New romantic partners can be dragged into the fray in support disputes
Family law disputes are usually disputes between former spouses. But doubtless to the chagrin of a spouse’s new partner, that new partner can sometimes be dragged to the proceedings, as the recent case of Politis v. Politis demonstrated.
Mr. and Ms. Politis separated in 2008 after a 25-year marriage. By 2017, the only remaining issue between them was the extent of the spousal support obligation Mr. Politis had to his wife. After separation, Ms. Politis entered into a relationship with a new partner. Mr. Politis seized on this as a way to mitigate his obligation to pay spousal support.
Mr. Politis moved in court for financial disclosure from Ms Politis’ new partner. While generally, the remarriage or repartnering of the support recipient does not mean the automatic termination of spousal support, re-partnering can be relevant when determining the extent of the former spouse’s need for spousal support.
In November 2017, Mr. Politis was determined to get extensive information from Ms. Politis’ new partner, including the details of the sale of his business and his employment agreement. Mr. Politis also wanted two sworn statements from Ms. Politis’ partner: one setting out his current income, expenses, assets and debts, and another, setting out the particulars of all trips Ms. Politis had taken with him over the past five years.
In 1995, the Ontario Court of Appeal clarified the test as to when third party banks had to produce disclosure in litigation, in a matter which related to the fiduciary obligations of the executors of the estate of former Toronto Maple Leafs owner Harold Ballard. The Court of Appeal confirmed that in deciding a motion for third party disclosure, the judge must consider how important the documents sought were to the litigation; whether producing the documents before trial was necessary to avoid unfairness; the availability of documents from another source (that is, the actual parties to the litigation); and the relationship of the non-party to the parties in the litigation. A true ‘stranger’ to the litigation is less likely to be ordered to produce documents than a person whose interests are allied with the party in the litigation opposing production.
In the family law context, while financial disclosure is mandatory for there to be a binding agreement and for a court to make the appropriate support and property orders, additional considerations are taken into account by the court, including privacy and proportionality.
As Justice Kristjanson said in Politis, parties seeking to compel the “production of personal income, assets and other financial information of new life partners is highly invasive of personal privacy and generally of minimal relevance. The privacy interests of third party new partners must be carefully balanced against the interests of the parties to the family law proceeding.”
Justice Kristjanson followed the Newfoundland Court of Appeal in Kent v. Kent, holding that “the party seeking access to such information must demonstrate that the interference with the privacy of the third party is necessary in the particular circumstances, and the extent to which it is necessary. (Even) where a court determines that certain financial information must be provided, it does not follow that all financial information … must be provided.”
In addressing the issue of proportionality, Justice Kristjanson adopted the reasoning of her colleague, Justice Aston, holding that in order to “order production, the court must be satisfied that it would be ‘unfair’ to the party seeking production to go on with the case without the document or information. In essence, the document must be found to be important to a party’s case, especially in relation to the amount at stake.”
In Ontario, the Family Law Rules allow a motion for third party production, but also state that production should occur if the information is not easily obtained in another way.
In Politis, Ms. Politis’ new partner had voluntarily produced tax returns and tax information for the entirety of the period that he and Ms. Politis had lived together. As Mr. Politis’ lawyer had not yet done an oral questioning of Ms. Politis before trial, Justice Kristjanson decided that the information ought first be sought from Ms. Politis. In stating that there had been already been considerable disclosure from Ms. Politis’ new partner, Justice Kristjanson determined that the request by Mr. Politis was premature.
Although Mr. Politis’ motion for disclosure was dismissed, there is little doubt that that Ms. Politis’ partner was put to both significant cost and inconvenience in responding to the request. He was obliged to retain his own lawyer (a different counsel than the lawyer acting for Ms. Politis) to argue the motion. He had already laid bare to Mr. Politis his income tax information for a period of six years, and had been obliged to swear an affidavit to defend his privacy. Most importantly, the demand for disclosure was not over forever, as Mr. Politis’ request was found only to be “premature.”
Although new partners of those involved in family litigation may have no direct or immediate financial obligations to their new spouse, the mere fact of the relationship can put their privacy at risk.
Laurie H. Pawlitza is a senior partner in the family law group at Torkin Manes LLP in Toronto.