



COURT OF APPEAL FOR ONTARIO

CITATION: Beaver v. Hill, 2018 ONCA 415

DATE: 20180501

DOCKET: M49029 (C64766)

Brown J.A. (Motions Judge)

BETWEEN

Brittany Beaver

Respondent (Moving Party)

and

Kenneth Hill

Appellant (Responding Party)

Andrew Lokan, for the responding party

Martha McCarthy, for the moving party

Heard and released orally: April 30, 2018

ENDORSEMENT


THE ISSUE

[1]

The issue before me on this motion is a narrow one. The applicant,
    Brittany Beaver (Mother), filed an affidavit in support of her motion in this
    court for advance funding in respect of the appeal of the respondent, Kenneth
    Hill (Father), from the order of Chappel J. dismissing his challenge to the
    jurisdiction of Ontario courts to adjudicate Mothers claims against him for
    custody, child support, and spousal support.

[2]

Father wants to cross-examine Mother on her affidavit; she opposes.

BACKGROUND FACTS

[3]

Mother and Father had a relationship from 2008 until 2013, when they
    separated. Their child was born in 2009.

[4]

Mother, Father and child are Haudenosaunee. Father lives on the Six
    Nations Reserve, along the Grand River, near Brantford; Mother and child live off
    it.

[5]

In late 2015, Mother brought an application for,
inter alia
,
    custody, child support and spousal support. Father opposed by seeking an order
    declaring that Ontario courts lack jurisdiction to determine any support
    obligations he might have to Mother and his child. Chappel J. dismissed his
    motion by order dated December 8, 2017.

[6]

Father has appealed. His appeal is scheduled to be heard by this court
    in the last week of June.

[7]

No interim support or custody order has been made as of this date.
    Father has been making
ex gratia
monthly payments to Mother of
    $10,000.

[8]

Mother has brought a motion in this court seeking an order that Father
    pay her advance costs for the appeal in the amount of $100,000, together with
    certain relief in respect of the contents of the appeal record. In support of
    her motion, Mother filed an April 4, 2018 affidavit which, in part, describes
    her financial situation.

[9]

According to Mothers April 4, 2018 Financial Statement, her annual
    income is slightly less than $20,000. According to Fathers February 3, 2016
    Financial Statement, his annual net income was $2.109 million.

[10]

Pursuant
    to the April 20, 2018 order of Fairburn J.A., Mothers motion for advance costs
    will be heard in a few days, on May 2, 2018. Her order directed that if the
    parties could not agree on whether Mother could be cross-examined, that issue
    would be argued today. Time for any cross-examination has been scheduled for
    tomorrow. Fathers counsel anticipates the cross-examination will not exceed 90
    minutes in length.

[11]

Father
    has served Mother with a notice of examination, which requires Mother to bring
    to the examination full copies of your retainer agreements(s) with counsel,
    records of all amounts paid to counsel, and all communicationsrelating to
    payment arrangements with counsel. In para. 16 of his Supplementary
    Submissions, Father identifies the areas on which he wants his counsel to
    cross-examine Mother: (i) her retainer agreement with her counsel; (ii)
    payments she has made to counsel; (iii) efforts she has made to obtain legal
    funding from other sources; (iv) the amount she is prepared to contribute to
    fund her response to the appeal; and (v) the basis for her request for $100,000
    in advance costs.

[12]

Counsel
    confirmed that, as of today, neither the federal nor provincial government has
    expressed an intention to participate in Fathers appeal, notwithstanding the
    service of two Notices of Constitutional Question.

THE POSITIONS OF THE PARTIES

[13]

Father
    submits he is entitled, as of right, to cross-examine Mother on the affidavit
    she filed in support of her motion for advance costs.

[14]

Mothers
    position regarding Fathers request to cross-examine her is set out, in part,
    in her counsels letter of April 13, 2018: (i) Father was provided with her
    financial disclosure years ago and never challenged her evidence; (ii) Mothers
    limited financial means have been, as they should be, non-controversial;
    (iii) there is no legitimate debate that [Father] is far, far wealthier than
    [Mother] and that there is no level playing field between the parties in this
    case; and (iv) the proposed cross-examination would be contrary to the
    primary objective and the principles established to deal with family law cases.

[15]

Mother
    also submits that Father should not be granted relief from this court while in
    breach of a court order.

[16]

The
    order in question is that made by Sloan J. on January 2, 2018 (the Disclosure
    Order).  On its face, the Disclosure Order states that it was made on a Form
    14B basis, pursuant to Rule 14 of the
Family Law Rules
, O. Reg. 114/99
. It requires Father
    within 14 days to serve a full and properly completed Financial Statement and
    to produce specified documents about his finances. As well, para. 2 of the
    order states: If the [Father] claims he cannot provide any piece of disclosure
    requested, the [Father] shall, within the same 14 days, explain by affidavit
    why he cannot provide that information and estimate when he shall be in a
    position to provide it.

[17]

Father
    moved before this court to stay the Disclosure Order. Roberts J.A. dismissed
    his motion on March 26, 2018. To date, Father has not made the ordered
    disclosure. Nor has he served an affidavit to explain why he cannot provide
    disclosure, as required by para. 2 of the Disclosure Order. Instead, Father has
    moved to vary the scope of and timelines in the Disclosure Order. That motion
    will be returnable sometime during the week of May 22, 2018.

ANALYSIS

[18]

Two
    competing principles are at play in respect of Fathers request for an order
    compelling Mother to attend tomorrow for cross-examination on her affidavit.

[19]

On
    the one hand, there is a
prima facie
right of a party to cross-examine
    an affiant. However, the court retains an inherent power to control its own
    process. Consequently, in cases where it appears to be in the interests of
    justice, a court may refuse to permit such cross-examination or restrict its
    scope:
Re Ferguson and Imax Systems Corp.
(1984), 47 O.R. (2d) 225
    (Div. Ct.), at pp. 235-236; leave to appeal to SCC refused, 19664 (February 28,
    1986).

[20]

On
    the other hand, a court may decline to entertain a request by a party to invoke
    its assistance where the party is not in compliance with an order of the court:
Dickie v. Dickie
, 2007 SCC 8, [2007] 1 S.C.R. 346, at paras. 4 and 6.

[21]

In
    the present case, Father has not complied with the Disclosure Order. He has not
    made any documentary production, nor has he served an affidavit explaining why
    he cannot or when he will. While Father is seeking to vary the Disclosure
    Order, that does not change the fact that he has not complied with it and that
    Roberts J.A. refused to stay its operation.

[22]

Full
    and prompt financial disclosure is a key element of this provinces family law
    regime. The failure to comply with court-ordered disclosure is a most serious
    matter.

[23]

In
    such circumstances, I am not prepared to accede to Fathers request for an
    order compelling Mother to attend for cross-examination on her affidavit.

[24]

In
    dismissing Fathers request for an order compelling Mothers attendance for
    cross-examination, I make no comment on the adequacy of the evidence Mother has
    put forward in her affidavit or the evidentiary implications of Mothers
    refusal to be cross-examined on her affidavit. Those are issues that fall
    within the purview of the judge who will hear Mothers motion for advance costs
    in a few days.

[25]

The
    costs of todays motion and attendance are reserved to the judge hearing the
    advance costs motion.

David Brown J.A.


