Court File and Parties
Court File No.: FC-13-1687-0001
Date: 2025-03-24
Court: Superior Court of Justice, Family Court - Ontario
Applicant: Johnny Vinken
Respondent: Heather Anne Earle
Before: Robert B. Reid
Counsel:
Brian R. Kelly, for the Applicant
Shana Maiato, for the Respondent
Heard: 2025-01-15
Decision on Motion
Introduction
1The applicant moves for various forms of relief arising from the failure of the respondent to provide requisite disclosure and answers to undertakings.
2A motion to change has been brought by the respondent. The details were not provided to this court, but it appears that the applicant’s retroactive obligation to pay child support as well as s. 7 expenses are at issue as regards the post-secondary education of the three now-adult children of the parties. The applicant submits that he requires full disclosure of the children’s financial circumstances and details of their financial dependence to determine when support should have terminated and what, if any, retroactive s. 7 expenses may be owing by him.
3Disclosure by the respondent of financial and related information has been a sore point for years. Several disclosure orders have been made, beginning with an order dated January 5, 2021 by Pazaratz J., at a case conference. Some disclosure has been provided by the respondent from time to time, often in response to motions for disclosure. One such motion was made by the applicant dated September 13, 2021. Questioning of the respondent took place on November 22, 2021 and undertakings were given. The applicant alleges that some of those undertakings remain outstanding. A further disclosure motion was dated February 14, 2023, and a consent order was made for disclosure of items that had not been provided up to that point. Some compliance occurred. This motion was dated October 21, 2024. Further disclosure has been provided by the respondent in response, but the applicant submits that full disclosure has still not been completed.
4The applicant seeks an order either striking the pleadings of the respondent and permitting the matter to proceed to an uncontested trial, or alternatively for an order requiring compliance with outstanding orders and answers to undertakings, or in the further alternative for a new disclosure order.
5Both parties agree that there should be an order extending the time to set the matter down for trial by nine months.
Discussion
6The following disclosure required by the order of Pazaratz J. made January 5, 2021 is said by the applicant to be outstanding as of the date of the motion hearing:
a. All official transcripts from all post-secondary studies that each child has attended or may be attending;
b. Details of where the children have been residing and on what basis (temporary/permanent);
c. The nature of each child’s financial contribution to their own support and the nature of their support of the respondent, if applicable; and
d. Office of the Public Guardian and Trustee account statements.
7Academic transcripts were provided in February 2021 applicable up to that date, but not for periods thereafter. That information is relevant. If transcripts are not provided within 30 days hereof, it is reasonable to expect that no s.7 expenses will be provable at trial for such periods, subject to the final discretion of the trial judge.
8The applicant notes what appears to be conflicting evidence as to the residential lease agreement involving the respondent. One document identifies the respondent as the sole tenant, while another shows two of the children as joint tenants with the respondent. If relevant, that is a matter which can be clarified at trial. It should be capable of an answer by the respondent, who has knowledge of the circumstances. In any event, no order is appropriate.
9The respondent is best placed to answer the question of where the children were residing during the relevant period, and on what basis, as ordered by Pazaratz J. She is to do so in writing within 30 days hereof.
10Pazaratz J. required the respondent to “identify the nature of the children’s financial contribution to their own support and the nature of their support of the respondent (if applicable)”. Homemade spreadsheets are not proper proof. There will be an order that the amount of any financial contribution made by the children to their own support and/or to the support of the respondent during any period for which retroactive s.7 expenses are sought is to be provided together with receipts, if available, within 30 days hereof. If that information is not provided, it is reasonable to expect that the applicant will ask the trial judge to draw an adverse inference to conclude that no retroactive financial support from the applicant is justified.
11As to account statements from the office of the PGT, it appears that the respondent produced the required documentation for two of the children as of December 3, 2024. There appears to be no reason why similar information cannot be made available for KV. That information is to be provided within 30 days hereof.
12The applicant alleges that the respondent has failed to provide the 2021 income tax returns relating to each of the three children. Those productions were ordered by Walters J. in her order of March 31, 2023. Those documents are to be provided within 30 days.
13Required information as to the costs of post-secondary education, including tuition, applicable student loans, bursaries and other financial aid is not satisfied by the provision of a spreadsheet. Rather, receipts are required unless it is specifically set out that they are not available and the reasons for lack of availability. The respondent is to produce that material within 30 days.
14The applicant seeks statements, presumably from the relevant financial institutions, showing the opening balance of each of the children’s investment accounts as of January 1, 2016 and the closing balances: for KV as of August 21, 2020, for EV as of April 30, 2021, and for JV as of November 22, 2021. Undertakings to provide that information were given by the respondent at questioning on November 22, 2021. The respondent deposes that the information was previously provided. It is not productive to try to sort out which position is correct in this motion. Therefore, there will be an order that the material be provided by the respondent within 30 days. To the extent that the respondent believes that any of the undertakings have already been complied with, she is to re-serve the material within the timeframe ordered.
15The applicant seeks statements quantifying all OSAP loans, as well as any other loans, bursaries and grants received by the children which the respondent undertook to provide in the questioning of November 22, 2021. The relevant time for KV is from January 1, 2016 to August 31, 2020. For EV, the relevant time is January 1, 2016 to April 30, 2021, although the statements have been provided for 2017 to 2019. The relevant time for JV is from January 1, 2016 to April 30, 2022, although statements have been provided for 2018 to 2020. The respondent deposes that all the information was previously provided. Once again, it is not productive to try to sort out which position is correct in this motion based on the material filed. Therefore, there will be an order that the requested documents be provided by the respondent within 30 days. To the extent that the respondent believes that any of the undertakings have already been complied with, she is to re-serve the material within the timeframe ordered.
Conclusion
16The applicant has asked that the failure by the respondent to make timely and complete disclosure should result in an order striking the respondent’s pleadings, and in effect allowing the applicant to proceed without opposition.
17The preference of the court is to permit matters to proceed to resolution on the merits. Therefore, there will be no order striking the respondent’s pleadings. There will be an order as follows:
a. On consent, the time to set the matter down for trial is extended by nine months from the date hereof.
b. Within 30 days hereof, the respondent is to provide academic transcripts for all three children for the time following the periods supported by the documents provided in February 2021.
c. Within 30 days hereof, the respondent is to answer the question of where the children were residing while pursuing their post-secondary education during any periods when s. 7 expenses and/or support is being sought.
d. Within 30 days hereof, the respondent is to provide proof of the amount of any financial contribution made by the children to their own support and/or to the support of the respondent during any period for which s.7 expenses or support are sought together with receipts, if available.
e. Within 30 days hereof, the respondent is to ensure that the requisite forms are provided to the PGT to permit provision of an account statement as regards KV, for review by the applicant.
f. Within 30 days hereof, the respondent is to provide to the applicant the 2021 income tax return relating to each of the three children.
g. Within 30 days hereof, the respondent is to provide to the applicant for each of the children receipts as to the costs of post-secondary education, including tuition, applicable student loans, bursaries, and other financial aid for periods where a contribution of support and s. 7 expense are being sought, unless those receipts are not available, in which case the reasons for unavailability are to be provided.
h. Within 30 days hereof, the respondent is to provide to the applicant statements from the relevant financial institutions, showing the opening balance of each of the children’s investment accounts as of January 1, 2016, and the closing balances, for KV as of August 21, 2020, for EV as of April 30, 2021, and for JV as of November 22, 2021.
i. If the respondent takes the position that any of the foregoing terms have already been satisfied, she will re-serve the material within the timeframes identified.
18The parties have spent significant time and money litigating the motion to change to date, particularly as to disclosure. Undoubtedly, the net amount of any retroactive payment that may be ordered in favour of the respondent is being eroded by the costs of the proceeding, much of which appears to have occurred because of her own unwillingness to make prompt and complete disclosure. To the extent that continuing support payments are being made, they may well result in an overpayment which must be reimbursed. Clearly, it is in the parties’ best interests to have the matter concluded, either by a trial or preferably by a settlement sooner than later.
Costs
19The parties are encouraged to resolve the issue of costs of the motion between themselves. If they are unable to do so, they may submit a Bill of Costs and make written submissions, consisting of not more than three pages in length according to the following timetable:
- The applicant is to serve his Bill of Costs and submissions by April 7, 2025;
- The respondent is to serve her Bill of Costs and submissions by April 17, 2025;
- The applicant is to serve his reply submissions, if any, by April 25, 2025;
- All submissions are to be filed with the court with a copy to St.Catharines.SCJJA@ontario.ca and uploaded to Case Center by April 25, 2025.
20If no submissions are received by the court by April 28, 2025, or any agreed extension, the matter of costs will be deemed to have been settled.
Robert B. Reid
Date: March 24, 2025