Letters Rogatory For Disclosure In California Divorce Proceeding Enforced In Ontario

• Published date: 14 December 2022
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Trials & Appeals & Compensation, Divorce
• Law Firm: Gardiner Roberts LLP
• Author: Mr James R.G. Cook

As a matter of international comity, Ontario courts will take steps to recognize and enforce requests for assistance issued by foreign courts provided that certain criteria are met. The process by which a foreign court seeks the assistance of an Ontario court involves bringing an application to enforce Letters of Request, also known as "Requests for International Judicial Assistance," or more simply "Letters Rogatory."

While a decision to enforce letters rogatory is matter of discretion of the judge hearing the application, the Supreme Court of Canada has repeatedly held that foreign letters of request are to be given full force and effect by domestic courts unless they are contrary to public policy or otherwise prejudicial to the sovereignty or the citizens of the jurisdiction to which the request is directed: Gulf Oil Corp. v. Gulf Canada Ltd., 1980 CanLII 192 (SCC); R. v. Zingre, 1981 CanLII 32 (SCC).

In Adler v. Deloitte Touche Tohamtsu, 2022 ONCA 855, the Ontario Court of Appeal upheld an order for disclosure sought in Ontario, pursuant to letters of request from a California court, in the context of a divorce action.

The appellant husband was engaged in divorce proceedings with the respondent wife in the Superior Court of the State of California for the County of Los Angeles. The husband was a successful businessman. The wife alleged that the husband had a complex web of corporations, including several in Canada, which he used to shield his substantial income and assets.

The record disclosed that there were multiple attempts by the wife to obtain financial information about her husband's financial interests in the corporations in the divorce action. The California court held more than six hearings to compel compliance and issued a sanction of $25,000 against him.

As compliance was incomplete, the wife then sought letters rogatory to obtain the information required for her claims for property, spousal and child support. In 2021, the California court issued two "Requests for International Judicial Assistance."

The wife issued an application in the Ontario Superior Court of Justice to enforce the letters rogatory issued by the California court. The letters rogatory required production from the corporate appellants and from the husband's personal assistant.

The application judge ordered that the letters rogatory be recognized, with a "reading down" of certain information sought from the personal assistant.

The husband appealed the order on behalf of the...