CITATION: Feinstat v. Feinstat, 2012 ONSC 5339
DIVISIONAL COURT FILE NO.: DC-11-00331-ML
DATE: 2012-09-21
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matlow, Kiteley, and Lederer, JJ.
BETWEEN
Donna Dvorah Feinstat
Applicant
(Respondent in Appeal)
— and —
Jacob Menachem Feinstat
Respondent
(Appellant)
COUNSEL:
Evelyn Kohn Rayson and Eli Antel for the applicant/respondent in appeal.
S. Lawrence Liquornik and Philip Viator for the respondent/appellant.
HEARD AT OSHAWA: September 19, 2012.
Kiteley J.
ENDORSEMENT
[1] Mr. Feinstat appeals two orders of Justice Ferguson:
(a) Order dated January 21, 2011, requiring him to reinstate a policy of life insurance and designate his wife as beneficiary, failing which his pleadings would be struck; and
(b) Order dated March 14, 2011, requiring him to pay costs to his wife in the amount of $5,000.
[2] The parties were married on October 19, 1982 and separated in late November 2001 or early January 2002. In 2006, Mr. Feinstat relocated to Israel. He has returned to Canada twice since then. There are five children of the marriage, two of whom may be "children of the marriage" indefinitely.
[3] On June 14, 2006, Perkins J. made an interim order requiring Mr. Feinstat to pay periodic child and spousal support.
[4] On January 31, 2007, Wildman J. made an order requiring Mr. Feinstat to designate his wife as beneficiary of $900,000 in life insurance. Mr. Feinstat had consented to a designation to the extent of $400,000. Wildman J. made a non-consensual order for an additional $500,000. She directed that Mrs. Feinstat would be trustee of the benefits for the five children to secure any outstanding support obligations that he may have at the time of his death.
[5] On March 11, 2009, Rogers J. made an order fixing Mr. Feinstat's child and spousal support arrears at $56,253.28 and she made a temporary order suspending the obligation to pay child and spousal support effective February 2008, as a result of Mr. Feinstat losing his employment and Mrs. Feinstat gaining employment. Rogers J. also ordered Mr. Feinstat to execute a consent, within 30 days of presentation by counsel for the applicant, that would enable counsel to contact the insurer to obtain information about the life insurance policy.
[6] Mrs. Feinstat brought a motion returnable on December 9, 2010, in which she sought an order that Mr. Feinstat be found in contempt of court for failing to comply with the orders of Wildman J. and Rogers J. Mr. Feinstat brought a cross-motion in which he sought an order varying the order to eliminate or reduce his obligation to designate her as beneficiary.
[7] Ferguson J. heard the motion and reserved. In her decision dated January 21, 2011, Ferguson J. held that two of the children had special needs and would likely never be able to withdraw from parental control and as a result, life insurance continued to be necessary. She also found that Mr. Feinstat had consistently and deliberately violated the court orders with respect to the life insurance issue. She observed that, "his claim that the policy is not in existence is an even further confirmation of his utter disregard for court orders and the administration of justice". Ferguson J. found Mr. Feinstat to be in contempt of the order of Wildman J. and she ordered him to reinstate the policy to the extent of $400,000. Ferguson J. ordered that if Mr. Feinstat took the position that he was unable to work because of his medical condition and therefore unable to afford the premiums, he must attend at a medical examination arranged by the applicant in Ontario. If he failed to comply with her order, his pleadings would be struck. On March 15, 2011, Ferguson J. ordered Mr. Feinstat to pay costs of $5,000 at the rate of $1,000 per month commencing April 1, 2011.
[8] On August 19, 2011, Gilmore J. granted leave to appeal. As a condition of granting leave, she directed Mr. Feinstat to pay forthwith the outstanding costs order of Mullins J. dated December 16, 2009, in the amount of $2,500. She directed counsel to make submissions on costs of the motion for leave and subsequently fixed those costs at $3,500 "payable in the cause".
[9] On June 12, 2012, Justice Glass gave leave to Mr. Feinstat to extend the time to file the notice of appeal, factum and appeal book to June 13th and he set the appeal to be heard on September 17, 2012. He ordered costs to Mrs. Feinstat in the amount of $1,500 in the cause of the appeal.
[10] Relying on his offer to settle served September 12, 2012, counsel for Mr. Feinstat asks for costs of the appeal in the amount of $10,000. Ms. Rayson asks for costs in the amount of $3,500.
Analysis
[11] The standard of review is established in Housen v Nikolaisen, [2002] 2 S.C.R. 234. On a pure question of law, the standard is correctness. When findings of fact are the subject matter of the appeal, the appellant must establish that the judge made a palpable and overriding error.
[12] The principal submission of the appellant is that Ferguson J. erred in law by imposing an obligation to designate a policy of life insurance on his life at a time when he had no support obligation. His other submissions related to the outcome of his cross-motion to address the variation of the order made by Wildman J. need not be addressed.
[13] Subsection 34(1) of the Family Law Act,[^1] provides that in an application pursuant to section 33, the court may make an order "requiring that a spouse who has a policy of life insurance as defined under the Insurance Act designate the other spouse or a child as the beneficiary irrevocably".
[14] We do not agree with the appellant's submission. This proceeding is an application pursuant to section 33 in which a claim for support is made. The fact that there is no current order for support does not mean that Ferguson J. erred in law.
[15] However, we find that Ferguson J. erred for another reason. Subsection 34(1) gives jurisdiction to require a spouse who has a policy to designate a beneficiary. There is no jurisdiction to order a spouse to obtain life insurance or reinstate life insurance. To make such an order was an error of law.
[16] We are mindful that this was a motion for contempt, that Ferguson J. made a finding of contempt that is not appealed, and that the court has a wide jurisdiction in imposing a penalty against a litigant who has been found in contempt. Even so, the penalty must be within the jurisdiction of the court and ordering the appellant to reinstate the policy of insurance was not within her jurisdiction.
[17] Counsel agree that this court has jurisdiction on this record to substitute a penalty on the finding of contempt. As explained to counsel, we intend to do so by compelling Mr. Feinstat to participate in these proceedings in a meaningful way in order to bring the matter to some resolution. The procedural order that follows will accomplish that.
[18] There are several outstanding costs orders.
[19] Mr. Feinstat was found in contempt by Ferguson J. and was ordered to pay costs of $5,000. The penalty is being changed but that finding is not. There is no reason to change the award of costs in favour of Mrs. Feinstat.
[20] The costs before Glass J. were a direct result of Mr. Feinstat's failure to comply with a condition of granting leave. For that he should pay costs of $1,500.
[21] Mr. Feinstat has achieved some success in the appeal and hence there is a basis for not ordering him to pay costs of the leave application in the amount of $3,500. That success is attributable to a jurisdictional issue he did not raise. We rejected his principal ground of appeal. Furthermore, the essential finding of contempt was not appealed. Notwithstanding some success he should pay the costs of the leave application. Given the findings of fact that he consistently and deliberately violated court orders, it would be an affront to justice if Mrs. Feinstat were required to pay costs of the appeal. This is a case for no costs of the appeal.
Order
[22] Order to go as follows:
(1) The appeal is allowed and the order of Ferguson J. is varied, in that the 4th and 5th lines of paragraph 16 and all of paragraph 17 of the endorsement dated January 21, 2011, are set aside.
(2) The parties shall be required to comply with the Family Law Rules, relating to trial management conferences and settlement conferences in accordance with the following timetable:[^2]
(a) By October 15, 2012, Mr. Feinstat shall serve and file a sworn financial statement including completing all columns (date of marriage, valuation date, and date of statement) and provide proof of direct and indirect income;
(b) By October 30, 2012, Mrs. Feinstat shall do the same.
(c) By November 15, 2012, Mr. Feinstat shall serve and file a net family property statement.
(d) By November 30, 2012, Mrs. Feinstat shall do the same.
(e) By December 10, 2012, Mr. Feinstat shall serve and file a settlement conference brief/trial management conference brief, and a written offer to settle.
(f) By December 17, 2012, Mrs. Feinstat shall do the same.
(g) Both parties shall attend in person at the settlement conference/trial management conference on January 7, 2013 at 2:15 in Newmarket.
(h) By November 15, 2012, Mr. Feinstat shall pay costs in the amount of $1,500, being the costs ordered by Glass J.
(i) By November 15, 2012, Mr. Feinstat shall do the following:
(i) provide a sworn affidavit from the executor/administrator of his mother's estate, along with a copy of the application for probate, if it has been filed;
(ii) if he does not comply with (i), he shall provide his affidavit explaining what efforts he made to comply and the reason for non-compliance; and
(iii) provide a written direction to the executor/administrator of his mother's estate that from his share of the estate will be paid to Mrs. Feinstat, as soon as such funds become available, costs in the amount of $8,500 comprised of the following: $5,000 Ferguson J. and $3,500 Gilmore J.
(j) By October 15, 2012, Mr. Feinstat shall sign an authorization prepared by counsel for Mrs. Feinstat authorizing the insurer to produce information as to details of the policy (policies) of life insurance in existence at January 31, 2007 and up to the present.
(3) If Mr. Feinstat fails to comply with any of the foregoing, Mrs. Feinstat may bring a motion on ten business days' notice for an order striking out his answer and claim.
"F.P. Kiteley
Kiteley J.
I agree: "P.T. Matlow"
Matlow J.
I agree: "T.R. Lederer"
Lederer J.
DATE RELEASED: September 21, 2012.
CITATION: Feinstat v. Feinstat, 2012 ONSC 5339
DIVISIONAL COURT FILE NO.: DC-11-00331-ML
DATE: 2012-09-21
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Donna Dvorah Feinstat
Applicant
(Respondent in Appeal)
— and —
Jacob Menachem Feinstat
Respondent
(Appellant)
ENDORSEMENT
Matlow, Kiteley, and Lederer, JJ.
Released: September 21, 2012.
[^1]: Family Law Act, R.S.O. 1990, c. F-3.
[^2]: Family Law Rules, O. Reg. 114/99.