Court File and Parties

COURT FILE NO.: FS-23-00034083 DATE: 2024-12-11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ambika Seth, Applicant AND: Mukul Mehta, Respondent

BEFORE: Mathen J.

COUNSEL: Rishi Singh, for the Applicant Malina Roshan, Respondent

HEARD: December 11, 2024

BACKGROUND

[1] The Applicant seeks numerous orders for disclosure, non-dissipation, and costs.

[2] The parties were married in 2018 and separated in 2022. There is one child of the marriage who is three years old.

[3] I could not locate the Applicant’s pleadings on Case Center. The Respondent’s Answer was filed in May 2023.

[4] The parties confirmed that leave for questioning was granted in April 2024. Neither pursued it.

[5] At a trial management conference in September 2024, an issue arose around disclosure (the Applicant deposes that disclosure has been a continuing challenge). The conference judge, Des Rosiers J., granted leave for a regular, one-hour motion to address it.

[6] Neither party prepared a factum. They did file sworn affidavits and numerous exhibits.

The Law

[7] This case is primarily about disclosure. I take notice of the following principles stated in Howes v. Ciolfi, 2022 ONSC 3076:

[25] The primary objective of the Family Law Rules, O. Reg. 114/99, is to enable the court to deal with cases justly – by ensuring procedural fairness, by saving expense and time; by dealing with a case in ways that are appropriate to its importance and complexity, and by giving appropriate court resources to the case: see Rules 2(2), (3). The court is required to apply the rules to promote this primary objective and the parties and their lawyers are required to help the court promote this objective: see Rule 2(4).

[27] In Manchanda v. Thethi [2016] O.J. No. 6290, 2016 ONCA 909, at para.13, the Ontario Court of Appeal stated that:

… the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11.) ....

[33] ...In Boyd v. Fields [2006] O.J. No. 5762, at para. 12, Justice Perell stated:

Full and frank disclosure is a fundamental tenet of the Family Law Rules. However, there is also an element of proportionality, common sense, and fairness built into these rules. A party's understandable aspiration for the outmost disclosure is not the standard. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact-finding process are factors. [Emphasis in Howes.]

ANALYSIS

Order for Disclosure

[8] The Applicant deposes that she believes the Respondent has “falsified documents in an attempt to intentionally deplete assets”. She alleges emotional, physical and financial abuse.

[9] The Applicant argues that as financial disclosure was exchanged, “questions arose regarding a total sum of $363,000.00” the Respondent withdrew from the parties’ joint Home Equity Line of Credit (“HELOC”) without her consent. She raised particular concern with:

a. A withdrawal of $100,000 on or around February 2022 which was transferred to a woman named Rajinder Dhaliwal who is married to Mr. Harpal Dhaliwal.

b. A withdrawal of $53,000 on or around March 30, 2022 which was transferred to Bennet Jones LLP.

c. A withdrawal of $210,000 which she alleges the Respondent invested in Hargobind Trust which is owned by Harpal Dhaliwal.

[10] When questioned about these amounts, the Applicant deposes, the Respondent claimed that “the funds were used to repay loans borrowed when purchasing the matrimonial home and has presented two alleged promissory notes that [the Applicant] had never seen before”.

[11] In her Notice of Motion, the Applicant made four disclosure requests:

a. Original promissory notes for the Harpal Dhaliwal and Amit Grover loans to be delivered to the Applicant’s Counsel directly;

b. A virtual tracing of the electronically signed documents, including but not limited to:

i. Time-stamped confirmation of exchange of the promissory notes, and the dates they were signed; and

ii. Time stamped confirmation of the receipt of the fully executed promissory note between the Respondent and third parties.

c. Proof of interest payments made during the term of the promissory notes; and

d. A full tracing of funds used to “repay” the Lenders of the promissory notes.

[12] In her reply Affidavit, the Applicant requested numerous additional items because, she says, the Respondent’s disclosure to date raised more questions than provided answers.

[13] I find that the Applicant’s additional requests in her reply affidavit approach the kind of “outmost disclosure” the Court cautions against in Howes, supra. On a short motion, it was simply not possible to determine the relevance and proportionality of these additional requests. Consequently, I will confine myself to the Applicant’s original requests.

1. Promissory Notes

[14] The Applicant deposes that, in order to determine the validity of the alleged promissory notes, she requires the original documents be submitted for “chemical ink testing” to determine their date of execution.

[15] Applicant’s counsel acknowledged that her motion materials do not fully explain how she intends to test the notes including (a) the process for selecting and retaining the expert (b) the process for that testing including its impact, if any, on the documents’ integrity and (c) the timeline.

[16] At the hearing, Respondent’s counsel confirmed that they do not object to such testing provided it occurs under a suitable plan.

[17] Counsel for both parties agree that this request shall be adjourned sine die to permit them to determine a suitable process without the need for judicial intervention. The Court commends their willingness to cooperate.

2. Virtual tracing

[18] The Applicant requests virtual tracing of the electronically signed documents, including but not limited to:

a. Time-stamped confirmation of exchange of the promissory notes, and the dates they were signed; and

b. Time-stamped confirmation of the receipt of the fully executed promissory note between the Respondent and third parties.

[19] The Respondent deposes that:

a. The Dhaliwal promissory note was signed in person, by ink. It is dated November 1, 2020, and executed on November 1, 2020. There are no time-stamped confirmations.

b. The Amit Grover note was signed on Nov 10, 2020, and was signed through WhatsApp. There are no timestamps confirmations. The Respondent does not have the WhatsApp exchanging from over four years ago. There is no virtual tracing for this document either.

[20] The Applicant argues that there “must be” some electronic document attending the original Dhaliwal note. The Respondent says that the only such document was created to respond to the disclosure request. Because the Applicant’s allegation is speculative, there is no evidence before the Court that counters the Respondent’s statement.

[21] With respect to the Grover note, the Court has no evidence regarding how document-signing occurs on WhatsApp, and whether the Applicant’s request can be satisfied. However, the Applicant does not have sufficient evidence to rebut the Respondent’s claim that he cannot satisfy this request.

[22] The Respondent has, in effect, replied to the virtual tracing request by saying that what the Applicant wants is impossible.

[23] The Respondent advises that both Mr. Dhaliwal and Mr. Grover are listed as witnesses for trial.

[24] I find that additional orders regarding virtual tracing are not warranted. This issue will be suitably addressed at trial where the Applicant can fully test the Respondent’s narrative for credibility, reliability and plausibility.

[25] The Applicant’s request is dismissed.

3. Proof of interest payments

[26] The Applicant demands proof of interest payments made during the promissory notes’ respective terms.

[27] The Respondent deposes that interest payments were not paid separately. Instead:

[f]ull payment was made in 2022 as indicated in my Answer dated May 2023 and my response to the Applicant’s Request for Information dated July 31, 2023. The Dhaliwal promissory note provides for interest and principal to be due and payable on November 1, 2023. The Grover promissory note provides for interest and principal to be due and payable on November 10, 2023. These specifics are outlined in the promissory notes which the Applicant has had since June 2023.

[28] The Applicant says that the Respondent’s provided figures do not add up. The Respondent counters that this is not a matter of disclosure, but a substantive issue for trial. I agree.

[29] Again, I am persuaded that the Respondent has responded to the request for disclosure, albeit not to the Applicant’s satisfaction.

[30] The Applicant’s request is dismissed.

4. Tracing of Funds

[31] The Applicant asks for “a full tracing of funds used to ‘repay’ the Lenders of the promissory notes”.

[32] In his affidavit, the Respondent deposes to a number of facts, with attached documents, about how the original funds were loaned, their deposit into the parties’ HELOC account, the Respondent’s Scotiabank incoming transfer deposits, and redacted bank statements from both Mr. Dhaliwal and Mr. Grover.

[33] On a one-hour motion limited to a paper record, the court is unable to ascertain the validity or reliability of any of these documents.

[34] Therefore, I am persuaded that the Respondent has provided what he says is a tracing of the funds. This is now clearly an issue for trial where the Applicant can follow up on the Respondent’s narrative and accompanying exhibits.

[35] This request is likewise dismissed.

Request for a Preservation Order

[36] The Applicant seeks an order “restraining the Respondent Husband from depleting or dissipating any property under his control and requiring the Respondent Husband to preserve all such property in which he has a direct or indirect interest, whether such interest is legal or beneficial, or any other interest, including but not limited to bank accounts, investments, shares, real property and business interests, pending further Court Order or written agreement by the parties authorizing the distribution of same.”

[37] Justice Des Rosiers granted the Applicant leave to bring a motion for disclosure. Her Honour’s endorsement did not mention any other relief. It is unclear whether this issue was otherwise conferenced.

[38] Rule 14(4) of the Family Law Rules allows the court to address an issue that has not been previously conferenced if the court “is of the opinion that there is a situation of urgency of hardship...or some other reason in the interests of justice.” The Applicant’s affidavit filed for this motion makes a single reference to the Respondent’s intent to deplete his assets. The Applicant does not outline the legal test for dissipation or show how the facts support that test.

[39] I find that the Applicant’s request for a non-depletion/dissipation order against all of the Respondent’s property is (a) outside the leave granted for this motion and (b) not demonstrably urgent. The request is dismissed without prejudice.

Costs

[40] While the Applicant has not prevailed on this motion, I do not find that she was unreasonable in bringing it. I am persuaded that disclosure has been piecemeal necessitating the Applicant to “chase down” information. For example, a short time before this motion the Respondent supplied information that would have been available to him previously. In the circumstances, the parties shall bear their own costs.

ORDER

[41] In conclusion, I make the following order:

a. The Applicant’s request for an order for the original Dhaliwal and Grover promissory notes is adjourned sine die.

b. The Applicant’s requests outlined in paragraph 1(b), (c) and (d) in her requested relief in the Notice of Motion are dismissed.

c. The Applicant requests outlined in paragraph 2 of her requested relief in the Notice of Motion are dismissed without prejudice.

d. The parties shall bear their own costs.

Mathen J.

Date: December 11, 2024