r v. Barber, 2023 MBKB 115

Date: 20230707 Docket: FD 21-11-03453 (Morden Centre) Indexed as: Barber v. Barber Cited as: 2023 MBKB 115 COURT OF KING'S BENCH OF MANITOBA B E T W E E N: ) ) DEBBIE ANN MARIE BARBER ) John A.

Jones Petitioner, ) for the petitioner and ) ) CHRISTOPHER WILLIAM BARBER ) Respondent. ) Loren Braul ) for the respondent ) ) ) ) Reasons for Decision: ) July 07, 2023 ) MASTER PATTERSON Introduction [ 1 ] The implementation of the Court of King's Bench Family Division Case Flow Model (the "FD Case Flow") on January 1, 2019 ushered in transformative changes to family litigation in Manitoba. [ 2 ] In consideration of the FD Case Flow, as well as previous decisions of this Court and the Manitoba Court of Appeal, this case involves a dispute about the extent and timing of property related disclosure.

Background [ 3 ] The Petitioner, Debbie Ann Marie Barber (the "Wife"), and the Respondent, Christopher William Barbour (the "Husband"), commenced cohabitation in a conjugal common law relationship on May 1, 1998. They were married on August 18, 2001. [ 4 ] The parties separated on July 1, 2020. [ 5 ] A motion was filed on behalf of the Wife on March 13, 2023 (the "Wife’s Motion"). An affidavit of legal assistant Candace Blume, affirmed March 10, 2023 (the "Blume Affidavit"), was filed in support of the Wife's Motion. [ 6 ] Pursuant to the Wife’s Motion, the following relief is specifically requested:

a) the Husband be compelled to complete required pre-requisites in order that these proceedings can move to triage;

b) confirmation of dates for an examination for discovery;

c) the Husband provide year-to-date income disclosure and copies of recent income tax returns;

d) the Husband provide “further financial disclosure as has been requested on behalf of the Wife”; and

e) costs. [ 7 ] On May 11, 2023, a motion was filed on behalf of the Husband (the "Husband’s Motion"). An affidavit from the Husband, affirmed May 10, 2023 (the "Husband's Affidavit"), was filed in support of the Husband's Motion. [ 8 ] In accordance with the Husband’s Motion, the following relief was being sought:

a) the Wife shall prepare and serve an affidavit of documents on or before June 2, 2023;

b) scheduling dates for an examination for discovery, within 60 days of requested disclosure being received by the Husband; and

c) costs. Husband’s Motion [ 9 ] Consensus was reached as follows in relation to the Husband’s Motion:

a) An affidavit of documents on behalf of the Wife (the "Wife's Affidavit of Documents") is to be served upon counsel for the Husband by June 3, 2023.

b) The request to

schedule dates for discoveries was withdrawn; and

c) The issue of costs associated with the Husband’s Motion is to be considered at the same time as the request for costs concerning the Wife’s Motion. Wife’s Motion Position of the Wife [ 10 ] Exhibit "A" to the Blume Affidavit (and Tab "D" to the Motion Brief filed on behalf of the Wife) is a copy of the letter from counsel for the Wife to counsel for the Husband dated December 9, 2022 (the "December 9, 2022 letter"). [ 11 ] The December 9, 2022 letter set forth exactly what was being requested on behalf of the Wife for disclosure from the Husband. In

summary, the following details were sought: a) “an itemized list of all farm equipment and machinery, guns, tools, vehicles, quads, and recreational vehicles” owned as of the date of separation, along with the Husband’s position on values; b) “an itemized list of all livestock” owned as of the date of separation, along with the Husband’s on value; c) “a list of all inventory” owned by the Husband as of the date of separation, “whether that be seed, fertilizer, fuel, or the like, or whether it be grain on hand”; d) “a description of all growing crops” of the Husband as at separation, along with the Husband’s position on values;

e) “statements for all bank accounts and investments” owned by the Husband at separation; f) “copies of receipts for all sales and income including from grain or cattle totaling the total commodity sales of $382,363.00”, disclosed with the Husband’s 2020 income tax return; g) “copies of receipts for all sales and income including from grain and cattle totaling the total commodity sales of $140,505.00”, described within the Husband’s 2021 income tax return; and h) “proof of year to date income” for the Husband. [ 12 ] Counsel for the Wife advised that the issue for the Court to determine pursuant to the Wife's Motion is described within paragraph 4.7.1 of the Motion Brief filed on behalf of the Wife: Keeping in mind the principles of proportionality, are clear requests for relevant financial information to be complied with?

Or can the party to whom such a request is made force the requesting party to go through the formal processes set out in Rule 30 - Discovery of Documents, and/or Rule 31 - Examination for Discovery, and/or Rule 35 - Procedure on Interrogatories, with all the delay, expense and frustration that entails? [ 13 ] The grounds relied upon by the Wife in order to request the disclosure sought from the Husband within the December 9, 2022 letter are as follows:

a) At Tab “A” to the Motion Brief filed on behalf of the Wife, a copy of

Part 3 of the Form 70D completed by the Husband is included (the "Husband’s Financial Statement"). There is no reference to cattle, grain, feed, chemicals or inventory being owned by the Husband as of the date of separation, nor are there any values recorded for his farm related assets at separation, save and except that the Husband noted he had farm equipment valued in an amount of $120,000.00 as of the date of separation (with the parties also selling farmland approximately one year following separation, and sharing the net sale proceeds).

b) A copy of excerpts from the Husband’s 2020 and 2021 income tax returns are located at Tabs “B” and “C” to the Motion Brief of the Wife. Full copies of the Husband’s income tax returns from 2019, 2020 and 2021 are attached to the Husband’s Financial Statement. While the foregoing documentation discloses the Husband’s income in each of these years from the sale of grain and cattle, as well as other income from farming, these income tax returns do not describe the actual cattle and grain inventory of the Husband, and the value of such inventories, as of on or around the date of separation.

c) While the Husband’s Affidavit of Documents has been received by counsel for the Wife (a copy of which is Exhibit “H” to the Husband’s Affidavit), a number of the documents identified within

Schedule “A” represents documentary disclosure that was supplied by counsel for the Wife (and relates to the Wife, not the Husband).

d) Conceptually, counsel for the Wife submits that it is not his responsibility or obligation to sort through a box of documents in the possession of counsel for the Husband, in order to determine what documents are or are not relevant to these proceedings from the Wife’s perspective.

e) It is in keeping with the principle of proportionality for disclosure to be provided early on in these proceedings, which is consistent with the objectives of the FD Case Flow.

f) Full disclosure will allow for completion of the required comparative family property statement (“CFPS”) by both parties, in a meaningful fashion, allowing for more productive discussion at triage.

g) Provision of disclosure should not be delayed or simply left to discoveries or interrogatories.

h) The Court should not be sending a message to counsel and parties (as well as the legal profession and community as a whole) that one can delay or deflect provision of disclosure until later in the proceedings, such as at the discovery stage.

i) Despite the comprehensiveness of the Husband’s Affidavit of Documents, copies of the material or relevant documentation has not been provided to counsel for the Wife as of yet. More critically (as best as can be ascertained by counsel for the Wife), the documentation listed within

Schedule “A” does not answer the inquiries raised within the December 9, 2022 letter.

j) It was reiterated by counsel for the Wife that when seeking the position of the Husband concerning value of his assets and debts, it is not expected that the Husband produce appraisals or opinions as to value at this stage (unless such evidence already exists).

k) Counsel for the Wife submits that once the parties avail themselves of the family law process before the Court in Manitoba, counsel and the parties are to proceed constructively, and on a timely basis, towards trial (absent earlier settlement). [ 14 ] It is the Wife’s position that the disclosure requested from the Husband should be provided within 60 days of the date of an order being pronounced by this Court. At a minimum, counsel for the Wife insisted that disclosure should be provided by the Husband within a reasonable period of time in advance of any scheduled discoveries. [ 15 ] The submissions of counsel for the Husband can be summarized as follows:

a) Counsel for the Husband vehemently disputes having stated, either expressly or indirectly, that counsel for the Wife should come to his office and “sort through a box of documents” to determine what material is relevant to these proceedings.

b) The Husband’s Affidavit of Documents is detailed, referring to over 700 items. A PDF version has also been provided to counsel for the Wife.

c) With reference to the Husband’s Affidavit of Documents, counsel for the Wife has not forwarded a request for copies of specific documentation, nor has there been any undertaking provided insofar as paying for the costs of photocopying. In the alternative, no arrangements have been made to date for counsel on behalf of the Wife to attend and review the documentation in question at the office of counsel for the Husband.

d) Counsel for the Wife does have copies of the Husband’s 2020 and 2021 income tax returns, which it is argued should be a sufficient basis by which the Husband, and the Wife, may formulate their respective positions concerning the extent of assets and inventory that the Husband owned as of the date of separation (together with the values for such assets and inventory).

That being stated, counsel for the Husband expressed the sentiment that it is or will be difficult for the Husband to take the information assembled thus far, and formulate an exact position insofar as what specifically the Husband had for assets and inventory (and the value thereof) at separation. As explained by counsel for the Husband, the parties’ farming operation was sold in 2021 (approximately one year following the date of separation).

e) In addition to already disclosing a copy of the Husband’s 2022 income tax return to counsel for the Wife, it was confirmed by counsel for the Husband that the requested evidence of year-to-date income (three recent pay statements received by the Husband) will be disclosed promptly to counsel for the Wife.

f) It was submitted on behalf of the Husband that the onus on the part of the Husband to provide disclosure should be balanced against the onus of the Wife to review and request copies of documents that have been identified within the Husband’s Affidavit of Documents.

g) With respect to the December 9, 2022 letter, counsel for the Husband noted the following (in response to each of the specific subparagraphs): i. there had been prior settlement discussions between the parties, such that certain requested information may have been provided previously to the Wife or her former counsel; ii. the Husband takes the position that he had 70 head of cattle as of the date of separation, with the cattle having an approximate value of $1,000.00 each (this position is an approximation, in accordance with the Husband’s recollection and review of the relevant income tax returns); iii. as noted previously, counsel for the Husband articulated that it was difficult for the Husband to provide a detailed list of all inventory at separation (seed, fertilizer, fuel, grain on hand or otherwise);

iv. counsel for the Husband also stated that it would be difficult for the Husband to identify the value of all of his crops as of the date of separation; v. statements from the Husband’s bank accounts and investments are identified within the Husband’s Affidavit of Documents, and all that counsel for the Wife has to do is make a request for copies or attend to inspect this documentation; and vi. as to the request on behalf of the Wife for copies of receipts or other records for all sales and income, including from grain or cattle, as disclosed within the Husband’s 2020 and 2021 income tax returns, it was submitted that counsel for the Wife already has reasonable disclosure (by virtue of receiving copies of the Husband’s 2020 and 2021 income tax returns), with a copy of the 2022 income tax return of the Husband to be disclosed shortly.

h) Counsel for the Husband believes there is a distinction between financial disclosure for purposes of meeting pre-requisites, and disclosure that is more appropriately addressed through questions and undertakings at discoveries or pursuant to interrogatories.

i) It was noted by counsel for the Husband, that pursuant to The Court of King’s Bench Rules , Man. Reg. 553/88 (the “ Rules ”), compensation can be requested for producing or copying documents for the other party.

j) Counsel for the Husband contends that there could be more focused production of relevant disclosure after the parties have had discussions (for instance, a “4-way meeting” has not been held with the parties as of yet). Reply of Wife to Husband’s Position [ 16 ] By way of response to the submissions made by counsel for the Husband, the Court’s attention was directed to Exhibit “B” to the Blume Affidavit (which is a copy of the January 12, 2023 email from counsel for the Husband to counsel for the Wife).

The first paragraph reads as follows: I met with my client today and was provided a bin of receipts and statements used in the preparation of the 2021 t ( sic ) tax return. I expect a similar bin to be provided tomorrow for the 2020 tax year. The number of documents is significant. We can either prepare copies for you at your expense or we can make arrangements for you to come by and examine the documents directly.

Do you have a preference? [ 17 ] According to counsel for the Wife, the Husband must have put his mind to certain questions raised within the December 9, 2022 letter, because some of the answers provided by the Husband (such as his approximation with respect to the number of livestock he owned at separation, as well as the value of the livestock) are not readily apparent within the copies of the Husband’s income tax returns that have been shared with the Wife thus far. [ 18 ] Counsel for the Wife simply submits that if there is to be a reference to a master, and a family property accounting held pursuant to The Family Property Act, CCSM c F25 (the " FPA ”), evidence is necessary concerning the extent of assets owned by the parties, and the value of such assets, all as of the date of separation. [ 19 ] As a demonstration of the frustration, which counsel for the Wife says has been encountered thus far, item 313 within the Husband's Affidavit of Documents is described to be a "photo of appraised value of equipment (one page)".

If this is the full (or partial) answer of the Husband (in response to the Wife’s question seeking to confirm the Husband’s position in regards to the value of farm equipment and machinery at separation), all that had to be done was for counsel for the Husband (or his legal assistant) to email a copy of item 313 to counsel for the Wife. Statutory Provisions [ 20 ] The relevant Rules for these purposes are as follows: Purpose of family proceedings rules 70.02.1(1) The purpose of this Rule is to

(

a) help parties resolve the legal issues in a family proceeding fairly and in a way that will: (

i) take into account the impact that the conduct of the proceeding may have on a child, and (ii) minimize conflict and promote cooperation between the parties; and (

b) secure the just, most expeditious and least expensive determination of every family proceeding on its merits. Proportionality 70.02.1(2) Securing the just, most expeditious and least expensive determination of a family proceeding on its merits includes, so far as is practicable, conducting the proceeding and allocating appropriate court resources to the proceeding in ways that are proportionate to (

a) the interests of any child affected; (

b) the importance of the issues in dispute; (

c) the amount of support and the value of property likely at issue in the proceeding; (

d) the complexity of the proceeding; and (

e) the likely expense of the proceeding to the parties. … Where Form 70D (financial statement) required 70.05(1) Where an issue relating to support or division of property is raised in the initiating pleading, the petitioner shall file and serve Parts 1, 2, 3 and 4 of Form 70D (financial statement) with the initiating pleading. … Financial information required 70.07(4) Where an issue related to support or division of property is raised in the initiating pleading or the answer, the respondent shall file and serve Parts 1, 2, 3 and 4 of Form 70D (financial statement) (

a) with the answer; or (

b) if the respondent does not file an answer, within the period prescribed under Rule 18 for filing and serving a statement of defence. … No effect on motions before masters

70.24(15) Nothing in subrule (10) affects the jurisdiction of masters to hear motions prior to a triage conference. Without restricting the scope of their jurisdiction, masters may hear the following motions before a triage conference: … (

b) a motion for financial disclosure; … (

d) a motion to determine whether a party has satisfied all applicable prerequisites in order to obtain a triage conference date; (

e) a motion to compel a party to complete applicable prerequisites in order to obtain a triage conference date. … Separate reference on other issues 70.25(1.4) If there are any family property issues which remain unresolved, either by written agreement or court order, other than the dates set out in subrule (1.1), a party must bring a motion for an order of reference on those issues. The motion must be brought (

a) prior to the triage conference, with the consent of both parties; or (

b) at the triage conference, for determination by the triage judge. Required evidence 70.25(1.5) A motion under subrule (1.4) must be supported by an affidavit that includes a Comparative Family Property Statement (Form 70D.5 ). (emphasis added) FD Case Flow [ 21 ] Pursuant to Rule 70.24(1), the objectives of the FD Case Flow are as follows:

a) to facilitate settlement of family proceedings;

b) to set early trial or final hearing dates and establish times for the completion of steps in the litigation process;

c) to identify and simplify the issues in dispute between the parties;

d) avoid unnecessary or wasteful steps in the litigation process;

e) to ensure that a family proceeding is ready for trial or final hearing by making orders and giving directions with respecting substantial and procedural issues in the proceeding. [ 22 ] Within the form of certificate of pre-requisite completion, and should support, variation of support or property claims be at issue, counsel must certify that:

I have made all requests for financial information and the requested information has been received or, if the requested information hasnot been received, I have obtained an order for financial disclosure. [23] For contested property matters, a CFPS must also be filed (it is now one document, containing the evidence of both parties). Legal Principles [24] In W.G.J. v. E.M.M., 2006 MBQB 155 ("W.G.J."), a the Honourable Justice Little provided commentary concerning relevancein the context of a dispute concerning disclosure (at paragraph 11): Relevance drives disclosure. Fishing expeditions are not allowed.

I do however think it trite to say that relevance for discovery anddisclosure purposes is broader than ultimate relevance or admissibility at trial. There needs to be some “need” or reasonablenecessity that warrants the time, intrusion and expense of the disclosure. … (emphasis added) [25] With respect to the timing and extent of property related disclosure, the Manitoba Court of Appeal addressed this issue in Silverv.

Silver, (MB CA) (“Silver”). [26] As described by the Honourable Justice Huband within paragraph 1 of Silver, the wife in that case was requesting disclosure asto the value of the husband's assets, in contemplation of a trial at which the wife was seeking a division of assets, and support. [27] Justice Huband made the following observations and findings, commencing at paragraph 2 in Silver: 2. The Rules of the Court of Queen's Bench make extensive provision for pre-trial disclosure.

In the case of actions under TheFamily Maintenance Act, there are additional statutory provisions that guarantee the full exchange of financial information in advance oftrial. Under s. 8(1) of that enactment, the Court has the power to require even a non-party, such as an employer of a spouse, to provide"information, accountings [or documents] … respecting the financial affairs of the marriage and the domestic establishment relatingthereto." 3.

It is common in domestic litigation to combine within a single application a claim for maintenance under The FamilyMaintenance Act, and a claim for an award based upon the division of shareable assets accumulated during marriage under TheMarital Property Act. In the present case, the wife initiated such a double-barrelled application. 4. The wife is, of course, entitled to full disclosure of matters germane to an award of maintenance, including disclosure throughexamination for discovery of the husband.

She is entitled to the exchange of financial information under s. 6(1) of The FamilyMaintenance Act, which may be reinforced by a court order under s. 8(1) of that Act. 5. However, she is not entitled to resort to the special provisions to obtain disclosure under The Family Maintenance Act toobtain financial and accounting information relative to the potential claim under The Marital Property Act. 6. Although there is a statutory right to an accounting under The Marital Property Act, it cannot be exercised in a vacuum.

Until the right to an award under the Act has been established, including the date of separation, the identification of theshareable assets, and the proportionate share of each spouse in those assets, there is no right to compel disclosure relative to thevaluation of assets, other than what is specifically called for under the Act. That consists of a sworn statement disclosing all assetsand their estimated value, and all liabilities, and whether or not they are shareable. In practice, this is done on a one-page form where,without amplification or explanation, the assets and liabilities are simply listed.

The adequacy of this form and of the disclosure itprovides is not a matter for our comment. (emphasis added) [28] Prior to implementation of the FD Case Flow the following year, the Honourable Justice Johnston considered a disputeconcerning disclosure in Friedman v. Friedman, 2018 MBQB 91 (“Friedman”). [29] In Friedman, the petitioner had retained an expert to determine the income of the respondent for support purposes as well as to

value of the respondent’s shareholdings. Certain financial disclosure was provided by the respondent. It was in Excel format. The expert working with the petitioner expressed concern that information in Excel can be changed. This expert noted that QuickBooks has an audit history which can reveal all transactions performed.

The QuickBooks data was requested, but the respondent declined this disclosure request, resulting in a motion being filed on behalf of the petitioner. [ 30 ] The respective arguments of counsel in Friedman were summarized by Justice Johnston, commencing at paragraph 12: [12] Counsel for the petitioner submits that whether ordered now when the immediate focus is interim support arrangements, or later during the discovery stage focusing more on share valuations for family property consideration, the petitioner is going to be entitled to the disclosure.

In the interests of proportionality, it should be directed now. [ 13] Counsel for the respondent says that, save for the delayed disclosure from the Ontario corporation, her client has met his obligations at this stage.

Any direction to provide an unseverable, original accounting history is not appropriate as it is irrelevant, excessively intrusive and thus in breach of privacy, or alternatively is premature. [ 31 ] Justice Johnston proceeded to provide the following guidance, starting at paragraph 35 in Friedman : [ 35] Accordingly, if there are certain transactions apparent from the appropriately required disclosure which raise questions or are viewed as “suspicious” by the party adverse, that does not necessarily raise an entitlement to require the production of original ledger postings, whether in a “QuickBooks” format or similar program. [ 36] What it does do, in the view of this court, is to provide a basis or foundation for further inquiry.

Often times those questions can be answered and verified through the production of substantiating documentation, disclosed upon request. This stage is more discovery than disclosure. It would seem to be best managed through formal specific requests between counsel, interrogatories, or through documentary and oral discovery.

The request for access to the “QuickBooks” format, without first laying a proper grounding or foundation as to the relevance of the required disclosure, is at least premature. [ 32 ] Within paragraph 38 of Friedman , Justice Johnston also addressed the concept of proportionality by making the following observation: In the view of this court, “proportionality” does not mean that all short cuts should routinely be permitted in the interests of saving costs.

Rather, “proportionality” means that the expenditure of time, energy and resources in pursuit of further information must be proportionate to the relevance and probable benefit in the ultimate outcome. (emphasis added) [ 33 ] Justice Johnston concluded by finding as follows concerning the motion for disclosure (commencing at paragraph 41 of Friedman ): [ 41] This court is of the view that by providing tax returns, financial statements and appropriate access to portions of the general ledger, the respondent has satisfactorily discharged his obligation to provide adequate financial disclosure without requiring the further intrusive step. [ 42] If through the discovery process, the petitioner is able to lay a foundation of concern as to the accuracy or appropriateness of the information contained in the financial documentation, further inquiry may be appropriate.

However, the relevant questions should be asked first. [ 34 ] In Manitoba Agricultural Services Corporation v.

Kachurowski , 2018 MBQB 159 (" Kachurowski ") , counsel for the defendant objected to various requests for information made by the plaintiff's lawyer, which included the defendant’s farm account books and associated records. [ 35 ] At paragraph 47 of Kachr urowski , the Honourable Justice Toews referred to the comments and conclusions of Justice Johnston in Friedman , and stated as follows: [ 47] This court recently reviewed the standard of relevancy and proportionality in the context of disclosure in the context of a family law case.

In my opinion, those comments are equally applicable here, especially in view of the nature of the disclosure being sought in both cases. …

(emphasis added) [36] Within paragraphs 48 and 50 in Kachurowski, Justice Toews concluded that: [48] Having reviewed the undertakings taken under advisement in the case at bar, it is my opinion that the information sought by theplaintiff was largely in the direct possession of the defendant. More importantly, this information and the requesteddocumentation were highly relevant to the issues in dispute at the trial itself.

The very limited disclosures in respect of income taxreturns, AgriStability information and the defendant’s account books left a significant gap in the ability of the plaintiff’s employees toconduct a complete audit and hampered their ability to prepare and present the plaintiff’s case. … [50] On the basis of the evidence before me, I am satisfied that the defendant failed to disclose material facts required in thedocumentation submitted to the plaintiff… (emphasis added) [37] A prior decision that I had issued with respect to financial and property disclosure (wherein I relied upon W.G.J. and Friedman)is Marzoff v.

Marzoff, 2020 MBQB 178 (“Marzoff”). [38] The dispute in Marzoff, however, was whether there had been compliance by the husband with undertakings provided atdiscoveries, and if not, whether there ought to be sanctions imposed or further disclosure ordered. Within paragraphs 89 to 91 inMarzoff, I commented that undertakings are to be respected (they are not optional), and that receipt by the wife of the details expectedfrom the husband through undertakings should put the wife in a better position to make informed decisions concerning the contestedissues.

Analysis [39] There is no debate that the inquiries of the Husband contained within the December 9, 2022 email deals with issues that arerelevant to the Wife's claim for an equal division of family property. What must be determined is whether the extent of details requestedfrom the Husband at this stage in the proceedings is appropriate? [40] At the outset, I agree with counsel for the Wife when he articulated that the responses provided on behalf of the Husband to theDecember 9, 2022 email did not fully answer the questions raised on behalf of the Wife. As an illustration:

a) Counsel for the Husband has stated that it was would be difficult for the Husband to provide a detailed list of all inventory atseparation (seed, fertilizer, fuel, grain on hand or otherwise); and

b) Similarly, counsel for the Husband has advised that it would not be a straightforward task for the Husband to identify the value of allof his crops as of the date of separation. [41] In accordance with the Rules, the Wife is well within her rights to seek relief and direction from the Court so that both parties cancomplete all applicable pre-requisites in order to move forward to triage on a timely basis. [42] With there being an issue raised with respect to equal division of family property within the Petition for Divorce, the Answerfiled on behalf of the Husband had to include the Husband’s Financial Statement. [43] Even though Parts 1, 2, 3 and 4 were all completed, the Husband's Financial Statement does not set forth any evidence in relationto the extent or value of his farm related assets at separation, save and except reference to farmland that the Husband valued in an amountof $460,000.00 (which has since been sold, with the net sale proceeds divided by the parties), and farm machinery valued at$120,000.00.

There are no entries provided within the Husband’s Financial Statement as to the extent or value of cattle, grain, feed,fertilizer, inventory or other farming related assets owned by the Husband at separation, such that any further information in this regardmust be gleaned from the income tax returns of the Husband for 2019 to 2021. [44] In the event a motion is filed by either party to request that an order be pronounced authorizing a family property reference, a

CFPS is to be filed.

When completing a CFPS, inclusion by both parties of as many details as reasonably possible (instead of numerous categories with values stated to be “unknown”) should reasonably assist with discussions at triage and a subsequent initial case conference. [ 45 ] There has not, however, been an order pronounced thus far directing that there be a reference to a master for a family property accounting. [ 46 ] As a result, and should this Court decide to strictly apply Silver , the Wife could essentially be left at this juncture with only the details provided thus far by the Husband (despite the relevance of the specific disclosure being requested in accordance with the December 9, 2022 letter).

In the absence of cooperation and a more complete reply from the Husband, the Wife would have no alternative other than to move forward with interrogatories, discoveries, or both, in order to obtain further disclosure beyond what is available presently. [ 47 ] In the circumstances, and with due respect and deference, Silver was decided over 20 years ago. More importantly, the Manitoba Court of Appeal released its reasons in Silver prior to implementation of the FD Case Flow.

Similar to what occurred when the Rules were amended to include Rule 24.02(1) and the so called “drop dead rule” (where there is an issue with respect to delay), the FD Case Flow resulted in wholesale amendments to Rule 70, and has mandated a focus upon proportionality as well as practicality, which applies to disclosure concerning family property issues. [ 48 ] The inquiries made on behalf of the Wife within the December 9, 2022 letter are focused upon determining or better understanding what assets and liabilities the Husband had at separation, and the value of such assets and liabilities. [ 49 ] Quite frankly, I do not find it to be a satisfactory response on the part of the Husband to take the view that he cannot advise with respect to the extent or value of certain of his assets and liabilities at separation, because these details are not readily apparent from his income tax returns and other records.

If the Husband has to work through this documentation, in order to formulate his position for response to the Wife, and the Court, and it involves requesting assistance from others such as his counsel, he will have to do so. [ 50 ] It is not as if the Husband is bereft of relevant documentation from which he may formulate his position as to the extent and value of his assets and liabilities at separation. The Husband has completed his income tax returns up to and inclusive of 2022, which includes his 2020 income tax return (the year in which the parties separated).

Each of these income tax returns includes a statement of farming activities for the Husband (revenue as well as expenses for each year). [ 51 ] In Friedman , Justice Johnston employed a proportionate and practical approach, deciding that disclosure of income tax returns, financial statements and a general ledger for the business involved in that case would suffice, and form a basis for further questioning at discoveries or through interrogatories, if deemed necessary. [ 52 ] Even though Friedman was decided prior to implementation of the FD Case Flow, I find that the parameters of disclosure ordered by Justice Johnston can justifiably be applied to the case at bar.

In particular:

a) The Husband can reasonably be expected to provide a

summary of farm equipment, machinery, guns, tools, vehicles, quads and recreational vehicles that he owned as of the date of separation, as well as his position insofar as the value of these assets;

b) There can also be a list prepared by the Husband of the number and general description of livestock that he owned at separation, which would include his position concerning the value of his livestock; and

c) The Husband can confirm his position with respect to the extent and value of his inventory, seed, fertilizer, fuel and any other farming related assets at separation, as well as confirm the extent and value of the crops he was growing as of the date of separation. [ 53 ] The inquiries contained within subparagraphs 1(

a) through (

d) of the December 9, 2022 letter do not require that the Husband or his counsel supply voluminous copies of disclosure. Rather, the Husband is being asked to confirm his position as it relates to the extent and value of the specific farming related assets noted. In addition, the inquiry at subparagraph 1(

e) of the December 9, 2022 seeks copies of bank and investment statements of the Husband in an effort to confirm separation date values. [ 54 ] It is at subparagraphs 1(

f) and (

g) of the December 9, 2022 letter where source documentation is requested by counsel for the Wife (copies of documents that were relied upon to prepare the relevant income tax returns of the Husband). [ 55 ] In the event the Husband had responded to the questions at subparagraphs 1(

a) through (d), and there were follow up questions posed on behalf of the Wife (including but not limited to how the Husband derived his figures or values), any such follow up inquiries (and seeking copies of supporting documentation) would be more appropriate for discoveries or interrogatories.

As determined by Justice Johnston in Friedman , if there are certain questions which arise from review of disclosure provided or to be supplied, this does not result in an automatic entitlement to expect production of the source documentation related to such disclosure. [ 56 ] Accordingly, I find that the disclosure requested on behalf of the Wife within the December 9, 2022 letter, at subparagraphs 1(

f) and (g), represents source documents which can be requested by way of interrogatories or addressed through undertakings at discoveries. [ 57 ] If an examination for discovery had been scheduled already (which is not the case as of yet), Rules 30.04(1) through 30.04(7) provide a basis for what has been articulated by counsel for the Husband (review

Schedule "A" to the Husband's Affidavit of Documents, identify what documentation is sought to be reviewed, request copies from counsel for the Husband, and pay for such

copies, if requested, or attend to the office of counsel for the Husband to inspect the documentation, as well as assume responsibility for copying expenses, if requested). At this stage in the proceedings, however, the Wife's Motion is focused upon obtaining disclosure and satisfying pre-requisites, in an effort to prepare for triage. [ 58 ] Given the content and spirit of the Rules , as well as the objective of always moving forward in a meaningful manner, delay in provision of relevant disclosure cannot be condoned.

Instead, a balanced, proportionate approach is encouraged by the Court (a business valuation or accounting report is not necessary at this stage, although preparation of a CFPS is more than perfunctory, and the more details available should facilitate informed discussions at triage). [ 59 ] Ultimately, a collaborative approach between counsel and the parties is appropriate. It is unfortunate that the foregoing issues could not be sorted out in this case, with experienced counsel involved, instead of requiring this contested hearing.

Conclusion [ 60 ] Based upon the foregoing, and with reference to the December 9, 2022 letter, this Court orders that the Husband shall have a period of 60 days from the date of this decision to provide the following disclosure to the Wife:

a) The Husband shall provide the Wife with a list of the farm equipment, machinery, guns, tools, vehicles, quads and recreational vehicles owned by the Husband as of the date of separation. The Husband shall also confirm his position as to the value of each of these assets, and where applicable, include a copy of any appraisal or opinion as to value concerning such assets (if it is the intention of the Husband to rely upon such valuation evidence).

b) The Husband shall prepare a

summary of the number and general description of livestock owned by the Husband as of the date of separation (bulls, cows and calves). The Husband shall also confirm his position as to value of such livestock at separation (if it remains the same as previously disclosed to counsel for the Wife, or whether it is different, and if changed, the basis for the current valuation shall be provided).

c) Upon review of all documentation in his possession, the Husband shall confirm his position as to the extent and value of inventory, seed, fertilizer, fuel or similar products as well as grain on hand as of the date of separation.

d) The Husband shall confirm all crops that he had planted and that were growing as of the date of separation, and confirm his position as to value of such crops at separation.

e) The Husband shall provide a copy of statements for all bank accounts and investments owned by the Husband (or in which she had a beneficial interest) as of the date of separation. In particular, and as July 1, 2020 is the date of separation, a copy of the June 2020 and July 2020 statements for the bank accounts and investments of the Husband shall be disclosed to the Wife.

f) The Husband has already confirmed through his counsel that he intends to promptly provide evidence of his year-to-date income (three recent pay stubs). [ 61 ] I am not ordering that the Husband provide copies of receipts for all sales and income, including from grain or cattle, as disclosed within the Husband’s 2020 and 2021 income tax returns respectively. As reviewed, these are source documents, and can be sought by way of undertakings at discoveries or through interrogatories should there be questions on the part of the Wife.

Costs [ 62 ] In the circumstances, the Wife shall be entitled to costs concerning the Wife’s Motion. [ 63 ] No costs are ordered in relation to the Husband’s Motion, however, due to consensus being reached by the parties prior to the hearing. [ 64 ] Should the parties be unable to resolve the issue of costs in connection with the Wife’s Motion, a further brief hearing may be scheduled before me.

____________________________ MASTER PATTERSON