.S. in his January 6, 2021 financial statement. Again, this may be a result of D.M.S.’s arbitrary decision to limit the statements to expenditures for legal fees.

[192] The Respondent failed in making disclosure of all of the purchases concerning this card leading to the balance as set out in January 6, 2022 financial statement.

iv. Capital One account ending 6236 in the amount of $10,249

[193] Again, these statements were entirely legible.

[194] The following statements were provided:

Statement Date

Opening Balance

Closing Balance

February 25, 2019

9.46

$5,135.74

March 25, 2019

$5,145.59

$7,676.59

April 25, 2019

$7,676.59

$9,724.26

June 25, 2020

Nil

$7,376.64

September 25, 2021

$6,474.04

$10,070.62

[195] These credit card statements again appear to go to the issue of the accounting ordered by Justice Eberhard as there is a partial explanation as to the debts paid in May, 2019 from the Respondent’s advance from the sale of the matrimonial home.

[196] However, again, the statements do not answer the primary question behind the order to produce proof of purchases leading to the balance owing as set out in the January 6, 2022 financial statement. There are no statements between June and September, 2021 and the statement relevant to the date of the financial statement is missing. Although it can again be seen that much of the balance was run up for legal fees, this is, at best, a partial explanation of the purchases made. The balance again differs slightly from the balance set out in the financial statement and there is no explanation for this. Concerning this credit card, the Respondent is not in compliance with the Eberhard J. order.

v. RBC Mastercard in the amount of $4,284

[197] Only one statement was provided for this credit card, being the statement for May 7, 2021. It shows a balance forward of $1,045.41. The final balance as set out in this statement was $3,095.06.

[198] The balance forward is unexplained. The amount outstanding on May 7, 2021 bears no relation to the amount set out in the January 6, 2022 financial statement. There is no explanation for either of these issues.

[199] The Respondent is not in compliance with the disclosure order of Justice Eberhard respecting the RBC Mastercard.

(c) CIBC Line of Credit

[200] Justice Eberhard ordered that the Respondent produce “full copies of the Respondent’s CIBC line of credit statements for the account 02242-**-87831 showing all advances that result in the balance owing of $10,248 on January 6, 2022”.

[201] The disclosure provided was of all of the Respondent’s line of credit statements from November 6, 2019 to January 6, 2022. The first statement shows a nominal balance while the last statement shows a balance owing of $10,121.86.

[202] E.L.R. complains that the balance is different from that shown on the financial statement. The point of this disclosure is to prove what was outstanding as of the date of the Respondent’s financial statement and how that was arrived at.

[203] The Respondent is in substantial compliance with this provision in the court order.

(d) Details re Purchase of 220 Townhouse Crescent in Brampton, ON

[204] Under para. 7(d) of the order of Eberhard J. dated February 17, 2022, the Respondent was ordered to produce:

any notes or title instruction, full details of the source of the funds (i.e. cancelled cheques or lawyer’s trust statement) in the amount of $91,000 deposit and the reporting letter from the real estate lawyer’s file for the purchase of the property known municipally as 220 Townhouse Crescent in Brampton on or around April 30, 2020 that was put into the joint title of the Respondent and Wendy Michelle Baker;

[205] The Respondent produced a largely redacted and also largely illegible trust statement which appears to be for the sale of a property owned by Wendy Baker. He also provided a copy of the trust statement from the purchase of the Townhouse Crescent property (Document W). There were no notes or title instructions or lawyers’ reporting letter for the purchase of that property although one was undoubtedly received.

[206] The trust statement shows that Wendy Baker received something from the sale of the property but the figure is not legible. Because the trust statement cannot be read, it fails to show the source of the deposit as ordered.

[207] A more legible trust statement was later provided to the Applicant but was never made a trial exhibit.[^40] D.M.S. said in testimony that he provided a more legible copy of the trust statement in October, 2022, but failed to submit that more legible copy as an exhibit or prove that he did provide it notwithstanding the fact that he could have easily done so in his re-examination to his cross-examination (during which he provided four exhibits on unrelated issues) or in his reply evidence.

[208] As was the case with much of D.M.S.’s disclosure, by hunting through other items of the disclosure, some light was shed on this particular item of disclosure. D.M.S. provided heavily redacted bank account statements for Wendy Baker as his disclosure of details of the $28,472 loan that he says is owing by him to Wendy Baker. That document shows a withdrawal from April 30, 2020 for $90,048.96 for which D.M.S. noted on the statement as being the “house down payment”. However, because of the redactions, all that we know is that there was a withdrawal on that date. The destination of the funds is redacted as are many of the deposits and the ongoing balance in that account. All that these two items of disclosure show is that Wendy Baker received some money from the sale of her home and that there was a $90,048.96 withdrawal from her account on April 30, 2020. In Document W attached to the Respondent’s disclosure memo, there is a trust ledger from the solicitor handling the purchase showing that he received a slightly different amount[^41] to pay the cash to close the transaction. There is no reporting letter or closing date or date of receipt of the funds on the statement of adjustments; the Respondent asks us to assume that the cash to close this transaction came from Wendy Baker’s bank account.

[209] The trust statement combined with the bank statements provided in response to para. 7(d) of the Eberhard J. order does not permit the reader to know how much Wendy Baker received from the sale of her property or when she received it. Other than the trust statement (Document W), there are no documents concerning the purchase of the property as ordered by Justice Eberhard. There is insufficient disclosure to determine where the $91,000 came from due to the redactions in Ms. Baker’s bank accounts and due to the failure to provide a reporting letter combined with discrepancies as to the amount withdrawn and paid to the solicitor. The Respondent is therefore in breach of para. 7(d) of Eberhard J.’s order of February 7, 2022.

(e) Documents Submitted for Mortgage Application

[210] In para. 7(e) of the Eberhard J. order, D.M.S. was ordered to provide “all documents submitted and information provided to obtain a mortgage on or about April 30, 2020 with the Royal Bank of Canada in the principal amount of $364,000”

[211] According to the request to admit, D.M.S. provided the Applicant and the Added Respondents with his General Motors Compensation Notice, his T4 slip for 2019, his pay stub for the pay period ending February 15, 2020, a copy of the listing (to show taxes and condo fees) and the agreement of purchase and sale for the condominium.

[212] D.M.S. failed to provide the mortgage application itself. He testified that he was never provided with it and because of COVID, the application was completed in a parking lot. However, when asked if he went to his bank to ask for a copy of that application, he admitted that he did not.

[213] By signing the mortgage application, this was one of the documents that was “submitted” by the Applicant to obtain his mortgage. He was obliged to provide it if he could. He made no effort to obtain that document from the mortgage provider (which would have also listed and confirmed other documentation provided with that application).

[214] By failing to obtain and produce the mortgage application, the Respondent is in breach of this provision of the order.

(f) Proof of $28,472 Loan from Wendy Baker to D.M.S.

[215] Under para. 7(f) of Justice Eberhard’s order, the Respondent was ordered to produce:

details of each advance and the source of the funds with copies of bank statements or cancelled cheques to support same, detailing the loan and documents for the loan to the Respondent from Wendy Michelle Baker for $28,472 shown in his Financial Statement sworn January 6, 2022;

[216] The Respondent has provided, as noted above, heavily redacted bank statements of Ms. Baker’s RBC account. In his correspondence attached to the disclosure, D.M.S. says “see document M for mortgage payments and payments to Joseph Neuberger on my behalf based on verbal agreements.”

[217] It is apparent that the Respondent expected the Applicant and the Added Respondents to go through these bank statements and figure out whether the advances totaled the amount set out in the financial statement. He provides no details of “each advance”. For example, who is Joseph Neuberger or “Joseph” who is the recipient of a number of etransfers from Ms. Baker? And what has that to do with the “loan” claimed by the Respondent? And why is the whole of each mortgage payment a debt owing by the Respondent to the Applicant (presumably at least one half of each payment was for Ms. Baker’s own benefit as she was an owner of at least one half of the property)? What is the nature of the “verbal agreements”? Are they loan agreements? Do these payments total $28,472 or does the Respondent expect the court or the Applicant to just add them all up and figure it out?

[218] This disclosure is unresponsive and incomplete. I do not find the Respondent to be in compliance with Justice Eberhard’s order concerning the “loan” to Wendy Baker.

(g) Vehicle Loan Application

[219] In para. 7(g) of her order, Eberhard J. required the Respondent to disclose:

the loan application made in May 2018 by the Respondent in order to obtain the vehicle loan of the purchase of the 2018 Chevrolet Volt at TD Canada Trust that had an outstanding balance of $20,490 on January 6, 2022;

[220] D.M.S. has provided a largely incomplete loan application dated August 5, 2018 for the purchase of the Chevrolet Volt.

[221] I am not going to assume that the Respondent falsified the loan document that he submitted for the vehicle loan. There is no evidence of this and that was not put to D.M.S. during the trial. Although the loan application may have been fodder for cross-examination (as well as a source of wonder that the vehicle loan could be based on such an incomplete application), the Respondent has complied with this item of disclosure.

(h) Failure by Respondent to Report Cohabitation with Wendy Baker in his 2020 Income Tax Return

[222] Under para. 7(h) of the order, D.M.S. was ordered to provide,

an explanation why in his Amended Answer/claim filed January 6, 2021 and his Form 35.1 Affidavit in Support of Parenting he stated that he began living with his “partner”, Wendy Michelle Baker, in 2019 and continues to cohabit with Wendy Michelle Baker but failed to report that cohabitation in the filing of his 2020 income tax return

[223] D.M.S.’s explanation was simple:

I stated my marital status as separated on my income tax return as separated since 2018 which is a fact.[^42]

[224] However, that is not an explanation. As noted by numerous Tax Bulletins and in CRA requirements under the Income Tax Act, any changes in marital status during the taxation year must be reported to CRA, including cohabitation within one month of the change.[^43] The court may take judicial notice of government publications or notices: see J.N. v. C.G., 2023 ONCA 77. The Respondent’s marital status affects, for example, the entitlement of Wendy Baker to her child tax benefit as this is determined by her income combined with her common law spouse’s income: see for example Guest v. Canada, 2010 TCC 336, [2010] T.C.J. No. 241. D.M.S. fails to explain why he failed to report that change in status and also failed to explain why he retained his previous year’s marital status, which was “separated.” By moving in with Ms. Baker, he lost his separated status which became “cohabiting” which should have been reported to the CRA.

[225] D.M.S. said in testimony that his accountant told him that he could retain his “separated” status even while living common law. It is doubtful that the accountant would have said this since the Canada Revenue Agency requires a taxpayer to advise as to a change in his marital status one month after the status changes.

[226] Section 248(1) of the Income Tax Act defines a common law relationship as one where the taxpayer resided with his partner for at least a year. Ms. Baker’s affidavit confirms that she and D.M.S. began cohabitation in July, 2019 and this means that the Respondent was in a common law relationship with Wendy Baker as defined by the ITA from July, 2020 on. It is no answer to say that D.M.S. remained separated; although separated, by the end of 2020, he was by then in a common law relationship which had by then become his new marital status. He was no longer separated as defined by the ITA and he had a duty to provide that updating information in his return (if not earlier). He failed to address in his disclosure why he reported the outdated information that he remained separated.

[227] The Respondent has not complied in any meaningful fashion with the requirement of Justice Eberhard’s order to advise as to why he failed to advise as to a change in his marital status in his 2020 income tax return.

(i) Income Tax Returns and Notices of Assessment for Wendy Baker for the 2019, 2020 and 2021 Tax Years.

[228] Under para. 7(i) of the order, D.M.S. was to provide tax information concerning his common law spouse, Wendy Baker:

a full copy of the income tax returns, notices of assessment and notices of all tax benefits and/or grants received including child tax benefit or disability benefit received by Wendy Michelle Baker for the calendar years 2019, 2020 and 2021

[229] It is to be noted that this obligation was not to request that information from Wendy Baker. It was to provide it. It is unequivocal and without regard to whether Ms. Baker was willing to provide it or not.

[230] D.M.S. failed to provide any income tax returns. He did provide two heavily redacted Notices of Assessment for 2019 and 2020. He provided nothing for 2021.[^44] He says that the benefits that Ms. Baker received over those years can be obtained from her bank statements (Document M).

[231] In fact, the bank statements only cover the period between April 2, 2020 to January 4, 2022. There are no bank statements for 2019 or for the first three months of 2020. The benefits received from the Government of Canada cannot be determined for the time period for which the statements are missing. As well, it is difficult to determine from deposits what benefits Ms. Baker was entitled to or actually received throughout the currency of those statements which are, as previously noted, heavily redacted.

[232] As well, what was clearly contemplated by the order was “complete” tax returns, Notices of Assessment and the Notices concerning the tax benefits payable to Ms. Baker. Two redacted Notices of Assessment are none of these. The Notices of Assessment are clearly not “complete” and the other documents are missing. There are no tax returns and there is also no Child Tax Benefit Notices in the disclosure. The intention of the Eberhard J. order was that D.M.S. provide what Ms. Baker was entitled to, not what she actually received (which was also not provided).

[233] In testimony, D.M.S. says that Wendy Baker refused to provide anything other than the redacted Notices of Assessment to him. He says that Ms. Baker was worried about the Applicant’s “predatory behaviour”. He says that he provided all that he could.

[234] Ms. Baker testified at trial and cooperated in the Respondent’s presentation of his evidence. She provided evidence on behalf of the Respondent and provided an affidavit which was favourable to the Respondent. She did not mention the income tax returns in her affidavit, but in cross-examination, she was asked about whether she would assist D.M.S. in complying with the disclosure orders. She responded by saying that she was not going to provide anything because it was “not [E.L.R.’s] affair.” She also said that she would not give the information because “the Applicant will try to take whatever money that I have in the property.”

[235] That statement is indicative of Ms. Baker’s attitude towards the court process. She will provide evidence to assist D.M.S. in this litigation, but will not provide anything that she sees as being unfavourable to her position or that of D.M.S. She does not appear to understand that she has placed herself in the crosshairs because she has participated in a transaction (in transferring the equity in the home to herself) which had the net effect of making D.M.S. judgment proof through the transfer of his major asset, the equity in this home, out of his name.

[236] In any event, her feelings about the matter are not determinative of the issue of D.M.S.’s compliance with the Eberhard J. court order. As noted, the order is not a “best efforts” order or an order that all that D.M.S. has to do is to request the tax returns and Notices from Ms. Baker. D.M.S. did not appeal the order or attempt to set it aside. The order requires D.M.S. to produce these documents and he did not. If he had to, as with his personnel file from General Motors, he was obliged to obtain a court order for third party disclosure from Ms. Baker under the rules and there is no evidence that he did so; in fact he suggested in testimony that to force him to do that was “ridiculous”.

[237] The Respondent is in default of the requirements to provide the tax documentation for Wendy Baker as set out in the order.

(j) Child Support Payable to Wendy Baker

[238] Paragraph 7(j) of the order speaks of the child support payable to Ms. Baker:

documentation of any support obligation and all support received by Wendy Michelle Baker for the years 2019, 2020, 2021 and 2022 year to date for the support of her children and if there are none, disclosure of the biological or legal father for each of her children Rachel Greco and Daniella Greco and that no such father pays support or contributes any funds for the maintenance of her children;

[239] D.M.S. addresses this through the bank statements filed as document M. He says in his covering letter that the bank statements shows monthly payments from the Family Responsibility Office for Daniella Greco in the amount of $174. He notes as well in that covering letter that no support is payable for Rachel Greco, who is 20 years old and an adult.

[240] The disclosure is deficient in two respects:

a. The bank statements only child show support received for the period of time from April 2, 2020 to January 4, 2022. The obligation was to provide details as to child support received by Ms. Baker for all of 2019, 2020, 2021 and 2022. Because the bank statements cover a very limited amount of time, there is no disclosure of support paid from January 1, 2019 to April 1, 2020 and from January 4, 2022 to December 31, 2022.

b. The court order was to provide “documentation of any support obligation” which would be the court order or separation agreement which would address what the father of these children had to pay in child support. It is unknown as to whether the support obligation is $174 per month or whether that is all that the Director can enforce against him.

[241] The disclosure provided by the Respondent is only partial compliance with paragraph 7(j) of the court order. The Respondent is therefore in breach of the disclosure obligations under para. 7(j) of the order.

(k) Details of Respondent’s Business

[242] Paragraph 7(k) of the order requires the Respondent to provide “full details” of the Respondent’s “self employed business” reported in his 2020 tax return.

[243] The Respondent provided his Statement of Business Affairs taken from his tax return showing a loss of $2,700 (although this figure is difficult to read). He also provides a list of expenses of the business. He says in his covering letter that the business was put on hold because of COVID and then could not be continued due to D.M.S.’s involvement in this litigation.

[244] He does not provide “full details”. From the disclosure, the reader is unable to determine the nature of the business enterprise. There is also no ability to determine how the business loss was arrived at as he does not provide a statement of the revenues from the business, only expenses and the business loss as set out in the Statement of Business Affairs.

[245] The intention of the disclosure was so that the Applicant could determine the calculation of the income or loss of the business as well as the nature of the Respondent’s business. That was not apparent from the disclosure. The Respondent is in default of his obligation to provide the disclosure as ordered by Justice Eberhard.

(l) Meow Custom Chocolates

[246] This is apparently a business operated by Wendy Baker. D.M.S. said in his covering letter that the business is “in a start up situation with very modest expenses and income.”

[247] Justice Eberhard ordered the Respondent to provide

full financial records for the business operated by Wendy Michelle Baker known as “Meow Custom Chocolates” including details of all income received and expenses paid for the years 2019, 2020, 2021 and 2022 year to date.

[248] D.M.S. says that the business was not operating until November, 2019 and that it has not prepared financial statements. He provides a handwritten ledger for 2021 showing that the business expenses were $1,182.48 and the gross income of the business was $543. He provided a number of receipts for business expenses.

[249] The Applicant says that the Respondent is lying about this, pointing to an internet presence for this business since 2017 and continuing operation as disclosed by its social media presence.

[250] The conflict on the evidence is whether this business was a going concern at any time during the years covered by the disclosure order. D.M.S. says it was not; the Applicant relies upon advertising on Wendy Baker’s Facebook page to show that it was operating. If the business was not operating, the disclosure is adequate. If not, D.M.S. and Wendy Baker are hiding something. I am not in a position to make a finding that this was an operating concern and the mere fact that Ms. Baker advertised the business in 2018 and in later years does not mean that it is operating. Ms. Baker was not cross-examined about the business. I am not prepared to find that D.M.S. is in default of the order for disclosure without more.

(m) Business Licenses for Meow Custom Chocolates

[251] Again, no license would be necessary of the business was not a going concern. D.M.S. has stated that as the business was not operating, no business licenses were necessary.

[252] As above, I am not prepared to make a finding that the business is a going concern and I am therefore not willing to find that the Respondent is in default of his obligation to provide the disclosure set out in para. 7(m) of the order.

Determining the Appropriate Remedy

[253] From the analysis above, and considering all of the evidence, D.M.S. is in breach of para. 8(c) and (d) of the February 17, 2022 order of Eberhard J. He is also in breach of the disclosure order of Justice Jain made on March 22, 2022 insofar as he is in breach of para. 7(a), (b), (d), (e), (f), (h), (i), (j) and (k) of the Eberhard J. order. D.M.S. is unrepentant of these breaches; he either says that the order was “incredibly intrusive” and based upon misrepresentations by the Applicant (as he essentially said regarding the medical and personnel file disclosure), that he actually made the disclosure (which he did not) or that he was unable to obtain the disclosure from third parties (again, as with the personnel file or the disclosure to be obtained from Wendy Baker).

[254] This is not to say that D.M.S. has been contemptuous or in breach of all court orders. I have found that he did make partial or full disclosure in response to other provisions of Justice Eberhard’s February 17 order. He is paying his child support. He has paid, as I understand it, the costs awards; at least no evidence was provided that he was in default of his ongoing financial obligations under the court orders made in this proceeding.

[255] However, the evidence is that D.M.S. is unhappy about the disclosure orders and that is reflected in the nature of the disclosure. E.L.R. says that the Respondent is a “querulous litigant” which is a term that I must acknowledge I have never heard. However, if that means that that he is a litigant who is only as cooperative as is absolutely required, this is a correct assessment. D.M.S. will only disclose what he thinks is “just enough” to comply with the court order, but is really not enough to allow the court to come to a meaningful conclusion as to what the disclosure was meant to address. For example, D.M.S. did not provide a full accounting of the funds that he received from the sale of the matrimonial home, but provided his bank statements and some credit card statements instead. He expects the Applicant and the Added Respondents to figure out from that where the $200,000 went, but that is not an accounting. He provided some real estate documents concerning the down payment on his present residence, but not what was ordered insofar as there was no reporting letter provided. He provided only some credit card statements but they are incomplete and, in the case of TD Canada Trust, illegible. He said that he limited the credit card statements to legal fees only, a limitation that was not contained in the Eberhard J. order which was intended to address the support obligations of both parties. He skates close to the edge and I believe that he knows the consequences of non-disclosure in doing this. He hopes that he has provided enough to avoid his pleadings being struck, but still without providing the essential information that was ordered.

[256] The other thing to note is that none of the disclosure has yet been used in any court proceedings since it was provided. The medical files and personnel files were provided to address the “claims” of mental incapacity leading to the signing of the agreements. However, the court conducted a full (and lengthy) hearing into the Respondent’s claims to set those agreements aside and D.M.S. is correct that he did not rely upon capacity issues in seeking to set aside the agreements and arbitration awards. That issue was never raised in this focused hearing.

[257] The other disclosure in para. 7 of the Eberhard J. order concerns the child and spousal support issues as well as the issue of hardship which was to be argued in a motion brought by D.M.S. arising from the child support ordered by Eberhard J. on February 17. On March 28, 2022, when Justice Jain considered 14B motions brought by the Respondent, the Applicant and the Added Parties, that motion had been scheduled for April 28, 2022, but one of the motions before Jain J. was D.M.S.’s motion to adjourn the hardship motion.

[258] The motion was adjourned by Justice Jain to a date to be set by the trial coordinator. However, in his factum, D.M.S. said that he obtained motion dates and asked for the availability of Mr. Goddard and E.L.R. and did not receive a response; he said that the failure to respond allowed the date to “time out” until after the August 31, 2022 trial scheduling conference date.[^45] Apart from the Respondent’s right to just set the date if there was no response to a request for availability, the motion was never heard and D.M.S. has not prosecuted the hardship motion since then. However, as I understand it, hardship is still a live issue for D.M.S. and he is not abandoning that issue. Child support and spousal support are issues at trial; certainly the Respondent is not abandoning his own claim for spousal support from the Applicant. The disclosure required by paragraph 7 of the Eberhard J. order remains relevant to live issues before the court should this matter proceed to trial.

[259] The disclosure is also relevant to another issue that was not discussed before Eberhard J., which is the Respondent’s attempts to make himself judgment proof at the end of the day. If he owes money for costs, retroactive support or in respect of post separation adjustments or equalization, he has no exigible assets to satisfy these obligations as he has transferred his interest in his home to Wendy Baker and the bank account into which the $200,000 was placed is now empty. He has, in essence, ensured that, other than the remaining monies in trust from the matrimonial home, there is nothing to pay any judgment against him at the end of the day and the disclosure is relevant to that issue.

[260] I also find that the failure to disclose by D.M.S. is wilful. He is clearly unapologetic in not disclosing what he should have under the court orders made by Jain J. and Eberhard J. As noted above, he complains of Justice Eberhard’s disclosure endorsement and says that it was incorrect and “incredibly intrusive” (although it was not appealed). He says that he made proper disclosure when he did not. He refuses to bring third party disclosure motions to obtain the disclosure that he is required to provide from General Motors Canada and Wendy Baker and calls this request “ridiculous.” He does not offer to provide anything further than he has already provided. That position can only be called wilful and intentional.

[261] The Applicant and the Added Parties seek that the Respondent’s pleadings be struck. D.M.S. is correct that this is an extraordinary remedy which must be exercised sparingly. The Court of Appeal has weighed in on this in a number of cases. In Chairamonte v. Chairamonte, 2013 ONCA 641, Tulloch J.A. of the Ontario Court of Appeal emphasized this when he stated [at para. 35]:

Striking a party’s pleadings is a drastic remedy that should only be applied in exceptional circumstances. The rules authorizing this remedy must be interpreted in light of the draconian effect of rule 10(5)(b). That rule provides that a respondent whose answer has been struck is not entitled to participate in the case in any way.

[262] In Purcaru v. Purcaru, 2010 ONCA 92, the Court of Appeal confirmed this, and noted that preservation of the adversarial litigation process is important to allow all parties to be able to tell their side of the story. Striking pleadings is the antithesis of this if a party is removed from participating in the proceedings. At para. 49, Lang J.A. stated:

The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought

not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court. As this court said at p. 23 of Marcoccia v.Marcoccia (2009), 2008 ONCA 866, 60 R.F.L. (6th) 1 (Ont. C.A.), the remedy of striking pleadings is “a serious one and should only be used in unusual cases”. The court also explained at p. 4 that the remedy imposed should not go “beyond that which is necessary to express the court’s disapproval of the conduct in issue.” This is because denying a party the right to participate at trial may lead to factual errors giving rise to an injustice, which will erode confidence in the justice system.

[263] This is especially so where there are parenting issues before the court as it is important for both parents to participate in any proceedings addressing the best interests of children: see King v. Mongrain, 2009 ONCA 486 and Haunert-Faga v. Faga, 2005 CanLII 39324 (ON CA), [2005] O.J. No. 4569 (C.A.). However, in the present case, D.M.S. has abandoned his claims for decision-making and parenting time concerning the parties’ daughter, E.G.D. who is nearly 18 in any event. The only issues before the court are financial in nature.

[264] If the claim to strike pleadings was only related to the failure to provide disclosure, the remedy of striking the Respondent’s pleadings would be too extreme. The Respondent has made, at worst, partial disclosure. He has left out essential portions of some of the disclosure and has left it to the Applicant and the court to address a number of items, such as figuring out where the money from the home went and where the downpayment for the Respondent’s interest in the home came from. There are significant omissions in the disclosure. However, this is not a case where nothing was provided; it was partially provided and neither the Respondent nor Wendy Baker are willing to provide anything further. It may be seen as disproportionate to strike the Respondent’s pleadings as a result of his failure to disclose.

[265] This part of the case is probably the most important part, where the court exercises its discretion in determining an appropriate remedy for the failure to disclose. In doing so, it is important to review the factors that go into that exercise of discretion. In reviewing the factors that go into this, Justice Casullo in Nikfar v. Nikfar, 2022 ONSC 1252 provided a useful guide based upon her analysis of the caselaw:

Satisfied that there has been a triggering event, I next turn to whether exceptional circumstances exist such that I should exercise my discretion in favour of the Respondent and not strike his pleadings. In undertaking this task, I should consider and weigh the following factors:

(a) The extent and persistence of the non-compliance (Horzempa v. Ablett, 2011 ONCA 633, at para.7);

(b) Whether the disobedience of the orders and rules was wilful in nature (Kovachis v. Kovachis, 2013 ONCA 663, 367 DLR (4th) 189, at para. 3)[5];

(c) Whether the non-compliant party made reasonable efforts to comply and is able to provide acceptable explanations for the breaches (Horzempa, at para. 6);

(d) Where the non-compliance relates to support orders, the payor’s financial circumstances and their ability to pay support (Higgins v. Higgins, 2006 CanLII 33303 (ON CA), 152 ACWS (3d) 96, at paras. 7-10); and

(e) The remedy should be proportionate to the issues in question and the conduct of the non-compliant party (Kovachis, at para. 3).

[266] It appears clear that the basis for the striking of the pleadings must be found in the rule and on the evidence led at the hearing: see Marcoccia v. Marcoccia, 2008 ONCA 866 at para. 17. However, while the Respondent has produced part of his disclosure, his litigation conduct outside of this issue makes it doubtful that this matter can be resolved on any sort of timely or economical basis so long as he continues to be involved in the litigation. His litigation conduct has been egregious and has resulted in excess costs to the parties. Examples of this include the following:

a. D.M.S. has used the rules to delay and to incur extra costs. For example, when Eberhard J. issued her endorsement on February 17, 2022, the Respondent was sent a draft order for approval of form and content. Not only did D.M.S. refuse to approve the order; he also insisted upon the order being settled by the hearings officer. There was no difference between the order approved by the hearings officer and the draft order sent to the Respondent. That delayed issue of the order for nearly four months and resulted in unrecoverable costs of attendance before the hearings officer.

b. D.M.S. has a bad habit of changing his mind. One example was during the arbitration, when he initially approved a school trip to Kenya that E.G.D. was signed up for. He then changed his mind and withdrew the consent, resulting in a hearing before Arbitrator Perkins.

c. After fully participating in the arbitration process with Justice Perkins for a period of about two years and signing an arbitration agreement with independent legal advice, D.M.S. suddenly decided that he was the victim of domestic violence and that the pre-screening previously conducted by Arbitrator Perkins was inadequate. This was one factor which resulted in a further independent screening process and also resulted in Arbitrator Perkins resigning.

d. A more egregious issue was when, after between eight and nine days of trial during this focused hearing, D.M.S. withdrew his claim to set aside the arbitral award which resulted in the payment of funds to both E.L.R. and D.M.S. as well as a disbursement of funds to the Added Parties. That award was one of the major reasons that the Added Parties attended the hearing (although they also had an interest in the motion to strike pleadings). As with much of what D.M.S. did, the withdrawal of that claim was self serving as that award had resulted in D.M.S. receiving $200,000 from the proceeds of the matrimonial home and he was facing potentially having to pay that back if the award was set aside.

e. D.M.S. filed an Answer and Claim by Respondent which was more than 60 pages in length. The Answer is clearly prolix and does not provide a meaningful guide to the issues in this case.

f. Although this litigation process might have attracted costs, there is a real concern that the Respondent may have made himself judgment proof by transferring 41% of his equity in the Brampton residence to his partner, Wendy Baker. The concern of course is that any costs award against the Respondent has now become uncollectable due to the transfer of his interest in the home.

g. I have already commented on D.M.S.’s conduct prior to and during the focused hearing. Much of the blame for the focused hearing going on more than 18 days was because of the Respondent’s actions and his refusal to responsively answer questions during cross-examination. When he showed up at the commencement of the hearing, the parties were presented with an unorganized box of documents which took court staff nearly a day to sort out. There was a two-day voir dire resulting from D.M.S.’s improper and surreptitiously recorded conversations with E.L.R. Substantial time was spent on matters later withdrawn by the Respondent. He attempted to lead documentary evidence that the Applicant and the Added Parties had never seen. And when the time came to make final submissions, it only became apparent on the first day for final submissions that the Respondent had obtained transcripts of the evidence during the hearing without advising the other parties, necessitating an adjournment on terms of the final submissions. The Respondent lengthened this hearing to no purpose and, again, costs may now be uncollectable.

h. The Respondent’s intentions in setting aside the agreements and in requesting a finding of parental alienation against the Applicant was not for any practical purpose but to make a point. He wished to eventually be able to prove to his daughter that her mother had purposefully alienated her from her father. And the agreements and arbitral awards that he brought into question were largely irrelevant to the outcome today; in fact the only one with impact, which provided for the payout of funds to the various parties, was the only one for which he withdrew his claim.

[267] In sum, I can do no better than to echo Jain J.’s words from her endorsement of August 31, 2022. After numerous conferences and attendances in case managing this matter, Jain J. stated that:

We continue to go around in circles on this matter using up valuable court resources and getting no where. In my view, the only way to make progress is to bifurcate these issues and have a focused hearing. Depending on the results of the hearing, the parties will then clearly know what the issues for trial will be, the evidence that will be relied upon for same, and/or whether or not there will be a trial at all.

[268] Justice Jain was clearly frustrated because of the inability to move this matter forward towards a trial and resolution. And from my hearing of this matter, it is clear that much of the blame for Justice Jain’s frustration can be laid at the Respondent’s doorstep. The disclosure provided by the Respondent is clearly symptomatic of his bad behaviour and is only one example of his unreasonable, and perhaps bad faith, litigation conduct. The consideration of whether the Respondent’s pleadings should be struck has to be taken in the context of this conduct, which will continue to result in excessive costs and effort, much of which may be uncollectable.

[269] I go back to the primary purpose of the Family Law Rules contained in r. 2(2) which is “to deal with cases justly.” That provision was examined in the context of the issue of striking pleadings in Purcaru, supra. At para. 55, Lang J.A. stated:

In light of Mr. Purcaru’s conduct, the trial judge considered whether his participation would assist with arriving at the necessary factual findings. He decided it would not. He did so primarily because Mr. Purcaru continued to display an unwillingness to comply with orders of the court that were essential to ensure trial fairness, including his continued failure to comply with his disclosure obligations.

[270] As in the present case, Mr. Purcaru had dissipated assets which would make the collection of costs impossible. However, in that case, there were non-dissipation orders that the Respondent had breached; in the present case there are none.

[271] Later in the case, Lang J.A. connected the striking of pleadings to trial fairness [at para. 58]:

In any event, if Mr. Purcaru had been allowed to participate fully in the trial without completing his disclosure, counsel for Ms. Purcaru would have unfairly been denied the opportunity to prepare to meet his evidence about his financial situation. The trial judge could have considered the alternative of allowing Mr. Purcaru to continue to participate, but drawing an adverse inference with regard to his assets and liabilities. However, such a sanction would have been inadequate in light of the trial judge’s specific conclusion that Mr. Purcaru would prolong the trial with irrelevant issues without providing the disclosure necessary to arrive at a fair determination of his relevant worth and income.

[272] Similarly to the present case, Lang J.A. determined that Mr. Purcaru’s “demonstrated deception and unfocused approach would likely have prolonged the trial without advancing its truth-seeking purpose.”

[273] In essence, the continued participation of Mr. Purcaru in that case would have been contrary to the primary purpose of the rules, which is to allow cases to be addressed in a just manner. As Lang J.A. had pointed out, the purpose of the adversarial process and allowing parties to remain involved in the litigation is so that the court can best determine the truth surrounding the issues between the parties. Purcaru also says, however, that the opposite is also true: if the continued participation of a party would interfere with the court’s inquiry into those issues and that party is in breach of court orders, the court may very well be justified in removing that party from the litigation through the striking of pleadings.

[274] The latter would appear to be the case here, where the Respondent has failed to provide disclosure and his litigation conduct makes it apparent that it will be difficult to conduct a trial in a fair manner if he continues to be involved. The sanction of costs would appear to be empty in this case due to the transfer by the Respondent of his equity in his residence to his joint owner partner, Wendy Baker.

[275] That, however, has to be balanced against the statement in Purcaru that, “the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court.” The intention of the court must be to attempt to have the Respondent comply with the disclosure order, not to remove him from the litigation because he is obstreperous. As stated by the Court of Appeal, in crafting a remedy, the court must examine all remedies prior to using the last and most extreme one, the striking of pleadings and preventing the Respondent’s continued participation in the proceeds.

[276] It is also clear that the remedy must be proportionate to the breaches of the order. To determine this, the breaches must be taken in the context of the general litigation behaviour of the Respondent. Even though the Respondent is in compliance with some orders, the question has to be whether the breaches of the order combined with the litigation conduct of the Respondent is, in the words of Lang J.A. in Purcuru will “likely have prolonged the trial without advancing its truth-seeking purpose.” In other words, the purpose of a remedy is both to attain compliance with the order and to also allow the court its mandate under r. 2 of obtaining a just result.

[277] It is clear to me that the Respondent’s litigation conduct has been egregious throughout. That is especially true considering his conduct at this focussed hearing which I have already outlined. As noted, he attempted to enter into evidence surreptitious recordings of conversations between himself and the Applicant; in the one recording admitted into evidence, he claimed that it showed intimidation by the Applicant but it really was an example of the Applicant’s already heightened state being exacerbated by baiting and gaslighting by the Respondent. He came to court with his materials in complete disorder and relied upon court staff to put it into order. He attempted to argue hypothetical issues not relevant to the relief being requested such as parental alienation, and he spent a great deal of time arguing over agreements that were no longer relevant to the end result. His withdrawal of his objection to the arbitration award was surprising and resulted in a waste of everyone’s time in addressing it for the previous nine days of trial. He put documents to witnesses not previously produced and also obtained transcripts for the final submissions without telling anyone. His conduct lengthened this hearing substantially.

[278] It is also clear to me from the Respondent’s conduct in this trial that he will interfere with the court coming to a just conclusion in a proportionate and cost effective manner. D.M.S. was admonished by the court on a number of occasions but that did not change his behaviour. He continued to act in a manner whereby he should have known better and this largely resulted in what was intended to be short focused hearing becoming an 18 day event.

[279] One of the other remedies under r. 1(8) that I can consider for breaches of an order is a costs award against the Respondent. It is significant that when he was told that to withdraw his claim to set aside the arbitration award, the warnings that the court gave him about costs had little effect. That may be because D.M.S. has transferred away almost all of his exigible assets to his partner, Wendy Baker. The Respondent is prepared to lose this trial and is effectively judgment proof. I do not find that an award of costs will make any difference to the Respondent’s behaviour.

[280] The court can also make an adverse inference against the Respondent by reason of his failure to make disclosure. However, that again, in my view, is ineffective to cause the Respondent to comply with the order. D.M.S. paid no attention to my admonishments in the conduct of this trial and he did not obey other orders of this court made by Eberhard J. and Jain J. He caused this focused hearing to become a runaway train, and I can only imagine how he would interfere with a full trial of the issues in this matter. His responses lead me to believe that he well knew his obligations to provide disclosure in this matter but disagreed with the orders in question and therefore did not obey them. I do not believe that he will pay any attention to the fact that there might be an adverse inference in this matter as he paid no attention to the court in the conduct of the hearing and knowingly breached the disclosure order, partly because he just disagreed with it.

[281] Finally, there is the issue of proportionality. The orders the Respondent is in breach of were, based upon the endorsement of Eberhard J., related to the mental health of the Respondent leading up to the signing of the agreements, the support issues and the Respondent’s hardship application. The child and spousal support as well as hardship remain a live issues at trial, but the agreements have been addressed without reference to the Respondent’s mental health.

[282] These are important issues, but are not the only issues concerning the disclosure. As noted above, an emerging issue is the dissipation of the Respondent’s exigible assets and the transfer of the Respondent’s major asset, his interest in his home to his common law spouse, Wendy Baker. That is an extremely serious issue because presently, the Respondent is effectively judgment-proof as a result. To address this, the Respondent has been ordered to prove the debt that he says he owes to Wendy Baker, to prove that the funds for the purchase of the home came from her and to account for the funds that he received by way of interim disbursement in 2019. He has failed to provide any of these items and, as a result, the Applicant and the Added Parties may be left with a hollow judgment with no effective remedy against the Respondent’s assets. Ms. Baker refused to voluntarily provide disclosure because she says that the Applicant will try to take “any money that I have in the property”. That speaks volumes. The intentions of these parties appears to have been to prevent the Applicant, if she is successful, from realizing on her judgment. This was a focused hearing which took 18 days in total to complete; I can only imagine how long the trial of the substantive issues will take. The non arms length transfer of the property to his common law spouse gives the disclosure increased importance and makes the striking of pleadings proportionate and necessary.

[283] I therefore find that the Respondent’s pleadings should be struck by reason of his failure to obey the court orders of Eberhard J. and Jain J. I am, however, going to give the Respondent 60 days to provide full disclosure failing which the Applicant and the Added Parties may proceed by way of Form 23C uncontested trial.

[284] Therefore, final / interim order to go:

a. The Respondent’s motion to set aside the agreements and arbitral awards as noted in the endorsement of Justice Jain dated August 31, 2022 (as amended) is dismissed.

b. The Respondent’s pleadings are struck.

c. This order shall be stayed for 60 days from today’s date. Within that period of time, the Respondent may file and serve a 14B motion to set aside this Order striking pleadings and supported by affidavit evidence to confirm:

i. Compliance with the outstanding disclosure set out in paragraphs 7 and 8 of the order of Eberhard J. dated February 17, 2022;

ii. Efforts made by the Respondent to comply with those provisions if compliance is impossible by the adjourned date;

d. The Applicant and the Added Parties to have 10 days to serve and file responding materials to the Respondent’s 14B motion and affidavit.

e. I continue to be seized by this matter and specifically with the Respondent’s 14B motion to prove compliance with the orders in this matter.

f. If the Respondent fails to file this motion and affidavit within the time limited, or the 14B motion is dismissed, the Applicant and the Added Parties may proceed by way of uncontested trial.

[285] The parties may make costs submissions concerning this focused hearing, the Applicant first, then the Added Parties and then the Respondent on a ten day turnaround. Costs submissions to be no more than 7 pages in length (double spaced, 12 point font) not including any offers to settle or bills of costs for this hearing.

Justice J.P.L. McDermot

Released: July 26, 2024

[^1]: This was the figure for legal fees in the Respondent’s factum and mentioned in his final submissions. In evidence, D.M.S. said that he had spent more than $400,000 in legal fees in this matter. It is unknown whether this figure includes the money that he had paid for his criminal lawyer to defend himself against charges of sexual assault and interference brought as a result of disclosures made by E.G.D. to the Durham Police Services and the Durham Children’s Aid Society.

[^2]: Endorsement of Justice Eberhard dated February 17, 2022, p. 2

[^3]: R.S.O. 1990, c. F.3

[^4]: S.O. 1990, c. 17

[^5]: See my endorsement of May 23, 2023.

[^6]: The arbitration was based upon the Arbitration Agreement dated September 14, 2018. That agreement appears to comply with the regulations under the Family Law Act and the Arbitration Act concerning family arbitrations. The Arbitration Agreement was not one of the agreements placed in issue in Justice Jain’s August 30, 2022 endorsement setting down this focused hearing.

[^7]: Neutral citation: LeVan v. LeVan, 2008 ONCA 388

[^8]: That statement was made on July 7, 2018, well after all of the agreements had been signed. See Ex. M to the affidavit of E.L.R. sworn November 7, 2022, Trial Ex. 29.

[^9]: Ex. M to the affidavit of E.L.R. sworn November 7, 2022, Trial Ex. 29

[^10]: R.S.C. 1985, c. 3 (2nd Supp.)

[^11]: Trial Ex. 76

[^12]: Trial Ex. 24

[^13]: Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303

[^14]: Interim separation agreement dated January 28, 2018, Trial Ex. 8, para. 3

[^15]: R.S.O. 1990, c. F.3

[^16]: Respondent’s factum dated February 16, 2024, para. 198

[^17]: Black’s Law Dictionary (2009, 9th Ed.), p. 1153

[^18]: Respondent’s factum dated February 16, 2024, op cit., para. 200

[^19]: Respondent’s affidavit sworn October 21, 2022, Trial Ex. 1, para. 97(6)

[^20]: Paragraph 133 of D.M.S.’s affidavit sworn March 20, 2020, attached as Ex. J to the affidavit of D.M.S. sworn October 21, 2022, Trial Ex. 1

[^21]: Ibid., paragraph 136

[^22]: Separation Agreement dated January 28, 2018, Trial Ex. 8, para. 4.5

[^23]: D.M.S.’s affidavit sworn March 20, 2020, op cit. paragraph 136

[^24]: Separation Agreement dated January 28, 2018, op cit., p. 1, para. 8

[^25]: See Trial Ex. 74

[^26]: See para. 200 and 201 of D.M.S.’s affidavit sworn March 20, 2020, Ex. J to D.M.S.’s affidavit sworn October 21, 2022, Trial Ex. 1.

[^27]: Applicant’s Request to Admit Arbitration Process dated March 21, 2022, served on the Respondent on March 21, 2022, trial Ex. 30, para. 314

[^28]: This Request to Admit was served on March 21, 2022 as set out in the affidavit of service sworn March 23, 2022: see trial Ex. 69.

[^29]: O. Reg. 114/99

[^30]: See Trial Ex. 21 and the affidavit of service for the request to admit filed as Trial Ex. 71.

[^31]: Trial Ex. 21

[^32]: Affidavit of Samantha Kerr sworn May 27, 2021, para. 4

[^33]: In fact, the financial statement sworn by the Respondent on March 31, 2022 was not made an exhibit at trial. The Respondent’s financial statements sworn April 28, 2022 (Trial Ex. 45), August 24, 2022 (Trial Ex. 44) and October 24, 2022 (Trial Ex. 5) were all made exhibits at trial. E.L.R., in her affidavit sworn October 21, 2022 deposes that the August 24, 2022 continues the same deficiencies in the Respondent’s financial disclosure as did previous financial statements.

[^34]: Chart filed by Applicant as Trial Ex. 33

[^35]: See Trial Ex. 37 which address a further financial statement filed by D.M.S. on April 28, 2023, filed as Trial Ex. 45.

[^36]: D.M.S.’s trial affidavit sworn October 21, 2022 (Trial Ex. 1), para. 24

[^37]: Email dated April 1, 2022 attaching affidavit of D.M.S. dated April 1, 2022. That email can be found attached as Tab 1 to the unanswered Request to Admit dated September 1, 2022 (Trial Ex. 21) served on the Respondent on that date (see Affidavit of Service filed as Trial Ex. 71).

[^38]: Blacks Law Dictionary, 9th ed. (2009) at p. 19

[^39]: See below. The credit card statements are not noted in the Respondent’s correspondence as relating to the accounting ordered by Justice Eberhard.

[^40]: During his cross-examination of E.L.R., D.M.S. put to her a clearer copy of the trust ledger that he said he had provided to her earlier but although she acknowledged getting a clearer copy of the trust ledger, she said it was not the same as the copy being shown to her. As she refused to identify the copy that was put to her, that copy of the trust ledger was only made a lettered exhibit (Ex. F). The Respondent never sought to enter that copy or any other copy of the trust ledger as a trial exhibit during his reply evidence.

[^41]: The amount deducted from Wendy Baker’s bank account was $90,048.96. The amount received by the solicitor to close the transaction was $90,040.46. The amounts are close but not the same. There is no date on the trust ledger to confirm that the money was received on the same date that it was withdrawn from Ms. Baker’s account.

[^42]: Cover letter for disclosure provided on April 22, 2022, para. 13 found at Tab 2 of the September 1, 2022 Request to Admit, Trial Ex. 21

[^43]: See https://www.canada.ca/en/revenue-agency/services/child-family-benefits/update-your-marital-status-canada-revenue-agency.html

[^44]: During her cross-examination, E.L.R. acknowledged receipt of the 2021 Notice of Assessment. That was not part of Ex. 21 and it was never produced in evidence. If received, it is unknown whether it was redacted as was 2019 and 2020.

[^45]: There was no reference in the Respondent’s factum to any evidence led during the focused hearing to support this contention. I was not directed to any evidence led by the Respondent addressing the failure to set down the hardship motion.