The parties in the case of Duleba v. Sorge divorced in 2015 after nine years of marriage. They had two children together. The parties entered into a separation agreement in September 2014, which required the Respondent father to pay $1,452 per month in child support to the Applicant mother, concluding on January 1, 2017.
In February 2017, the mother applied to the courts to review the child support amount. She subsequently brought a motion for disclosure from a company called Mobile Fringe Inc. and 212 Inc. The father held a minority interest in Mobile Fringe Inc. and was the sole owner of 212 Inc.
The mother in this case relied on the decision of Mulligan J. in Bailey v. Bailey, which sets out the test as to whether third party disclosure can be ordered. Rule 19(11) can be broken down into the following six part test:
- The documents are in a non-party's control
- The documents are available only to the non-party
- The documents are not protected by legal privilege
- It would be unfair to require the applicant to proceed without this information
- All of the documents requested ought to be provided as relevant and necessary
- The application has to be on notice to the non-party
Therefore, the onus was on the mother to demonstrate, on a balance of probabilities that the requested disclosure is relevant and necessary, such that it would have been unfair for her to have to proceed with the application without the information she was seeking.
Justice Conlon distinguished this case from Bailey. In that case the wife set out detailed reasons and provided expert evidence as to why the disclosure she sought was necessary to make out her case. In Duleba v. Sorge, the Applicant argued that it was the Respondent’s responsibility to prove his income. As such, he ought to produce all the disclosure she was requesting.
Justice Conlan took issue with the legal precedent this would set. He found that the Applicant did not meet the test for disclosure from a non-party in a family law case. If he were to find otherwise, any payee of child support could force any payor who happens to be a corporate shareholder, even a minority one, to produce extensive documentary disclosure of all of that corporation's financials. This would offend the principle of proportionality.
While ample disclosure is always helpful, there comes a time when the financial and time-cost burdens are simply too much in the context of the issues being disputed. According to Justice Conlon, there comes a point when a litigant needs to move on and rely, for example, on a trial judge's ability to draw an adverse inference against someone who asserts an income without anything reliable to support it.
The Applicant failed to make out her case that it would be unfair for her to have to proceed in the absence of the corporate information she sought. As such, Justice Conlon dismissed the Applicant’s motion.
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