In the recent decision of Caskie v Caskie (2020 ONSC 7010), Justice Price was tasked with making a determination on whether or not to grant the wife substantial costs due to the husband’s clearly intentional delay in producing disclosure.
The parties Case Conference was held on September 14, 2020. On February 28, 2019, the Wife's counsel sent a detailed disclosure request to the Husband's counsel. The husband responded to the most basic items in the disclosure requests such as his tax returns, however he ignored the majority of the requests. All of the requests were found to be relevant and proportional to the matter at hand as the Husband's financial situation was complex as he was the sole and/or controlling shareholder of multiple corporations, the trustee of the Family Trust, and an indirect beneficiary of the Family Trust through his interest in a numbered company. and a large amount of disclosure was required to properly assess his income and assets.
For the months leading up to the Case Conference, the husband provided incomplete, illegible and unacceptable disclosure. While ignoring the majority of the requests, the husband asserted that he had adequately complied.
The law regarding cost awards at Case Conferences is found at Rule 17(18) of the Family Law Rules and can be summarized as follows:
Costs shall not be awarded at a conference unless a party to the conference was not prepared, did not serve the required documents, did not make any required disclosure, otherwise contributed to the conference being unproductive or otherwise did not follow these rules, in which case the judge shall, despite subrule 24 (10),
(a) order the party to pay the costs of the conference immediately;
(b) decide the amount of the costs; and
(c) give any directions that are needed.
In making a determination, Justice Price relied on the fact that “the Husband did not respond to the Wife's request for disclosure dated February 28, 2019 until 1 year, 5 months later, on August 20, 2020”. At the date of the Conference, he still has not provided the items requested by the Wife's Chartered Business Valuator, Ms. White.
The husband did not participate post separation in full and frank financial disclosure as obligated of him and thus which is entirely unacceptable. It is not one parties job to spend their resources chasing and attempting to piece together the financial circumstances of the other party. Court’s strongly frown upon litigants who intentionally try and delay and skirt their responsibilities by forcing the other party to spend their own resources continuously requesting the same disclosure. It is not up to parties to decide what they will or will not provide. There is an obligation of parties to provide full and frank financial disclosure and respond to those requests that are relevant and proportional to their case.
Upon reviewing the wife’s Bill of Costs, Justice Price determined that the wife had spent over $20,000 seeking disclosure from the husband and making independent inquiries to obtain information that should have been provided by the husband.
Justice Price ordered that the husband was to pay $20,000 in costs to the wife “as reimbursement for the expenses she incurred as a result of his delayed and incomplete disclosure, including the expense of her having to redo her Case Conference Brief following his recent disclosure”.
A further costs order was made in the amount of $10,000 to reimburse the Wife for the funds she spent having her counsel prepare for the Conference. Due to the lack of complete financial disclosure, the parties were unable to make any progress at the Case Conference on the substantive issues and thus it was a waste of the wife’s time and the courts.
Ultimately, this case shows us that that we must abide by our positive obligation to provide ongoing full and frank financial disclosure and where parties are negligent in doing so, a court will not think twice about ordering costs against them.
For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.