BACKGROUND

In this case, the Wife sought financial disclosure from her ex-spouse to ensure proper child support payments for their two children. A 2011 court order required the Husband to pay $325 per month in child support and to disclose his income annually. In May 2021, the Wife filed a Motion to Change the child support order, claiming the husband was hiding income from self-employment, thus underpaying child support.

The Wife requested financial information from the Husband in January 2023, and in May 2023, Justice Kumaranayake ordered him to provide most of the requested documents or an Affidavit explaining any missing information. Despite repeated requests, the Husband failed to provide the complete financial disclosure, leading the Wife to file a Motion in 2024.

The Wife filed a complex 42-page Notice of Motion, which included three confusing charts with 84 information requests, 14 undertakings, and 2 refusals. Her Affidavit was another 37 pages, containing these same charts along with court Orders and emails. Additionally, she quoted statutes and caselaw improperly and uploaded a 139-page transcript of a previous questioning session. All of this was served on the Husband’s lawyer just eight days before the Motion.

The Husband responded with a 14-page Affidavit, which failed to address key financial disclosure issues, and his Undertakings chart was incomplete. The Wife then replied with a 13-page affidavit, cross-referencing her original materials and introducing three more charts to further detail the outstanding disclosure. All of this was filed for a one-hour Motion.

ANALYSIS

The Court acknowledged that the Consolidated Civil Provincial Practice Directions provide parties guidance on how to approach a short motion:

Materials that are not brought to the attention of the judicial officer at the hearing may not be considered. Judicial officers' judgment writing time is not sufficient to permit it to be used as an extension of the time allocated for oral argument.

Parties must give careful consideration to what is to be covered in the hearing time, the pace at which documents and authorities can reasonably be reviewed, and the time needed for oral argument on the issues raised.

This consideration should extend to:

• the number of issues which can properly be dealt with in oral argument, and
• the number of authorities actually required in order to establish the legal propositions relied upon.

The Court also referred to Justice Sharma’s decision in Jarosz v Denda, 2024 ONSC 4597, wherein he provided guidance on what lawyers “ought not to do” on a disclosure Motion. Specifically, the Court emphasized two key points:

1. Refusals and Undertakings Chart (Form 37C): This chart serves as an effective template for organizing disclosure requests. It should include the document requested, its relevance, the responding party's response (including any legal objections), and a column for the court’s decision. This chart should be hyperlinked to the evidence and used as the primary tool during the hearing.
2. Timely Communication: Parties need to discuss the Motion well in advance of the hearing, rather than exchanging last-minute briefs.

The Court noted that, in this case, the Wife waited until eight days before the Motion to specify her requests, while the Husband largely ignored them, only fulfilling his Undertakings right before the Motion. This lack of communication prolonged the process unnecessarily and led to inefficient litigation.

The Court emphasized:

Everyone is familiar with the importance of financial disclosure to family law litigation: the failure to make this disclosure "impedes the progress of the action, causes delay", prejudices the requesting party, and wastes judicial time, and stalls disposition of the proceeding […]. But the failure to properly litigate these motions is part of the problem. Parties can disagree about the relevance and scope of disclosure. But they should do reasonably — they and their lawyers have to cooperate and communicate about the issues, no matter their feelings about the other side. Anything less will just cost money, take time, and frustrate the process.

Ultimately, the Court ordered the Husband to provide the requested information on or before September 9, 2024, at 4pm. The Court cautioned the Husband, emphasizing that withholding information only prolongs the process and increases his legal costs unnecessarily.

Categories: Financial Disclosure, Short Motions