Wife Tries to Drag Mother -in-Law Into Divorce Action
In this matrimonial dispute, the wife took the unusual step of asking the court to add her mother-in-law as a full-fledged party to the litigation, to allow the mother-in-law to be verbally questioned, and to force her to produce certain business documents in her possession.
The background facts were fairly uneventful: the husband and wife had been married for 4 years, and had one child. The husband worked as a salaried employee in his mother’s company. Since their separation, there had been a great deal of friction between them and this resulted in extensive litigation in the Ontario family court.
However, the wife was having trouble getting satisfactory full disclosure from the husband in connection with his business and banking records, so she applied to the court to have her mother-in-law added as a full party to the proceedings, and to be permitted to question her verbally. She made this request under the Family Law Rules, which allow the court to order the addition of “any person who should be added as a party”.
The court considered its discretion under this Rule, the purpose behind it, and various prior cases which suggested that the mother-in-law should only be added in this case if the court was in a position if necessary to make some sort of court order against her (i.e. have authority to direct her conduct or sanction her).
In this case, the court speculated that the wife was possibly trying to add her mother-in-law as a means of leverage – that is, to secure the husband’s obligations to her for support and equalization. This was a serious misapprehension of the purpose and intent behind the specific Rule that allowed parties to be added, the court found. It disallowed the wife’s request.
The court also had serious reservations about allowing the wife to question the mother-in-law. It found that non-parties should generally be protected from the potentially intrusive, costly and time-consuming process of discovery which is otherwise a normal part of litigation for separated and divorcing spouses. It also observed that the wife’s questioning of the husband on a previous one-day examination for discovery had resulted in 145 pages of transcripts, and covered such topics as the diapering of their daughter. Out of concern that the wife’s oral questioning of the mother-in-law would similarly deviate from the relevant issues and would likely turn into a “lengthy and onerous process”, the court denied the wife’s application on this point as well.
(However the court did make a concession, by allowing the wife to pose questions to the mother-in-law in writing, provided that each of those questions was directly related to the answers given by the husband at his previous one-day discovery. The court noted also that the mother-in-law could appear at trial as a witness, in any event).
Finally, the court entertained the wife’s application to force the non-party mother-in-law to bring forward certain business-related documents in her possession. The wife was relying on a Family Law Rule that allows a court to do so in cases where it would be unfair to allow one of the parties to go on with the litigation without them. Here, the wife was asking for certain unspecified business documents pertaining to the mother-in-law’s company, in which the husband purportedly had no ownership interest and for which he was merely a salaried employee. Although she had already received some documents from the mother-in-law, the wife was suspicious that the husband was entitled to greater earnings from the business than he was claiming, i.e. that he was understating his income from that source. She pointed to the fact that his current lifestyle far exceeded the $60,000 in wages he claimed he was being paid by his mother.
After reviewing the evidence, the court declined this request by the wife as well. The test under the Family Law Rules for ordering the production of documents from a non-party was an objective one; the wife’s subjective suspicions and conjectures were not a sufficient basis upon which to make the order she was hoping for.
For a full-text of the court’s decision in Santilli v. Piselli can be found at http://bit.ly/hdkvRA