Superior Court of Justice – Ontario
Court File No.: FS-22-14393
Date: 2025-05-27
Between:
Dennis Legault, Applicant
and
Mandy Herbert, Respondent
Before: S.K. Stothart
Counsel:
Christopher McInnis, for the Applicant
Hayley Cairns, for the Respondent
Heard: 2025-04-17
Endorsement on Motion for Disclosure
Introduction
[1] The applicant has brought a motion seeking an order that the respondent disclose:
a. Her Robinson Huron Treaty settlement particulars;
b. Her 2025 employment income particulars;
c. Other benefits she received from employment in 2023, 2024 and 2025.
[2] The respondent opposes the motion seeking disclosure of her Robinson Huron Treaty (“RHT”) settlement particulars. The respondent submits that (b) and (c) have been provided and a motion is unnecessary.
Background
[3] The applicant and the respondent were involved in a relatively short relationship. They were never married. They have two young children, Ryker, born May 24, 2020, and Blake, born November 7, 2021. The respondent has another child from another relationship, Braxton, who lives with her.
[4] The family proceedings began in June 2022. There have been numerous motions. Despite multiple case conferences, the parties can agree on very little. A settlement conference is scheduled for August 2025. Fulsome questioning has not yet occurred.
[5] The issues in dispute between the parties surround parenting time, decision making, and child support. There is currently an interim order providing for shared parenting time as of February 2, 2024. There is no interim order related to child support.
Circumstances Surrounding the Disclosure Sought
[6] On November 23, 2024, counsel for the applicant wrote to counsel for the respondent requesting:
a. Her 2023 T1 Return, including all schedules;
b. Her 2023 Notice of Assessment;
c. Her three most recent pay stubs; and
d. Full particulars of her Robinson Huron Treaty (“RHT”) settlement.
[7] On January 1, 2025, counsel for the applicant wrote: “to avoid a motion for production, please send me the information requested in my email dated November 23, 2024, no later than January 9, 2025. Please also provide the residential address of the children when they are in Ms. Herbert’s care”.
[8] On January 6, 2025, the respondent provided the applicant with a letter from the RHT legal team which indicated that any distributions she received were not considered “taxable income” and that the children were not eligible for a settlement. In this correspondence, the respondent took the position that she was not obliged to provide the particulars of the settlement to the applicant.
[9] On January 8, 2025, counsel for the applicant wrote to counsel for the respondent requesting:
a. Particulars of her employment income and benefits received from employment in 2023 and 2024 and currently;
b. Particulars of the Robinson Huron Treaty settlement received;
c. Particulars of any dividend income received by the respondent in 2023 and 2024;
d. Whether the respondent was/is a shareholder and/or director/officer in any company in 2023, 2024 and currently;
e. The number of hours per week that the respondent worked in 2023 and 2024; and
f. The respondent’s job title and description for 2023, 2024 and currently.
[10] On March 13, 2025, the applicant filed and served the motion for disclosure.
[11] On March 14, 2025, counsel for the respondent wrote to counsel for the applicant advising that due to their inadvertence they had not forwarded the information provided to them by the respondent that answered the prior requests. Counsel noted that the respondent had already provided her 2023 income disclosure and her 2024 income disclosure was not yet available but would be provided upon receipt. Counsel sent the respondent’s CCB, OTB, GST and Carbon notices. Counsel answered the remaining questions set out in requests (a), (c), (d), (e), and (f) of the January letter.
[12] With respect to the RHT settlement, counsel wrote:
As we have previously stated, the RHT legal team has advised Ms. Herbert not to provide the settlement information. A letter from Chief McQuabbie dated February 18, 2025, confirming that the settlement funds are not included in the calculation of income, or assets is enclosed. Ms. Herbert has requested a further letter from HIFN’s legal representatives to confirm that the settlement details may not be provided which we will provide upon receipt. As this information could only be relevant to Ms. Herbert’s means for the purposes of division of section 7 expenses, Ms. Herbert will complete a sworn Form 13 Financial Statement to be provided by the end of next week. We trust that this satisfies Mr. Legault’s request.
[13] On March 19, 2025, counsel for the applicant advised that he required answers to his inquiries by way of affidavit.
[14] On April 3, 2025, the respondent provided a sworn financial statement and affidavit setting out her answers to the applicant’s requests advising:
a. My 2023 Income Tax Return, Notice of Assessment and T4A are attached as Exhibit “B”. My 2024 T4A is attached at Exhibit “C”. I will provide my 2024 Income Tax Return and Notice of Assessment to Dennis when they become available.
b. I am not a shareholder, director or officer of any company, nor was I in 2023 or 2024.
c. I am not a beneficiary of any family trust, nor was I in 2023 or 2024.
d. I continue to work as an office administrator for my brother's company. I worked sporadically throughout 2023 after I took a leave of absence, returning part time in September 2023.
e. I do not have a set working schedule. My hours are based on employer needs and range from 3-8 hours per week during the year, though my hours increase in the summer.
f. The Robinson Huron Treaty legal team has advised me not to provide the information regarding my Huron Robinson Treaty Settlement. Attached as Exhibit “D” is a letter from RHT legal team dated October 11, 2024. A further letter from Chief McQuabbie dated February 18, 2025, confirming that the settlement funds are not included in the calculation of income, or assets is attached at Exhibit “E”. As I understand from counsel that the Robinson Huron Treaty Settlement is only relevant to my means for the purposes of the division of section 7 expenses, I have sworn an updated Financial Statement, sworn April 3, 2025, attached at Exhibit “F”.
g. My employer does not provide standard pay stubs unless an employee specifically requests them. Attached as Exhibit “G” is a letter from my employer dated August 2024.
h. My CCB, OTB, GST and Carbon notices are attached as Exhibit “H”.
i. In September 2024, I returned to Laurentian University as a full-time student to complete my education. My work hours were further reduced at that point. I expect to graduate in June 2025.
[15] On April 4, 2025, counsel for the respondent wrote to counsel for the applicant advising: “We have complied with your request of March 19, 2025, that the disclosure be provided by way of sworn affidavit. As the disclosure requested in Mr. Legault’s motion returnable April 17, 2025, has now been provided, please confirm that the motion is withdrawn on a no-cost basis”.
[16] The applicant did not respond to counsel’s letter. Instead, the motion was confirmed by the applicant on April 14, 2025, indicating that the applicant would be seeking an order that the respondent disclose her RHT settlement particulars, her 2025 employment income particulars, and other benefits she received from employment in 2023, 2024 and 2025.
Position of the Parties
[17] At the hearing of this motion, the applicant continued to seek an order for disclosure of the respondent’s 2025 income particulars to date and the particulars of any benefits she receives through employment.
[18] Counsel for the applicant focused most of his submission on the disclosure of the “particulars of the RHT settlement” received by the respondent. The applicant takes the position that this disclosure is relevant because the parties currently share parenting time and therefore child support is to be determined pursuant to s. 9 of the Federal Child Support Guidelines which requires the court to consider (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared parenting time arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
[19] The applicant takes the position that because the respondent seeks retroactive child support, the amount of any settlement received by her in 2024 is relevant to calculating child support under s. 9, because it would have formed part of her “means” that year and possibly ongoing.
[20] In submissions, the applicant did not appear to dispute the respondent’s position that any RHT settlement funds received by the respondent are not “income” as defined by the Federal Child Support Guidelines. Rather, he submits that the details of the settlement are relevant to the issue of the respondent’s “means” under s. 9.
[21] The respondent submits that she has been advised by the RHT legal team that she is not permitted to share any details of the settlement payment to anyone. She acknowledges that as a member of the Henvey Inlet First Nation (HIFN) she received a portion of the settlement payment paid by the government as compensation for the Crown’s historic failure to meet their obligations under the RHT. This was a one-time settlement payment. The respondent will not receive any ongoing annuity payments.
[22] The respondent submits that apart from her belief that she is legally prohibited from disclosing the particulars of the settlement, it is also personally and culturally important to her that she not disclose this information to a non-member of her community. She views the applicant’s request as a continuation of his strategy to harm her through these family proceedings.
[23] The respondent submits that she has provided an updated sworn financial statement that shows her current means. She has provided this in lieu of disclosing the details of the RHT settlement. She states that any funds received from her First Nation are now gone, having been spent mostly on legal fees and costs associated with these family proceedings.
Analysis
Disclosure of the Respondent’s 2025 Income Particulars
[24] A request for child support triggers an obligation by the parties to provide financial disclosure. The basic disclosure requirements are set out in the Family Law Rules, O. Reg. 114/99 and the Child Support Guidelines.
[25] On January 8, 2025, the applicant requested particulars of the respondent’s “employment income and benefits received from employment in 2023 and 2024 and currently”. By March 14, 2025, the respondent provided her 2023 income particulars and her 2024 T4A. The respondent advised, reasonably, that she would provide her 2024 Income Tax Return and Notice of Assessment when they became available. This was a perfectly reasonable response given the time of year. In the respondent’s financial statement dated April 3, 2025, she sets out her current monthly income and benefits received from employment. She also discloses the receipt of a monthly annuity from HIFN related to a wind turbine contract.
[26] I fail to see the need for a court order that the respondent provide her 2025 income details. She has complied with the applicant’s request for income disclosure to date. She has disclosed where she works, the hours she works, and her monthly income as of April 3, 2025. She has agreed to provide her notices of assessment and tax returns for 2024 when they are received. In the context of the respondent’s ongoing cooperation, I find that this motion, seeking this relief, was unnecessary.
[27] From the materials filed, the applicant has disclosed in her financial statement any benefits she receives. There are no benefits listed from employment. She does receive benefits from her status as a member of HIFN. It is unclear to me what the applicant means by insisting that she disclose “other benefits” from her employment. It may be that the issue can be resolved during questioning, where the respondent can be asked a more specific question with respect to what benefits the applicant believes she may receive. I see no need for a court order with respect to this issue.
Disclosure of the “Particulars of the Robinson Huron Treaty” Settlement Received
[28] In this motion, the applicant seeks the “particulars of the Robinson Huron Treaty settlement received”. Currently worded, this is a broad request. I believe it likely means the applicant seeks disclosure of how much money the respondent received from her First Nation. The respondent’s First Nation was the actual recipient of the RHT settlement funds. How much of those settlement funds were dispersed to individual members of HIFN was within the discretion of HIFN.
[29] The respondent has provided a response to the applicant with respect to the issue of “means”. She has provided a sworn financial statement and has stated that she no longer has the funds received related to the RHT because they have been spent on legal fees and costs associated with the family proceedings. The applicant is not satisfied with this response and seeks an order that the respondent disclose to him the amount she received from her First Nation related to the RHT.
[30] As part of the motion materials filed, the applicant did not identify the basis upon which he asserted that this information was relevant and therefore should be disclosed. The applicant did not file a factum or provide the court with any legal authorities on this issue. In submissions, the applicant identified s. 9 of the Child Support Guidelines as the basis for relevance. Counsel candidly conceded that he did not have any legal authorities that dealt with how family courts treat First Nation settlement monies in the context of assessing child support and a parent’s means.
[31] In response to this motion, counsel for the respondent provided a factum and book of authorities which primarily addressed whether settlement funds were disclosable as income. This is understandable, given that the applicant had not identified s. 9 of the Child Support Guidelines as the basis for his request until he made submissions on the motion. Unfortunately, the responding materials do not address whether the funds are relevant to the issue of “means” as understood in s. 9 of the Child Support Guidelines.
[32] In Contino v. Leonelli-Contino, 2005 SCC 63, the Supreme Court held that s. 9 of the Child Support Guidelines must be applied in determining child support in shared custody circumstances. The court held that s. 9 required the application of an entirely different formula than that set out in ss. 3 and 8. In enacting s. 9, Parliament chose to emphasize the objectives of fairness, flexibility and recognition of the actual conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought, even if that reduces predictability, consistency and efficiency to some degree: Contino v. Leonelli-Contino, at para. 33.
[33] The Supreme Court held that s. 9 bestowed a discretion on the courts to determine child support amounts in shared custody arrangements given the overall situation of the parents (conditions and means) and the needs of the children. The weight of each factor under s. 9 will vary according to the particular facts of each case: Contino v. Leonelli-Contino, at para. 39.
[34] In Contino v. Leonelli-Contino, the Supreme Court held that a shared parenting arrangement does not automatically deviate from the Table amount of child support. In some cases, after a careful review of all of the factors set out in s. 9 a court may conclude that the Table amount remains an appropriate figure. The Supreme Court found that a simple set-off approach may be a useful starting point as a means of bringing consistency and objectivity to the child support determination. This is particularly so where the incomes of the parties are not widely different; Contino v. Leonelli-Contino, at para. 49.
[35] The judge has the discretion to modify the simple set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one house to another: Contino v. Leonelli-Contino, at para. 51.
[36] Financial statements and/or child expense budgets are necessary for the court to properly carry out the child support analysis pursuant to s. 9: Contino v. Leonelli-Contino, para. 70.
[37] The respondent has provided two decisions that dealt with the treatment of funds received by members of First Nations, as a result of settlements. In Cote v. Taylor, 2013 ONSC 5428, D.C. Shaw, J. held that residential school settlement funds that were anticipated to be received by the father should not be expected to be used to pay child support arrears. Shaw J. held that the anticipated settlement was not a windfall to the father, it was compensation for harms perpetrated on him as a child.
[38] In N.S. v. J.S.D.R., 2025 YKSC 5, S.M. Duncan, C.J., held that monies received by the father from his First Nation, as a result of a settlement of a treaty land entitlement boundary dispute, was not income for the purposes of the Child Support Guidelines. The court held that settlement monies were compensation for a wrong done to a collective asset of the First Nation and the decision by Chief and Council to provide a per capita distribution of some of the settlements monies to its community members did not amount to income as defined by the Child Support Guidelines in s. 16.
[39] While the authorities provided to me establish that settlement monies are not “income” for the purposes of the Child Support Guidelines, I have not received any legal authorities to assist me in assessing whether settlement monies should be considered as part of a parent’s “means” when assessing child support under s. 9 of the Child Support Guidelines in circumstances involving shared parenting time.
[40] In the context of the RHT, the monies received by HIFN were intended to address the historical failure of the government to pay First Nations for the use of their territories through the years. The Supreme Court held that the Crown had derived “enormous economic benefit from the ceded territories through mining and other activities”: Ontario (Attorney General) v. Restoule, 2024 SCC 27 at paras. 10, 16, 195 and 285.
[41] The respondent has disclosed that she received a settlement payment in August 2024. She states that she has been repeatedly advised by the HIFN and RHT legal team that she is not to disclose the settlement amounts to anyone. She states that when she signed up for her First Nation online portal to register for the settlement, she signed an online non-disclosure waiver including that she would not disclose any details of any final settlement or funds received.
[42] The respondent states that she is following her legal obligations, as described to her by the HIFN legal team, by not disclosing the particulars of the settlement to a non-member. She also does not believe that the payment is relevant to these proceedings. She takes the position that her financial statement satisfies the issue of her means.
[43] The respondent has provided a memorandum provided by Chief M. Wayne McQuabbie, Chief of HIFN dated February 18, 2025, that states the per capita distributions are not “income” for the purposes of income tax, do not impact ODSP or Ontario Works as either income or an asset, and are deemed to be “personal property situated on a reserve” by s. 90(1) of the Indian Act. Therefore the per capita distributions are not subject to legal seizure except by another Indian or band by virtue of s. 89(1) of the Act.
[44] The respondent has provided a “Frequently Asked Questions” document sent out by the Robinson Huron Treaty Litigation team. The date of this document is unclear, but it appears to have been sent out sometime in 2023, prior to the distribution of settlement funds to the RHT First Nations. It sets out that a settlement has been reached in the amount of $10 billion to be paid out, once costs were deducted, to each RHT First Nation depending on certain factors. It states that the terms of the settlement are confidential.
[45] The applicant has not provided any evidence that disputes what the respondent states with respect to the payment received by her from the HIFN or that she has been told she is not to disclose it. It would have been open to the applicant to contact HIFN or the RHT legal team to seek clarification with respect to the confidentiality of this information. In submissions, counsel for the applicant pointed out that the “Frequently Asked Questions” document appears to have been prepared prior to the payment of any settlement amounts to RHT First Nations and as such it is understandable that the terms of the settlement would be confidential at that time because an agreement had not yet been signed. If settlement privilege existed, it no longer exists because a settlement has been reached and payments have been made. Counsel submits that the respondent has not provided any evidence from HIFN or the RHT legal team that states she cannot disclose the per capita distribution that she received.
[46] In the end, this is the applicant’s motion. The onus is on him to satisfy this court that it should order the relief he seeks.
[47] Based on the materials provided to me, it is unclear if the per capita settlement amount received by the respondent would be relevant to the issue of her “means” for the purposes of determining child support. I am satisfied that it would not be considered “income” under the Child Support Guidelines nor is it an asset capable of seizure. I am not sure if it should otherwise be considered part of her “means”. In any event, this one-time payment, which was a repayment of historical monies owed to her First Nation, appears to have been mostly spent on legal fees and is no longer relevant to her means going forward.
[48] Assuming that this payment was ever relevant to the respondent’s means, the uncontradicted evidence before me is that the respondent has signed some type of non-disclosure agreement with HIFN and has been instructed not to disclose any amount she received to non-members of her First Nation. In light of this, the respondent has filed an updated sworn financial statement to address the issue of her means. In my view, this is a reasonable response on the part of the respondent given the circumstances.
[49] I don’t take the respondent’s submissions to mean she is asserting a form of privilege over the information. If she were, she would be required to explicitly assert it. She has not done so. Rather, I understand it to be her submission that there are privacy interests that attach to disclosing this information, which impact her privacy and the privacy interests of other members of her First Nation. I am satisfied that there are valid privacy interests that attach to this information. However, those privacy interests do not necessarily override the obligation to provide proper disclosure in these proceedings. It is simply one of the factors that I must consider, along with other relevant factors, in deciding whether I should order disclosure of this information.
[50] In reaching a reasonable decision in this case, I must balance a number of factors including the relevance of the information sought in the context of these proceedings, whether it would be unfair for the applicant to continue these proceedings without this information, the privacy interests that attach to the information, and the availability of other information that may otherwise satisfy the information required by the court to assess the issue in question.
[51] The principles in Contino v. Leonelli-Contino and s. 9 of the Child Support Guidelines require a court to consider the overall situation of the parents (conditions and means) and the needs of the children. No one factor in s. 9 is determinative. A court is to look at the parties’ financial statements and child-care budgets in determining whether a deviation from the set-off approach is warranted.
[52] In this case, the respondent has provided an updated 2025 financial statement. I have not received an updated financial statement from the applicant. I have not received a child-care budget. Based on the materials before me, there is no evidence that the respondent’s financial situation is such that there is a significant difference between the lifestyle the children enjoy at her home as opposed to the applicant’s home such that a deviation from the set-off approach is likely.
[53] Moreover, in the circumstances of this case I find that the RHT funds did not increase the respondent’s means. In Black’s Law Dictionary, 5th edition, the term “means” is defined as resources available such as money or property that are available for effecting a purpose such as furnishing a livelihood or paying a debt. In the context of s. 9 of the Child Support Guidelines, a parent’s means would include money or property that is available for the support of a child. The RHT funds were a one-time payment to address historical wrongs committed against the respondent’s First Nation. The payment was non-recurring and will have no impact on the respondent’s future means.
[54] In the circumstances of these proceedings, which have involved a number of contested motions, the respondent has been reasonably required to use most of the funds to pay the legal expenses she has incurred. These would include legal fees and costs awards. The high conflict nature of these proceedings and the approach taken by the parties has been commented on by both Justice R.D. Gordon and Justice A.D. Kurke in prior endorsements. In the end, unfortunately, the RHT funds did not contribute to the respondent’s ability to support the children. Instead, they were mostly used in these proceedings.
[55] When I balance all of the factors in this case, I am not satisfied that I should make an order that the respondent disclose the “particulars” of the RHT settlement or the amount she received as a per capita distribution from her First Nation. Based on the materials provided in this motion, I am satisfied that the disclosure and provision of an updated sworn financial statement adequately addresses the issues between the parties with respect to child support.
[56] For these reasons, the applicant’s motion is dismissed.
Costs
[57] If the parties cannot agree on the issue of costs, the respondent shall provide written submissions of no more than 2 pages within 15 days of the release of this order. The applicant then shall provide written submissions of no more than 2 pages within 15 days of receipt of the respondent’s written submissions.
S.K. Stothart
Date: May 27, 2025