Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Louise La France, Applicant
AND:
Robert Saroli, Respondent
BEFORE: Mathen J.
COUNSEL: Emma Compeau, for the Applicant Geoffrey Wells, for the Respondent Justin McCarthy, for Dr. Steven Uttley (Third Party) Edward & Sladjana Oreskovic (Third Parties)
HEARD: June 10, 2025
ENDORSEMENT
1The Applicant, Louise La France brings a motion for third-party questioning and disclosure from the following individuals:
a. Dr. Steven Uttley, the Applicant’s former doctor;
b. Edward Oreskovic, her former friend;
c. Sladjana Oreskovic, her former friend, who is the spouse of Edward Oreskovic.
2The Respondent, Robert Saroli, has listed these persons as witnesses for trial. The Applicant served each of them with the Notice of Motion, Summons to Witness, and Witness Fee as required by Rule 20(9) of the Family Law Rules.
3Through counsel, Dr. Uttley advises that he takes no position on this motion.
4Neither Edward nor Sladjana Oreskovic responded to the Notice of Motion prior to the hearing. However, both attended and indicated they would cooperate.
5Robert opposes the requests.
ISSUES AND BRIEF CONCLUSION
6The issue is whether Louise is entitled to an order for pre-trial questioning and disclosure from Dr. Uttley, Edward Oreskovic, and/or Sladjana Oreskovic.
7Louise’s motion is dismissed. I am not persuaded on a balance of probabilities that the conditions in the Family Law Rules for pre-trial examination or production are met. I do not find it unfair for Louise to proceed to trial without the orders she seeks.
8Louise and Robert had a relationship. There are no children. Louise says that the parties began living together on December 14, 2018, and separated on August 23, 2023. Robert says that Louise moved in with him in September 2020, and left in 2022. He denies that the parties lived together continuously for three years. If true, that would mean that Louise is not his spouse.
9Robert has a net worth of hundreds of millions of dollars. Louise is a lawyer who has not worked since 2014.
10Louise claims, inter alia, the following:
a. 50% beneficial ownership of 489 Lakeshore Avenue East, Oakville.
b. Spousal support.
c. Damages for pain, suffering and the infliction of emotional harm due to, among other things, coercive control.
The Third Parties
Dr. Steven Uttley
11Dr. Uttley was Louise’s physician. At some point, he became friends with Robert.
12Robert is not calling Dr. Uttley as a participant expert. He wants Dr. Uttley to speak to his presence at an event in 2022, when Robert told Louise to leave his home. Robert also intends for Dr. Uttley to testify about “his observations on the quality of [Louise and Robert’s] relationship”.
13Louise claims that she told Dr. Uttley that Robert was abusing her, but those complaints are not in his medical notes. She seeks an order to compel him to release the complete file to her.
14At the hearing for this motion, Dr. Uttley’s lawyer stated that Louise’s complete office chart was disclosed to her the previous week.
15Louise says that Robert has “inappropriately influenced Dr. Uttley”. In support of this allegation, Louise says that Robert took Dr. Uttley on an all-expenses paid trip to Las Vegas and that they returned on a private jet with over 2 million dollars in cash. She says that Dr. Uttley gave Robert gifts: a bulletproof vest and a firearm. Louise also says that Dr. Uttley discussed her medical information and this litigation with Robert.
16Louise seeks “an opportunity to obtain oral and documentary evidence from Dr. Uttley in advance of trial, confirming the extent of missing documents in her medical file, the extent of Dr. Uttley’s relationship and communications with Robert since separation, his intended evidence at trial; and Robert’s influence and benefits conferred upon Dr. Uttley before and since separation.” A will-say statement has not been requested or produced.
Edward and Sladjana Oreskovic
17Louise says the Oreskovics were her best friends. They are a married couple who got to know her in the winter of 2021. Louise admits to having one sexual encounter with Edward in 2023 when she was under the influence of medication. Robert says the relationship was much more involved.
18In the summer of 2024, Edward provided Robert with sexually explicit text messages between the Oreskovics and Louise.
19When she was questioned in November 2024, Louise refused to discuss the text messages. She wanted to question the Oreskovics about them first. She deposed that after the single sexual encounter, she and the Oreskovics agreed to delete their texts. Therefore, she does not have her own records of their conversations. She deposed that she thinks the texts given to Robert may have been altered.
20Louise says that the Oreskovics “betrayed” her and, because of Robert’s wealth, are now aligned with him.
21The Oreskovics did not respond to prior requests from Louise to preserve documents and electronic records, or to voluntarily submit for questioning. However, at the motion hearing they said they take no position on the matter and are willing to cooperate. They disagree with how Louise characterizes their relationship with Robert.
ANALYSIS
The Law
22Under Rule 20(5) of the Family Law Rules, O. Reg. 114/99, the court may order any person to submit to questioning about any issue in a case if the following conditions are met:
a. It would be unfair to the party who wants the questioning to carry on with the case without it;
b. The information is not easily available by any other method; and
c. The questioning will not cause unacceptable delay or undue expense.
23Rule 19(11) grants the court, on motion, the power to order a non-party to disclose a document in their control if it would be unfair to a party to carry on with the case without it.
24The applicable law and principles for applying these rules is found in Weber v. Merritt, 2018 ONSC 3086:
The onus on a motion for non-party disclosure and/or questioning is on the moving party. Ontario (Attorney General) v. Ballard Estate, 1995 CanLII 3509 (ON CA), 1995 CarswellOnt 1332 (Ont. C.A.) at 16.
The starting point is to consider the context, and the purpose for which the Rule is invoked. Ireland v. Ireland, 2011 ONCA 623 (Ont. C.A. [In Chambers]) at 28.
The Court has held that the test under rule 19(11) is an objective test which requires an analysis outside the litigant’s belief system: “suspicion and conjecture will not suffice.” See Santilli v. Piselli, 2010 Carswell Ont 3317 (Ont. S.C.J.) at paragraph 12. There is no reason that the test would not be the same under rule 20(5).
In Ontario (Attorney General) v. Ballard Estate, supra at 15, in the context of the Rules of Civil Procedure, the Ontario Court of Appeal set out six factors to be considered by the Motions judge when faced with a motion for non-party disclosure:
a. The importance of the documents in the litigation;
b. Whether production at the discovery stage of the process as opposed to production at Trial is necessary to avoid unfairness to the Applicant;
c. Whether the discovery of the defendants with respect to the issues to which the documents are relevant is adequate and if not, whether the responsibility for that inadequacy rests with the defendants;
d. The position of the non-parties with respect to production;
e. The availability of the documents or their informational equivalent from some other source which is available to the moving party;
f. The relationship of the non-parties from whom production is sought, to the litigation and the parties to the litigation. Non-parties who have an interest in the subject matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true “stranger” to the litigation.
- Rule 20(5) has been held to be more permissive than the comparable Rule in the Rules of Civil Procedure, and to give judges more liberal and generous discretion. As noted by Justice Turnbull in Hagey-Holmes v. Hagey, 2005 CarswellOnt 2840 (Ont. S.C.J.) at 32:
That makes eminent sense when one considers that in matrimonial litigation, spouses and family members may be “used” to shield income or other assets that might be relevant in the assessment of spousal support, child support, or net family equalization issues.
So too in Loeb v. Loeb, 2013 CarswellOnt 3247 (Ont. S.C.J.) at 42, the Court noted that it is not uncommon in the family law context for family members and their businesses to align themselves to support and protect a family member defending a property or support claim.
At the same time, as set out in Boyd v. Fields, 2006 CarswellOnt 8675 (Ont. S.C.J.) at 12, as with all disclosure requests in the family law context, whether from parties or non-parties, while full and frank disclosure is a fundamental tenet of the Family Law Rules, “there is also an element of proportionality, common sense, and fairness built into these rules.” …
As stressed by Justice Kristjanson in Politis v. Politis, 2018 ONSC 323 (Ont. S.C.J.), in the family law context, the test for compelling third party disclosure set out in Ontario (Attorney General) v. Ballard Estate, supra, “must be supplemented to take into account two critical values, privacy and proportionality.” She notes, in the context of new partners, that privacy interests of third parties must be carefully balanced against the interests of the parties in the proceeding.
Non-parties are generally protected from potentially intrusive, costly, and time-consuming processes of discovery except in circumstances specifically addressed by the Rules. See Santilli v. Piselli, supra. As Justice McGee noted therein at paragraph 13: “The discovery process must be kept within reasonable bounds.”
There must be an evidentiary basis to show that the documents sought or the questioning requested is relevant. The request for disclosure from a non-party and the request for questioning should not amount to a fishing expedition. Campbell v. Wentzell, 2015 CarswellOnt 15086 (Ont. S.C.J.) at 47. Disclosure is not a weapon and is not intended to overreach. Saunders v. Saunders, 2015 CarswellOnt 2209 (Ont. S.C.J.) at para. 13.
Application to the facts
Unfairness
25Louise stresses that none of the third parties opposes the motion outright. In one case (Uttley) they have provided some disclosure; and in the other case (Oreskovic) they have indicated willingness to cooperate. It is unfortunate that the Oreskovics waited until the motion hearing to make their position known.
26The position of third parties is a factor, but it is not determinative: Popat v. Popat, 2021 ONSC 5194 at para. 39. That is because the court retains an independent duty to oversee family litigation. The court must ensure that questioning and disclosure do not amount to “fishing expeditions”: supra. It cannot make orders under Rule 20(5) or Rule 19(11) unless their conditions are satisfied.
27Louise argues that it would be unfair for her to proceed without questioning of and disclosure from the third parties. As she puts it:
This case hinges on credibility. The evidence of each of these third parties, and the extent to which Robert has tampered with their evidence, must be determined in advance of trial through oral and documentary evidence.
28Louise’s argument rests on the following premises:
a. Robert’s tremendous wealth creates a gross power imbalance between the parties.
b. His wealth has permitted Robert to exercise undue influence over the witnesses – to bribe them to testify in his favour.
c. Dr. Uttley breached his professional obligations to Louise.
d. The Oreskovics have turned on Louise.
e. If the three witnesses are truthful, they will corroborate important aspects of Louise’s case including her experience of abuse.
f. Without pre-trial questioning, the witnesses will simply lie with no meaningful way to challenge them.
29I am not persuaded that it would be unfair for Louise to proceed to trial without pre-trial questioning and disclosure.
30It is important to keep the trial issues firmly in mind. This case is about (a) whether Louise is entitled to spousal support; (b) whether Louise has a beneficial interest in property (which is not connected to any of the third parties); and (c) whether Robert caused Louise compensable pain and suffering.
31The most probative evidence in relation to the above issues is the parties’ own testimony. The third parties have nothing to say about beneficial ownership of the home. They also cannot speak to entitlement to spousal support. They may provide specific evidence about the time period during which they observed the parties to be cohabiting, but, since they were not living with the parties, their evidence is likely tangential. The third parties could provide some corroboration about Louise’s allegations of abuse.
32In other cases arising under Rule 19 and 20, the third party had a more obvious connection to a trial issue. For example, they had business interests with a spouse (Santilli v. Piselli, 2010 ONSC 2874 (Ont. S.C.J.); they were a new romantic partner whose financial information was directly relevant to support (Politis v. Politis, 2018 ONSC 323); or they were party to an alleged trust (Hohl v. Hohl, 2021 ONSC 2182.
33Even if I were to find that Dr. Uttley and/or the Oreskovics had more relevant evidence, they are already listed as trial witnesses. The Rules do not provide a right to cross-examine a witness before trial: Resendes v. Maciel, 2023 ONSC 2283 at para. 27. Louise must demonstrate why she needs questioning and disclosure now.
34On that point, Louise’s arguments are not persuasive:
a. Louise cites the alleged family violence. She says that violence is most often committed in private. Therefore, if someone experiencing abuse told a third party about it, that is highly probative. While the court must always be sensitive to the dynamics of family violence, it is unclear how violence affects the test under Rule 19 or 20 and why it would be unfair for Louise to have to wait until trial to question the third parties about her own abuse. If Louise requires more precise information as to the witnesses’ testimony, she can ask for a will-say statement.
b. Louise points to the large wealth disparity between her and Robert. She seems to argue that the mere fact that one party is much wealthier than another creates a power imbalance requiring an especially generous interpretation of the Rules. If that is indeed her argument, I do not see its relevance.
c. Louise argues that, because of Robert’s wealth, it is very likely that the third parties are “tainted”. She asserts that “if truthful, [the parties] will support her case”. In other words, Robert would not seek to call these parties unless he knew they are going to lie. This argument – essentially, of witness tampering – rests on factual inferences that the court, on this record, cannot possibly make. Robert contests every one of Louise’s allegations. To make the findings she invites, at this stage, would usurp the trial judge’s role.
35While the third parties in this case are not strangers to the parties, neither are they “aligned” with Robert. Louise says that the third parties have “involved themselves in this litigation”, but her allegations appear to focus on the fact that they are willing to testify for Robert. The fact that someone is willing to be called as a witness, even if they support one party over the other, does not mean that that person has involved themselves in litigation. Other than Louise’s allegations of bribery – which are contested – there is no evidence that Dr. Uttley or the Oreskovics have an interest in the ultimate outcome.
36Louise several cites that have ordered pre-trial questioning to test credibility, but they are quite unlike this situation. In one of them, the third party owned property in which a spouse was said to have a beneficial interest: Aslam v. Aslam, 2018 ONSC 223. In another, an accountant was privy or party to transactions giving rise to a claimed 86-million-dollar exclusion from net family property: Elgner v. Elgner, 2010 ONSC 5238. In a third, the motions judge was satisfied that the wife’s parents and brother possessed information about the source of funds used to purchase certain assets central to the parties’ dispute: Stravino v Buttinelli, 2010 ONSC 6135 (Ont. S.C.J.). In a fourth, the third parties were involved in writs of seizure and sale against the matrimonial home: Rizzo v. Rizzo, 2001 CanLII 28119 (ON SC). In a fifth, questioning was ordered for a lawyer who was “intimately involved in the parties’ financial affairs for decades”: Gulamali v. Gulamali, 2021 ONSC 4787 (Ont. S.C.J.).
37In no case cited to the court has Rule 19 or Rule 20 been used to compel pre-trial questioning or disclosure simply because one party is convinced that a third party is not credible. Such an order would encompass virtually any witness in family law proceedings, which would undermine the purpose of the rules.
Other factors
38Given my finding about unfairness, it is not necessary to address the other factors of the test under Rule 20 and Rule 19. For the sake of completeness, I will consider some of them.
39Louise argues that the orders she seeks would not delay the trial, which is scheduled for February 2026. I am prepared to accept this on a balance of probabilities, but it does not change the outcome.
40Some of the documents Louise requests, such as her health records, and Edward’s text messages, have already been provided to her. To be sure, Louise says that they are deliberately incomplete or altered. Those claims must be addressed at trial. At the hearing, the third parties indicated that they would voluntarily comply with the requests to the best of their ability. Ordering parties to disclose information they are willing to or have already disclosed is not an appropriate use of Rule 19(11).
41Finally, Louise refused to answer questions about the purported text messages between her and the Oreskovics. At line 841 of the transcript her lawyer says:
So the good news is that we can expedite this, because the witness isn’t going to answer any questions about the text messages. You can reserve the right...I’m not saying otherwise, but we’re bringing a motion, hopefully on consent, for third party questioning and disclosure of the Oreskovics.
42In the transcript, Louise then explains why she thinks the messages are not genuine.
43Even if the evidence Louise requests is material to the case, she is not entitled to withhold her own answers to questions about certain events because she wants to question third parties first.
44Therefore, I am not persuaded that Louise is entitled to an order requiring the third parties or the Oreskovics to submit for questioning or provide disclosure. This finding does not prevent the parties from voluntarily attending pre-trial questioning or providing further documents, as at least some of them indicated they would.
ORDER
45In conclusion, I make the following order:
a. The Applicant’s motion is dismissed. For clarity, this decision does not preclude the Applicant from seeking will-say statements from any witness. Nor does it prevent any of the third parties from voluntarily submitting to questioning or providing documents.
b. The parties are urged to reach an agreement on costs. Should they be unable to, each may forward a maximum of three pages of argument, together with any offers and costs outlines, within 30 days. There shall be no right of reply unless costs are sought from a third party, who may file a reply within 15 days.
Mathen J.
Date: June 18, 2025