Accountant Was the “Last Man Standing” – Court Orders Questioning of Non-Party
Judges hearing family law matters are granted very wide-reaching powers by legislation, in order to ensure that justice can be done for the litigants. Among those is the power to order that non-parties – meaning individuals who are not directly involved in the litigation as either plaintiff or defendant – can be questioned or forced to disclose information or documents that might be relevant to the trial or proceeding.
In Ontario, this power is specifically granted by the Family Law Rules, but it is not unfettered: Judges must still consider the circumstances and weigh certain factors, including potential delay, any unfairness to the party requesting it, and whether the information is easily available elsewhere. The court can then exercise its discretion in determining whether to make an order which essentially drags a third-party into the family litigation.
This was precisely the court’s task in a case called Elgner v. Elgner. There, the couple separated after a traditional marriage lasting 33 years. The husband was 63, and the wife was 62. The couple were wealthy and there were multiple family law proceedings; at one point the court had temporarily ordered the husband to pay the wife $110,000 per month in support.
A key issue in the litigation was the husband’s attempt to exclude $86 million from his net family property. He claimed that they were corporate rather than personal funds that had been generated as part of a corporate buy-out and estate freeze that took place back in 1993, involving a company with which he had virtually no involvement.
This meant that determining the nature and source of that disputed $86 million was of chief concern to the parties. Unfortunately – and aside from the husband and wife themselves – the only person who was still alive and available to give evidence on that point was the accountant who had been involved in the transaction. (The lawyer who acted on the estate freeze, for example, had died and the wife was in the process of bringing a court motion to obtain access his computer hard drive). Even though the accountant was not part of the proceedings between the couple, the wife wanted to question him.
She therefore asked the court for an order compelling him to submit to questioning. The court agreed with her request.
Even though the accountant would be giving evidence based on his recollection from 20 years ago, the proposed exclusion of the $86 million was the single most contentious and largest financial issue in the case. He was an important factual witness and, under the circumstances, it would be unfair to force the wife to proceed with the family litigation without allowing her to question him.
For the full text of the decision, see:
Elgner v. Elgner, 2010 ONSC 5238 http://canlii.ca/t/fn2q4
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