COURT FILE NO.: FS-22-32563

DATE: 20240205

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Neeraj Monga, Applicant

and:

Dimple Bhatia Monga, Respondent

BEFORE: M. Kraft, J.

COUNSEL: Marcy Segal, for the Applicant

Emma Compeau, for the Respondent

HEARD: February 1, 2024

ENDORSEMENT

Nature of the Motion

1. The applicant, Neeraj Monga (“husband”), brings a motion for sanctions to be imposed on the respondent, Dimple Bhatia Monga (“wife”) of $250 a day until she cures her breach of a disclosure order made by Vella, J., dated July 21, 2023 (“Vella Order”). The husband also seeks an order that the wife be prohibited from seeking further relief of the court until the disclosure has been provided, that she produce additional disclosure and pay him costs. The wife seeks an order that the husband’s motion be dismissed.

2. The Vella Order was a consent order made at a case conference that took place on July 21, 2023. It contains reciprocal disclosure obligations and, among other things, obliges the wife to disclose the items requested in the husband’s Request for Information (“RFI”), dated July 7, 2023 within 60 days from the case conference, which was September 19, 2023.

3. The husband argues that the wife remains in substantial breach of the Vella Order and that sanctions of $250 a day are required to compel her to answer his RFI. The wife argues that she has made her best efforts to answer the requests in the husband’s RFI, she has produced substantial disclosure, to prevent her from seeking further relief from the court is highly prejudicial and sanctions in these circumstances are punitive, unreasonable, and unfair.

Issue to be Determined

4. The issues for me to decide on the motion are:

a. Is the wife in breach of the Vella Order?

b. If so, is the appropriate remedy to (a) order sanctions of $250 a day and (b) not permit the wife to seek further relief until the breach is cured?

5. For the reasons outlined below, I find that the wife is in breach of the Vella Order. However, I am not persuaded that I have jurisdiction to order the wife to pay a penalty or sanction of $250 a day until the breach is cured in the absence of a contempt motion before me. I exercise my discretion under r.1(8) to provide the wife with a further thirty days to take the steps I have outlined to answer the remaining outstanding disclosure set out in the husband’s RFI, failing which the husband shall have leave to bring a motion to strike the wife’s pleadings in relation to the financial claims in this matter.

Background

6. The parties were married in India on November 24, 2004. They have two children, S., 16 in grade 11 and A. almost 13, in Grade 7. The parties separated permanently on February 28, 2022, after 17 years of marriage, because of the husband’s violence toward the wife. The husband disputes the violence. The husband moved out of the matrimonial home, located at 38 Poplar Plains Crescent, Toronto Ontario, in the summer of 2022 and the children and wife remained in the home.

7. The children resided primarily with the wife from after separation until July 21, 2023.

8. At an urgent case conference before Rhinelander on October 17, 2023, the parties agreed to an equal time-sharing parenting schedule, such that the children would reside with each of them on a week on/week off basis. According to the wife, the husband then began a campaign of alienating the children, and both children now reside with the husband.

9. The wife submits that during this marriage she has experienced severe family violence at the hands of the husband. In addition to physical violence, the wife deposes that she was regularly emotionally and verbally abused by the husband calling her demeaning names such as a “cow”, a “pig”, a “duffer” and “mentally retarded” in front of the children. In addition, the wife swears that the husband was financially controlling and abusive during the marriage, such as stopping to pay her credit card to ruin her credit, threatening to deport her, and using joint funds without her consent. The parties first separated on May 14, 2019, when the husband was charged criminally with three counts of assault relating to a violent attack by him against the wife. The husband spent time in jail after his arrest. However, the parties reconciled. On November 21, 2021, the husband received an absolute discharge and signed a peace bond.

10. On February 28, 2022, the husband assaulted the wife again, in front of A. while S. was at school. After this attack, the wife separated and left the marriage.

11. The husband did not pay child or spousal support to the wife from the date of separation, on February 28, 2022, until the case conference before Vella, J. on July 21, 2023, namely for about 17-18 months. He was maintaining the household expenses during this time.

12. The husband is highly educated. He holds an MBA from the Richard Ivey School of Business at Western University, a degree from Rajasthani University in India and a Master’s Degree from Indore University in India. He was a partner at the Toronto-based Veritas Investment Research Corporation until 2014. He sold his equity in Veritas for over $1,000,000 after he left the partnership. The husband is currently self-employed at ANTYA Investments Inc., a corporation that offers discretionary management services to Canadian investors in Ontario, B.C. and Alberta.

13. The wife has a Master’s degree in Political Science from the University of Delhi in India. She has two businesses: Kala Designs Inc. (“Kala”), which sells women’s accessories and Trident Buying House (“Trident”) which sells women’s clothing. The parties started Kala in 2012. In 2022, Kala had total sales of $24,377 and expenses of $29,859. In November 2022, the wife started Trident after separation. According to the wife, Trident is not profitable.

Issue One: Is the wife in breach of the Vella Order?

14. On July 7, 2023, the husband served a RFI on the wife. The parties attended their first case conference before Vella, J. on July 21, 2023. At this conference both parties agreed to provide the other with the disclosure he/she was requesting. The Vella Order gave the wife 60 days from the conference to disclose the items set out in the husband’s RFI, dated July 7, 2023. The Vella Order also obliged the husband to pay the wife temporary, without prejudice, uncharacterized support of $6,000 a month starting August 1, 2023, fixed a long motion date for November 23, 2023 to enable the wife to seek child and spousal support and the husband to seek the partition and sale of the matrimonial home, and scheduled a Settlement Conference in this matter for February 7, 2024.

15. The RFI contained 32 requested items of disclosure from the wife. Counsel for the husband argues that the wife did not produce any disclosure until October 2023, after the deadline set out in the Vella Order. The husband submits that while the wife provided further disclosure in November 2023, the balance was not produced until January 28, 2024, only after this motion material was served. Further, the husband submits that the disclosure forwarded by the wife on January 28, 2024 came in a highly disorganized manner, without an index, in no order and was a “document dump”, leaving him to incur significant legal fees to have counsel go through individual screen shots of illegible bank statements. Until the financial disclosure process is completed, the husband argues the financial issues in this case cannot be resolved. The husband also submits that the wife’s most recent sworn financial statements contains many entries which are “TBD” including her income, the value of her jewellery, the value of her RRSP and the value of her company Kala on the date of separation. He seeks sanctions of $250 a day because he needs the wife to provide full and frank financial disclosure as she is required to do under the Family Law Rules, O. Reg. 114/99 (“FLRs”) and the Family Law Act, R.S.O. 1990, c.F.3.

16. The parties had a long motion before Faieta, J. on November 23, 2023, which decision is pending. At that long motion, the parties agreed to temporarily impute the wife with an annual income of $30,000. The husband argues that that agreement was reached because there was insufficient financial disclosure from the wife on which a court could determine what her income is for support purposes, but that does not mean he is not entitled to full and frank disclosure from the wife.

17. The wife argues that she has made her best efforts to answer all items requested in the husband’s RFI since July 7, 2023. Her affidavit, sworn on November 3, 2023, confirms that she had difficulty obtaining the information requested in the husband’s RFI but she delivered the following production:

18. On October 3, 2023 she swore an affidavit and produced i. Her current TransUnion credit score; ii. Her personal income tax returns for 2020, 2021 and 2022. Her notices of assessment for 2020, 2021 and 2022 were disclosed in her previous sworn financial statement, dated July 17, 2023; iii. A breakdown of her personal expenses; iv. Various statements for her RBC Visa ending in #1214 and #1206 from January 2019 to March 2023, stating that she is seeking full statements; v. Statements for her RBC Account #3825 from 2023 to date; vi. Statements for her RBC Account #3825 from 2022, 2021, 2020 and 2019; vii. Some statements for her RBC Account #1434, with an indication that she is seeking additional statements for this account; viii. A statement from her Scotia iTrade account #9014, dated February 2022; ix. A statement from her Scotia iTrade account #1218, dated February 2022; x. Statements from the Trident business account from January to June 2023; xi. A statement from the Operating Line of Credit for Trident, with an indication that she is seeking the loan application; xii. Details of recent travel, xiii. Income tax returns for Kala from 2012 to 2022 and xiv. Corporate Financial Statements for Kala from 2018-2020.

19. On November 2, 2023 she swore an affidavit and produced i. The Financial Statements for Kala for the year-ended March 31, 2021, and March 31, 2022; ii. Statements for the Kala RBC account #1434 from January 2021 to January 2022; and from January 2022 to November 2023; iii. Statements for the KALA RBC US account #6920 from January 2021-October 2023; iv. Statements for KALA RBC Visa 1206 for 2021, 2022 and 2023 to date; v. Statements for Trident TBC Chequing Account #6485 from 2023, not included in her prior affidavit; vi. Statements for Trident RBC US Account #5146 for 2023; and vii. Statements for Trident TBC Visa Account $6959.

20. Finally, the wife argues that the husband does not come to court with clean hands and has reported his income to be significantly lower than it actually is. By way of example, on October 17, 2022, the husband’s sworn financial statement listed his 2021 income at $76,437, when his Chartered Business Valuator’s report determined that his 2021 income was $246,238. The husband’s July 13, 2023 financial statement, lists his 2022 income as $120,806, and his financial statement, sworn on October 12, 2023, lists his 2022 income at $335,428 based on the income assessment of his Chartered Business Valuator, Patrick McCabe, dated July 21, 2023.

21. Another example given by the wife of inaccurate disclosure from the husband is that on November 10, 2023, the husband swore an affidavit disclosing for the first time a bank account he held during the marriage with the State Bank of India, during the marriage, which had been previously not been disclosed on his earlier financial statement. This is despite the fact that he had served an affidavit, sworn on March 13, 2022, in answer to the wife’s RFI, dated February 2, 2023, deposing that all of his assets worldwide had been disclosure in his financial statement, sworn on October 17, 2022.

22. The wife makes these arguments to support her position that it would be unfair for an order to be made that she not be permitted to seek relief from the court when the husband, himself, does not come to court with clean hands.

23. According to the husband the remaining outstanding items from his RFI as at January 29, 2024 were set out in a Schedule he attached as Exhibit “H” to his affidavit, sworn on January 29, 2024 and include the following:

Item Requested in the RFI	Item Produced by the wife	Outstanding Disclosure as determined by the Court
The complete TransUnion Credit report	The wife only produced the TransUnion credit score. On Jan. 29/24 she provided another copy of her TransUnion credit report.	Nothing is outstanding.
A shipping log for Kala, Trident and DTDC under each name, quantity of packages, value of packages and cost of shipping packages	The wife provided a self-made excel spreadsheet providing miscellaneous transactions. She also provided an email from DTDC direction containing the Kala Design Ledger.	Nothing is outstanding.
The wife’s passport from 2015 to 2017.	The wife provided complete copies of her Passport from 2018 onward.	Nothing is outstanding. The husband’s counsel confirmed he is not seeking the passport from 2015-2017
#2 and #3 of Schedule “A” not fully responded to #2: T1 Personal ITRs, including all schedules and supporting documentation for 2020, 2021 and 2022 #3: Notices of Assessments and Reassessment for 2020, 2021 and 2022	The wife’s produced her personal ITRs for 2020, 2021 and 2022 on October 3, 2022. The wife’s Notices of Assessment for 2022, 2021 and 2020 were produced with her sworn financial statement, dated July 17, 2023	Nothing is outstanding
Statements for her credit cards ending in #8415 and statements for her RBC account ending in #1570 from January 2021 to July 7, 2023	The wife’s response is that she has no knowledge of these accounts	It is unclear what is outstanding.
Scotia iTrade RRSP account ending in #9014, of which she previously claims to have no knowledge	The wife provided copies of the Scotia iTrade RRSP account ending in #9014 however only for June and November 2018; March of 2019; February of 2021; February, 2022.	Scotia iTrade RRSP statements missing for: Jan-May, 2018; Jan-Feb 2019; April-Dec. 2019; All of 2020 Jan. 2021; March-Dec, 2021, Jan. 2022 March 2022 – Dec 2022. All of 2023
Statements for her Royal Bank Avion Visa Business accounts ending in 1206 and 6945.	The wife provided March-Sept, 2021; Jan., March, May-July, and December of 2023 and all of 2022. On Jan. 29/24 she provided Jan., Oct. and Nov. for 2021	RBC Avion Visa business accounts ending in 1206 and 6945 missing for Feb 2021; Feb. 2023 April, 2023August-Nov 2023
Statement for her Royal Bank Business Account for KALA Designs Inc. 6920.	The wife provided Jan 2021; April, 2021; June-Dec, 2021 The wife provided Jan-March, 2023, May-October, 2023. On Jan. 29/24 she provided Feb., Mar. and May of 2021 and April, Nov. and Dec. 2023.	Nothing is outstanding.
Statements from Scotia Bank Dimple Monga account 0927, of which she previously claim to have no knowledge	The wife provided Mar-June, 2021; Aug-October, 2021; Jan-April, 2020; July-Oct. 2020 and Dec. 2020 Jan. 2021; Mar. 2021; June-Nov. 2021.	Missing statements for Jan, Feb., July, Nov and Dec. 2019 May, June and November 2020 February, April, May and December 2021.

19. The wife does not dispute that these items remain outstanding.

20. It is trite law that the duty to disclose is the most basic obligation in family law, and that the obligation is immediate and ongoing: Ellis v. Ellis, 2023 ONSC 512, at para. 44; Colucci v. Colucci, 2021 SCC 24; Leitch v. Novac, 2020 ONCA 257, at para. 444; Roberts v. Roberts, 2015 ONCA 450, at para. 11; Manchanda v. Thethi, 2016 ONCA 909, at para. 13.

21. There are several rules set out in the FLRs solely devoted to the obligation to give disclosure on a timely basis, setting out in detail the disclosure to be provided, along with the obligation to update the disclosure on a regular basis.

22. There have been several amendments to the FLRs in the last few years to ensure that the obligation to give disclosure is absolutely clear to lawyers, litigants, and self-represented litigants alike. Some of these amendments include r. 8.0.1 (automatic orders for disclosure on issuing an application), r.13(3.) (providing details of the disclosure to be provided), and r.13(5.0.2) (requiring certificates of financial disclosure), to name just a few.

23. Failure to abide by the FLRs and to fulfill the obligation to give full and complete financial disclosure impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice.

24. A litigant should not have to bring a motion to get an order requiring a party to do something that has already been ordered (such as a motion for enforcement of a disclosure order). If there has been a breach, the appropriate step is to seek a remedy under r. 1(8): see Varcoe v. Varcoe, 2014 ONSC 328.

25. In Ferguson v. Charlton, 2008 ONCJ 1, Spence J. outlined a three-step process for the court to follow when faced with a motion under r. 1(8):

26. Determine whether there is a triggering event.

27. If a triggering event exists, consider whether the court should exercise its discretion, by sanctioning that party.

28. If the court determines it will not exercise its discretion in favour of a non-compliant party, it is then left with a very broad discretion as to the appropriate remedy pursuant to the provisions of either sub rule 1(8) or sub rule 14(23).

29. The wife does not dispute that there is outstanding disclosure owing to the husband. Rather, her explanation is that she has made best efforts to provide whatever she was able to obtain and then she provided an Authorization and Direction for the husband and his counsel to obtain the missing bank statements from any and all bank accounts she holds with RBC, Scotiabank and Simplii financial.

30. Neither party prepared a chart of the disclosure requested by the husband in the RFI or a detailed explanation of what had been produced and what is outstanding. However, the husband did provide the court with an updated schedule of what disclosure requested in the RFI he claims had not been answered by the wife. The wife did not dispute that these items were outstanding. The Court has done its best to determine what disclosure remains outstanding.

31. Accordingly, I find the first part of the test has been satisfied.

Issue Two: Is the appropriate remedy to (a) order sanctions of $250 a day and/or (b) not permit the wife to seek further relief until the breach is cured?

29. The second part of the test is for the court to consider it should exercise its discretion, by sanctioning the non-compliant party, in this case the wife.

30. I am persuaded that there must be consequences to the wife for failing to provide the ordered disclosure in these circumstances. The only real question on this motion is the appropriate remedy. The list of remedies listed in r. 1(8) are not exhaustive.

31. In making this assessment a court must consider: (1) the disclosure provided; (2) an itemization of the disclosure that the impugned party has failed to provide; (3) whether there has been willful disobedience; (4) proportionality. Owen v. Owen, 2018 ONSC 1083, at para. 12.

32. Or, as set out in Mullin v. Sherlock, 2018 ONCA 1063, 19 R.F.L. (8th) 1, at para. 45, in assessing the most appropriate remedies, a judge should consider the following factors:

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

b. 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;

c. the extensiveness of existing disclosure;

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

e. any other relevant factors.

33. I reviewed the outstanding disclosure from the RFI which essentially is for the wife to provide personal bank statements, corporate bank statements and credit card statements from various months in 2019, 2020, 2021, 2022 and 2023. The relevancy of these statements goes both to income and expenses, and the disclosure of the wife’s corporations may impact the value of her two companies on the date of separation.

34. I do not find the wife’s failure to provide full disclosure in terms of the items requested in the RFI to be egregious. While it has been almost 5 months from when the disclosure was ordered to be produced under the Vella Order, there has only been one order for the disclosure and it was made on consent. The wife did not, for example, argue that the disclosure requested was not relevant, a fishing expedition, or not proportional. Rather she agreed to produce the disclosure requested by the husband. The wife has clearly made attempts to produce the requested disclosure, albeit it has been delivered late and it is not complete. It appears that the disclosure has not been produced in an orderly fashion and that has increased the husband’s legal fees. However, the wife has also taken the position throughout these proceedings that the husband controlled the family’s finances, she does not have access to many of these accounts, and recognizing her vulnerability in this regard, she provided the husband with Authorizations and Directions to obtain the missing bank statements directly. This is not uncommon in matrimonial proceedings, when a party has made best efforts to answer requested disclosure. I do not agree with the husband’s submission that the wife has not made best efforts to provide her disclosure. I acknowledge it has not been produced in the timeframe set out in the Vella Order, but it has been disclosed in October and November of 2023 and in January 2024.

35. I am not persuaded that the wife’s conduct can only be regarded as a willful non-compliance with a court order.

36. In applying the Mullin v. Sherlock test to the facts of this case, therefore, I conclude as follows:

a. There is some relevance to the wife’s outstanding disclosure but I do not agree that the missing statements are responsible for hindering the resolution of issues in dispute;

b. This is not an overly complicated case and, therefore, the wife should be able to produce the outstanding disclosure and ought to take steps to do so.

c. The wife has produced a significant amount of disclosure which should not be ignored.

d. The wife has made serious efforts to disclose, and

e. The husband is clearly the party who had control and access to the parties’ finances during the marriage.

Is a penalty of $250 a day until the breach is cured an Appropriate Remedy?

37. The husband seeks the imposition of a penalty pursuant to Rule 1(8) on the basis that the wife pay $250 for each day that she remains in non-compliance with the Vella Order.

38. The wife submits that any penalty would be punitive and that she cannot afford to pay a penalty.

39. The husband characterizes the payment of $250 per day as a penalty rather than a fine. This characterization is appropriate given that a fine for civil contempt is to be paid to the Treasurer of Ontario rather than to a party in the proceeding: SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97, paras. 13-17.

40. I find that there is no jurisdiction to impose a penalty on the wife pursuant to Rule 1(8) for the following reasons.

a. In requesting a penalty under Rule 1(8), the husband did not provide case law where penalties were ordered. However, the cases of Granofsky v. Lambersky, 2019 ONSC 3251 and Mantella v. Mantella, (2008), 2008 CanLII 48648 (ON SC), 61 R.F.L. (6th) 252 are such cases and were referred to in the wife’s Statement of Law.

b. In Granofsky, Diamond J. ordered that a “monetary penalty” of $500 per day be paid. He explained, at para. 28, the grounds for this Court’s authority to impose a penalty under Rule 1(8) as follows:

In my view, the Court has jurisdiction under the Family Law Rules to order a fine or monetary payment as part of its role to control and enforce its own process. Such a remedy places a price on non-compliance with court orders and disclosure obligations commensurate with that process. While a remedy of a fine or monetary payment should be reserved to exceptional and/or egregious circumstances, the respondent has been given opportunity after opportunity to comply with his duty to disclose financial information and documentation and I find the case before me to be a fitting example. [Emphasis added]

c. On the other hand, in Shapiro v. Feintuch, 2018 ONSC 6746, the court dismissed the Respondent’s request for a payment of $2,500 in “costs” over and above any of his legal fees and disbursements as a consequence of the Applicant’s failure to comply with a parenting order. In arriving at this conclusion, P.J. Monahan J. stated:

There is legal authority in the Family Law Rules for ordering one party to make a payment to another party, but only in circumstances where the court finds a person in contempt of court. Rule 31(5)(c) provides that where a finding of contempt is made, the person in contempt may be ordered to pay "an amount to a party as a penalty". But there has been no such finding sought or made in this proceeding and thus Rule 31 cannot provide legal authority for the payment sought by the Respondent.

41. In my view, an order for "costs" under Rule 1(8)(a) only permits an order in respect of the reimbursement of legal fees and disbursements.

42. In Belcourt v. Charlebois, 2020 ONSC 4124, paras. 27-33, the court dismissed the Applicant’s request for an order requiring the Respondent to pay her $50 per day for each day that he withheld their child from her contrary to the final parenting order. J.P.L. McDermot J. stated that the monetary penalty requested by the Applicant could only be ordered on a contempt motion under Rule 31.

43. As set out by J.P.L. McDermot, J., with which principles I agree,

[30] Contempt is a quasi-criminal proceeding whereby the court must find that the contemnor is in wilful or intentional breach of an order beyond a reasonable doubt: see S.M. v. R.M., 2019 ONSC 42 at para. 14. The fact that this is a quasi-criminal remedy with criminal penalties such as the fine requested means that the pleadings must specifically support the remedy. In the present case, they do not: there is no request that I find that the Respondent is in contempt of the order or that I declare the Respondent to be in contempt of the order. Without that request, especially when the Respondent is self-represented, he may very well not have addressed the criteria for a finding of contempt in his affidavit. That is prejudicial to the Respondent.

[31] That is supported by the fact that rule 1(8)(g) states that in the event of a breach of a court order, the court may, on motion, make a contempt order. In the present case, there is no motion for a contempt order, only for a penalty.

[32] Moreover, in a contempt proceeding, the material must be personally served and it must be a motion according to Form 31 which contains a specific warning as to the consequences of contempt: see Rule 31(2) of the Family Law Rules and Form 31. This rule was not adhered to by the Applicant as the material was served by email and Form 31 was not used. Again, as this is a request for a quasi-criminal remedy, the rules concerning contempt must be strictly adhered to unless there is good reason to order otherwise. No reason was given as to why I should waive the provisions of that rule.

44. Whether a court may make an order requiring a party to pay a penalty to another party, absent a finding of contempt, pursuant to Rule 1(8) remains an open question at the Ontario Court of Appeal.

45. In Mantella v. Mantella, (2008), 2008 CanLII 48648 (ON SC), 61 R.F.L. (6th) 252, the Applicant husband was ordered by D.L. Corbett J. to pay a fine of $2,500.00 per day for every day after April 25, 2008 that certain previously ordered disclosure was not made. On this motion, Van Melle J. found that the Applicant had failed to deliver the required disclosure by April 25, 2008 and ordered that he pay a fine of $185,000.00 to the Applicant. In Mantella v. Mantella, 2009 ONCA 194, the Applicant’s appeal of this Order was quashed on the basis that the Order was an interlocutory order and thus the appeal should have been filed with the Ontario Divisional Court rather than the Ontario Court of Appeal. In obiter, the Ontario Court of Appeal, at para. 22, stated:

The central issue raised in this appeal is whether, absent a finding of contempt, a judge has the jurisdiction under the Family Law Rules to impose and order payment of a fine as part of the case management process. In other words, as submitted by the respondent, is the authority conferred by any of Rules 1(8), 14(23) or 19(10) broad enough to allow for the making of such orders? Whether a fine or penalty can be imposed absent a finding of contempt, and to whom the fine is payable, are novel issues and are important. The novelty and importance of the issues do not, however, make the order into a final one for purposes of appeal.

46. More recently, in Bouchard v. Sgovio, 2021 ONCA 709 the Ontario Court of Appeal upheld an order granted pursuant to Rule 1(8) that, amongst other things, granted the Respondent mother a temporary parenting order to facilitate the enrollment of her children in a counselling program. However, the Ontario Court of Appeal went on to question, without deciding, whether a penalty could be imposed under Rule 1(8) in the absence of a finding of contempt. David M. Paciocco J.A. stated, at para. 51,:

51 … Stated simply, if the remedy ordered addresses or "[deals] with the failure" to comply with the substantive order and the remedy ordered is found to be necessary to achieve the enforcement of the order being breached, that remedy is prima facie authorized by r. 1(8).

52 I use the term prima facie authorized because I do not mean to suggest that there are no limits to the kinds of enforcement orders that can be made under r. 1(8). For example, it may well be that the remedies that are provided for in r. 31(5), which is reproduced below, cannot be imposed pursuant to r. 1(8), absent a successful contempt motion as contemplated by r. 1(8)(g): see Mantella v. Mantella, 2009 ONCA 194. This proposition seems sensible since contempt orders require proof beyond a reasonable doubt, and although they are remedial in purpose, they are punitive in nature, and are therefore to be used as a last resort: Hefkey v. Hefkey, 2013 ONCA 44, at para. 3; Prescott–Russell Services for Children and Adults v. G. (N.) 2006 CanLII 81792 (ON CA), [2006] 82 O.R. (3d) 686 (Ont. C.A.), at para. 26. I need not resolve this specific question since the ground of appeal before us concerns only the temporary parenting order and the Building Bridges order, neither of which are remedies contemplated by r. 31(5); the father did not appeal the Hughes Order where the motion judge did impose punitive fines without making a finding of contempt against the father, nor did he raise any objections in this appeal to the motion judge's order that those fines would "remain in full force and effect". Nevertheless, this illustration demonstrates that there may be other legal limits on the kinds of orders that courts may impose under r. 1(8). [Emphasis added]

47. In dissenting reasons, I.V.B. Nordheimer J.A. stated:

101 …. However, as I have already said, and as my colleague points out, the broad language of the introductory portion of r. 1(8) cannot provide jurisdiction to make whatever order the court wishes. It does not bestow unlimited authority on a judge to do whatever they choose. My colleague implicitly acknowledges that there are constraints on the authority granted by r. 1(8), when he says, at para. 52, “there may be other legal limits on the kinds of orders that courts may impose under r. 1(8)”.

102 I would go farther and make it clear that there are such limits. They are necessary because, before certain types of orders are made against a party, it is necessary to follow certain procedures, including applying the proper burden of proof. These procedures must be followed because they provide necessary procedural safeguards to the person who is to be subjected to any such order. For example, in cases where penal sanctions are sought, those safeguards are provided by r. 31 of the Family Law Rules. Procedural safeguards are not to be avoided simply because it is more convenient or more expedient to do so. [Emphasis added]

48. In Altman v. Altman, 2022 ONSC 4479, the Applicant brought a motion to strike the Respondent’s pleadings, to prohibit the Respondent from bringing any further proceedings or being entitled to any further relief until he was in compliance with Orders, and that the Respondent pay the Applicant the sum of $3,500 for each day that he remained in non-compliance with the orders. Faieta, J. found that he did not have the jurisdiction to order a penalty under a r.1(8) motion and dismissed the Applicant’s request to impose the penalty of $3,500 a day. I agree with Faeita, J. and adopt this view. As Faieta, J. stated at paragraph 44 of Altman,

There is express authority to order a person to pay fine or penalty under Rule 31(5) of the Family Law Rules if that person is found in contempt of the court for failing to comply with an Order. A finding of civil contempt requires proof of the following elements beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Chong v. Donnelly, 2019 ONCA 799, para. 5 (C.A.). As noted in Carey v. Laiken, 2015 SCC 17, para .32, “[t]hese three elements, coupled with the heightened standard of proof, help to ensure that the potential penal consequences of a contempt finding ensue only in appropriate cases”. These heightened requirements and the procedural safeguards provided by Rule 31 are avoided if Rule 1(8), which has no such requirements or procedural safeguards, is used to impose a penalty upon a party for non-compliance with an order.

49. Accordingly, I dismiss the husband’s request to impose a penalty of $250.00 per day on the wife.

Is an order to prevent the wife the opportunity to seek further relief in the case until the breach is cured an appropriate remedy?

50. Rule 1(8)(e) provides the court with jurisdiction to deal with a party’s failure to obey an order by ordering that a party is not entitled to any further order from the court unless the court orders otherwise. That is alternative relief the husband seeks on this motion.

51. As Price, J. set out in Mullin v. Sherlock, 2018 ONCA 1063, at para. [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.

52. As found in Roberts v. Roberts, 2015 ONCA 450, at paras. 11 and 12, the most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Any failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.

53. Rule 2(2) of the Family Law Rules provides that the primary objective of the rules is to enable the court to deal with cases justly. Rule 2(3) states that dealing with a case justly includes:

a. ensuring that the procedure is fair to all parties;

b. saving expense and time;

c. dealing with the case in ways that are appropriate to its importance and complexity; and

d. giving appropriate court resources to the case while taking account of the need to give resources to other cases.

54. With the primary objective of the FLRs in mind, I order that the wife shall have an additional 30 days within which to answer the outstanding items set out in the husband’s RFI. The wife shall be required to make the necessary inquiries of the various banks at which she holds accounts or credit cards and to obtain the missing statements in the years between 2019 and 2023. If the statements are not capable of being obtained by the bank, then the wife shall be required to provide that correspondence to the husband to demonstrate that best efforts have been made and the missing statements are out of her control, at which point the husband shall be free to ask the judge hearing this trial to draw an adverse inference with respect to the wife’s failure to disclose. If the wife has not demonstrated that her best efforts have been made within the 30 days, the husband shall have leave to bring a motion to strike the wife’s Answer/Claim with respect to the financial claims in this matter. Until the wife has complied with the terms of this order, she has not be entitled to seek any relief in these proceedings. The wife shall provide updated bank account statements within 30 days of the order.

55. I am also mindful of the fact that the husband’s motion was brought 6 days before the parties have a scheduled Settlement Conference on February 8, 2024, and while the parties are awaiting a decision from Faieta, J. from the long motion. Any further disclosure issues not addressed at this motion, shall be addressed at the case conference.

COSTS

56. The husband has filed a bill of costs which sets out that his full indemnity costs amounted to $28,696.35. The wife’s bill of costs amounts to $7,374.92 on a full-indemnity basis.

57. The husband’s counsel was called to the bar in in 1990 and her hourly rate is $625 an hour. A total of 50.8 hours was spent by on this motion from January 11, 2024 and February 1, 2024. The wife’s counsel was called to the bar 2021 and her hourly rate is $285. During this same period of time, namely, January 1, 2024 to February 1, 2024, a total of 22.90 was spent on this motion. While it makes sense that the husband’s counsel spent more time, given that the husband’s counsel was required to go through the disclosure provided, which he describes as being completely disorganized and having been a “document dump”, that does not account for roughly double the time that was spent by the wife’s counsel, since both parties prepared affidavits and a Factum for the motion. I point out that neither party prepared the kind of detailed chart the Court expects on a disclosure motion, outlining what request was made, what was produced and when, and what remains outstanding.

58. I note from a review of the husband’s counsel’s Bill of Costs that time was spent reviewing the wife’s Offer to Settle. The husband contacted the court advising that he had also served an Offer to Settle and asked for my instruction as to whether I wanted that Offer to be uploaded onto Caselines. I indicated today that it could be. However, I was not aware at that time that the wife had also delivered an Offer to Settle.

59. Accordingly, I cannot determine the costs relating to this motion without further costs submissions from the parties.

ORDER

60. This court makes the following order:

a. The respondent shall have thirty (30) days from the release of this Endorsement to produce the outstanding documents requested in the applicant’s RFI set out in the chart at paragraph 18 above. The wife shall be required to serve and file an affidavit setting out the steps she has taken to obtain the missing disclosure, including any and all correspondence sent by her to third parties/institutions to obtain the outstanding disclosure. If the disclosure is not capable of being produced by the third parties to whom the wife has made the request, the wife shall produce any and all correspondence from the third parties/institution to demonstrate that and the wife shall be deemed to have made her best efforts to comply with the Vella Order and the husband shall be free to ask the judge hearing the trial of this matter to draw an adverse inference against the respondent.

b. If the wife has not demonstrated that her best efforts have been made within the 30 days, the husband shall have leave to bring a motion to strike the wife’s Answer/Claim with respect to the financial claims in this matter.

c. Until the 30 days has elapsed, referred in paragraph a. above, or the wife answers the outstanding disclosure set on in the applicant’s RFI, whichever is sooner, the wife shall not be entitled to bring any motions to seek any further relief in these proceedings.

d. The applicant and respondent are encouraged to settle the issue of costs arising from this motion by agreement. If they are unable to do so, the applicant shall serve and file written costs submissions of no more than 3 pages, not including the Bill of Costs or offers to settle within 14 days of the release of this Endorsement. The respondent shall serve and file written costs submissions of no more than 3 pages, not including the Bill of Costs or offers to settle within 7 days of being served with the applicant’s written costs submissions. Reply submissions, if any, shall be no more than 1 page and shall be served and filed within 5 days of the applicant being served with the respondent’s costs submissions.

M. Kraft, J.

Date Released: February 5, 2024