Superior Court of Justice – Ontario
Court File No.: FS-21-00024850-0000
Date: 2025-06-11
Between:
Jason Carvalho, Applicant
and
Sandra Couto, Respondent
Before: Shanthi Mathen
Counsel:
Jason Carvalho – Self-represented
Sandra Couto – Self-represented
Heard: 2025-06-10
Endorsement
Motion and Relief Sought
1The Respondent, Sandra Couto (“Sandra”), brings a motion for the following:
a. A declaration that the Applicant, Jason Carvalho (“Jason”), has breached an endorsement issued by Justice Newton-Smith on February 7, 2025;
b. An order that Jason comply with the endorsement within 15 days, failing which his pleadings shall be struck or, alternatively, Sandra has leave to bring a motion to strike and seek other relief; and
c. An order that Jason shall not be entitled to other relief or orders until he fully complies with the Endorsement as well as outstanding child support and costs awards.
2The Applicant, Jason Carvalho (“Jason”), opposes the motion.
3Both parties were self-represented.
Background
4The parties married on November 27, 2010, and separated May 17, 2017. They have three children under the age of 15. Parenting is currently shared.
5In May 2022, Sandra moved to set aside Minutes of Settlement previously executed on September 27, 2021. At a summary judgment motion, Jason agreed to set aside the portion of the minutes dealing with child support and section 7. Litigation is ongoing regarding whether the remainder of the minutes should be set aside.
6At para. 37 of the summary judgment ruling, issued on September 1, 2023, Justice Vella stated the following:
In my view, there is a genuine issue requiring a trial with respect to the issue of whether there was a material misrepresentation and/or concealment of the Father’s revenues, income and assets and, if so, whether [the Mother] would not have made the global offer to settle resulting in the Minutes of Settlement had the Father’s alleged true state of financial affairs been properly and accurately disclosed. There is an inadequate evidentiary record upon which to make material findings of fact, some of which will require an assessment of credibility (e.g.: determining whether the Father was the beneficial owner of the restaurant and bakery businesses, and the true extent of the Father’s interest and value of his undisclosed crypto currency business and transactions at the time of the entry into the Minutes of Settlement, and the true nature of the $90,000 debt listed by the Father in his sworn 2018 Financial Statement).
7Following an October 2024 case conference, Jason was ordered to provide financial disclosure within 30 days.
8On February 7, 2025, Justice Newton-Smith decided a disclosure motion brought by Sandra. Her Honour described Sandra’s requested disclosure as follows:
[7] [T]he wife has listed 7 categories of financial disclosure sought, each with numerous subheadings. In total there are some 30 items being requested. The categories of disclosure requested are as follows:
- Personal – Jason Carvalho
- Business – Jason’s Bakery
- Business – More Natas Please
- Business – Nata$ World
- Real Estate – Foreign Properties
- Bank Account Statements for BMO Business Bank Account
- Account listings from all financial institutions where Jason holds or has held bank accounts since the date of separation.
[8] The items requested include financial disclosure from the date of marriage to the present.
9On the disclosure motion, Jason took the position that he had provided all the materials he could. Newton-Smith J. noted that Jason did not contest the relevance of the requested disclosure. Jason included 133 pages of documents.
10Justice Newton-Smith found that “the issue of [Jason’s] alleged material misrepresentation with respect to his income and assets is central in the litigation between these parties.” She stated that Jason’s answering document was not in affidavit form, not indexed and not cross-referenced with Sandra’s request.
11Her Honour ordered the following:
[23] At this juncture the only resolution to this disclosure dispute is to require the husband to prepare an affidavit in response to the wife’s 7 category disclosure request as set out in her notice of motion. In the affidavit the husband will set out his response to each item requested as listed in the notice of motion. To each item requested he will attach the requested documents. If the requested documents are not attached, an explanation of the steps taken to acquire the documents must be set out including any supporting materials. If the documents do not exist, an explanation must be set out including any supporting materials. If the documents have already been disclosed and cannot be reproduced, the particulars of the disclosure made and the date on which this was done must be set out.
[24] For any listed documents not in the possession of the husband, he will sign a direction to any third parties who may be in possession of the documents to provide them to the wife.
Issues and Brief Conclusion
12The issue is whether Jason has failed to comply with Justice Newton-Smith’s order and what, if any, consequences should follow.
13I find that Jason has failed to comply. He shall have 15 days to bring himself into compliance, failing which Sandra has leave to bring a motion to strike his pleadings and seek other appropriate relief.
Party Positions
Sandra
14Sandra says that, following Newton-Smith J.’s order, Jason did serve a responding affidavit. However, he failed to attach court-ordered documents.
15With respect to Category 1 – Personal:
a. Jason was ordered to produce TD Canada Trust chequing statements (#--7570) from May 17, 2017, onwards, but he provided only June, July, and August 2017 statements on April 28, 2025, when the parties were trying to negotiate a settlement.
b. Jason’s Affidavit denies owning any cryptocurrency but acknowledged that he had made contrary public statements. His blanket denial underscores the need for complete bank and credit-card statements to trace any transfers to or from a crypto exchange or wallet.
c. Jason stated that he does not have access to his bank and credit‐card statements because his accounts were closed upon declaring bankruptcy in October 2024. When asked to sign the third‐party directions under paragraph 24 of the Newton-Smith Endorsement, Jason refused to comply.
16For Category 2 – Jason’s Bakery, he has not complied with a request to provide “financial statements, profit & loss, balance sheets, general ledgers, and bank statements for two TD business accounts and a CIBC MasterCard for specified time periods”. He provided a 2022 corporate income tax return but no financial statements or supporting ledgers. He relies on his bankruptcy filings.
17For Category 3 – More Natas Please:
a. Jason provided the incorporation certificate and the lease agreement, plus a single incomplete April 2024 credit statement, but no financial statements, P&L, ledgers, banking and credit-card records.
b. Jason has not identified which financial institutions hold the associated bank accounts. Sandra cannot draft a third-party endorsement since she does not know to whom it should be directed.
18For Category 4 – Nata$ World, Sandra doubts Jason’s deposed statement that no formal partnership or bank accounts ever existed given his public admissions to the contrary.
19For Category 5 – Foreign Real Estate, Jason provided a one-page solicitor note claiming no present ownership of property in Portugal but no historical information regarding any ownership. Sandra argues that a public land-registry search reveals that Jason held property in Portugal and sold it to his parents in August 2016. Jason claims he held the property in trust for his parents but provided no documentation. Sandra states that “a Portuguese solicitor’s report who examined the public record identified significant irregularities.”
20For Category 6 – BMO Business Account, Sandra states that Jason failed to provide all relevant statements and the March 2024 statement is missing cheques which would show how the account was depleted from $150,000 to $0.
21For Category 7 – Personal Accounts Since Separation, Jason has only listed two RBC accounts with “little to no transactional activity” which suggests undisclosed accounts. Jason has not provided the institutional printout listing all accounts.
22Sandra argues further that:
a. Jason is in breach of a prior order for monthly child support;
b. Jason has not paid a prior costs award of $14,000 issued on January 4, 2024.
23Sandra argues that because of his breaches, Jason should face sanctions under Rule 1(8) of the Family Law Rules.
Jason
24Jason filed a sworn affidavit for this motion stating, among other things:
a. He has made “every reasonable effort to comply with the endorsement of Justice Newton-Smith”. He provided an affidavit on February 20, 2025 “which included all financial information available to [him], including references to [his] bankruptcy filings.”
b. On April 28, 2025, Sandra asked him for TD Canada Trust Statements for June-August 2017. He provided those, following which she reiterated a prior request for “all financial documents dating back to 2017.” Jason now says he is “unsure of the relevance of these broad disclosure demands.”
c. Jason declared bankruptcy in October 2024, which closed all his personal and business accounts. The relevant financial records were surrendered to his bankruptcy trustee. He no longer has access to these accounts and cannot afford the bank retrieval fees to get them.
d. Sandra’s request for third-party authorizations “to release all bank account information to May 17, 2017” raises “significant privacy concerns” since the financial information will include “numerous unrelated transactions”.
e. Sandra’s “repeated requests for personal and business records since 2017 are not relevant to any unresolved legal issue”.
f. If the 2021 Minutes of Settlement waived support obligations, Sandra’s current disclosure demands are disproportionate.
g. Nata$ World “was a failed concept that never operated, had no bank accounts, and generated no revenue.” Any public statements made were “purely promotional”.
h. The Portuguese properties are held in trust for Jason’s parents.
i. Jason has not refused to pay child support but has been unable to. He has included in his claim for bankruptcy the outstanding court costs.
25Jason asks the Court to dismiss the motion.
The Law
26I adopt the following from Justice Newton-Smith’s endorsement on the prior disclosure motion:
[12] While full disclosure is a fundamental part of the Family Law Rules, so are the elements of proportionality, common sense and fairness set out in the primary objective in Rules 2(2) and 2(3): Boyd v. Fields [2006] O.J. No. 5762.
[13] Rule 13 of the FLR mandates a party’s disclosure obligations. Rule 13(11) provides that if a party believes that the financial disclosure provided by another party under the Rule does not provide enough information for a full understanding of the other party’s financial circumstances, additional information may be requested.
[14] Rule 19(1) requires a party to disclose every document that is “relevant to any issue in the case”. In Korn v. Korn, 2017 ONSC 4934 Justice Faieta held that the Court must consider the burden of the disclosure request upon the disclosing party, including the time and expense involved, in the context of the relevance and importance of the content. This involves a balancing of fairness to the parties on the specific facts of each case.
[15] While a party’s failure to make full financial disclosure may restrict the other party’s ability to fairly determine the issues in a case, excessive requests for irrelevant disclosure may unreasonably increase the costs of the litigation and delay the final adjudication of the matter on its merits. The proportionality principle and the primary objective under Rule 2(3) of the FLR are intended to strike a balance between these competing concerns.
[16] In Marcoccia v. Marcoccia, 2009 ONCA 162 the Court of Appeal held that to order production, the judge must be satisfied that it would be unfair for the moving party to go on with the case without the document.
27Rule 1(8) provides the following when a person fails to obey an order:
Failure to obey order
(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;
(a.1) an order to pay an amount to a party or into court as a penalty or fine;
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) a contempt order, if sought under rule 31. O. Reg. 322/13, s. 1; O. Reg. 261/24, s. 1.
28When considering Rule 1(8), courts often apply a three-stage process:
a. First, is there a triggering event that allows the Court to consider the wording of Rule 1(8);
b. Second, if the answer to (a) is yes, is it appropriate to exercise discretion to not sanction a non-complying party; the onus is on the non-complying party to persuade the Court why it should escape a sanction;
c. Third, if the Court decides against exercising the discretion in (b), what discretion is appropriate, about which the Court retains very broad discretion.
See Ferguson v. Charlton, 2008 ONCJ 1 at para. 64.
29When deciding whether to strike pleadings, a court must consider if there are other remedies that would suffice: Van v. Palombi, 2017 ONSC 2492 at para. 30; Giavon v. Giavon, 2020 ONSC 21 at para. 69.
Analysis
30There are several threads in the parties’ arguments that must be disentangled.
31First, a number of Jason’s deposed statements try to relitigate the disclosure motion. For example:
a. The third-party authorization raises privacy concerns;
b. Sandra’s requests are excessive;
c. The Minutes of Settlement confine the scope of the relevant issues.
32Justice Newton-Smith has ruled on the reasonableness of the disclosure. She noted that, at that hearing, Jason did not dispute the relevance of what was being requested. I will add that, given that the validity of the Minutes of Settlement continues to be in issue, Jason cannot rely on them to limit disclosure.
33If Jason disagreed with the scope of disclosure being requested, he should have made the argument at the motion or sought to appeal the order. He cannot now question the propriety of what the Court has ordered him to do. The pertinent issue is whether he has done them.
34Having said that, some of Sandra’s complaints are more properly trial issues. In particular:
a. Jason’s statements with regard to Nata$ World are a trial issue. They do not establish on a balance of probabilities that he has breached the prior order.
b. Jason’s statements regarding foreign property are a trial issue, as are his statements regarding holding any property in trust.
35Where Sandra does not believe Jason’s sworn statements or other disclosure, that is an issue for a trial judge. Her allegation that Jason lacks credibility in his disclosure does not establish failure by him to disclose.
36However, I am persuaded on a balance of probabilities that Jason has failed to comply with the disclosure order in the following respects:
a. His refusal to provide third-party authorizations which were previously ordered by Justice Newton-Smith;
b. His failure to confirm which financial institutions held or hold the associated bank accounts for his business More Natas Please;
c. His failure to provide an institutional print out of personal accounts owned since separation.
37Jason deposes that he no longer has access to his accounts because he has filed for bankruptcy. The execution of third-party releases could address that issue.
38At the motion before me, Jason’s position was often unclear. He did not seem to grasp that the scope of disclosure is no longer an issue, because it was decided by Justice Newton-Smith. He said he had no objection to providing the bankruptcy trustee an authorization to release his documents but does object to providing “blanket releases”. He argued that the trustee does not have any information other than what he has already provided to Sandra, while also arguing that he has no access to any of his accounts because of the bankruptcy and his lack of money to pay retrieval fees.
39Applying the test from Ferguson, supra, I therefore find that Jason has failed to comply with the disclosure order, which constitutes a triggering event.
40I have decided to exercise my discretion to not impose the harshest sanction, which would be to strike out Jason’s pleadings immediately. I recognize that Jason is self-represented and that he appears to be somewhat confused about what was and what was not relevant for this motion.
41Nevertheless, a sanction for his non-compliance is warranted. Disclosure orders were first issued in October 2024. I appreciate that Jason’s bankruptcy proceedings have complicated matters, but he could have avoided much delay simply by authorizing the trustee to release documents.
42Jason shall be given a final chance to comply with the order. Should he fail to do so, Sandra may bring a motion to strike his pleadings and move to an uncontested trial.
43Sandra’s request that Jason be disentitled to further orders from this court until he repairs his current breaches is dismissed without prejudice. Should Sandra succeed in her motion for an uncontested trial, that relief will be moot. Should she not, she may renew her request.
44If the parties are unable to agree on costs, Sandra may submit an argument of no more than three pages, a costs outline and any offers to settle within 30 days. Jason may serve and file a reply within 10 days.
Order
45The Respondent’s motion is granted in part:
a. The Applicant, Jason Carvalho, has breached the disclosure order of Justice Newton-Smith issued on February 7, 2025.
b. The Applicant shall have an additional 15 days to bring himself into compliance with the February 7th order. This includes executing any requested directions to third parties to release to the Respondent, Sandra Couto, documents that correspond to the disclosure order issued by Justice Newton-Smith. For clarity, he shall immediately provide that authorization to the bankruptcy trustee.
c. Should the Applicant fail to comply with subparagraph b, above, the Respondent has leave to bring a motion to strike out the Applicant’s pleadings and seek other appropriate relief.
d. The Respondent’s request for an order disentitling the Applicant from any further relief is dismissed without prejudice.
e. Should the parties not agree on costs, the Respondent may submit a costs outline together with any offers to settle and an argument of no more than three pages, within 30 days. The Applicant may serve and file a response within 10 days. There shall be no further right of reply.
Shanthi Mathen
Date: 2025-06-11