Pilkington v Barrack, 2014 CarswellOnt 18887 (O.S.C.J)

This case addresses the level of financial disclosure that is required in order to determine a party’s income for spousal support purposes. Specifically, this case considers when it is necessary to provide credit card statements.

Background

The parties had been separated for four years and were preparing for trial. The issues in dispute included spousal support payable by the Husband to the Wife and the Husband’s income for spousal support purposes.

In his sworn Financial Statement, the Husband submitted that he earned $1.7 million per year and had expenses of $98,000 per month. Counsel for the Wife submitted that there was a significant increase in the Husband’s lifestyle after separation and that the Wife was entitled to review the underlying expenses set out in the Financial Statement, which included credit card charges.

As such, the Applicant Wife brought a motion seeking financial disclosure from the Respondent Husband. In particular, the Wife requested copies of the Respondent’s credit card statements, to which the Husband refused to produce.

Analysis

Justice Stephenson agreed with the Wife that the credit card statements are relevant to determine both the Respondent’s income and quantum of spousal support. However, he ordered the Husband to provide only summaries and/or redacted statements for the credit cards, but not the specific details of line by line spending.

The Court reasoned that the dollar amounts of the items and totals per month would be sufficient to ascertain whether the Husband was truthful in his Financial Statement. The Court held that any further details of the credit card purchases would amount to a fishing expedition.

The Court cited Perell J. in Boyd v Fields, 2006 CarswellOnt 8675 (Ont. S.C.J.), which provides:

“Full and frank disclosure is a fundamental tenet of the Family Law Rules. However, there is also an element of proportionality, common sense and fairness built into these rules. A party’s understandable aspiration for the outmost disclosure is not the standard…” (Paragraph 12)

There are particular facts of this case that may have persuaded the Court to only require redacted credit card statements. First, the Husband was a civil litigator and his business was not cash-based. Second, the Husband had already provided significant disclosure, including bank statements relating to his personal and business expenses, and complete credit card statements for the first one and a half years of separation. Third, $75,000 of his $98,000 monthly expenses was income tax related, largely explaining the Respondent Husband’s high monthly expenses.

The Court acknowledged that there may be instances where a line by line reporting is necessary. The Respondent Husband in this case, however, had already provided significant disclosure and agreed to provide further information concerning reimbursable business expenses contained within some of the credit card statements. As such, the Court found that there was no reasonable basis upon which to require the Husband to disclose line by line details of his spending, and Ordered the Respondent to produce summaries and/or redacted statements for the credit cards.