[1] THE COURT: On appeal from the judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Sylviane Borenstein), rendered on March 8, 2012 that ruled on interim spousal support and other related issues;
[2] For the reasons of Bich, J.A., with which St-Pierre and Bélanger J.A. agree;
[3] allows the appeal in part and REPLACES paragraphs [32] and [33] of the judgment appealed from with the following paragraphs:
[32] ORDERS that the matter of
the respondent's provision for costs be referred to the judge who has been
designated by the Associate Chief Justice of the Superior Court to manage the
case pursuant to articles
[33] APPOINTS Mtre Serge Fournier, of the firm BCF, as independent lawyer in charge of conducting and supervising the examination of the USB key;
[33a] ORDERS Mtre Serge Fournier to ensure the confidentiality of the contents of the USB key, save as provided for in the present order, and to ensure that any person who has access to the key under his supervision respect the confidentiality of its contents;
[33b] ORDERS Mtre Fournier, whether personally or through an employee of his firm or the services of a third-party provider, to use the Clearwell software or any other appropriate software or other method in order to produce a list of the emails that were copied on the USB key, detailing the names of the sender and recipient, the date and subject line, and to sort for doubles and emails strings;
[33c] ORDERS Mtre Fournier to remove from that list all emails unrelated to the financial circumstances or dealings of the appellant, to forward the list of the remaining emails (“the limited list”) to the appellant's lawyers with a copy of the USB key, and to notify the respondent's lawyers of the date when the list and copy of the USB key will have been sent to the appellant's lawyers;
[33d] ORDERS the appellant to examine the limited list and corresponding emails within 45 days from the date of reception thereof;
[33e] Should the appellant be of
the view that any email should not be on said limited list, is irrelevant
to the divorce proceedings, does not concern the financial circumstances of the
appellant or is otherwise inadmissible, whether under article
[33f] If, at the expiration of the 55-day time limit set out in paragraphs [33d] and [33e], the appellant has not referred the matter to the judge pursuant to paragraph [33e], ORDERS Mtre Fournier to send the limited list of emails, with a copy of said emails, to the respondent's lawyers;
[33g] If, at the expiration of the 55-day time limit set out in paragraphs [33d] and [33e], the appellant has referred the matter to the judge pursuant to paragraph [33e], ORDERS Mtre Fournier to prepare a list of non-disputed emails, if any, and to forward such list, along with a copy of the undisputed emails, to the respondent's lawyers;
[33h] CONFIRMS that the designated judge, upon being seized of the matter by the appellant, shall not only adjudicate the issue but also decide the procedure to be followed and the manner in which the parties shall be heard on the issue and that she shall render any order deemed necessary or useful in this respect;
[33i] ALLOWS the designated judge to vary the present order, upon request from the parties or proprio motu, if she deems it necessary or appropriate.
[4] The whole with costs to the respondent, as if the appeal had been dismissed.
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REASONS OF BICH, J.A. |
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[5] The parties are in the midst of an acrimonious divorce and this is but one episode in their ongoing legal battle. It is a sad state of affairs when, after two years of what can only be described as spirited litigation, the file is still at the interim stage, provisional measures have not yet been argued, and time is spent on collateral issues that appear to serve little purpose other than to hinder the progress of the action and entrench the parties in their increasingly intransigent positions. Fortunately, special case management has recently been ordered and an experienced judge designated to see to the orderly - and diligent - conduct of the proceedings, pursuant to articles 151.11 and ff. C.C.P.
* *
[6] The parties were married in October 1982, under the regime of separation as to property. They renounced their rights in the family patrimony, on a timely basis, pursuant to An Act to amend the Civil Code of Québec and other legislation in order to favour economic equality between spouses.[1] Four children were born of the marriage, all of whom are now of full age.
[7] This was a traditional marriage. The appellant, who is an extremely successful businessman, was the sole income-earner while the respondent devoted herself to her husband and family, with all the perks, however, that come with affluence. Indeed, because of the appellant's considerable wealth, the family enjoyed what can only be described as a lavish lifestyle.
[8] In February 2011, the appellant filed divorce proceedings. The main conclusions of his “Application for divorce” are the following:
PRONOUNCE the divorce of the parties;
ORDER the dissolution of the parties' matrimonial regime according to law;
GIVE ACT and HOMOLOGATE Plaintiff's interim offer to pay Defendant spousal support in the amount of $25,000/month, payable by cheque to her directly on the 15th day of each month, the whole on a without prejudice basis;
GIVE ACT and HOMOLOGATE Plaintiff's interim offer to continue paying, pending suit, all of the expenses related to the family residence located at [Address 1] in Town A as well as the family vehicles;
GIVE ACT to Plaintiff's undertaking to continue to assume any and all expenses which relate to the maintenance and needs of each of the children, including 100% of the costs of their education, the whole for as long as each child is defined as a child of the marriage according to the Divorce Act
[…]
[9] The parties thereafter filed motions for provisional measures as well as for safeguard orders. In his amended motion, the appellant acknowledged that the respondent needed support and offered to pay her $25,000 per month (less credit card charges) and to pay other expenses (cars and residences), as well as a provision for costs. He also asked that he and the respondent be granted shared use of the Town B country home pending suit, and that the respondent be granted the exclusive use of the Florida condo “save for those periods when she is not residing therein”. For her part, the respondent claimed interim spousal support in the amount of $228,828.83 per month, plus the payment of other expenses, in order “to reflect the lifestyle she enjoyed during the marriage” and which she characterized as “majestic” in paragraph 172 of her amended motion. She also asked for exclusive use of the Florida condo “to the total exclusion of Plaintiff”, use of the main family residence, to the exclusion of the appellant, when she is in Town C and exclusive use of the Town B home every other weekend. She also required a provision for costs.
[11] While in their country home in Town B, the wife saw on the computer, which was there, certain information which would help to establish her husband’s true worth. She had the information transferred onto an USB key which was remitted to her then attorney Me Pringle who then remitted it to a third party Me Fournier who holds it in trust.
[12] The Court was asked to rule on the use of this USB key. The husband claims it was a breach of privacy and cannot be used.
[13] The wife claims it was not, as there could not be an expectancy of privacy with the computer in full view in their common country house used by both.
[14] But she argues that even if it was a breach of privacy, in view of the husband not being forthcoming with the documents necessary to quantify his worth, the information gathered from the computer is necessary to establish the truth and it would not constitute a "déconsidération de la justice" as established in civil matters which is different from criminal matters where:
“ […] déconsidération de la justice est liée au concept de l'équité du procès suivant laquelle il est nécessaire de maintenir un équilibre entre la force des moyens dont dispose l'État et un accusé démuni.” [renvoi omis]
[11] On March 8, 2012, Borenstein J. rendered judgment on all issues as follows:
[22] ORDERS the husband to pay interim support to his wife of $45,833.00 per month as of today;
[23] PRAYS ACTE of the husband’s undertaking to pay all expenses related to the common domicile, country house and Florida condo, including the staff regularly employed and ORDERS him to do so;
[24] PRAYS ACTE of the husband’s undertaking to pay all expenses related to the cars used by the wife, namely the Bentley in Florida and the Range Rover in Town C and ORDERS him to do so;
[25] GRANTS the wife the exclusive use of the family residence located at [Address 1], Town A, to the husband’s exclusion, when she is in Town C with a 72 hour prior notice by telephone messages (SMS);
[26] GRANTS the wife the exclusive use of the secondary residence located at [Address 2], Town B, one week out of two on an alternate basis with the husband to the total exclusion of each other;
[28] ORDERS the husband to assume the cost of the wife’s airline travel on a first class basis as well as praying acte of the husband’s undertaking to furnish the wife with a book of first class travel vouchers for travel between Town C and Florida and ORDERING him to do so;
[32] AUTHORIZES the wife to proceed to fix a hearing date on her request for a provision for costs in Room 2.01;
[33] ORDERS that the USB key materials be dealt with in the manner prescribed above and without delay;
[34] AUTHORIZES the wife’s expert to consult all material necessary in his judgment to produce a counter expertise, if necessary, including all of the materials which Mr Wise reviewed for his expertise;
[35] AUTHORIZES the wife's expert to visit the husband’s offices in New Jersey, the whole as has been agreed previously by the attorneys of record;
[36] ORDERS the husband to furnish within three weeks to Altus group all information they require to complete their expertise;
[38] ORDERS the husband to remit the documents detailed at Exhibit D-47 within 21 days of this judgment;
[39] Orders provisional execution of this judgment notwithstanding any appeal;
[40] THE WHOLE to be valid until judgment is rendered on provisional measures.
[12] On March 13, 2012, the appellant filed an inscription in appeal from this interlocutory judgment, contesting all of the above conclusions, except conclusions [23] and [24]. On March 16, he sought and obtained stay of conclusions [32], [33], [34], [35], [36] and [38].[2] In September 2012, because of the judgment of the Court in Droit de la famille — 121718,[3] he sought and obtained leave to appeal from the same judgment.[4]
[13] The grounds of appeal are four-fold:
1° The judge of the Superior Court erred in awarding an amount of interim spousal support that is grossly exaggerated in view of the real needs of the respondent. She also erred in awarding the respondent the use of the family residence and of the country home on conditions that are unreasonable for the appellant and the children. She also erred “in ordering appellant to assume the costs of all of respondent's first class airline travel without limit”.[5]
2° The judge erred “in ordering appellant to provide further financial information on a safeguard order”.[6]
3° The judge erred “in dealing with the issue of access to the contents of the USB Key on a safeguard order”[7] and erred in the manner in which she dealt with this issue.
4° The judge erred “in allowing Respondent to fix a date for a hearing in room 2.01 for the issue of the provision for costs while at the same time homologating an agreement which provides differently”.[8]
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[14] As a preliminary remark in his written argument, the appellant asserts that the intervention of the Court in the present case “is necessary to provide clear direction as to the objectives of safeguard orders in family matters”.[9] There is no such need. The principles applicable to interim and safeguard orders in such matters are clear and they are well-known. One of these principles is that of the vast discretionary power bestowed upon the Superior Court to tailor every interim and safeguard order to the specific situation of the parties. Another relates to the temporary and reviewable nature of these orders, which can be adjusted and adapted to evolving circumstances. For both reasons, our Court is usually reluctant to interfere:
[3] A safeguard order is, by its very own nature, an interim order. Our
Court will not intervene in provisional orders such as this one, unless it is
demonstrated that the order is patently unreasonable, unjust or flagrantly
wrong (Droit de la famille - 2540,
[15] This is the standard of review applicable to Borenstein J.'s orders relating to spousal support, the use of the family residence and country home as well as the travel expenses and provision for costs.
[16] This exacting standard of appellate review also applies in matters relating to the case management and the orderly progress of the action, including the disclosure of evidence, when appropriate. Judgments in these matters are accorded great deference and our Court will not intervene unless they are flagrantly wrong and constitute a denial of justice. This standard of review applies to Borenstein J.'s orders relating to the financial information to be provided by the appellant and to the USB key issue as well. Incidentally, contrary to what the appellant suggests, these issues could legitimately be raised and argued by the parties in parallel with the issue of interim spousal support.
[17] I shall now deal briefly with each ground of appeal.
[18] Spousal support, family residence and country home, travel expenses. The appellant failed to demonstrate that the judge's orders in this regard are patently unreasonable, unjust or flagrantly wrong.
[19] First, the appellant admits a net worth of $51,931,092.[11] He has the means to pay spousal support in the amount determined by the judge. Account must also be taken of the fact that both the judgment on provisional measures and the final judgment on the divorce action can reevaluate spousal support retroactively. In addition, considering the nature of the parties' marriage, the lifestyle they enjoyed and the wealth of the appellant, interim support cannot be based on basic needs only (a strict “bed and board” approach), as the appellant would have it. The respondent's “needs” must be assessed in light of her prior lifestyle and not reduced to what is strictly necessary to ensure “le pain et le beurre”, to cite from one the cases referred to in the appellant's written argument.[12]
[20] Secondly, the arrangements set out in the judgment for the use of the family residence by the respondent may not be ideal from the appellant's perspective, but those that he suggests are not without their own inconveniences. The judge ordered the following:
[25] GRANTS the wife the exclusive use of the family residence located at [Address 1], Town A, to the husband's exclusion, when she is in Town C with a 72 hour prior notice by telephone message (SMS).
[21] The appellant would prefer the following:
GRANT Appellant exclusive use of the family residence located at [Address 1], Town A, to the Respondent's exclusion, save and except when she is planning to stay in Town C for a period of more than fourteen (14) days, and in which case GRANT Respondent the exclusive use of said family residence, upon a prior written notice of at least seventy-two (72) hours to Appellant.
[22] Is the appellant's suggestion reasonable? It is. Is the judge order reasonable? It is as well. The decided cases are clear that this is precisely the kind of situation in which the Court will not interfere and will defer to the judge's discretionary assessment of the situation.
[23] Thirdly, with respect to the country home, the Court shall not intervene although the respondent, in her motion, asked to be awarded use thereof every second weekend, while Borenstein J. ordered that she have the exclusive use of this property one week out of two. Ultra petita applies in family matters, but in a flexible manner. Considering that the country home is in the respondent's name and considering that the appellant, in his own amended motion, asked that the respondent be granted “the shared use” of this residence, the judge's order is not unreasonable. It has also been in force for more than one year now and there appears to be no reason to change the status quo. If there were, the appellant would be well-advised to return to the Superior Court and ask that the order be varied.
[24] Finally, the appellant complains that Borenstein J.'s order relating to the respondent's travel expenses is too generous and lends itself to abuse. The order could have been more precise, perhaps, but it is far from unreasonable when one considers that, according to the evidence in the appeal file, the respondent travels between Town C and Florida mainly (to which the appellant has no objection and for which he offers to pay). There is no sign that the respondent has abused, could abuse or will abuse the order. If she does, then the appellant, obviously, is not without recourse and may ask the Superior Court to vary the order.
[25]
Disclosure of financial information. Full disclosure of the parties'
financial situation, i.e. full disclosure of income and assets, is
usually required in divorce matters. This is a proactive obligation, reinforced
by the principle of good faith (and confirmed by s.
[26] Section 15.2, para. (4) of the Divorce Act provides that:
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15.2 […] (4) En rendant une ordonnance ou une ordonnance provisoire au titre du présent article, le tribunal tient compte des ressources, des besoins et, d’une façon générale, de la situation de chaque époux, y compris : a) la durée de la cohabitation des époux; b) les fonctions qu’ils ont remplies au cours de celle-ci; c) toute ordonnance, toute entente ou tout arrangement alimentaire au profit de l’un ou l’autre des époux. |
15.2 […] (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. |
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[Emphasis added.] |
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[27] When this provision refers to the means (“ressources”) of the parties, it refers to all the means of the parties, which include all income and assets and which must be taken into account in order to determine the amount of spousal support at either the interim, provisional or final stage. What is a reasonable amount at the interim stage might not be what is reasonable at the final stage, in light of the purpose of an interim order and that of a final one, but this does not detract from the obligation to consider all the means of the parties at all stages. This is so irrespective of the fact that one of the parties may not claim any right in the other's assets per se.[13]
[28]
In Leskun v. Leskun,[14] speaking of s.
29 There is no support in the
case law or in logic for the proposition that the chambers judge was wrong to
take into account the appellant’s capital assets acquired after the marital
break-up. In Strang v. Strang,
The word means includes all pecuniary resources, capital assets, income from employment or earning capacity, and any other source from which gains or benefits are received, together with, in certain circumstances, money that a person does not have in possession but that is available to such person. [Emphasis in original.]
(Canadian Family Law (2001), at p. 195)
[…]
34 In all of these circumstances, the appellant has a poor platform from which to launch an attack against the trial judge’s conclusion regarding his assets and liabilities. As Fraser J. commented in Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93 (S.C.), at para. 9:
Non-disclosure of assets is the cancer of matrimonial property litigation. It discourages settlement or promotes settlements which are inadequate. It increases the time and expense of litigation. The prolonged stress of unnecessary battle may lead weary and drained women simply to give up and walk away with only a share of the assets they know about, taking with them the bitter aftertaste of a reasonably-based suspicion that justice was not done.
If problems of calculation exist the appellant is largely the author of his own difficulties. I would not interfere on that basis.
[Emphasis added.]
[29] In Rick v. Brandsema,[15] Abella J., for the Supreme Court, further explained that:
[1] This Court has frequently recognized that negotiations following the disintegration of a spousal relationship take place in a uniquely difficult context. The reality of this singularly emotional negotiating environment means that special care must be taken to ensure that, to the extent possible, the assets of the former relationship are distributed through negotiations that are free from informational and psychological exploitation.
[…]
[3] The Court of Appeal reversed most of the trial judge’s findings, concluding instead that the wife’s vulnerabilities were effectively compensated for by the availability of professional assistance, and that the husband had no obligation to refrain from agreeing to an equalization payment for his wife that was in his own best interests.
[4] This appeal, therefore, attracts a spotlight to the duties owed by separating spouses during the process of negotiating and executing a separation agreement for the division of matrimonial assets. In Miglin, based on the inherent vulnerability of spouses during negotiations, this Court stated that in order to safeguard a separation agreement from judicial intervention, a spouse must refrain from using exploitative tactics. It held that the failure to do so, particularly if the agreement fails to materially comply with the objectives of the governing legislation, could well result in the agreement being set aside.
[5] The circumstances of this case move us to consider the implications flowing from Miglin for the deliberate failure of a spouse to provide all the relevant financial information in negotiations for the division of assets. In my view, it is a corollary to the realities addressed by this Court in Miglin that there be a duty to make full and honest disclosure of such information when negotiating separation agreements.
[…]
[48] Such a duty in matrimonial negotiations anchors the ability of separating spouses to genuinely decide for themselves what constitutes an acceptable bargain. It also helps protect the possibility of finality in agreements. An agreement based on full and honest disclosure is an agreement that, prima facie, is based on the informed consent of both parties. It is, as a result, an agreement that courts are more likely to respect. Where, on the other hand, an agreement is based on misinformation, it cannot be said to be a true bargain which is entitled to judicial deference.
[Emphasis added.]
[30] The words of the Supreme Court in Leskun and Rick apply equally to spousal support issues, which required full and honest disclosure of the financial situation of the parties. In the present case, there is no agreement in sight between the parties on support, but full financial disclosure is nevertheless required in order to allow the possibility of such an agreement, as well as to enable the court to establish the amount of support to which the respondent is entitled, both during the divorce proceedings and upon divorce being granted.
[31] Such disclosure cannot wait until the trial on the merits of the divorce case, as this would completely undermine the principle of disclosure. If a party is reluctant to disclose relevant information, the court may order him or her to do so, at any stage of the suit, including at the interim stage.
[32] In other words, when Borenstein J. summarily wrote that “[t]he wife needs the financial information and has a right to it”, she did not err.
[33]
Section
[34] On the basis of the evidence before her, she concluded that appellant was reticent to disclose the details of his financial circumstances. Although he provided what appears to be a substantial amount of documents, this was deemed insufficient in light of the complexity of his financial situation and the discrepancies between the elements that he chose to disclose. For instance, according to the appellant's statement of income and expenditures,[16] he earns $77,496.13 per month (net income), with expeditures of $151,562.92, incurring a monthly deficit of $74,066.79. He declares a net worth of $23,366,396. According to his tax returns for 2008, 2009 and 2010, his total annual income is a little less than 2 millions dollars. Various balance sheets in the file shows that appellant's total worth is the following for the years 2009 and 2010:
$115,185,047 as of December 31, 2009 (exhibit D-32, respondent's written argument, p. 876);
$107,857,047 as of December 31, 2009 (exhibit D-32, respondent's written argument, p. 878)
$19,219,754 as of December 31, 2010 (exhibit D-32a), respondent's written argument, p. 880).
[35] In his detailed affidavit of January 19, 2012, the appellant's accountant, whose last estimate of his client's net worth was the aforementioned amount of $19,219,754, explained these variations by the fact that, in preparing the balance sheets, he had omitted substantial liabilities.[17] However, as noted earlier, the appellant, in his written argument, now acknowledges a net worth of $51,931,092.
[36] In his balance sheet of December 2010 assessing his net worth at $19,219,754, the appellant's part of the shares in [Company A] (i.e. 50%) is valued at $15,000,000. However, his own expert report on the value of the shares of the company (including its American subsidiary) comes to the following conclusion:
In our Opinion, based on the information and documents reviewed, the explanations provided to us, and subject to the restrictive assumptions and qualifications noted herein, and as determined in this Report, the Fair Market Value of the Issued Shares, on or about the Valuation Date, was in the range of $57,200,000 to $60,500,000 (midpoint: $58,900,000 - Schedule 1), summarized as follows: […][18]
[37] Furthermore, in his own revised affidavit of February 2012, the respondent's accounting expert explained that:
7. THAT although it may be true, that [the appellant's accountant] has submitted over 20,000 pages of documentation and data information to the undersigned, it is not the quantity of documents that have been received when it comes to valuation and determination of notional income, but the relevance of said documents that counts;
[38] According to this expert's affidavit, relevant information is thus still missing.
[39] All of this understandably raised Borenstein J.'s suspicions. She concluded that a “reading of the voluminous file shows a reticence by the husband to furnish documents required to establish his true worth and the Court will order him to do so”.[19] There is no palpable and overriding error in that conclusion.
[40] One should also note that, in paragraph 15 of his application for divorce, the appellant commited himself “to provide Defendant with a full financial disclosure with supporting documents within forty-five (45) days of the service of the present proceedings”. This deadline has now passed, but the appellant is still bound by his commitment.
[41] Are there errors, however, in the nature and scope of the judge's orders? According to the appellant, the following orders are excessive and abusive:
[34] AUTHORIZES the wife’s expert to consult all material necessary in his judgment to produce a counter expertise, if necessary, including all of the materials which Mr Wise reviewed for his expertise;
[35] AUTHORIZES the wife's expert to visit the husband’s offices in New Jersey, the whole as has been agreed previously by the attorneys of record;
[36] ORDERS the husband to furnish within three weeks to Altus group all information they require to complete their expertise;
[38] ORDERS the husband to remit the documents detailed at Exhibit D-47 within 21 days of this judgment;
[42] The appellant contends that these orders allow nothing less than a fishing expedition and leave him at the mercy of the every whim of the respondent's expert, who is free to conduct any kind of investigation in his finances.
[43] I am of the view that these orders are appropriate in the circumstances and do not warrant the Court's intervention. Firstly, they must be applied in good faith and the respondent's expert is required to conduct himself in a professional manner. He cannot take advantage of the wording of the orders to demand irrelevant information or make unlimited or unreasonable requests. The orders are admittedly broad in scope but should they be abused, the appellant will be able to seize the Superior Court of the matter, and, most likely, the supervising judge now in charge of managing the file will resolve the issue. All fine-tuning of Borenstein J.'s orders should be left to the supervising judge.
[44]
USB key. The appellant alleges that the respondent, by copying his emails on a
USB key (which, in his view, is tantamount to opening his personal paper mail),
seriously breached his right to privacy, which is protected by the Charter
of Human Rights and Freedoms (s.
5
) and the Civil Code of Québec (art.
3 and 35 and ff.). He argues that the admission of any evidence which may be
found on the USB key would bring the administration of justice into disrepute.
He ultimately intends to ask for the return of the key and the rejection of all
evidence thereon pursuant to article
[45] I respectfully disagree. The judge did not settle the issue on the merits. She did not give the respondent free access to the contents of the USB key and did not jeopardize the appellant's rights. What she did was simply put in place a mechanism by which the issue can be properly decided, while protecting the appellant's right to privacy and the respondent's right to introduce relevant evidence in order to defend herself. It would have been useless to refer the argument of the issue entirely to another judge without even knowing if the USB key contains any information to which the respondent may be entitled.
[46] Here are the relevant paragraphs of the judgment (the paragraphs in which the judge recounted how the respondent came into possession of the USB key are reproduced at para. [10] supra):
[15] Whereas:
“Le procès civil est un débat contradictoire conduit selon des règles qui en assurent l’équité et l’efficacité devant un tribunal indépendant et impartial et au terme duquel sont départagés les droits et obligations des parties généralement privées. La recherche de la vérité est donc au cœur du procès civil et toutes les normes édictées en vue de son déroulement visent à en assurer le dévoilement ou la manifestation.”[21]
[16] The wife needs the financial information and has a right to it.
[17] However, the information concerning other matters is to be protected.
[18] The independent third party, Me Fournier, will have to make a list of the documents and what they concern, submit the list to the parties’ attorneys who will attempt to agree on which documents should remain confidential and which should be divulged to the wife in her quest to establish the husband’s worth. In case of disagreement, the parties, by motion, will submit the documents to the Court for a ruling.
[47] She then ordered “that the USB key materials be dealt with in the manner prescribed above and without delay” (para. [32]).
[48]
What the judge endeavoured to do here was to
protect the rights of both parties under articles
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2857. La preuve de tout fait pertinent au litige est recevable et peut être faite par tous moyens. |
2857. All evidence of any fact relevant to a dispute is admissible and may be presented by any means. |
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2858. Le tribunal doit, même d'office, rejeter tout élément de preuve obtenu dans des conditions qui portent atteinte aux droits et libertés fondamentaux et dont l'utilisation est susceptible de déconsidérer l'administration de la justice. Il n'est pas tenu compte de ce dernier critère lorsqu'il s'agit d'une violation du droit au respect du secret professionnel. |
2858. The court shall, even of its own motion, reject any evidence obtained under such circumstances that fundamental rights and freedoms are breached and that its use would tend to bring the administration of justice into disrepute. The latter criterion is not taken into account in the case of violation of the right of professional privilege. |
[49]
As I have said earlier, the respondent is
entitled to full financial disclosure from the appellant and she is entitled to
have access to that information before trial, for reasons that have already
been explained. This is what the judge recognized in paragraph [16] of her judgment. The respondent may
thus have a right to the financial information copied on the USB key (if any),
despite the breach of privacy (the importance of which will have to be assessed
at a later stage, in context). Article
[50] In order to go though the balancing process required by article 2858 C.C.Q.,[23] however, the parties as well as the judge who will be seized of the issue will need to know what is on the USB key and the nature of the information thereon, the whole without divulging private information that has nothing to do with the appellant's financial situation or revealing information that is not relevant to the divorce proceedings.[24]
[51] To achieve this objective, it is appropriate to follow the model provided for by the Supreme Court in Celanese Canada Inc. v. Murray Demolition Corp.,[25] mutatis mutandis.
[52] At the hearing, the respondent, through counsel, recognized that the judge's order required some adjustments and she suggested the following procedure:
Order that Me Serge Fournier engage the services of a third party provider to use the Clearwell software to produce a list of emails detailing the sender, recipient, those copied, the date and subject line and to sort for doubles and emails strings.
Order Me Serge Fournier to remove all emails unrelated to the financial dealings or affairs of Appellant and to remit a list of the remaining emails to Appellant and Respondent.
Afford Appellant a reasonable delay within which to indicate any emails on the list so remitted that he considers privileged.
In the event of dispute as to the privileged character of the emails, order that the matter be submitted to Madam Justice Eva Petras, appointed by the Associate Chief Justice, to hear all motions as well as the merits of the case.
Allow the parties to make representations before Madam Justice Petras as to whether the persons named by Appellant as recipients or transmitters of privileged communications should be treated as such.
[53] The appellant strongly opposed this suggestion, arguing, among other things, that the fact that the lawyer designated in the order will know the contents of the USB key is, in and of itself, an irreparable breach of his right to privacy and right to professional privilege. Considering that the independent lawyer in question is bound to respect the confidentiality of the information with which he will become acquainted, I am of the view that there will be no breach of either right (in the event privileged communications and/or private information other than financial information are on that key).
[54] The appellant's counsel subsidiarily suggested that the list prepared by the independent lawyer be sent to his own lawyers only, who would review it first and obtain a copy of the emails. Should they want to remove any information from that list, they would then present a motion to the supervising judge within a certain time limit. Absent contestation, the independent lawyer would be authorized to send copy of the list and emails to the respondent's lawyers. This is a reasonable suggestion, compatible with the model set out in Celanese Canada Inc., supra, and an order will be issued accordingly.
[55] Finally, it is appropriate to remind both parties that they undertook to preserve the confidentiality of all financial information divulged during the divorce proceedings, as per paragraph 22 of their October 2011 Memorandum of Agreement:
22. That S. S. and L. Sh. undertake not to discuss the nature and contents of this present Memorandum of Agreement and any financial information divulged during the course of the Divorce proceedings, including any expert reports or any financial documentation disclosed or provided, to any and all third parties including their children.
[56] Provision for costs. In paragraph [30] of her judgment, Borenstein J. homologated a “Memorandum of Agreement” signed by the parties on October 11, 2011, pertaining to their respective expenses in the divorce action. Paragraph 21 of this Memorandum provided that:
21. That the issue of provision for costs shall be left for determination at either or both the stage of provisional measures and/or the hearing on the merits of the Divorce;
[57] Notwithstanding this paragraph of the Memorandum and notwithstanding that she homologated said Memorandum, the judge chose to allow the respondent to argue her motion for provision for costs immediately. In paragraph 20 of her judgment, she summarily explained that:
[20] The wife is asking for a provision for costs, the Court could not deal with it within the time allotted for the present hearing and will refer it to a judge sitting in room 2.01.
[58] Accordingly, she concluded in the following manner:
[32] AUTHORIZES the wife to proceed to fix a hearing date on her request for a provision for costs in Room 2.01;
[59] This order, as mentioned previously (para. [12] supra), was stayed by a judge of this Court, on March 16, 2012.
[60] Should the Court intervene and quash the order because of the apparent contradiction between conclusions [30] and [32] of the judgment? In the circumstances,
- considering that the order was rendered more than a year ago,
- considering that it was never executed and that the respondent never presented her motion for provision for costs,
- considering that, for the rest, the Memorandum of Agreement between the parties was executed,
- considering that the contested order is in the nature of a case-management order, that can be modified if and when the situation so requires, and
- considering that the file is now under special case management,
I am of the view that Borenstein J.'s order is moot and that the matter should be referred anew to the case-management judge.
* *
[61] For these reasons, I would allow the appeal in part and replace paragraphs [32] and [33] of the judgment with the following paragraphs:
[32] ORDERS that the matter of
the respondent's provision for costs be referred to the judge who has been
designated by the Associate Chief Justice of the Superior Court to manage the
case pursuant to articles
[33] APPOINTS Mtre Serge Fournier, of the firm BCF, as independent lawyer in charge of conducting and supervising the examination of the USB key;
[33a] ORDERS Mtre Serge Fournier to ensure the confidentiality of the contents of the USB key, save as provided for in the present order, and to ensure that any person who has access to the key under his supervision respect the confidentiality of its contents;
[33b] ORDERS Mtre Fournier, whether personally or through an employee of his firm or the services of a third-party provider, to use the Clearwell software or any other appropriate software or other method in order to produce a list of the emails that were copied on the USB key, detailing the names of the sender and recipient, the date and subject line, and to sort for doubles and emails strings;
[33c] ORDERS Mtre Fournier to remove from that list all emails unrelated to the financial circumstances or dealings of the appellant, to forward the list of the remaining emails (“the limited list”) to the appellant's lawyers with a copy of the USB key, and to notify the respondent's lawyers of the date when the list and copy of the USB key will have been sent to the appellant's lawyers;
[33d] ORDERS the appellant to examine the limited list and corresponding emails within 45 days from the date of reception thereof;
[33e] Should the appellant be of
the view that any email should not be on said limited list, is irrelevant
to the divorce proceedings, does not concern the financial circumstances of the
appellant or is otherwise inadmissible, whether under article
[33f] If, at the expiration of the 55-day time limit set out in paragraphs [33d] and [33e], the appellant has not referred the matter to the judge pursuant to paragraph [33e], ORDERS Mtre Fournier to send the limited list of emails, with a copy of said emails, to the respondent's lawyers;
[33g] If, at the expiration of the 55-day time limit set out in paragraphs [33d] and [33e], the appellant has referred the matter to the judge pursuant to paragraph [33e], ORDERS Mtre Fournier to prepare a list of non-disputed emails, if any, and to forward such list, along with a copy of the undisputed emails, to the respondent's lawyers;
[33h] CONFIRMS that the designated judge, upon being seized of the matter by the appellant, shall not only adjudicate the issue but also decide the procedure to be followed and the manner in which the parties shall be heard on the issue and that she shall render any order deemed necessary or useful in this respect;
[33i] ALLOWS the designated judge to vary the present order, upon request from the parties or proprio motu, if she deems it necessary or appropriate.
[62]
Considering the nature and circumstances of the
appeal, the limited scope of the present judgment and the general rule set out
in article
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MARIE-FRANCE BICH, J.A. |
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[1] S.Q. 1989, c. 55. s. 42.
[2]
Droit de la famille — 12598,
[3]
[4]
Droit de la famille — 122597,
[5] Appellant's written argument, p. 3.
[6] Id.
[7] Id.
[8] Id.
[9] Appellant's written argument, para. 8.
[10] R.R. v. S.L.G.,
[11] Appellant's written argument, para. 33 in fine.
[12]
Droit de la famille - 073271,
[13] This appeared to be the case at the time Borenstein J. heard the case, since the parties are separate as to property and have renounced their righs in the family patrimony. In July 2012, however, after the judgment appealed from was rendered, the respondent filed her defense, in which she asks for a lump sum of $25,000,000 or “[i]n the alternative, […] asks that the marriage contract be set aside and declared null and void and order that the acquests accumulated during the marriage be partitioned equally between the parties”.
[14]
[15]
[16] Form III - Amended Statement of Income and Expenditures and Balance Sheet, September 6, 20, p. 81 and ff. of appellant's written argument (in particular p. 83 and 86). See also what appears to be the same document, p. 440 and 443.
[17] Affidavit of the appellant's accountant, January 19, 2012, appellant's written argument, p. 146-148.
[18] Expert Report dated January 16, 2012, appellant's written argument, p. 328.
[19] Judgment of the Superior Court, para. 10.
[20] Appellant's written argument, p. 20.
[21] Id., p. 24.
[22] This condition does not apply where ''professional privilege''
is concerned (art.
[23] See: Mascouche (Ville de) v. Houle,
[24] Considering the examination that the respondent's expert will be conducting into the financial circumstances of the appellant pursuant to Borenstein J.'s orders, it is possible, in the end, that the information encrypted of the USB key will turn out to be unnecessary or useless.
[25]
AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans
appel; la consultation
du plumitif s'avère une précaution utile.
