Court File and Parties

Court File No.: FC-19-775 Date: 2025-07-31 Superior Court of Justice – Ontario

Re: Carole Allvey-Greiss, Applicant And: Hany Greiss, Respondent

Before: The Honourable Mr. Justice Marc Smith

Counsel:

Daniel Duyvelshoff, Counsel for the Applicant
Cecil J. Lyon, Counsel for the Respondent

Heard: June 30, 2025

Reasons for Decision

M. Smith J

Introduction

[1] The Applicant Carole Allvey-Greiss ("Mother") brings a motion seeking the following: (i) proportionate sharing of respite care; and (ii) monetary penalty for failure to comply with disclosure orders.

[2] The Respondent Hany Greiss ("Father") opposes the motion and seeks that it be dismissed in its entirety. He seeks his own relief: (i) that Kevin, their son, be assessed and that the parties proportionately share the costs of the capacity assessment; and (ii) that the Father exercise his parenting time with his son on Tuesday and Thursday evenings, pending a final determination of parenting time.

[3] For reasons that follow, the Father shall pay a monetary penalty in the amount of $10,000 for his failure to comply with disclosure orders. The balance of the issues in this motion are adjourned.

Issues

[4] The issues to be determined are:

a. Should respite care be ordered?

b. Should a capacity assessment be ordered?

c. Should interim parenting time be ordered?

d. Should the Father pay a monetary penalty for failure to comply with court orders?

Analysis

Issue #1 – Should respite care be ordered?

[5] The parties' adult child, Kevin, has severe Autism Spectrum Disorder and special needs. The Mother takes care of Kevin on a full-time basis. The Father is not providing any significant assistance to the Mother with respect to Kevin's care. The Mother is burnt out. She is seeking respite care because she needs periods of relief and rest.

[6] On July 9, 2024, the Mother brought a parenting motion. She requested that the Father parent Kevin on alternate weekends from Friday at 5:00pm to Sunday at 5:00pm. If the Father was unable to do so, then the Mother asked that the Father contribute his share of the costs for respite care. On July 29, 2024, I delivered my decision and concluded that no further steps could be taken on the parenting motion until such time as Kevin's capacity is assessed (Allvey-Greiss v. Greiss, 2024 ONSC 4247), relying on the Court of Appeal decision, J.F.R. v. K.L.L., 2024 ONCA 520.

[7] For the purposes of this motion, the relevant paragraphs from my July 9, 2024 decision are reproduced below:

[15] Regarding the parenting order sought, it falls squarely within the four corners of the J.F.R. v. K.L.L. decision. Kevin has reached the age of majority. It is undisputed that Kevin cannot live independently but it has not yet been established that Kevin is unable to withdraw from parental charge in relation to decisions regarding a parenting arrangement. There is no evidence before me regarding Kevin's decision-making capacity. He has not been declared incapable of making personal care or property decisions, nor has a guardianship order been made under the SDA. In the absence of a capacity determination relevant to the parenting order being sought in this motion, Kevin is deemed to be capable of voicing his views and preferences, and he should be afforded the opportunity to fully participate in the hearing regarding a parenting arrangement. Consequently, the motion cannot proceed.

[16] When a party is seeking a parenting order in similar circumstances to the case before me or the one in J.F.R. v. K.L.L., it is now incumbent upon that party to ensure that the adult child's capacity be determined before any further steps are taken in family proceedings. The parties should turn to the SDA because it offers a comprehensive legislative scheme that provides a detailed framework, with all safeguards in place, to determine one's capacity for personal care and property.

[17] The second order sought by the Mother is contingent upon the determination of the first. Therefore, I am of the view that it is premature to decide if the Father should contribute his share of the costs of respite care until it has been decided which parenting arrangement is in Kevin's best interest. That said, if the only issue to determine on this motion had been limited to a child support order in respect to an adult child under s. 2(1)(b) of the Act, such as a s. 7 expense, I am of the view that the principles set out in J.F.R. v. K.L.L. would not be applicable. While I recognize that a child support order may potentially affect an adult child, it is not an order that would likely infringe on the autonomy of the affected adult child. A decision regarding the Father's contribution towards respite care does not affect Kevin's autonomy. Expanding the interpretation of the Court of Appeal's decision beyond parenting orders would give it too broad a scope and it would dangerously involve adult children in all financial disputes between the parents.

[8] On this motion, the Mother submits that she is no longer seeking to force the Father to exercise his parenting time. She now argues that because the sole issue is the determination of an expense related to child support, Kevin's participation is unnecessary as it does not infringe upon his autonomy. I disagree.

[9] While I stated in my previous decision that, generally, the costs of a discrete s. 7 expense such as respite care could be determined without a capacity assessment because it does not affect a child's autonomy, I clearly indicated that, in this case, it was necessary to first determine which parenting arrangements are in Kevin's best interests, before deciding the issue of respite care.

[10] The circumstances have not changed. Kevin's capacity has not been assessed and it is unknown if Kevin can express his views and preferences on the parenting arrangements.

[11] I am therefore adjourning this part of the Mother's motion until such time as it is determined if Kevin has capacity to participate in these proceedings regarding the parenting arrangements.

Issue #2 – Should a capacity assessment be ordered?

[12] The Father seeks an order that Kevin's capacity be assessed. However, the Father's materials are deficient, not providing me with sufficient information to decide if I should exercise my discretion under s. 79 of the Substitute Decisions Act, 1992, S.O. 1992, c.30 ("SDA") to compel Kevin to be assessed.

[13] As stated by C.A. Gilmore J. in the decision of Scott v. Wilson, 2025 ONSC 2981 at para. 61, "undergoing a capacity assessment is an intrusive and demeaning process". As such, I am of the view that before ordering that such an assessment take place, the court must ensure that the process is properly undertaken, the record is complete, and that each component of the test to be applied under the SDA be addressed.

[14] With proper materials before the court, the first part of the test is to determine if Kevin's capacity is in issue. Then, the court must balance the public interest and Kevin's privacy interests. The balancing factors to consider include, amongst others, the following: the reasonable grounds to believe that the person is incapable; the nature and quality of the evidence before the court as to the person's capacity and vulnerability to exploitation; and whether any harm will be done if an assessment does not take place: Scott v. Wilson, at para 60.

[15] On the evidentiary record before me, I am unable to determine if I should exercise my discretion under s. 79 of the SDA. I am therefore adjourning this part of the Father's motion. The parties must file better materials.

Issue #3 – Should interim parenting time be ordered?

[16] The Father seeks an order that interim parenting time with Kevin be ordered.

[17] For the same reasons set out in my July 9, 2024 decision, Kevin's capacity needs to be determined before dealing with any parenting arrangements.

[18] I am therefore adjourning this part of the Father's motion until such time as it is determined if Kevin has capacity to participate in these proceedings.

Issue #4 - Should the Father pay a monetary penalty for failure to comply with court orders?

[19] The Mother claims that the Father has breached four court orders and that his actions warrant sanction under r. 1(8) of the Family Law Rules, O. Reg. 114/99 ("FLR").

Brief history

[20] On July 14, 2021, Summers J. granted an order on consent, which included the requirement that the Father provide rolling account statements, both personal and corporate.

[21] When the Father failed to comply with Summers J.'s order, a disclosure motion was brought by the Mother. The Father provided significant disclosure four days before the motion. Engelking J. heard the motion and granted an additional order for disclosure from the Father. In her March 8, 2023 Endorsement, Engelking J. made the following comments regarding the Father's disclosure obligation and breach:

[21] None have responded. There is no doubt that Mr. Greiss needs to provide the disclosure requested. His finances are self-admittedly complex, and for Ms. Allvey-Greiss to get a full picture of his available income for support purposes, she requires full and frank disclosure. This is supported by not only the Family Law Rules, but by the caselaw. It is so trite, that there is no need to repeat it here. It is Mr. Greiss' obligation, moreover, to provide sufficient information to satisfy a Court as to the value of assets and quantum of income.

[22] Mr. Greiss' explanations of suffering from the biproducts of his stroke and/or of being disorganized are not reasonable. First, his stroke was in 2011, four years prior to the separation. He went back to and continued to work, as he does today. It has, in my view, nothing to do with his ability to provide financial disclosure in a Family Law proceeding commenced in 2019. Second, a party's disorganization cannot be an excuse for failing to provide timely disclosure. Were this the case, every reluctant or resistant litigant would be "disorganized". Indeed, his provision of significant disclosure ordered in July of 2019 only four days before this motion is inexcusable. With respect to Mr. Greiss, I am convinced that he (or his financial institutions) needs to provide the disclosure requested. I am also convinced that any further failure to do so should result in Ms. Allvey-Greiss being able to seek an order to strike his pleadings.

[Emphasis added]

[22] The Father did not provide all ordered documents. The Mother was required to bring a second disclosure motion, which was to be heard before me on July 9, 2024. Again, within days of the motion, the Father provided significant disclosure. The disclosure issue was settled on the following terms: within 60 days, the Father was to provide (i) all annual T2s, corporate notices of assessment, financial statements, and yearly general ledgers from 2021 to present, and shall continue to provide same on a yearly basis from May 1 until trial; (ii) the income determination report and business valuation reports prepared by Mr. Rick Evans; and (iii) an updated Financial Statement. The Father was also required to pay the matrimonial home's property taxes.

[23] On October 22, 2024, the Father only provided the corporate income documents. Counsel for the Mother sent follow-up requests on October 29, November 21 and December 17, 2024.

[24] On December 18, 2024, counsel for the Father gave excuses for the delay, and responded in part by saying that the valuations ought to be ready at the beginning of 2025 and there are technical issues around the ownership of the Father's business. That same day, counsel for the Mother wrote to counsel for the Father and appropriately reminded him of Engelking J's comments regarding the Father's non-compliance with disclosure orders: "It is telling that the court has already warned Mr. Greiss regarding his unfounded excuses for not complying with court orders." Rather than addressing the issue at hand, the response from counsel for the Father was: "Court order is a tautology. An Order is obviously from a court. 'Court' is superfluous. Your client is free to pursue whatever avenue she wishes."

[25] The Mother was then required to bring a third disclosure motion, which proceeded before me on June 30, 2025. Again, the Father provided significant disclosure, eight days before the motion.

Alleged breaches

[26] The Mother submits that the Father has breached the following orders:

a. He failed to pay the property taxes. In December 2024, the amount owing was $5,854.19. As of May 7, 2025, the amount owing was $8,768.02. The property taxes were paid by the Father on May 30, 2025.

b. He failed to provide the income determination reports and business valuations within 60 days of the July 9, 2024 order. As of the hearing of this motion, the reports were not produced.

c. He failed to provide an updated Financial Statement within 60 days of the July 9, 2024 order.

d. He failed to provide rolling personal and corporate statements in accordance with the July 14, 2021 order. Significant documents were provided on June 18, 2025 but the Father has still failed to voluntarily disclose accounts which he knows exist or existed, such as the business operating as "Mr. Shawarma and Sub".

Father's position

[27] The Father says that he has had difficulty in responding to the Mother's excessive, arguably disproportionate disclosure in a timely way, due to health-related concerns flowing from his stroke in 2012 and, more recently a Type 2 Diabetes diagnosis. He claims that these conditions have impacted his cognitive functioning, particularly when he is tired. Notwithstanding, the Father submits that he has complied with the disclosure orders, save and except the expert report.

[28] The Father's evidence can be summarized as follows:

a. He has provided an updated sworn Financial Statement dated June 20, 2025.

b. He has provided the Mother with the disclosure as ordered, except for the income report. Due to trial commitments, Mr. Evans was unable to provide his report, but the Father has been assured by the expert that it will be provided by no later than July 15, 2025.

c. His financial situation is complex, and he has not been particularly well organized in keeping records. The difficulty of assembling the disclosure has been compounded by the cognitive impairment that he sustained as a result of the 2012 stroke.

d. The Mother received all his mail from early 2016 until October 2019, including all financial information. The Mother did not forward the mail to him, nor did she save it. The Father believes that most of the disclosure items that the Mother sought have been in her care and control since he moved out of the matrimonial home in 2016.

e. He has paid the outstanding property taxes on the matrimonial home.

f. He understands that he has a legal obligation to provide all disclosure as ordered. He has taken steps to obtain his financial information but admittedly, he has provided it at a slower pace than his younger, healthier self would have preferred. He regrets the delays and stress this may have caused to the Mother.

[29] The Father submits that he has substantially complied with the disclosure requests as of the hearing of the motion. He notes that the volume and types of disclosure requested by the Mother have not been proportionate to the issues of the case, nor necessary to resolve them.

Legal principles

[30] The immediate and ongoing duty to disclose financial information is the most basic obligation in family: Roberts v. Roberts, 2015 ONCA 450, at para. 11.

[31] Under r. 1(8)(a.1) of the FLR, if a person fails to obey an order, the court may order the non-complying party to pay an amount to a party or into court as a penalty or fine.

[32] It is undisputed that there are three steps to the test for determining any remedy under r. 1(8) of the FLR: (i) is there a triggering event; (ii) if a triggering event has occurred, should the court exercise its discretion in favour of the non-complying party by not sanctioning that party; and (iii) if the court determines that it should not exercise its discretion in favour of the non-complying party, it is then left with the very broad discretion as to the appropriate remedy: K.M. v. J.R., 2024 ONSC 1338, at para. 31.

[33] If a party is unresponsive, indifferent, defiant, and blatantly or chronically disregards the rules, then r. 1(8)(a.1) of the FLR is a tool for the court to hold the non-complying party accountable: Dalla Bona v. Lucas, 2024 ONSC 4397, at paras. 6 and 8.

[34] Even if substantial financial disclosure was made before the motion was heard, a financial penalty may be imposed to promote compliance as the ultimate goal of r. 1(8) of the FLR: Soublière v. Lemay, 2021 ONSC 2744 at para. 30.

Discussion

Three-step test

Step #1 – Has there been a triggering event?

[35] The Father says that as of June 18, 2025, he has complied with all the Mother's disclosure requests, but for one exception: an expert report which has been delayed because of the expert's commitments to testifying at trial. The expert report was to be delivered on July 15, 2025, two weeks after the motion.

[36] The evidence clearly demonstrates that the Father has failed to obey disclosure orders.

[37] The Father was ordered to provide an updated financial statement within 60 days of the July 9, 2024 order. The updated financial statement was only produced on June 20, 2025. Also, the financial statement is incomplete, containing entries with "TBD".

[38] The Father was ordered to provide an income determination report and business valuation report within 60 days of the July 9, 2024 order. As of the date of the hearing, no expert reports had been produced.

[39] More problematic is that the Father has historically and chronically been late in disclosing his financial documents, only doing so under the threat of a pending motion, and most times, disclosing volumes of documents on the eve of the hearing of the motion.

[40] I am satisfied that there has been a triggering event.

Step #2 – Is it appropriate to exercise its discretion in favour of the non-complying party?

[41] The imposition of a monetary penalty must be proportional to the issues in question and the conduct of the non-complying party. The Father submits that the volume and types of disclosure requested by the Mother have not been proportionate to the issues of the case, nor necessary to resolve them. However, the Father consented to the disclosure orders. The time to complain of disproportionality is at the time that the requests are being made, not at the stage of the imposition of a monetary penalty. If the Father truly believed that the types of disclosure requested by the Mother were excessive and not proportionate to the issues of the case, he should not have consented to the disclosure orders.

[42] While the Father regrets the delays and stress that his failure to disclose in a timely manner may have caused to the Mother, he has never changed his behaviour. He has maintained the same chronic pattern of late, involuntary, and incomplete disclosure.

[43] When the Father decides to comply with his disclosure obligations, he does so within days of the hearing of the motion. The excuses given at this most recent hearing are the same as those given to Engelking J. in March 2023. These excuses were deemed inexcusable by Engelking J. two years ago, and they remain inexcusable today.

[44] The Father was given multiple reminders of his obligation to provide the documents. Rather than comply with his disclosure obligations and/or appreciate the Mother's indulgences with respect to his multiple breaches of the disclosure orders, the Mother was told to "pursue whatever avenue" she wished, forcing her yet again to bring a motion.

[45] I am not prepared to exercise my discretion in the Father's favour. His conduct throughout these proceedings merit sanctioning.

Step #3 – What is the appropriate remedy?

[46] The discretion as to the appropriate remedy is very broad but factors to consider include the following: (i) the proportionality of the sanction to the wrongdoing; (ii) the similarity of sanctions in like circumstances; (iii) the presence of mitigating factors; (iv) the presence of aggravating factors; and (v) deterrence: K.M. v. J.R., at para. 31 (c).

[47] I am reminded of the following passage from the Ontario Court of Appeal in Leitch v. Novac et al., 2020 ONCA 257, at para. 44:

As the Supreme Court suggested in Leskun v. Leskun, 2006 SCC 25, at para. 34, nondisclosure is the cancer of family law. This is an apt metaphor. Nondisclosure metastasizes and impacts all participants in the family law process. Lawyers for recipients cannot adequately advise their clients, while lawyers for payors become unwitting participants in a fraud on the court. Judges cannot correctly guide the parties to a fair resolution at family law conferences and cannot make a proper decision at trial. Payees are forced to accept an arbitrary amount of support unilaterally determined by the payor. Children must make do with less. All this to avoid legal obligations, which have been calculated to be a fair quantification of the payor's required financial contribution. In sum, nondisclosure is antithetical to the policy animating the family law regime and to the processes that have been carefully designed to achieve those policy goals [Emphasis added].

[48] Chronic, untimely, involuntary, and incomplete disclosure is equally antithetical to the policy animating the family law regime.

[49] The Mother is seeking a monetary penalty in the amount of $15,000. In exercising my discretion, I find that a monetary penalty in the amount of $10,000 is appropriate in the circumstances. I say so for the following reasons:

a. This matter has been before the court for six years. The Father's wrongdoing, namely his failure to disclose in a timely and complete manner, has been longstanding. His behaviour has not changed despite three court orders. The requested disclosure goes to the heart of the issues in this litigation, namely support and equalization. Proportionally speaking, the Father's conduct is deserving of an elevated monetary penalty.

b. In terms of the similarity of sanctions in like circumstances, none have been presented to me. However, there are two cases given to me that are less severe than the case at bar. In Dalla Bona, a $5,000 penalty was imposed for non-defiant and unacceptable behaviour for less than one year. In Soublière, a $5,000 costs award was imposed in a situation where the non-complying party had largely satisfied the disclosure order, but it did not involve repeated breaches of multiple orders. Here, the Father has chronically breached several orders that he consented to over a lengthy period of time, his disclosure was untimely and involuntary, always made because of the threat of a pending motion, and when he was reminded multiple times of his obligation to provide disclosure, the response was dismissive and nonchalant encouraging the Mother to bring her disclosure motion. While he may now have substantially satisfied the disclosure orders, it does not negate years of chronic failures to disclose.

c. As noted earlier, I do not accept the Father's excuses for the delay in providing disclosure. I see no mitigating factors.

d. Chronic, untimely, involuntary, and incomplete disclosure are aggravating factors, all of which the Father exhibited throughout these proceedings.

e. Deterrence through sanction is needed to halt behaviour that is contrary to the primary objective of the family law regime. The Father has not acted appropriately thus far, and he must be deterred from doing so in the future. By imposing a $10,000 monetary penalty, it is the hope that in the continuation of these family proceedings, the Father will cease from engaging in antithetical behaviour that has delayed and frustrated the process.

Disposition

[50] For all these reasons, I make the following orders:

a. The Mother's motion for proportionate sharing of respite care is adjourned.

b. The Father's motion that Kevin's capacity be assessed is adjourned.

c. The Father's motion for parenting time with Kevin is adjourned.

d. The Father shall pay a monetary penalty to the Mother in the amount of $10,000, payable within 30 days of these Reasons for Decision.

[51] I shall remain seized on the adjourned matters. Costs on those issues shall be determined at the conclusion of the motion.

[52] With respect to costs on the issue of the monetary penalty, the Mother is presumptively entitled to her costs. I encourage the parties to agree on costs. If the parties are unable to do so, the Mother shall file and serve her costs submissions within 15 days of these Reasons for Decision, limited to three pages, excluding the Bill of Costs and Offers to Settle. The Father shall file and serve his responding costs submissions within 15 days thereafter, with the same page restrictions.