Court File and Parties

COURT FILE NO.: FS-22-00000014 DATE: 2023/01/31 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: PATRICIA SNE – and – NIV SNE Applicant Respondent

Counsel: Deborah Perkins-Leitman, for the Applicant Darryl Willer, for the Respondent

HEARD: October 12, 2022

The Honourable Justice Catrina D. Braid

REASONS ON MOTIONS

I. OVERVIEW

[1] Patricia Sne and Niv Sne were married for approximately 19 years and have now separated. They have three children, one of whom remains a “child of the marriage.” In these reasons, I shall refer to the parties as the mother and the father.

[2] The mother has brought a motion for interim spousal and child support, including s. 7 expenses and retroactive support. The father has brought a cross motion seeking to impute income to the mother.

[3] The parties sought additional relief that has been dealt with on consent, including orders for financial disclosure and for partition and sale of the matrimonial home. I shall address the consent orders in my conclusion at the end of these reasons.

[4] The following issues arise on these motions:

A. What is the mother's income for support purposes? B. What is the father's income for support purposes? C. Should support payments be suspended until the matrimonial home is sold?

D. What is the appropriate amount of child support? E. What is the appropriate amount of s. 7 expenses? F. What is the appropriate amount of spousal support? G. Should the court order the payment of retroactive support?

[5] For the reasons set out below, I decline to impute income to the mother and set the father’s income at $949,000 for support purposes. The father is ordered to pay support for one child and mid-level spousal support. Finally, I decline to order retroactive support.

[6] As it was clear on the arguing of the motion that additional disclosure remained forthcoming in relation to the father’s income, the Order made herein is made temporary and without prejudice, such that either party may seek to change the Order without the need to demonstrate a material change of circumstances. The amounts ordered are fully adjustable at trial and are without prejudice to either party prospectively or retrospectively.

II. BACKGROUND

[7] The parties began living together in late 2001 and married on March 9, 2003.

[8] There were three children of the marriage. The oldest child, from the mother’s previous relationship, is now 25 years old and is no longer residing in the home. The two younger children, B.S. (“the son”, currently 19 years of age) and S.S. (“the daughter”, currently 18 years of age) still reside with the mother. When I mention the children, I shall use initials or their titles, to protect their privacy interests.

[9] The mother states that the parties separated on February 1, 2021. However, the father states that the date of separation is May 1, 2016. For the reasons set out below, I decline to order retroactive support at this time; therefore, I do not need to determine the date of separation for the purposes of this motion.

[10] The matrimonial home is jointly owned by the parties. The father moved out of the matrimonial home and has not spent a night there since May 2022.

[11] Both before and after the separation, the father deposited income into the joint account to cover family expenses. Until recently, the mother would transfer funds from the joint line of credit to cover the family expenses as the deposits of income from the father were insufficient. These expenses included hydro, natural gas, phone bills, groceries, pharmaceutical expenses, child-related expenses, boarding for the horse, farm expenses, and other family expenses.

[12] Prior to separation, dividends were periodically taken out of the father’s corporation to pay large, outstanding credit card bills, or other significant expenses. Since separation, the father has not deposited any dividends into the joint account, and he has reduced the amount paid into the joint account.

[13] It is troubling that the mother has not complied with the order of Nightingale J. dated June 3, 2022, requiring her to produce an accounting of funds withdrawn from the joint account from 2016 to present. The mother notes that it is a joint account that the father has access to, and that she has provided a full accounting of the farm income and farm expenses paid out of that account.

[14] The disclosure provided by the mother does not appear to be a fulsome response to the court ordered productions. The court-ordered accounting may be an onerous task requiring a forensic accountant. However, the mother should comply with the Order or bring a motion to set it aside, supported by evidence demonstrating efforts she has made and why it is onerous.

[15] On June 3, 2022, the father paid $65,000 to the mother, which was a without prejudice uncharacterized advance. The mother has been paying some of her expenses from that advance.

III. ANALYSIS

A. What is the Mother's Income for Support Purposes?

[16] The mother is a registered nurse and is a member in good standing with the Ontario Nurses Association. I accept the mother’s assertion that the parties made a mutual decision to reduce the mother’s workload early in the marriage to benefit the family. From 2004 to 2017, the mother worked one day per week at the father’s business. Beginning in 2017, she was out of the workforce and unable to work because of the 12-hour day shifts that were required as an ICU nurse.

[17] The father seeks to impute the mother's income at $80,000 for support purposes. He asserts that she has not applied for any work since January 2021, despite evidence of offers and evidence of available job opportunities that offer incomes between $60,000 and $100,000 per year.

[18] The amount of income that the court imputes to a parent is a matter of discretion. There must be some rational basis, grounded in the evidence, for the amount that the court imputes. If a parent is earning less than they could be, they are intentionally underemployed. There is no need to find bad faith before income can be imputed: Drygala v. Pauli, 61 O.R. (3d) 711 (Ont. C.A.).

[19] The task of imputing income to the support recipient requires an in-depth analysis regarding the ability to earn more income. This is a task that is usually best left for trial: Rankin v. Rankin, 2021 ONSC 4537, at paras. 53-54.

[20] The court should exercise caution when imputing income to a recipient on an interim motion, especially when the husband was the primary income earner during a long-term relationship. In those circumstances, the recipient would require a reasonable amount of time to formulate and implement a plan to achieve greater financial independence: Lidell-MacInnis v. MacInnis, 2021 ONSC 1787, at para. 81.

[21] The mother states that it is unreasonable to require her to return to work at this time, given the history of the relationship, her age and health situation, and her childcare and household obligations. I make the following findings with respect to these issues:

i. The mother has some obligation to work towards being self-sufficient within a reasonable period of time and as far as practicable, as reflected in s. 15.2(6)(d) of the Divorce Act. ii. The mother is 55 years old. She states that she has degenerative arthritis of the AC joint. She states that this condition causes chronic pain and difficulty with tasks such as lifting and carrying, movements which are essential in a nursing position. However, she has provided no medical evidence other than an ultrasound report. Absent cogent medical evidence in the form of a detailed medical opinion, I am unable to assess the seriousness of the medical issue and its impact on her potential employment. iii. The mother has responsibilities with the upkeep and maintenance of the large hobby farm where the matrimonial home is located. However, the parties have consented to an order for partition and sale of the home. I accept that the mother will have obligations to maintain the family property until the home is sold. iv. I accept that the mother still has significant childcare obligations that require her to be available throughout the day. Since 2020, the daughter has suffered from acute mental health issues, and the mother needs to be available to attend to her needs and to oversee her mental health care. She picks up the daughter's medication and ensures that she takes them. Additionally, the mother drives the daughter to and from school each day, which requires approximately one and a half hours of driving each day. She also takes the daughter to medical appointments and activities. The father works 80 hours per week, so the mother takes on the majority of these responsibilities.

[22] I accept the mother’s evidence that none of the nursing job listings produced by the father would be feasible. Several of the positions require a bachelor’s degree, which she does not have. Some of the positions are too far of a commute or are out of province. Additionally, working at Hamilton Health Sciences would be extremely difficult, since the father is a site lead at that location.

[23] I accept the mother’s evidence that she is not currently able to directly re-engage as a nurse. She stated, and I accept, that this would require re-training and orientation. Further, it would not be feasible to require her to return to nursing work at this time because of her obligations to care for the daughter.

[24] Because of the mother’s limited availability, the only feasible employment would be a part-time job that offered minimum wage. If I did impute income, it would be a nominal amount, which would not, in any event, have a significant impact on the quantum of spousal support.

[25] In the exercise of my discretion, I decline to impute income to the mother on this interim motion, and I set her income at $0 for support purposes. However, she needs to move towards self-sufficiency as much as possible. It is notable that the mother goes away for periods of time for horse shows. This fact demonstrates that the time demands of caring for the daughter are not a daily requirement. The mother should begin re-training and applying for work, which should commence once the matrimonial home is sold and when the daughter is done school. The mother can reasonably anticipate that a court will consider imputation at trial in the event that she has not, to some extent, re-engaged in the paid workforce once the daughter is finished high school.

B. What is the Father's Income for Support Purposes?

[26] The father is an Associate Professor in the Department of Surgery and Trauma with Hamilton Health Sciences. He is currently situated at the Hamilton General Site, where he runs a growing General Surgery/Trauma practice with a special interest in abdominal wall construction.

[27] Along with his faculty and clinical teaching commitments, the father runs a privately owned general surgery/trauma practice through an ambulatory care centre that operates under the name “GHA Surgical Centre Limited”. He also has a controlling share interest in several corporations. The father’s valuation report estimates that the fair market value of his business interests as of February 2021 is $5.26 million, with notional income tax of $1.43 million.

[28] The father states that support should be calculated based on his income of $584,000, which is his average reported line 150 income for the last three years. I do not accept this submission. His line 150 income amounts do not include any pre-tax corporate income from his business interests. I find that these numbers do not properly reflect his income for support purposes. The father is the controlling shareholder of several corporations, and there is no reasonable basis for declining to attribute any pre-tax income of those corporations to him.

[29] White and Lewis Inc. (the mother’s income valuation expert) prepared a preliminary report dated September 30, 2022. The report examines two income scenarios for the father. The average income over 3 years for the scenario in which non-recurring payments are included is $1.587 million. The average income over 3 years for the scenario in which non-recurring payments are excluded is $1.518. million. The mother’s expert provided a preliminary report only because there are still requested documents that had not been produced by the father.

[30] The White and Lewis Inc. report adds discretionary expenses that are run through the business into the father’s income. These calculations require further evidence, analysis of expenses, and expert opinion, which cannot be accomplished on an interim motion. While this expert analysis is helpful, I approach these calculations with caution.

[31] In 2021, FTM Investments Inc. issued approximately $1.8 million in dividends to the father, which the mother seeks to have treated as income. The timing of the dividend is an important consideration. Depending on the date of separation determined at trial or on a further motion, it is possible that these dividend payments are instead accounted for in the value of the corporation from which the dividends were subsequently distributed. In that event, the court will be concerned not to “double dip” in terms of property and spousal support entitlements.

[32] Pettinelli Mastroluisi Valuations Inc. (the father’s income valuation expert) prepared a report dated October 3, 2022. The father’s expert noted the potential double dipping respecting dividends issued in 2021. Considering the real concerns regarding double counting of the one-time $1.8 million dividend paid out of the father’s company, FTM Investments Inc., I find that this payment should be excluded from the father’s income for support purposes on the interim motion.

[33] I have carefully considered the reports prepared by the parties’ experts. On a temporary without prejudice basis, recognizing that disclosure is ongoing, I find that scenario 2 in the father's expert report to be the most accurate calculation of income for support purposes at this time. In that scenario, the expert calculated the father's income excluding the amounts reported in 2021 that are non-recurring, capital, or can be traced to property that may be equalized by the parties. The income for support calculated in each of the last three calendar years, using this scenario, are as follows:

• 2019: $748,000
• 2020: $854,000
• 2021: $949,000

The average over these three years is $850,000.

[34] Although it has been suggested that the father's income can be determined based on a 3-year average, the father’s income has continuously increased over the past three years. I have been given no reason not to use the calculation of his income for 2021 for support purposes (which is $949,000 in Scenario 2 in the father’s expert report). His own expert describes the father’s work as “a growing General Surgery/Trauma practice.” The evidence suggests that his income will continue to increase in the future.

[35] I find that it is appropriate to set the father's income for support purposes at $949,000. Since there is outstanding financial disclosure that the father has agreed to produce, I make this finding on a temporary, without prejudice basis.

C. Should Support Payments be Suspended Until the Matrimonial Home is Sold?

[36] Both before and after separation, the father deposited income into the parties’ joint account to cover family expenses. The mother states that the monthly income deposited into the joint account has not been sufficient to cover the family's monthly expenses. She has transferred funds from the parties’ joint line of credit to cover expenses, and the line of credit is now maxed out.

[37] The father proposes that support payments be suspended until the matrimonial home is sold; and that he be required to pay $15,000 per month into the joint account plus payment of the mortgage of approximately $2,000 per month and property taxes in lieu of paying support, pending the closing of the matrimonial home. He proposes that support payments begin when the house is sold.

[38] I do not accept the father’s proposal. A structured, periodic support arrangement is necessary to meet the mother’s needs. From her support, she will be responsible for 50% of the costs of ownership, until the closing of the sale (mortgage, taxes, insurance). A support order provides a consistent amount payable each month. It will also be enforceable by the Family Responsibility Office.

D. What is the Appropriate Amount of Child Support?

[39] The mother seeks child support in the amount of $19,317 per month for the two children. The father acknowledges that the daughter is living with the mother, and submits that he should pay child support for one child in the amount of $4,424 per month.

[40] The son has completed high school and lives with the mother. The mother states that he plans to enroll in college or university next year, but I was not provided with any evidence of a firm plan. Counsel stated that the son is taking a “gap” year, which I understand to mean that he is not presently in school. I find that the son is not currently a child of the marriage, and that child support is not payable for him. He may again become eligible for table support depending on his post-secondary plans.

[41] In light of my earlier findings setting the father’s income for support purposes at $949,000, the father shall pay table child support for the daughter in the amount of $7,052 per month, commencing February 1, 2023.

E. What is the Appropriate Amount of s. 7 Expenses?

[42] The mother seeks an order requiring the father pay his proportionate share of the s. 7 expenses for the daughter and son. In light of my previous finding that the son is not a child of the marriage, the father will only be required to pay the s.7 expenses for the daughter.

[43] The father has not disputed any of the expenses claimed for the daughter, and I will therefore order that the father pay his portion of those expenses. Those expenses are:

i. Personal training: $300/month; ii. Uninsured portion of medication: $75/month; iii. Therapy; and iv. Uninsured portion of dental care and eye care.

After accounting for the payment and receipt of spousal support as calculated below, the father’s proportionate share of the above expenses is 67% and the mother’s share is 33%.

F. What is the Appropriate Amount of Spousal Support?

[44] The father agrees that the mother is entitled to spousal support. He submits that he should only have to pay spousal support in the mid range in the amount of $12,994 per month. The mother seeks high range spousal support in the amount of $40,615 per month.

[45] The parties have consented to orders for partition and sale of the matrimonial home, which the mother values at $3.75 million. There is a mortgage of less than $400,000 registered on the property. The parties also agreed that half of the net proceeds will be paid out to the mother upon the sale of the home, which will be part of a substantial equalization.

[46] When making a temporary order for spousal support, the court shall take into consideration the condition, means, needs, and other circumstances of each spouse, including:

a. the length of time the spouses cohabitated; b. the functions performed by each spouse during cohabitation; and c. any order, agreement, or arrangement relating to support of either spouse.

See: s. 15.2(4) of the Divorce Act.

[47] An interim order for the payment of spousal support should:

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; b) apportion between the spouses any financial consequences arising from the care of any child of the marriage, over and above any obligation for the support of any child of the marriage; c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

See: s. 15.2(6) of the Divorce Act.

[48] The following principles govern temporary support motions:

i. The recipient's needs and the payor's ability to pay take on a greater significance on a motion for temporary support. ii. An interim support order should be sufficient to allow the support recipient to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it. On interim support applications, the court does not embark on a detailed analysis of the parties’ circumstances, which is better left to trial. The court achieves rough justice at best. The courts should not unduly emphasize any one of the statutory considerations above others. iii. Temporary orders are based on imperfect and often limited information. They are intended to establish an arrangement upon which the parties can reasonably rely between the commencement of proceedings and the trial. iv. The need to achieve economic self-sufficiency is often less significant on interim motions. v. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines, unless exceptional circumstances have indicated otherwise. Interim support should only be ordered when it can be said that a prima facie case for entitlement has been made out. When there is a need to resolve contested issues of facts, especially when it comes to issues such as entitlement, it becomes less advisable to order interim support.

Driscoll v. Driscoll, [2009] O.J. No. 5056 (Ont. S.C.J.), at para. 14; Oxley v. Oxley, 2010 ONSC 1609 at, 85 R.F.L. (6th) 435, at para. 25; Singh v. Singh, 2013 ONSC 6476, 40 R.F.L. (7th) 78, at para. 11; Drouillard v. Drouillard, 2012 ONSC 4495, at para. 7.

[49] The midpoint of the Spousal Support Advisory Guidelines (SSAG) ranges should not be treated as the default amount for spousal support. The court is required to consider the support factors and objectives found in the Divorce Act and the Family Law Act; the strength of the recipient’s compensatory claim; the recipient’s need; property division and debts; and the payor’s needs and ability to pay: Mason v. Mason, 2016 ONCA 725, 132 O.R. (3d) 641, at para. 199.

[50] When a payor’s income exceeds $350,000, courts must take an individualized, fact-specific analysis: Halliwel v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, at para. 106.

[51] I find that spousal support in the mid-range is appropriate on this interim motion, for the following reasons:

i. The mother has a strong compensatory claim. She is 55 years old and was the primary caregiver to the parties' three children throughout the marriage. She continues to care for the daughter. ii. The mother is a registered nurse who worked part-time throughout their relationship, by mutual agreement of the parties. iii. This was a “traditional” long-term marriage of 19 years. iv. She needs support. v. The father is a high-income earner. He is self-employed and has a successful medical career that he built with the mother's help during the marriage. vi. The father is 50 years old and has the financial means to pay support. He has sufficient income to meet the mother’s needs. vii. The parties have to exchange additional financial disclosure, including items that may impact the calculation of the father’s income. The order for support will be made on a temporary, without prejudice basis, so that the parties can continue evaluating the father’s income calculation. The mid-point level of support is an appropriate starting point, especially since it will lead to approximately 50-50 net disposable income for the households.

[52] In light of my earlier findings setting the father’s income for support purposes at $949,000, I find that the father should pay mid-range spousal support in the amount of $26,023 per month, commencing February 1, 2023. I have attached the DivorceMate calculation as Schedule A to this decision.

G. Should the Court Order the Payment of Retroactive Support?

[53] The mother seeks retroactive child and spousal support from the date of separation, which she says is February 1, 2021.

[54] As noted above, there is a dispute regarding the actual date of separation: the father states that they separated in 2016 while the mother states that they separated in 2021. To further complicate this issue, there have been payments made by the father toward a joint account, as well as other payments.

[55] The issue of retroactive support is best left with the trial judge, who will be in a better position to assess credibility, to determine the separation date, and to address the numerous other issues that arise in this case.

[56] I therefore decline to make any order with respect to retroactive support.

IV. COSTS

[57] Since success has been divided, I am inclined to award no costs on these motions. However, if there are Offers to Settle which could potentially have an impact on the entitlement to costs, the parties may make brief written submissions within 10 days of the release of this Endorsement.

[58] If no submissions are received, each party shall bear their own costs of these motions. The cost of retaining the income valuation experts is a matter that is reserved to the trial judge.

V. CONCLUSION

[59] For all of these reasons, I make the orders as set out below. In those orders, I have referred to individuals as “the mother”, “the father”, and “the daughter”. When a formal order is taken out, these titles shall be replaced by full names, and shall include the date of birth for the child, where applicable.

[60] The following temporary orders are made on consent:

1. Both parties are granted leave to file their Income Valuation Reports and DivorceMate Calculations for these motions.
2. An Order for the partition and sale of the matrimonial home located at 11 Smith Road, Brantford, Ontario (“the property”).
3. The parties shall jointly select a real estate agent to market, list, and sell the property.
4. In the event the parties cannot agree on a real estate agent, they may seek direction from the court.
5. The parties shall fully cooperate with the real estate agent and follow their recommendations.
6. Once the property is listed for sale, the closing period will be for 3 months.
7. The parties shall accept the first reasonable and/or the best offer on the property, in consultation with the real estate agent.
8. The mother shall receive one half of the net proceeds of sale of the property upon closing, and the balance of the funds shall remain in trust pending further agreement or court order.
9. The parties shall each pay 50% of the carrying costs on the property (mortgage, property taxes, insurance) pending the closing.
10. The mother shall pay 100% of the utilities once she lives in the matrimonial home exclusively, or each party shall pay 50% of the utilities if the mother is not in exclusive possession.
11. Any capital expenses, maintenance, or improvements to the property pending closing shall be shared equally and approved by both parties (which approval shall not be unreasonably withheld).
12. Within 45 days of receiving the Order on this motion, the father shall make best efforts to fully answer all outstanding requests set out in Mr. Lewis’s requests for information dated August 11, September 2, and September 12, 2022, which are collectively attached to this Order as Schedule B. Anything that is not crossed out in these Schedules is still outstanding as of the date that the motions were argued. The father shall provide an affidavit outlining what has been produced and, if he is unable to answer any of the requests or produce the items sought, setting out the efforts that have been made.

[61] The following orders are made not on consent, and are on a temporary, without prejudice basis:

1. Commencing February 1, 2023, and on the first day of each month thereafter, the father shall pay table child support for the daughter, in the amount of $7,052 per month. Child support is payable to the mother and is based on the father’s annual income of $949,000.
2. Commencing February 1, 2023, the parties shall proportionately share the special or extraordinary expenses (“section 7 expenses”) of the daughter: i. Personal training: $300/month; ii. Uninsured portion of medication: $75/month; iii. Therapy; and iv. Uninsured portion of dental care and eye care. The father’s proportionate share of the above expenses is 67% and the mother’s share is 33%.
3. The parties shall only be required to contribute to a child’s additional section 7 expenses if they consent to the expense in advance, in writing. Neither party shall unreasonably withhold consent.
4. Commencing February 1, 2023, and on the first day of each month thereafter, the father shall pay spousal support to the mother in the amount of $26,023 per month, based on the father’s annual income of $949,000.
5. Support Deduction Order to issue.

Braid, J. Released: January 31, 2023

SCHEDULE A

Tools One 2021 for Raffi: Calculation 1 Prepared by: January 29 2023

Niv Sne Male, 50, Resident of ON Income Employment income 949,000

Patricia Sne Female, 55, Resident of ON No information

Children Age Lives with Table Amt Claimed by Child 1 17 Patricia Yes Patricia Youngest child finishes high school 1 year from the date of separation. Dependant credit claimed by Patricia Sne.

Cautions/Overrides Child Support (Table) - Niv Sne's Income over $150,000 4 CSG Table Amount may be inappropriate. SSAG - Niv Sne's Income over $350,0004 SSAG may not apply

Child Support Guidelines (CSG) Monthly $ Niv Sne Patricia Annual Guidelines Income 949,000 0 CSG Table Amount (current) 7,052 0 Child Support (Table) 7,052 0

Spousal Support Advisory Guidelines (SSAG) Monthly $ Length of marriage/cohabitation: 19 years Recipient's age at separation: 55 years "With Child Support" Formula

The formula results in a range for spousal support of $23,696 to $28,350 per month for an indefinite (unspecified) duration, subject to variation and possibly review.

SSAG Considerations: The results of the SSAG formula must be interpreted with regard to: Entitlement; Location within the Ranges; Restructuring; Ceilings and Floors; and Exceptions.

Support Scenarios Monthly $

A. SSAG Low B. SSAG Mid C. SSAG High

Niv Sne Patricia Sne Niv Sne Patricia Sne Niv Sne Patricia Sne

Gross Income 79,083 0 79,083 0 79,083 0

Taxes and Deductions (26,708) (9,278) (25,462) (10,524) (24,217) (11,769)

Benefits and Credits 0 0 0 0 0 0

Spousal Support (23,696) 23,696 (26,023) 26,023 (28,350) 28,350

Child Support (Table) (7,052) 7,052 (7,052) 7,052 (7,052) 7,052

Net Disposable Income (NDI) 21,627 21,470 20,546 22,551 19,464 23,633

adult in household child in household shared/summer child in household Payor's NDI/Contribution Percent of N7l 50.28 99.88 97.78 52.38 95.28 59.88

CSG Special Expenses Apportioning % 70.0% 30.0% 67.1% 32.9% 64.2% 35.8%

After-tax Cost/Benefit of Spousal Support (11,012) 14,381 (12,093) 15,462 (13,174) 16,543

v. 2021.7.8 (c) 2021 DivorceMate Software Inc. Page 1 of 1

SCHEDULE B

August 11, 2022

Private & Confidential

Sent by Email

Dear Ms. Deborah Perkins-Leitman Re: Updated to Disclosure Request – Dr. Sne

Brandon A. Lewis, CPA, CA, CBV, CFF 416-816- 5253 Brandon@whiteandlewis.com

Attached, please find our updated preliminary information request for Dr. Sne. Once we receive the remaining outstanding information requested, we may have further questions.

Please do not hesitate to call if you have any questions. Yours truly,

Brandon A. Lewis, CPA, CA, CBV, CFF Partner White & Lewis Inc.

675 Cochrane Drive, East Tower, 6th Floor 2 St. Clair Avenue West, 18th Floor Markham, Ontario L3R 0B8 Toronto, Ontario M4V 1L5 whiteandlewis.com

Valuation Date: February 2, 2021 Personal:

1. Complete personal income tax returns for 2019, 2020, and 2021, including copies of all slips and schedules.
2. Personal notices of (re) assessment for 2019, 2020 and 2021.

Niv Sne Medicine Professional Corporation (“MPC”):

3. Corporate tax returns for fiscal year ended June 30, 2021.
4. Detailed general ledgers for fiscal years ended June 30, 2019, 2020, and 2021 (in Excel format).
5. T4 and T5 slips issued to Dr. Sne and related parties for 2019, 2020, and 2021.
6. If wages paid to related parties anytime during 2019 through 2021, provide a description each recipient’s role in the business and time spent at work.
7. If business pays directly for any personal/non-business expenses on behalf of the Dr. Sne and/or related parties, provide details and amounts for each of 2019 through 2021.
8. Corporate bank account statements for fiscal years ended June 30, 2019, 2020, and 2021.
9. Credit card statements for fiscal years ended June 30, 2019, 2020, and 2021, for all credit cards used to incur expenses on account of MPC (i.e., personal and/or corporate credit cards).

1932080 Ontario Inc. (“193 Ontario”):

10. Corporate tax returns for fiscal year ended June 30, 2021.
11. Detailed general ledgers for fiscal years ended June 30, 2019, 2020, and 2021 (in Excel format).
12. T4 and T5 slips issued to Dr. Sne and/or related parties for 2019, 2020, and 2021.
13. If business pays directly for any personal/non-business expenses on behalf of the Dr. Sne and/or related parties, provide details and amounts for each of 2019 through 2021.
14. Lending agreements/term sheets in effect for 2019, 2020, and 2021.

Page 2 of 7

Grimsby Land Corp. Inc. (“GLC”):

15. Financial statements of GLC for the fiscal year ended December 31, 2021.
16. Corporate tax returns for fiscal years ended December 31, 2019, 2020, and 2021.

FTM Investments Inc. (“FTM”):

17. In accordance with section 3.2 of the Unanimous Shareholders Agreement of FTM, provide financial statements of FTM for the 2021 fiscal year end.
18. In accordance with section 3.2 of the Unanimous Shareholders Agreement of FTM, provide the corporate income tax returns of FTM for the 2021 fiscal year end.
19. In accordance with section 3.2 of the Unanimous Shareholders Agreement of FTM, provide the trial balance of FTM for the 2021 fiscal year end.
20. In accordance with section 3.2 of the Unanimous Shareholders Agreement of FTM, provide the adjusting entries of FTM for the 2021 fiscal year end.
21. In accordance with section 3.2 of the Unanimous Shareholders Agreement of FTM, provide the general ledger of FTM for the 2021 fiscal year end.
22. In accordance with section 3.2 of the Unanimous Shareholders Agreement of FTM, provide the detailed calculations and valuation analysis/report used to prepare and file the Section 85 (of the Income Tax Act (Canada)) rollover with respect to the 193 Ontario’s transfer of 892,858 Class A Special Shares in the capital of Mariner Endosurgery Inc.(“Mariner”) on December 15, 2020.
23. With respect to Mariner, provide the following: WL: In response to this request, Dr. Sne provided a letter from Mariner which indicates that shareholders can only receive annual and quarterly financial statements. i. Financial statements for fiscal years 2018, 2019, 2020, and 2021. WL: Per Dr. Sne: To be provided once available ii. Corporate income tax returns for fiscal years 2018, 2019, 2020, and 2021. WL: Not available to Dr. Sne per Mariner Endosurgery letter dated July 25, 2022 iii. General ledgers (in Excel) for fiscal years 2018, 2019, 2020, and 2021. WL: Not available to Dr. Sne per Mariner Endosurgery letter dated July 25, 2022 iv. Trial balances for fiscal years 2018, 2019, 2020, and 2021. WL: Not available to Dr. Sne per Mariner Endosurgery letter dated July 25, 2022

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v. Adjusting journal entries for fiscal years 2018, 2019, 2020, and 2021. WL: Not available to Dr. Sne per Mariner Endosurgery letter dated July 25, 2022 vi. Valuation reports, analysis, etc. prepared in the three years preceding the Valuation Date. WL: Not available to Dr. Sne per Mariner Endosurgery letter dated July 25, 2022 vii. Details of any transactions involving the Mariner’s shares for the three years prior to the Valuation Date. WL: Not available to Dr. Sne per Mariner Endosurgery letter dated July 25, 2022 viii. Details of any offers to purchase Mariner that were made in the three years prior to the Valuation Date. WL: Not available to Dr. Sne per Mariner Endosurgery letter dated July 25, 2022 ix. Articles of incorporation. WL: Not available to Dr. Sne per Mariner Endosurgery letter dated July 25, 2022 x. Shareholder register. WL: Not available to Dr. Sne per Mariner Endosurgery letter dated July 25, 2022 xi. A brief summary of Mariner’s history since inception. WL: Not available to Dr. Sne per Mariner Endosurgery letter dated July 25, 2022 xii. Addresses of all locations and descriptions of type of facility at each location. WL: Not available to Dr. Sne per Mariner Endosurgery letter dated July 25, 2022 xiii. Summary of sales, by customer, of LaproGuard for each of the five fiscal years leading up to the Valuation Date. WL: Not available to Dr. Sne per Mariner Endosurgery letter dated July 25, 2022 xiv. Business plans prepared in the three years prior to the Valuation Date, if any. WL: Not available to Dr. Sne per Mariner Endosurgery letter dated July 25, 2022 xv. Forecasted or budgeted results (as they existed at the valuation date) for one to five fiscal years subsequent to the Valuation Date. WL: Not available to Dr. Sne per Mariner Endosurgery letter dated July 25, 2022 xvi. All financing applications, proposals, marketing plans, etc. prepared three years prior to the Valuation Date, if any. WL: Not available to Dr. Sne per Mariner Endosurgery letter dated July 25, 2022

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1884046 Ontario Inc. (“188 Ontario”):

24. Financial statements of 188 Ontario for fiscal years ended March 31, 2021 and 2022. WL: FY 2022 not due to be completed until August.
25. Trial balance of 188 Ontario for fiscal years ended March 31, 2021 and 2022. WL: FY 2022 not due to be completed until August.
26. Adjusting journal entries of 188 Ontario for fiscal years ended March 31, 2021 and 2022. WL: FY 2022 not due to be completed until August.
27. General ledger of 188 Ontario for fiscal years ended March 31, 2021 and 2022 (in Excel format). WL: FY 2022 not due to be completed until August.
28. Corporate tax return of 188 Ontario for fiscal years ended March 31, 2021 and 2022. WL: FY 2022 not due to be completed until August.
29. Lending agreements/term sheets in effect for 2019, 2020, 2021, and 2022.
30. If business has term debt or mortgages, provide details of monthly principal and interest payments, and expected duration.
31. T4 and T5 slips issued to Dr. Sne and/or related parties for 2019, 2020, and 2021. WL: Per Dr. Sne: “to be advised”.
32. If wages paid to related parties anytime during 2019 through 2021, provide a description each recipient’s role in the business and time spent at work. WL: Per Dr. Sne: “to be advised”.
33. If business pays directly for any personal/non-business expenses on behalf of the Dr. Sne and/or related parties, provide details and amounts for each of fiscal years 2019 through 2022. WL: Per Dr. Sne: “to be advised”.

GHA Surgical Centre Limited (“GHA”):

34. Financial statements of GHA for fiscal years ended February 28, 2021 and 2022. WL: FY 2022 not due to be completed until August.
35. Trial balance of GHA for fiscal years ended February 28, 2021 and 2022. WL: FY 2022 not due to be completed until August.
36. Adjusting journal entries of GHA for fiscal years ended February 28, 2021 and 2022. WL: FY 2022 not due to be completed until August.
37. General ledger of GHA for fiscal years ended February 28, 2021 and 2022 (in Excel format). WL: FY 2022 not due to be completed until August.
38. Corporate tax return of GHA for fiscal years ended February 28, 2021 and 2022. WL: FY 2022 not due to be completed until August.
39. Lending agreements/term sheets in effect for 2019, 2020, 2021, and 2022.

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40. If business has term debt or mortgages, provide details of monthly principal and interest payments, and expected duration. WL: Per Dr. Sne: “to be advised”.
41. T4 and T5 slips issued to Dr. Sne and/or related parties for 2019, 2020, and 2021.
42. If wages paid to related parties anytime during 2019 through 2021, provide a description each recipient’s role in the business and time spent at work.
43. If business pays directly for any personal/non-business expenses on behalf of the Dr. Sne and/or related parties, provide details and amounts for each of fiscal years 2019 through 2021.
44. Details of any transactions involving the company’s shares for the three years prior to the Valuation Date, and during the subsequent period.
45. Any valuation reports from valuators conducted in the three years prior to the valuation date.
46. Details of any offers to purchase the business that were made in the three years prior to the Valuation Date.
47. A brief summary of the company’s history since inception.
48. Addresses of all locations and descriptions of type of facility at each location.
49. Business plans prepared in the two or three years prior to the Valuation Date, if any. WL: Per Dr. Sne: “to be advised”.
50. Forecasted or budgeted results (as they existed at the valuation date) for one to five fiscal years subsequent to the Valuation Date. WL: Per Dr. Sne: “to be advised”.
51. Copies of any contracts outstanding that are outside the normal course of operations (i.e., commitments to purchase capital assets).
52. Details of any employment contracts with senior management and other key employees. WL: Per Dr. Sne: “to be advised”.
53. Details of any significant unusual, non-arms length or non-recurring revenues or expenses in each of the last five fiscal years prior to the Valuation Date. Examples of some of these items would include legal fees with respect to litigation, tax reassessments, moving costs, large repairs to equipment or building.
54. Details of how many employees the company had staffed at the Valuation Date, and any significant fluctuations in the number of employees over the last five years.
55. Details regarding all major capital assets (including intangible assets such as patents, licenses, etc.), including dates of purchase or age, original costs, net book value (at the valuation date or as of the last year end nearest the valuation date), and a brief description of the asset if not evident from the name. If you are aware of the current market value of the used equipment or intangible (patent, license,

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etc.), it should be so noted. Indicate if certain equipment or intangible is not currently being used and is not expected to be used in the near future.

WL: Per Dr. Sne: “to be advised”.

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From: Deborah Perkins-Leitman Sent: Monday, September 12, 2022 12:18 PM To: 'Mr. Darryl Willer (Other side's lawyer)' darryl@jwgfamilylaw.ca Cc: Susan Mongrain susan@jwgfamilylaw.ca Subject: Sne follow-up information request

Dear Counsel:

Below is a further information request from Mr. Lewis (Ms. Sne’s CBV) with respect to information pertaining to Dr. Sne’s income:

1. 1932080 Ontario Inc.; a. Financial statements for FY ended June 30, 2022 (if available); b. T2 return FY ended June 30, 2022 (if available); c. Trial balance for FY ended June 30, 2022 (if available); d. General ledger for FY ended June 30, 2022 (if available); e. Adjusting journal entries FY ended June 30, 2022 (if available);
2. 1884046 Ontario Inc.; a. Financial statements for FY ended March 31, 2022 (if available); b. T2 return FY ended March 312022 (if available); c. Trial balance for FY ended March 31, 2022 (if available); d. General ledger for FY ended March 31, 2022 (if available); e. Adjusting journal entries FY ended March 31, 2022 (if available);
3. GHA Surgical Centre; a. Financial statements for FY ended February 28, 2022 (if available); b. T2 return FY ended February 28, 2022 (if available); c. Trial balance for FY ended February 28, 2022 (if available); d. General ledger for FY ended February 28, 2022 (if available); e. Adjusting journal entries FY ended February 28, 2022 (if available).

We look forward to receipt of this information as soon as possible.

Thank you,

Deborah Perkins-Leitman (she/her) Lawyer Beaton Burke Young LLP

241 - 545 King King Street West Toronto, Ontario M5V 1M1 416 814 6263

October 12, 2022

Private & Confidential

Sent by Email

Dear Ms. Deborah Perkins-Leitman Re: Disclosure Request #2 – Dr. Sne

Brandon A. Lewis, CPA, CA, CBV, CFF 416-816- 5253 Brandon@whiteandlewis.com

Attached, please find our updated second information request for Dr. Sne. Once we receive the remaining outstanding information requested, we may have further questions.

Please do not hesitate to call if you have any questions. Yours truly,

Brandon A. Lewis, CPA, CA, CBV, CFF Partner White & Lewis Inc.

675 Cochrane Drive, East Tower, 6th Floor 2 St. Clair Avenue West, 18th Floor Markham, Ontario L3R 0B8 Toronto, Ontario M4V 1L5 whiteandlewis.com

Niv Sne Medicine Professional Corporation (“MPC”):

Based on our review of the general ledgers of MPC, we have the following questions:

Review of 2019 General Ledger:

1. We observed $2,050 in rent expense on account of “Flora Sne”. Provide the following with respect to this expense: i. Indicate your relation to Flora Sne (i.e., familial). ii. Address of the rental premises. iii. Explain the business nature of this expense. iv. Copy of rent agreement with Flora Sne, if applicable.
2. We observed a rent expense adjusting entry for $3,600. Provide detailed support and explanation for this amount. Provide documentation (i.e., cheque copies, receipts, invoices, etc.) in support of this expense.
3. Provide a detailed breakdown of leasehold improvements expenditures made in 2019. Specifically, provide: i. Supplier/vendor name; ii. Amount; and iii. Indicate the property the expense pertained to. Per Joel Feldman: It is my understanding that Pat coordinated all expenditures to Doug Melia during the year. The cheques seemed to be issued by Pat and I believe she would have all necessary source documents. It is my understanding that the expenditures were incurred in their principal residence and a substantial portion relates to their home office. The amounts have been capitalized as Lease Hold Improvements and not expensed.
4. We observed mileage expenses of $17,499.60 on account of Niv Sne and Pat Sne. Indicate the business purpose of incurring mileage expense for the MPC. Describe the driving activities of both persons. Provide a copy of a detailed driving log for both persons for one month in 2019. Per Joel Feldman: Pat has maintained extremely detailed logs of all business kilometers incurred. It is my understanding that Pat is in possession of the log book for all years in question.

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5. We observed the following conferences/seminars expenses in 2019. For each expense, provide a) the names of the individuals who attended/were on the trip b) the name of the conference/seminar attended, b) the address of the hotel accommodation, d) copy of expense receipt/invoice, and e) a copy of your event/conference registration: i. ACS Meetings Clinical $1,244.42 ii. Westin $1,945.47 iii. Unique/Sandal $13,726.6 iv. Northwest Seminars $556.40 Per Joel Feldman: Again both Pat and Niv attest that the expenditures are valid business expenses. The Air Canada flights and Westin hotel amounts are likely related to the Unique Sandal conference.
6. We observed the following vehicle expenses: i. V- Glendale Motors $1,841.84; and ii. Aw Acura $3,810.31. For each amount, provide: a) Description of the expense, b) explanation as to the nature of the expense (business or personal), and c) copies of source documentation in support of the amounts (i.e., invoices, receipts, etc.).
7. We observed travel expenses totalling $4,822.93. For all expense amounts made no account of Air Canada, Beaches, Sette Bello, Ritz Carlton, Best Western, Sorelina, and Legal Harborside, provide the following: i. Describe the expense. ii. Indicate the persons who incurred the expense; iii. Describe whether the expense was business or personal in nature. iv. Provide copies of source documentation (i.e., receipts, bills, invoices, etc.) in support of each amount paid to the vendors listed.
8. We observed telephone pages expense of $7,643.91. This expense consists of amounts paid to Silo and Telus. For each vendor, indicate a) the nature of the services provided, c) who the expense pertained to, and c) provide a copy of one invoice/bill. Per Joel Feldman: The Telephone and pagers expense are all business related and incurred to earn business income. It is my understanding that Silo expenses are for the home internet that Niv uses in his professional work at home. Telus expenses would be for the cell phones used by the employees of the Corporation.

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9. We observed insurance expenses paid Manulife. For each policy, provide: i. Name of the persons insured. ii. Risk insured. iii. Type of insurance. iv. Policy number. v. Beneficiaries; vi. Policy owner; and vii. Copy of annual or a monthly account statement.

Review of 2020 General Ledger:

10. Provide a detailed breakdown of leasehold improvements expenditures made in 2020. Specifically, provide: i. Supplier/vendor name; ii. Amount; and iii. Indicate the property the expense pertained to.
11. We observed mileage expenses of $17,458.30 on account of Niv Sne and Pat Sne. Indicate the business purpose of incurring mileage expense for the MPC. Describe the driving activities of both persons. Provide a copy of a detailed driving log for both persons for one month in 2020. Per Joel Feldman: As per my reply to your letter and to point 4 above, Pat has maintained extremely detailed logs of all business kilometers incurred. It is my understanding that Pat is in possession of the log book for all years in question.
12. We observed the following conferences/seminars expenses in 2020. For each expense, provide a) the names of the individuals who attended/were on the trip b) the name of the conference/seminar attended, b) the address of the hotel accommodation, d) copy of expense receipt/invoice, and e) a copy of your event/conference registration: i. Quatrefoil $765.82 ii. Hilton Fallsview Restaurant $922.05 iii. Quatrefoil $825.18 iv. WestJet $1,636.23 v. Aberdeen Tavern $1,184.12 vi. Enterprise Canada $569.86

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Per Joel Feldman: It is my understanding that all amounts have been incurred for business purposes. Again, I believe Pat would have all source documents for the expenditures. I would have copies of all bank and credit card statements. I believe the Westjet expenditure relates to the travel to the Trauma and Critical Care Conference in Las Vegas. The $1,246.56 as listed in the GL is the Conference Expense. It is my understanding, the larger restaurant amounts relate to GHA staffing meetings, investor meetings, staff appreciation and research meetings with Residents. 13. We observed telephone pages expense of $5,491.91. This expense consists of amounts paid to Silo and Telus. For each vendor, indicate a) the nature of the services provided, c) who the expense pertained to, and c) provide a copy of one invoice/bill. Per Joel Feldman: Details of the Silo and Telus expenditures have been explained in point 8 above. I believe Pat has all the necessary documentation. 14. We observed insurance expenses paid to aw Manulife. For each policy, provide: i. Name of the persons insured. ii. Risk insured. iii. Type of insurance. iv. Policy number. v. Beneficiaries; vi. Policy owner; and vii. Copy of annual or a monthly account statement. 15. We observed insurance expense of $19,104 for “The Canadian Medical”. Provide the following: i. Name of the persons insured. ii. Risk insured. iii. Type of insurance. iv. Policy number. v. Beneficiaries; vi. Policy owner; and vii. Copy of annual or a monthly account statement.

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Review of 2021 General Ledger:

16. Provide a detailed breakdown of leasehold improvements expenditures made in 2021. Specifically, provide: i. Supplier/vendor name; ii. Amount; and iii. Indicate the property the expense pertained to. Per Joel Feldman: It is my understanding that a portion of the paving costs were incurred by the Corporation as the repairs were a necessity to allow Niv to work from home and meet his obligations at the hospital. I believe Pat would have possession of the actual source documents.
17. We observed a rent expense adjusting entry for $3,600. Provide detailed support and explanation for this amount. Provide documentation (i.e., cheque copies, receipts, invoices, etc.) in support of this expense. Per Joel Feldman: I have explained my home office rental estimate of $3,600 in point 2 above. Again, I believe that the accrual is quite a bit underestimated, as a result of the amount of work Niv does from home.
18. We observed repairs expenses on account of Lowe’s for $1,607.06. Provide a detailed explanation of the repairs made, the property repaired, and a copy of the invoice/receipt for the items purchased. Per Joel Feldman: Niv believes the amount was incurred as repairs to the home office and his office at the hospital. I believe Pat has the source documents to support the expenditure.

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19. We observed the following amounts expensed to computer software. For each amount greater than or equal to $100, provide a) description of the expense (what was purchased), b) explain the nature of the expense (business or personal), and c) provide a copy of the receipt/bill/invoice in support. For the Xplornet amounts, indicate the property the services pertain to and provide a copy of a monthly bill. Per Joel Feldman: All expenditures have been explained in my response to point 6 of your letter. All amounts are business related. QHR Technology is for electronic medical records. Explore net would be home internet. It is my understanding that Apple and Google expenditures are for business computer and cell phones I believe Pat would have the receipts.
20. We observed mileage expenses of $18,803.70 on account of Niv Sne and Pat Sne. Indicate the business purpose of incurring mileage expense for the MPC. Describe the driving activities of both persons. Provide a copy of a detailed driving log for both persons for one month in 2021.
21. We observed an amount expensed for $5,000 to professional fees on account of Pettinelli Mastroluisi. Please confirm that this pertains to the matrimonial matter. Per Joel Feldman: It is Niv's assertion that the valuation is used for his various other business ventures as the GHA, Mariner and Grimsby Land Corp Niv requires a valuation in regard to any additional financing required for these ventures.

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22. We observed telephone pagers expense of $5,039 This expense consists of amounts paid to Xplornet, Unite Comm, Silo and Telus. For each vendor, indicate a) the nature of the services provided, c) who the expense pertained to, and c) provide a copy of one invoice/bill. Per Joel Feldman: These expenditures have been explained above. They are all incurred for business purposes to earn business income. Again, I believe Pat has possession of the actual source documents.
23. We observed amounts paid and expensed for $4,674.10 on account of “Rebecca G”. Is Rebecca an arm’s length person? Describe the relationship to Rebecca G.
24. We observed insurance expenses paid to aw Manulife. For each policy, provide: i. Name of the persons insured. ii. Risk insured. iii. Type of insurance. iv. Policy number. v. Beneficiaries; vi. Policy owner; and vii. Copy of annual or a monthly account statement.

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COURT FILE NO.: FS-22-00000014 DATE: 2023/01/31 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: PATRICIA SNE – and – NIV SNE REASONS ON MOTIONS Braid, J. Released: January 31, 2023