COURT FILE NO.: FS-21-00100235-0000

DATE: 20240909

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ravinder Kaur Johal, Applicant

AND:

Sartaj Johal, Respondent

BEFORE: The Honourable Justice Ranjan K. Agarwal

COUNSEL: Sukhwinder Samra, for the applicant

Nigel Smith, agent for the respondent’s lawyer

HEARD: August 22, 2024

AMENDED ENDORSEMENT

I. INTRODUCTION

[1] Ravinder Kaur Johal moves for financial disclosure from her former spouse Sartaj Johal. In 2011, Sartaj was ordered to pay child support. As part of that order, he had a continuing obligation to make financial disclosure. Ravinder recently moved to change the order—she alleges that Sartaj is hiding his self-employment income and assets and, as a result, underpaying child support for their two children.

[2] This motion was improperly briefed. Following discussion with the parties at the hearing, the only issue to be determined is whether Sartaj failed to honour his undertakings or made improper refusals at his questioning. I find that he did—as such, I endorse an order that he shall answer the questions discussed below on or before September 9, 2024, at 4pm.

II. BACKGROUND

A. Facts

[3] In March 2011, Justice Coats made a final order in the divorce proceeding between the parties. Among other things, she ordered the respondent Sartaj Johal to pay $325 monthly support of the two children of the marriage. She also ordered Sartaj to produce his notice of assessment and income disclosure annually.

[4] In May 2021, the applicant Ravinder Kaur Johal moved to change the child support order. Ravinder served a request for information in January 2023. Sartaj didn’t give all the requested information. At a case conference in May 2023, Justice Kumaranayake ordered him to give most of the information (or an affidavit explaining why he can’t).

[5] Ravinder repeatedly requested the disclosure ordered by Justice Kumaranayake. Sartaj didn’t give all the information. Sartaj was questioned in January 2024. Ravinder repeatedly requested Sartaj honour his undertakings. Sartaj didn’t respond.

[6] Ravinder’s motion is for an order that Sartaj comply with his disclosure obligations under Justice Coats’s order and Justice Kumaranayake’s order, that he honour his undertakings, and for rulings on the propriety of his refusals at questioning.

B. The Conduct of this Motion

[7] Ravinder’s notice of motion is 42 pages long. It attaches three charts: 84 information requests arising from her RFI and Justice Kumaranayake’s order, 14 undertakings, and 2 refusals. Ravinder’s charts are difficult to follow—she has columns for “Disclosure Requested”, “Disclosure Provided/Status”, and “Outstanding/Not Provided”. It’s hard to tell what’s in issue. Ravinder’s affidavit is 37 pages long—she attaches the charts (again), court orders, and emails between her and Sartaj’s lawyer. She also (improperly) quotes the statutes and caselaw. Ravinder uploaded the questioning transcript, which is 139 pages long. She served all of this on Sartaj’s lawyer on August 14th, eight days before the motion.

[8] On August 16^th, Sartaj served a 14-page affidavit in response to the motion. The affidavit says nothing about the financial disclosure orders or the RFI. He attaches his version of the undertakings chart (uploaded sideways), listing the undertaking number (but only 13, not 14, undertakings), a “Description”, and “Document Provided”. The body of his affidavit has headings for each undertaking, and seems to repeat the content in the chart.

[9] On August 19^th, Ravinder served a 13-page reply affidavit. Rather than using one of the four charts that have been filed, she replies to each paragraph of Sartaj’s response. She cross-references her first affidavit (without hyperlinks). She also attaches three new charts, which particularize the outstanding disclosure.

[10] All of this was filed for a one-hour motion. The practice directions provide parties guidance on how to approach a short motion:

Materials that are not brought to the attention of the judicial officer at the hearing may not be considered. Judicial officers’ judgment writing time is not sufficient to permit it to be used as an extension of the time allocated for oral argument.

Parties must give careful consideration to what is to be covered in the hearing time, the pace at which documents and authorities can reasonably be reviewed, and the time needed for oral argument on the issues raised.

This consideration should extend to:

• the number of issues which can properly be dealt with in oral argument, and

• the number of authorities actually required in order to establish the legal propositions relied upon.

See Consolidated Civil Provincial Practice Direction, amended February 1, 2024; Notice to the Profession and Parties – Central West Region, update effective July 1, 2024

[11] To properly prepare for this motion, the parties’ materials required me to cross-reference their 7 charts and 15 pages of narrative. I presume they also intended for me to read the emails and transcript that were filed. That’s unreasonable for a short motion.

[12] The day before the hearing, to salvage the motion, I asked the parties to jointly prepare a chart showing the disclosure requested, Sartaj’s position (it appeared that he had produced some of the requested information), and Ravinder’s position. I also asked the parties to prepare a compendium that linked the chart to the evidence on the motion (i.e., if Sartaj says he produced a document, he should point me to the evidence that he’s done so). My goal was to efficiently identify the issue in dispute, the parties’ positions, and their evidence in the hope that the motion could be heard in an hour. I’m reluctant to ask parties, at the 11^th hour, to do additional work for a motion. But there’s ample direction from the court on the types of useful disclosure charts. See, e.g., Lokhandwala v Khan, 2020 ONSC 6857, at paras 16-18

[13] On the morning of the hearing, Ravinder uploaded a 47-page chart, listing the same items in her motion record. Sartaj didn’t collaborate in preparing this chart. As a result, it wasn’t useful.

[14] At the start of the hearing, the parties agreed to adjourn Ravinder’s request for information. As a result, the parties litigated only the undertakings and refusals.

[15] Justice Sharma recently discussed what lawyers “ought not to do” on a disclosure motion. See Jarosz v Denda, 2024 ONSC 4597, at paras 3-11. Much of his guidance could apply to this motion. I repeat and expand on two of those directions.

[16] First, the refusals and undertakings chart (Form 37C) is a useful template for a disclosure chart. Parties can also refer to model Redfern Schedules available online. In short, the moving party should list the document requested and the relevance or reason for the request. The responding party should, on the same document, state its response, including any legal objection. This document should have a column for the court’s decision. This document should be the main tool used at the oral hearing—both parties should hyperlink the chart to the evidence filed on the motion.

[17] Second, the parties have to communicate about the motion long before the hearing and in real-time, rather than trading warring briefs at the absolute last minute allowed under the Family Law Rules. This motion is a good example. Ravinder didn’t tell Sartaj exactly what she was moving for until eight days before the motion. Sartaj then ignored most of the requests and, for the first time in the eight months since questioning, honoured his undertakings. Unsatisfied by Sartaj’s answers, Ravinder simply filed a reply brief.

[18] I appreciate that discovery motions can be highly adversarial. The moving party is frustrated by the responding party’s alleged lack of disclosure. The responding party is irritated that they’re being accused of hiding something. Both parties are put to, in their view, unnecessary legal expense to litigate the issue. The motion inevitably delays the conclusion of the proceeding. But, as this motion shows, the failure of the parties (or their lawyers) to rise above these hard feelings to litigate the motion efficiently causes more delay and cost.

[19] Ravinder should’ve sent Sartaj a disclosure chart of the incomplete disclosure several months ago. Sartaj should’ve completed that chart. Even better, the parties’ and their lawyers should’ve have had a four-way meeting to discuss the disclosure. At that point, it would’ve been clear to both parties what was being requested, and why the request was opposed. Sartaj likely would’ve been persuaded to produce some documents or Ravinder likely would’ve been persuaded to withdraw some requests. Then, Ravinder could’ve moved for a disclosure order, and the parties could’ve relied on a more focused disclosure chart that better described the issues in dispute. I say this because, as my discussion below shows, Ravinder didn’t move on all the undertakings and Sartaj didn’t oppose all of the requests.

III. ANALYSIS AND DISPOSITION

[20] An undertaking is a promise. Undertakings are mandatory; nothing in the rules relieves a party who undertakes to answer a question from the obligation to honour the undertaking. See Rules of Civil Procedure, r 31.07(4); Family Law Rules, r 1(7). A party fails to answer a question if the party undertakes to answer the question, but no answer is provided within 60 days after the response. See Rules of Civil Procedure, rule 31.07(1)(c). If a person being questioned refuses to answer a question, the court may decide whether the question is proper and give directions for the person’s return to the questioning. See Family Law Rules, r 20(19).

[21] For questions 94 and 264, Sartaj asked that the motion be adjourned. But Sartaj confirmed that the motion could go ahead. And Sartaj didn’t provide any evidence in support of the adjournment. As a result, I dismissed the adjournment request.

[22] My rulings on the undertakings and refusals are as follows:

Q

Request (paraphrased from the transcript)

Disposition

94

to provide a documentary proof of the attempt you made to inquire about Ravinder’s address to deliver the document

Sartaj’s position is that Ravinder never requested the final order information from him and he didn’t have her new address.

On questioning, Sartaj deposed that he tried to get Ravinder’s address from her parents to serve the documents. Ravinder wants any evidence of this request. Sartaj’s lawyer refused the question because he doesn’t know if it exists. But Sartaj’s lawyer didn’t allow Sartaj to answer whether any such proof exists. At the hearing, Sartaj didn’t identify any legal grounds for refusing this question.

Sartaj shall advise if he has any documents showing that he asked Ravinder’s parents for her address and, if so, produce the document or an affidavit explaining his efforts to locate the document.

117

to provide and the particulars of the date and address mentioned on page 12 titled Director’s Register on Corporate Book - Corporate Records Book provided by Sartaj

Sartaj answers that he doesn’t “recall” when these pages were dated. But that doesn’t answer the question. Both pages have handwritten dates that are difficult to read. He also doesn’t explain the address on page 12—does he recognize the address? if so, what is it?

Sartaj shall advise his position on what the date is on both pages and any information he has about the address on page 12.

119

to provide the clarification as to the date mentioned on Page 15 titled as List of Corporate Officers of the Corporate Records Book

191

to provide the documentation as to how many companies Sartaj had been running, between the year 2012 to date

Sartaj deposes that he doesn’t have any other companies “other than RM Logistics”.

Sartaj’s answer is ambiguous. On questioning, he deposed that he had two companies—RM Logistics Inc. and R.M. Logistics Inc. Sartaj shall answer the question again, making clear the legal names of the companies that he has been operating since 2012.

195

schedule of dividends for year 2015, schedule four regarding investment income mentioned in year 2016, schedule of document regarding other income referred in year 2020

complete income tax returns for the years from 2011 to 2022

Sartaj produced some of these documents but doesn’t explain why he hasn’t produced the others. Sartaj was also ordered to produce this information by Justice Kumaranayake.

Sartaj shall produce these documents. If he can’t produce the documents, he shall provide an affidavit explaining his efforts to locate the documents and why he can’t produce them.

264

any such contract or invoice in support of the expenses shown in this Income Statement information

contracts, invoices regarding any subcontractors, any vehicle expenses, truck repair expenses, truck gas expenses. … copies

of contracts, invoices submitted to the payments by the corporation for the year 2018 onwards

Sartaj refused this question on the grounds that he already provided this information or he would authorize Ravinder to contact Sartaj’s accountant.

At the hearing, Sartaj didn’t identify any legal grounds for refusing this question or provide evidence that this request was complied with. Further, I don’t consider authorizations to be sufficient—it’s Sartaj’s obligation to produce financial disclosure. Ravinder shouldn’t have to expend time and money chasing Sartaj’s accountant.

Sartaj shall produce this information.

299-300

invoices, receipts for the expenses shown in the Income Statement of R.M. Logistic Inc. for the year 2018 to 2022

the documentation, invoices, receipts, or contracts which you just mentioned your contractor have to prepare the Income Statement or Business Statement for the T2 Corporation Return for the year 2018 to 2022 for the corporation R.M. Logistic Inc.

Sartaj answers that his accountant doesn’t “keep copies of supporting documents after filing returns.”

This answer is insufficient. It seems unusual that neither Sartaj nor his accountant kept these documents after filing the taxes. At the hearing, Sartaj’s lawyer’s agent couldn’t explain this answer.

Sartaj shall provide an affidavit explaining his and his accountant’s position.

376

the documentary proof including any rent agreement, rent invoice, or rent receipt confirming when 48 Upper Walker, was put on rent and how much rent was received.

Sartaj’s answer says nothing about the rental agreement. He shall produce the rental agreement or an affidavit explaining his efforts to locate the document and why he can’t produce it.

387

from what date or from when Sartaj start working as a self-employed with his spouse’s company mentioned in part one of his Financial Statement dated July 10, 2023

Sartaj answers: “I am deemed a contracted employee of the corporation and have been since its inception.”

This answer leaves Ravinder guessing. Sartaj shall advise of the date when he started working for the company (which may be the date of inception).

[23] I endorse an order that Sartaj shall provide the requested information on or before September 9, 2024, at 4pm.

[24] Sartaj’s conduct going back to Justice Coats’s order leaves the strong impression that he’s being uncooperative. If he has a meritorious defence to the motion to change, he shouldn’t shy away from making financial disclosure. The documents will support his position (and he’ll need them to make his case). On the other hand, if the documents will contradict his position, he should know that, eventually, he’ll have to make financial disclosure or the court will draw an adverse inference from his failure to do so. Either way, refusing to cooperate only costs him time and money.

IV. COSTS

[25] Ravinder seeks her costs, fixed in the partial indemnity amount of $5300. I endorse an order that there shall be no costs of this motion.

[26] First, under the practice direction, the parties must attend the hearing with a costs outline. See also Rules of Civil Procedure, r 57.01(6). This rule aims to ensure that the adverse party knows the risk of proceeding with the motion. It also avoids a party from trying to calibrate their costs to the expected outcome of the motion. See Fram Elgin Mills 90 Inc. v Romandale Farms Ltd., 2014 ONSC 4715 (Div Ct), at para 10; St. Laurent Automotive Group v Sami’s Garage Ltd., 2017 ONSC 6649, at para 51. Ravinder didn’t provide Sartaj with her costs outline until after the motion.

[27] Second, Ravinder’s costs are disproportional to the issues in dispute. The motion was about nine undertakings. I acknowledge that Ravinder spent much more time preparing for the motion but, as discussed above, those costs were unnecessary and the work-product was unhelpful.

V. CONCLUSION

[28] Everyone is familiar with the importance of financial disclosure to family law litigation: the failure to make this disclosure “impedes the progress of the action, causes delay”, prejudices the requesting party, and wastes judicial time, and stalls disposition of the proceeding. See Roberts v Roberts, 2015 ONCA 450, at para 12.

[29] But the failure to properly litigate these motions is part of the problem. Parties can disagree about the relevance and scope of disclosure. But they should do reasonably—they and their lawyers have to cooperate and communicate about the issues, no matter their feelings about the other side. Anything less will just cost money, take time, and frustrate the process.

Agarwal J

Date: September 9, 2024