Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANJALI MIRCHANDANI, Applicant
AND:
VANESSA HALTRECHT, Respondent
BEFORE: Callaghan J.
COUNSEL: Brendan O’Grady and Anton Rizor, for the Applicant
Max Skrow, Respondent
HEARD: In writing
Endorsement
1This is an opposed in-writing motion. It has been scheduled on an urgent basis.
2The applicant seeks an order recognizing and enforcing a Request for International Judicial Assistance on Taking Evidence Abroad in Civil or Commercial Matters issued by the Honorable Catalina Avalos, Judge of the Florida Circuit Court of the 17th Judicial Circuit, Broward County, Florida, USA, dated November 21, 2025, (the “Letter Rogatory”), in proceedings stylized as Anjali Mirchandani v. Kishore Mirchandani, Case No. FMCE-24-020771 (the "US Action").
3In the US Action, the applicant is in midst of a matrimonial dispute with her husband. The respondent is said to have been in a romantic relationship with the husband. It is believed by the applicant that the husband provided matrimonial assets to the respondent.
4The husband was asked about his relationship and his dealings with the respondent during his deposition in Florida. It appears that he has refused to answer those questions.
5The uncontradicted evidence of US attorney, Brian Hole, is that the applicant could have sought an order from the US Court to compel the answers from the husband but has not done so. Instead, the applicant has sought to examine the respondent and some 13 other non-party witnesses.
6US attorney Lee Stapleton testified in an affidavit on December 22, 2025, under the heading of “Urgency of the Application”, that the Letter Rogatory specifically required the testimony of the respondent within 90 days of the issuance of the Letter Rogatory on November 21, 2025 to facilitate the timely resolution of the US Action. 90 days from the date of issuance was February 19, 2026. The first booked attendance in this Court was after that date. A schedule was set to allow the filing of responding material so that this matter could be heard. I note that due to the urgent scheduling of this matter, there were no cross-examinations of the affiants.
7The statutory authority to enforce letters rogatory issued by a foreign court is set out in s. 60 of Ontario’s Evidence Act, R.S.O. 1990, c. E.23, and s. 46 of the Canada Evidence Act, R.S.C., 1985, c. C-5. In Adler v. Deloitte Touche Tohamtsu, 2022 ONCA 855, 165 O.R. (3d) 314, at para. 13, the Ontario Court of Appeal summarized the statutory requirements as follows:
(a) a foreign court, desirous of obtaining testimony in relation to a pending civil, commercial or criminal matter, has authorized the obtaining of evidence;
(b) the party from whom the evidence is sought is within the jurisdiction of Ontario;
(c) the evidence sought from the Ontario party is in relation to a pending proceeding
before the foreign court or tribunal; and
(d) the foreign court or tribunal is a court or tribunal of competent jurisdiction.
8There is no issue that these statutory requirements have been met in this case. However, once the statutory preconditions are met, Ontario courts still have discretion as to whether to grant the request. In applying its discretion, the court has regard to the principles of comity, to public policy considerations and to the absence or presence of prejudice to the sovereignty or the citizens of the jurisdiction. The concepts were reviewed in Actava TV, Inc. v. Matvil Corp., 2021 ONCA 105, 457 D.L.R. (4th) 138, at paras. 43-49. In Ontario, those principles have been supplemented by requiring evidence that establishes that:
(a) The evidence sought is relevant ;
(b) The evidence sought is necessary for trial and will be adduced for trial, if admissible;
(c) The evidence is not otherwise obtainable;
(d) The order sought is not contrary to public policy;
(e) The documents sought are identified with reasonable specificity; and
(f) The order sought is not unduly burdensome, having in mind what the relevant witnesses would be required to do, and produce, were the action to be tried here.
Perlmutter v. Smith, 2020 ONCA 570, 152 O.R. (3d) 185, at para. 24.
9In Actava, at para. 54, the court noted that there is a difference between some US jurisdictions where non-parties are routinely examined in the discovery stage and Ontario where examining non-parties for discovery is very much the exception. Production from and examination of non-parties is governed by r. 30.10 of our Rules of Civil Procedure. Under r. 30.10 the court considers several factors including whether the information is available to the moving party from another source: Morse shoe (Canada) Ltd. v. Zellers Inc., 1997 1573 (ON CA), at para 12.
10However, the difference in the two discovery systems does not make such requests any less worthy of enforcement, but it does highlight the need for this court to be attentive to all of the principles underlying the foundation for letters rogatory, including the impact on Canadian sovereignty and the justice of the request: Actava, at para. 57. In Actava, the court noted that when considering the issue of sovereignty, the court may consider if a similar request would be granted in Ontario under our Rules of Civil Procedure : Actava, at para. 93. Although that consideration would not by itself be determinative, it would assist with the assessment of whether the requested order is prejudicial to Canadian sovereignty: Actava, at para. 93.
11The respondent objects to the enforcement of the Letter Rogatory as she says that the applicant has not met the preconditions for enforcement. Specifically, she states the applicant has not established that the evidence is not otherwise available to the applicant. In addition, she states that the request is overbroad, over burdensome and that the applicant has manufactured urgency.
12In respect of the first argument, I accept that the applicant has failed to establish that the evidence sought is not otherwise available. I accept the evidence from Mr. Hole that it is open to the applicant to seek an order from the US Court to compel the husband to answer the questions that are being posed to the respondent. The information being requested of the respondent is largely information that is shared by the husband. A similar request under rule 30.10 to examine a non-party would likely be denied if no attempt was made to elicit answers from a party to the litigation.
13This case is akin to Giaimo v. Canada Trust (1998), 76 O.T.C. 271 (Ont. Gen. Div.), wherein Bell J. (as she then was) addressed a situation where no steps had been taken to compel the information in the foreign court. She held that without taking those steps or explaining why they could not be taken the requesting party failed to establish that the evidence was not otherwise available. The same applies here. As noted by Mr. Mole, the applicant can seek an order in Florida to compel the husband to answer the questions he has refused to answer, and which are being sought to be answered by the respondent. There was no explanation from the applicant why steps have not been taken to compel the husband to answer the questions in the US Action.
14I have also considered the case of Adler v. Deloitte Touche Tohamtsu, 2022 ONCA 855, 165 O.R. (3d) 314 which is distinguishable. In that case, the court compelled a non-party to answer questions that were not answered by the party in a US proceeding. In that case, The US court held more than six hearings to compel compliance and issued a sanction of $25,000 against the party to the US proceeding without compliance. In those circumstances, the court was satisfied the evidence was not otherwise available. That is not this case. Here, the evidence is that there is a mechanism to compel the information from the husband in the US which has yet to be employed by the applicant.
15I am denying the request. I am not satisfied that the evidence required by the Letter Rogatory is not otherwise available.
16I do not intend to address the breadth of the Letter Rogatory as it is not necessary given the result above. Moreover, if the applicant finds herself in the same situation as Adler , she may yet return to this court at which point that issue may be addressed.
17The request is denied without prejudice to the applicant’s right to return if steps to compel the husband to are unsuccessful .
18If either party seeks costs, they may submit a bill of costs and submissions of no more than 7 pages within 5 days of today. If any party opposes a request, they must file a bill of costs and may file submissions of no more than 7 pages within 5 days thereafter.
Callaghan J.
Released: April 13, 2026