This decision which was released by the Ontario Court of Appeal on February 7, 2012, affirms the long standing principle that appeal judges are not trial judges and, as such, they will rarely review and weigh fresh evidence or consider…
This case involves a decision by the Ontario Superior Court of Justice to order the husband to pay costs, based on his continual delays in providing financial disclosure.
The parties were married for 27 years and had three adult children. The husband was a successful insurance underwriter with interests in a number of corporations. The wife did not work outside of the home after 1985.
At case conference in December 2010, the husband agreed to retain a business valuator to determine the value of his business and his annual income.
In April 2011, the wife brought a motion for the husband’s still outstanding disclosure. Justice Czutrin ordered on consent that the husband would make his best efforts to satisfy the wife’s disclosure requests and adjourned the matter to September 2011.
Due to unavailability of the husband’s counsel in September 2011, the matter was again adjourned to November 2011, with a stipulation by Justice Czutrin that the husband would serve the business valuator’s report by October 2011 and satisfy the disclosure requests prior to the motion date. The issue of costs was reserved at this time.
In December 2011, Justice Czutrin dealt with a confidentiality agreement to allow the wife’s expert to communicate with the husband’s expert and accountant and provide information and supporting documentation relating to the outstanding disclosure. The issue of costs was again reserved to February 2012.
At the motion for costs in February 2012, the husband argued that all efforts by the wife to pursue disclosure were unnecessary.
Justice Czutrin began his analysis of the costs issue by asking the following questions:
- Were the motions necessary?
- Did [the motions] move the case along?
- Who was successful?
Based on a comparison of the parties respective requests at motion, the judge determined that the wife was more successful. Moreover, Justice Czutrin reasoned that the process of retaining a business valuator should have been undertaken by the husband soon after January 2010, as had he done so the need for motions and repeated attendances may have been avoided.
In addition, the judge emphasized that the obligation and onus to satisfy the court as to income and valuation is on the person whose income or valuation is called into question, and that such obligation exists prior to any court orders, conferences or court attendances.
In the result, the court was satisfied that the motions were necessary to obtain disclosure and to compel the husband to provide the expert’s reports. Accordingly, the wife was awarded $20,000.00 in costs.