COURT OF APPEAL FOR ONTARIO

CITATION: Katz v. Katz, 2014 ONCA 606

DATE: 20140825

DOCKET: C57255

Doherty, Simmons and Tulloch JJ.A.

BETWEEN

Orly Katz

Applicant (Appellant)

and

Neil Ari Katz

Respondent (Respondent)

Rodica David, Q.C. and Jennifer Krob, for the appellant

Susan Harris, for the respondent

Heard: May 22, 2014

On appeal from the order of Justice Anne Mullins of the Superior Court of Justice, dated June 5, 2013.

Simmons J.A.:

A. introduction

[1] The issues on this appeal arise from an enforcement proceeding that followed an acrimonious divorce.

[2] In June 2013, the appellant brought two motions for enforcement of the respondent’s obligations under a divorce order to: i) contribute to expenses under s. 7 of the Federal Child Support Guidelines, S.O.R./97-175, for the parties’ two younger children, and ii) obtain a $500,000 life insurance policy and designate the children as beneficiaries of the policy.

[3] In the first motion, the appellant asked for a finding of contempt against the respondent. In the second motion, the appellant requested specific orders for the enforcement of the respondent’s obligations, including an order that the respondent pay a specified amount per month on account of anticipated s. 7 expenses, and an order that the appellant be entitled to obtain the required insurance and collect the premiums in the same manner as if it were child support.

[4] In response, the respondent made a partial payment on account of s. 7 expenses but argued that the appellant’s claim for s. 7 expenses was not in compliance with the divorce order. Further, the respondent claimed that he had been prevented from obtaining the required life insurance because he was diagnosed with, and had surgery for, prostate cancer.

[5] The motion judge dismissed both motions and made no order as to costs.

[6] The appellant appeals the dismissal of the enforcement motion and the dismissal of the contempt motion as it relates to the appellant’s failure to obtain life insurance. She also applies to introduce fresh evidence on appeal. In addition, she asks that she be awarded costs of the enforcement motion on a substantial indemnity basis as provided for in the divorce order. The appellant does not appeal the dismissal of the contempt motion as it relates to the alleged failure to pay s. 7 expenses.

[7] For the reasons that follow, I would dismiss the fresh evidence motion and the appeal.

B. background

[8] The appellant and the respondent separated in May 2004 following an 18-year marriage. They have three children, now 15, 22 and 26 years of age. The oldest child married in 2008. The parties were divorced by an order dated April 26, 2010 (the “divorce order”). Under the terms of the divorce order, the appellant has custody of the two younger children.

[9] In addition to lump sum spousal support and periodic child and spousal support, the divorce order requires that the respondent: i) pay 50% of specified s. 7 expenses for the two younger children based on a monthly summary to be provided by the appellant with supporting receipts; ii) obtain a life insurance policy for $500,000 and provide a copy of that policy to the appellant within 60 days of the date of the divorce order; and iii) designate his children as beneficiaries of the life insurance policy. The divorce order also provided, at para. 51, that the appellant would be entitled to full indemnity costs if she was required to bring a motion to enforce payment of the s. 7 expenses.

[10] On May 23, 2013, the appellant served a motion returnable on June 5, 2013 for a finding of contempt against the respondent arising from the respondent’s alleged persistent failure to pay his share of the required s. 7 expenses and from his failure to obtain the required life insurance policy. The appellant brought a further motion returnable on the same date for enforcement of these obligations.

[11] As part of the latter motion, the appellant asked, among other things, that the respondent disclose “his entire medical and hospital charts”, that she be at liberty to obtain the life insurance required under the divorce order, that the cost of the life insurance premiums be enforceable as child support and that the respondent preserve any savings he may have pending compliance with his life insurance obligation.

[12] In relation to s. 7 expenses, the appellant asked that the respondent pay $16,524.32 on account of arrears (that amount being half of $33,048.65 of s. 7 expenses the appellant claimed to have incurred). In addition, the appellant asked for an order requiring the respondent to make monthly payments of $896.50 on account of ongoing s. 7 expenses and that these payments be enforced by the Director of the Family Responsibility Office. The also appellant sought interest expenses relating to her expenditures for s. 7 expenses and costs of her enforcement motion “on a substantive recovery basis as per para. 51” of the divorce order.

[13] The respondent disputed the appellant’s claim that he had not complied with the terms of the divorce order relating to s. 7 expenses, arguing that many of the expenses claimed by the appellant on account of arrears were either inflated, improper, not properly documented or not previously documented. Prior to the return date of the motion, the respondent sent a money order to the appellant for $9,350.85, the amount he acknowledged was owed on account of s. 7 expenses in accordance with the appellant’s material.

[14] In addition, the respondent submitted that he had made reasonable efforts to obtain the required life insurance policy but had been prevented from doing so because he was diagnosed with prostate cancer following medical tests conducted for his insurance application and ultimately underwent surgery for prostate cancer.

[15] The motion judge dismissed the appellant’s motions, holding that “[t]he evidence is such [that] I am satisfied that the [r]espondent has complied with the [divorce order].” Concerning costs, the motion judge stated, “[a]s [the respondent] is self represented, though entitled to costs, I make no order as to costs.”

C. The divorce order

[16] The divorce order was made following a seven-day trial at which both parties were unrepresented. The formal order is derived from a section of the trial judge’s reasons for judgment setting out the terms of her order. The divorce order contains 70 paragraphs and includes, among other things, detailed provisions concerning custody, parenting time, the appointment of a parenting coordinator, child support, s. 7 expenses, spousal support, and the respondent’s obligation to obtain life insurance.

(1) Obligation to contribute to s. 7 expenses

[17] The divorce order specifies certain s. 7 expenses to which the respondent was obliged to contribute and also provides that if any other s. 7 expense issue should arise, the assistance of the parenting coordinator should be sought. Failing that, the matter should be resolved by a court of competent jurisdiction. In addition, the divorce order stipulates that the respondent is required to pay his share of s. 7 expenses within 30 days of receiving a monthly summary of the expenses incurred with receipts attached.

[18] The trial judge’s reasons relating to s. 7 expenses, although not included in the formal divorce order, note that the table amount of child support paid by the respondent “already includes some contribution towards the children’s extra curricular activity, entertainment, and travel expense.” Accordingly, the trial judge disallowed certain expenditures claimed by the appellant as s. 7 expenses, including school bus transportation, which she said was approximately $65 per month per child.

[19] Relevant portions of the divorce order relating to s. 7 expenses include the following:

51. The parties shall share the section 7 expenses equally. Section 7 expenses shall include the following:

(b) Post-secondary education costs and expenses incidental thereto, including without limitation tuition, books, supplies, equipment, residency, food, and transportation. [The appellant] shall continue to claim the tuition expense or the eligible portion thereof on her income tax return and the parties shall equally share the net expense.

(g) The cost of private Hebrew school; any difference between the subsidy and the actual expense shall be shared equally by [the respondent and the appellant]. In the event there is any special tax treatment afforded such tuition, it shall be the net expense that is shared equally.

Should any other section 7 expense issue arise in the future, the assistance of the parenting coordinator shall be sought to resolve this dispute. In the event the parenting coordinator is unable to resolve the disagreement, then the matter may be decided by a court of competent jurisdiction. Commencing the 1st January 2010, [the appellant] shall submit to [the respondent], on a monthly basis, a summary of the children’s section 7 expenses, as itemized herein, with receipts attached. [The respondent] shall reimburse [the appellant] his 50% share of those expenses or the net expense as the case may be, within 30 days of receipt of the summary with receipts. If [the appellant] is required to bring a motion to enforce this provision, she shall be entitled to her cost on a full indemnity basis.

(2) Obligation to obtain life insurance

[20] In the divorce order, the respondent’s obligation to obtain and maintain life insurance was premised on his obligation to pay child and spousal support.

[21] Under the divorce order the appellant was ordered to pay $1,766.00 per month on account of child support based on an annual income for 2008 of $130,587.88; $25,000 on account of compensatory spousal support; $20,800 on account of arrears of spousal support; and $800.00 per month on account of periodic spousal support.

[22] Payment of the compensatory spousal support was secured through directions relating to the distribution of a bank account. Payment of arrears of child and spousal support was secured through directions relating to the distribution of the same bank account as well as directions concerning distribution of the proceeds of sale of the matrimonial home.

[23] The divorce order provided that the maximum duration of the respondent’s periodic spousal support obligation is 17 years from May 18, 2004. The divorce order also provided that periodic spousal support would be subject to review upon termination of the respondent’s child support obligation in relation to each of the two youngest children of the marriage.

[24] Relevant terms of the divorce order concerning life insurance read as follows:

66. [The respondent] shall obtain and maintain life insurance in the amount of $500,000.00, with the children named as beneficiaries and [the appellant] named as trustee, and:

(a) He shall provide [the appellant] a copy of the said policy within sixty (60) days of the release of these reasons for judgment.

(c) When [the respondent’s] obligation to pay child support and spousal support ends, he will be free to deal with the policy as he deems fit, and [the appellant] shall sign whatever documents are necessary in order to effect this intention.

(e) In the event of a review of child support, section 7 expenses, and/or spousal support, the requirement for life insurance may be adjusted and shall reflect sufficient security.

[25] Although the trial judge stated that the appellant would be entitled to full indemnity costs if she was required to bring a motion to enforce the s. 7 expenses provided for in the judgment, at para. 88 of her reasons, the trial judge sounded a note of caution concerning the advisability of litigating other issues:

[T]he court cautions the parties to weigh the potential costs of litigation against the amount of the expense in dispute and to be mindful of the court’s discretion to award costs to a successful party, whether that party is represented by a lawyer or not.

D. The motion judge’s reasons

[26] The motion judge dealt with the issues before her in a brief handwritten endorsement. Concerning s. 7 expenses, she said:

[The respondent] takes issue with the quantum of special expenses incurred and whether or not some are duplicative. As well, notice has not been given as the necessary particulars to his payments he says [sic]. He has carefully analyzed all of the alleged expenses and made a calculation of his obligation. He has paid this sum, which constitutes 50% of the total cost.

[27] Concerning the respondent’s life insurance obligation, the motion judge noted that the respondent had been diagnosed with prostate cancer and that he had undergone radical surgery. She continued:

A letter from IPS insurance confirms he [sic] his ineligibility for traditional life insurance. That letter says that reconsideration may be given 2 years post. The letter does not address the possibility of non traditional life insurance. While [the appellant] seeks to insure the [r]espondent and pass on the costs, I am not aware of the legal proposition by which [the appellant] can insure the [r]espondent’s] life.

[28] The motion judge concluded that the evidence “[was] such” that she was “satisfied that the [r]espondent ha[d] complied with the [divorce order].” She therefore dismissed the appellant’s motions.

E. Issues on appeal and Analysis

(1) Did the motion judge err in dismissing the appellant’s enforcement motion as it related to s. 7 expenses?

[29] As her first ground of appeal, the appellant argued that the motion judge erred in dismissing the enforcement motion as it related to s. 7 expenses by ignoring or failing to advert to evidence of the following matters: i) the respondent's history of failing to pay s. 7 expenses; ii) the appellant's responses to the respondent's analysis of the s. 7 expenses claimed; and iii) the respondent's late payment of the s. 7 expenses at issue.

[30] The appellant also filed fresh evidence which she claims further demonstrates the respondent's ongoing pattern of failing to pay s. 7 expenses.

[31] The appellant asked that we make the order she says the motion judge should have made, namely an order requiring that respondent pay a monthly specified sum on account of s. 7 expenses and that such payment be enforced by the Director of the Family Responsibility Office.

[32] We did not call on the respondent to respond to the appellant’s submissions concerning this issue. Based on our review of the record, it was open to the motion judge to conclude, as she did, that the respondent’s analysis of the appellant’s s. 7 expense claim was reasonable and that he had complied with his obligation under the divorce order by paying $9,350.85 on account of s. 7 expenses in response to the appellant’s motion.

[33] For example, in the appellant’s response to the respondent’s analysis of the appellant’s claim, the appellant acknowledged that at least one of the s. 7 expenses for which she had demanded payment had already been paid, namely 50% of the youngest child’s 2010-11 school tuition. Further, a review of the record demonstrates that the appellant did not provide proper receipts for all the claimed s. 7 expenses as required under the terms of the divorce order. For example: i) for auto insurance expenses, statements of the cost as opposed to receipts were provided; ii) for orthodontic expenses, only estimates without receipts were provided; and (iii) for tuition expenses, the amounts set out in the appellant’s affidavit are inconsistent and do not correspond to the documentation provided.

[34] In addition, the appellant claimed half the cost of a laptop computer purchased for $1,826.19 in 2012 as a s. 7 expense. According to the respondent, this was not a proper s. 7 expense because, in 2011, he paid half the cost of a laptop computer for the older child, who was then enrolled in university. While acknowledging that the 2011 laptop was a specified s. 7 expense under para. 51(b) of the divorce order, the respondent asserted that the 2012 laptop, which he believed was purchased for the younger child, was not and that, in any event, the 2012 laptop was unnecessarily expensive. In her responding material, the appellant asserted only that both children use the 2012 laptop and that, in any event, a new computer was required.

[35] Further, in her material, the appellant advanced a claim for half the cost of the children’s bus passes. When the respondent objected that the trial judge had disallowed that expenditure as a s. 7 expense, the appellant responded, unreasonably in our view, that she was not obliged to abide by the trial judge’s direction because it was not included in the formal divorce order.

[36] Taking account of the specific provisions of the divorce order, it was open to the motion judge to accept the respondent’s analysis of the s. 7 expenses as reasonable. Moreover, having determined that the respondent had complied with the divorce order, it was unnecessary that the motion judge address the appellant’s argument about a history of non-compliance. In the circumstances, the motion judge made no error in dismissing the enforcement motion as it related to s. 7 expenses.

[37] As for the appellant’s fresh evidence motion, in our view, the material filed demonstrates nothing more than the continuing conflict between the parties concerning the propriety of particular s. 7 expenses. The fact of an ongoing disagreement between the parties, standing alone, does not justify an order for ongoing enforcement as claimed by the appellant. Moreover, this is not the proper forum in which to litigate the propriety of s. 7 expense claims made by the appellant subsequent to the date on which the order under appeal was heard.

(2) Did the motion judge err in failing to award the appellant substantial indemnity costs of the enforcement motion?

[38] The appellant argued that even if respondent was successful in resisting her first ground of appeal, the motion judge erred in failing to award her substantial indemnity costs of the enforcement motion because the respondent’s obligation to pay substantial indemnity costs under para. 51 of the divorce order was triggered when the respondent paid a portion of the s. 7 expenses claimed by the appellant in response to her motion.

[39] I would not accept this submission. Despite para. 51 of the divorce order, the issue of costs remained within the discretion of the motion judge. In making the divorce order, the trial judge was not entitled to bind the discretion of a judge dealing with a subsequent motion.

[40] In any event, the appellant failed to demonstrate that she complied with the terms of the divorce order regarding claiming s. 7 expenses. The appellant did not submit as part of her motion material proof that she had complied with the requirement in the divorce order that she submit to the respondent a monthly summary with receipts of the s. 7 expenses for which she claimed reimbursement.

[41] In his responding affidavit, the respondent deposed that many of the expenses claimed by the appellant were either not requested or not properly documented prior to the motion and that some of the expenses remained undocumented. Moreover, a review of the appellant’s receipts submitted on the motion reveals that some were obtained shortly before delivery of the motion materials.

[42] In the circumstances, I see no error in the motion judge’s decision to not award costs of the enforcement motion to the appellant.

(3) Did the motion judge err in failing to find the respondent in contempt for failing to obtain the life insurance specified in the divorce order?

[43] The appellant argues that the motion judge erred in failing to find the respondent in contempt based on the respondent’s failure to obtain the life insurance specified in the divorce order. In particular, the appellant submits that the motion judge erred by ignoring evidence that the respondent failed to apply for insurance within 60 days following the divorce judgment and that he subsequently failed to make adequate efforts to apply for and obtain such insurance. Further, the appellant contends that the respondent failed to provide any evidence that he made inquiries concerning other forms of life insurance that might be available other than traditional life insurance.

[44] In her material filed on the original motions, the appellant deposed that she had “inquired with a life insurance agent and was advised that men in [the respondent’s] position may still be insurable with reasonable premiums, even though they had a medical history with prostate issues.”

[45] On appeal, the appellant seeks to introduce fresh evidence concerning the availability of life insurance through a “non-medical requirement carrier”. The fresh evidence consists of the affidavit of a law clerk stating that an insurance and investment advisor had confirmed that the respondent qualifies for life insurance coverage up to $300,000. A letter from the insurance and investment advisor is attached as an exhibit to the law clerk’s affidavit. The letter states that the insurance and investment adviser is able to offer the respondent up to $300,000 “of term 20 life insurance” through a “non-medical requirement carrier”. According to the letter, premiums for $200,000 to $300,000 of insurance range from $513.44 to $766.80 per month. Further, the carrier has a 24 month pre-existing condition clause, which means that if the insured dies in the first 24 months and the death is linked to a pre-existing condition, the premiums are returned to the beneficiary.

[46] I would not accept the appellant's submissions and I would decline to admit the fresh evidence.

[47] In his affidavit filed in response to the appellant’s motions, the respondent described the steps he took in an effort to obtain life insurance and the advice he received concerning the availability of life insurance as follows:

• he went for “an insurance retake”, consisting of a series of medical tests, with Rupert Case Management Inc. between June and August 2010 to see if he could qualify for life insurance;

• as a result of these tests, an elevated PSA level was detected;

• during this time he was told by Simon Kay of IPS Insurance that further PSA readings were required and that he would not be successful in obtaining life insurance until the PSA levels stabilized;

• each time he took a further test his PSA level was increasing;

• on July 25, 2011, he completed an insurance application in the hopes that his PSA levels would stabilize, but they never did;

• he underwent surgery for prostate cancer in the fall of 2012; and

• he was told by Mr. Kay that if he applied for insurance too soon after surgery, he would be “red flagged”, which would cause difficulty in ever obtaining life insurance.

[48] To support the statements in his affidavit, the respondent attached as exhibits, among other things, a copy of a payment statement from Rupert Case Management Inc. disclosing invoices for medical tests dated between May 2010 and July 2010; an IPS Insurability Information Form purportedly signed on July 25, 2011; and a letter dated May 29, 2013 from an IPS Insurance underwriter opining that he (the respondent) would be declined for “traditional life insurance” because of his prostate cancer and that “future consideration maybe [sic] given after a minimum period of two years” from the date of the letter.

[49] In his affidavit, the respondent also deposed that, on June 21, 2012, his then counsel sent a letter to the respondent’s counsel advising of the respondent’s continuing inability to obtain life insurance and attaching documents disclosing his PSA levels from November 1, 2010 to the date of the letter together with his medical records from a doctor at Sunnybrook Hospital. A copy of the June 21, 2012 letter was attached to the respondent’s affidavit as an exhibit; the respondent deposed that he did not have a copy of the attachments to the letter.

[50] Based on the material that was before her, it was open to the motion judge to find that the respondent made reasonable efforts to obtain life insurance within the 60-day period following the divorce order and that he had been unable, due to his medical condition, to obtain traditional life insurance then or subsequently. The respondent’s efforts consisted of undergoing medical tests necessary to apply for life insurance and speaking to an insurance agent. In addition to the sworn statements in the respondent’s affidavit to that effect, the respondent provided some documents that were capable of supporting his assertions. It was for the motion judge to determine the credibility of the respondent’s evidence. I see no basis for interfering with her conclusion.

[51] To support a finding of civil contempt a party must establish three elements: i) that the order at issue states clearly and unequivocally what should and should not be done; ii) that the party who disobeyed the order did so deliberately and wilfully; and iii) that the evidence establishes contempt beyond a reasonable doubt: Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 2006 81792 (ON CA), 82 O.R. (3d) 686 (C. A.), at para. 27.

[52] Given that she accepted the respondent’s evidence, I see no error in the motion judge’s decision to dismiss the contempt motion.

[53] As a starting point, I am by no means convinced that the divorce order contemplates anything other than life insurance requiring a medical examination. The amount of the life insurance obligation suggests that is the case. In any event, having accepted the respondent’s evidence, there was no basis for a finding that the respondent disobeyed the divorce order deliberately and wilfully or that contempt had been established beyond a reasonable doubt.

[54] For reasons I explain below, the law clerk’s affidavit proffered by the appellant as fresh evidence does not comply with rules 14(19) and 31(3) of the Family Law Rules, O. Reg. 114/99[1]. However, even assuming the affidavit complied with the Family Law Rules and was otherwise capable of being admitted as fresh evidence in relation to the contempt motion, at its highest it demonstrates only that life insurance for up to $300,000 may be available through a “non-medical requirement carrier” at a significant cost. It does not demonstrate that the respondent could have complied with the specific terms of the divorce order.

(4) Did the motion judge err in dismissing the enforcement motion as it related to the appellant’s obligation to obtain life insurance?

[55] As her final ground of appeal, the appellant argues that the trial judge erred in law in holding that there is no legal basis on which the appellant can insure the respondent's life and in dismissing the appellant’s enforcement motion for that reason. In relation to this issue, the appellant seeks to introduce the fresh evidence in the form of the law clerk’s affidavit concerning the availability of insurance through a non-medical requirement carrier. The appellant asks for an order allowing her to obtain the required life insurance, or alternate insurance, and to collect the premiums from the respondent as if they were child-support if the respondent does not obtain the required insurance within 30 days of the release of these reasons.

[56] In support of her position, the appellant relies on ss. 178 and 179 of the Insurance Act, R.S.O. 1990, c. I.8. Section 178[2] stipulates that a contract of insurance is not void for lack of an insurable interest if the person whose life is insured has consented in writing to the insurance being filed on his or her life. Section 179[3] provides that a person has an insurable interest in the person's own life and in the life of certain other persons, including the person's child and any person from whom the person is receiving support.

[57] The respondent submits that the material filed by the appellant is inadmissible and therefore inadequate to support making any specific order for enforcement. Further, relying on Feinstat v. Feinstat, 2012 ONSC 5339, 27 R.F.L. (7th) 317 (Div. Ct.), the respondent submits it would be unjust and unfair to enforce an obligation with which he cannot reasonably comply through no fault of his own.

[58] In Feinstat, the Divisional Court held that although s. 34 of the Family Law Act, R.S.O. 1990, c. F.3 permits a court to order a spouse who has insurance to designate a dependent as a beneficiary, s. 34 does not permit a court to require a spouse to obtain or reinstate life insurance. No specific provision of s. 34 allows that.

[59] While acknowledging that s. 15 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) is less restrictive than s. 34 of the Family Law Act, the respondent contends that the rationale underlying s. 34 and the decision in Feinstatnonetheless remains sound: it is problematic and unjust to require a party to do something that is beyond their ability to do. Accordingly, an obligation to obtain life insurance should neither be imposed nor enforced.

[60] I agree that ss. 178 and 179 of the Insurance Act appear to allow the dependents of an individual to take out insurance on the individual’s life and that the motion judge erred when she stated otherwise. Nonetheless, I would decline to admit the fresh evidence and dismiss this ground of appeal.

[61] As I have said, the law clerk’s affidavit tendered by the appellant as fresh evidence does not comply with the requirements of rule 14(19) of the Family Law Rules. In particular, the law clerk failed to depose that she believed the contents of the letter from the insurance advisor to be true.

[62] In this regard I observe that the letter attached to the law clerk’s affidavit is of a different character than the material attached to the respondent’s affidavit. The letter attached to the law clerk’s affidavit was tendered to prove the facts stated in the letter on its own. For this type of material to carry any weight, the party tendering the material must comply with rule 14(19). On the other hand, the material attached to the respondent’s affidavit was tendered to support the respondent’s credibility. In these circumstances, compliance with rule 14(19) is not essential. The respondent had already attested to the facts he sought to prove; he tendered the documents solely to lend credibility to his statements.

[63] Before making an order the efficacy of which will depend on the truth of the contents of a letter, a court should, at a minimum, require an affidavit from the author of the letter attesting to its contents. And the letter should include sufficient detail to allow the court to be confident that any order it makes can be carried out. For example, in this case, the letter tendered by the appellant should have included details of the information based on which the quotation was prepared, a clear statement that no medical examination will be required to obtain the quoted insurance, and a statement that the appellant would be able to obtain the same insurance and designate the children as the beneficiaries if the respondent declined to do so. The time frame during which the quotation is valid should also be specified.

[64] Further, in my view, the order requested by the appellant would require a change order. The appellant seeks something more than an order requiring the respondent, or permitting the appellant, to fulfill all or part of an existing obligation. Instead, the appellant asks for an order mandating the purchase of a significantly lower amount of life insurance from a specialized carrier at a significant cost and with an important proviso attached, namely that the life insurance proposed would not cover a pre-existing condition, such as the respondent’s prostate cancer, during the first 24 months. By the very nature of her proposal, the appellant effectively acknowledges that the respondent cannot comply with the order that was made. In these circumstances, the proper course is to move to change the existing order.

[65] The forgoing reasons are sufficient to dispose of this issue. However, by raising Feinstat, supra, the respondent calls into question the propriety of a court making an order requiring a spouse to obtain life insurance. For jurisprudential reasons, I propose to address that issue.

[66] In my respectful view, the principle in Feinstat on which the respondent relies is incorrect. Section 34(1) of the Family Law Act lists specific powers of a court when making a support order under s. 33. Section 34(1)(i) permits a court in an application under s. 33 to “make an interim or final order … requiring that a spouse who has a policy of life insurance as defined under the Insurance Act designate the other spouse or child as the beneficiary irrevocably”.

[67] Although there is no specific subsection permitting a court to order a spouse to obtain life insurance, s. 34(1)(k) gives a court discretion to make an interim or final order “requiring the securing of payment under the order, by a charge on property or otherwise.”

[68] Under s. 34(4) of the Family Law Act, “[a]n order for support binds the estate of the person having the support obligation unless the order provides otherwise.”

[69] Given that a support order under the Family Law Act is binding on a payor spouse’s estate unless the order provides otherwise, on its face, s. 34(1)(k) is broad enough to permit a court to order a spouse to obtain an insurance policy to secure payment of the order following the payor spouse’s death. The concluding words “or otherwise” in s. 34(1)(k) afford the court broad scope for securing the payment of a support order.

[70] Because a support payor’s estate is bound by a support order following the payor’s death, the court making a support order is entitled to secure the payments to be made in the event of the payor’s death by requiring the payor to obtain and maintain life insurance for a specified beneficiary while the support order is in force and to give directions concerning the extent to which the payout of the insurance proceeds will discharge the support obligation: see Laczko v. Laczko (1999), 1999 14998 (ON SC), 176 D.L.R. (4th) 507 (Ont. S.C.), at pp. 511-12.

[71] The situation under the Divorce Act is somewhat different. There is no provision similar to s. 34(1) of the Family Law Act listing the specific powers of the court in an application for support. Rather, the court is given broad discretion to impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just: ss. 15.1(4) (child support), 15.2(3) (spousal support). It is generally accepted that as part of its discretionary power under these sections, a court may impose terms aimed at securing payment of a support order: see Trinidad v. Trinidad (2007), 2007 52985 (ON SC), 47 R.F.L. (6th) 128 (Ont. S.C.), at para. 97; Jardine-Vissers v. Vissers, 2011 NSSC 195, 303 N.S.R. (2d) 200, at para. 44. With respect to a child support order made under the Divorce Act, s. 12 of the Federal Child Support Guidelines[4] gives a court express authority to order a spouse to supply security.

[72] There is, however, no provision in the Divorce Act similar to s. 34(4) of the Family Law Act, making a support order binding on a payor’s estate. On the contrary, it has long been held that a support or maintenance obligation under divorce legislation ends when the payor dies unless there is a specific agreement to the contrary: Schwartz Estate v. Schwartz (1998), 1998 29650 (ON SC), 36 R.F.L. (4th) 110 (Ont. Gen. Div.), at paras. 23, 27 and 28. There are conflicting authorities across Canada concerning whether a court may order that support payments under divorce legislation are binding on the payor’s estate: see e.g. Carmichael v. Carmichael (1992), 1992 NSCA 62, 43 R.F.L. (3d) 145 (N.S.C.A.), at paras. 17, 27; Will v. Thauberger Estate (1991), 1991 7685 (SK QB), 34 R.F.L. (3d) 432 (Sask. Q.B.), at para. 14, varied on other grounds, 1991 8004 (SK CA), 38 R.F.L. (3d) 68 (Sask. C.A.). Nonetheless, the prevailing view in Ontario has long been that the court has that power, but that explicit language in the order is required to make that intention clear: Schwartz, supra; Linton v. Linton (1990), 1990 2597 (ON CA), 1 O.R. (3d) 1 (C.A.), at p. 32.

[73] In my view, therefore, the same power that exists under the Family Law Act to order a spouse to obtain insurance to secure payment of support payments that are binding on the payor’s estate also exists under the Divorce Act.

[74] That said, where there is no existing policy in place, a court should proceed carefully in requiring a payor spouse to obtain insurance. This case demonstrates the desirability of having evidence of the payor’s insurability and of the amount and cost of the available insurance. Careful consideration should be given to the amount of insurance that is appropriate. It should not exceed the total amount of support likely to be payable over the duration of the support award. Moreover, the required insurance should generally be somewhat less than the total support anticipated where the court determines that the recipient will be able to invest the proceeds of an insurance payout. Further, the amount of insurance to be maintained should decline over time as the total amount of support payable over the duration of the award diminishes. The obligation to maintain insurance should end when the support obligation ceases – and provision should be made to allow the payor spouse to deal with the policy at that time. Finally, when proceeding under the Divorce Act, the court should first order that the support obligation is binding on the payor’s estate.

F. disposition

[75] Based on the foregoing reasons, I would dismiss the appeal and the fresh evidence application. Nothing in these reasons should be read as discharging the respondent from his obligation under the divorce order to obtain and maintain life insurance. In the event the respondent remains unable to fulfill this obligation, he should serve and file a motion to change under rule 15 of the Family Law Rules.

[76] Costs of the appeal are to the respondent fixed in the amount of $10,000 inclusive of disbursements and applicable taxes.

Released: “DD” August 25, 2014

“J. Simmons J.A.”

“I agree. D. Doherty J.A.”

“I agree. M. Tulloch J.A.”

[1] Rules 14(19) and 31(3) of the Family Law Rules provide:

14. (19) The affidavit may also contain information that the person learned from someone else, but only if,

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and

(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.

31. (3) The supporting affidavit may contain statements of information that the person signing the affidavit learned from someone else, but only if the requirements of subrule 14(19) are satisfied.

[2] Section 178 of the Insurance Act provides the following:

178. (1) Subject to subsection (2), where at the time a contract would otherwise take effect the insured has no insurable interest, the contract is void.

(2) A contract is not void for lack of insurable interest,

(a) if it is a contract of group insurance; or

(b) if the person whose life is insured has consented in writing to the insurance being placed on his or her life.

(3) Where the person whose life is insured is under the age of sixteen years, consent to insurance being placed on the person’s life may be given by one of his or her parents or by a person standing in the role of parent to him or her.

[3] Section 179 of the Insurance Act provides the following:

179. Without restricting the meaning of the expression “insurable interest”, a person has an insurable interest in the person’s own life and in the life of,

(a) the person’s child or grandchild;

(b) the person’s spouse;

(c) any person upon whom the person is wholly or in part dependent, for, or from whom the person is receiving, support or education;

(d) an employee of the person; and

(e) any person in the duration of whose life the person has a pecuniary interest.

[4] Section 12 of the Federal Child Support Guidelines reads: “The court may require in the child support order that the amount payable under the order be paid or secured, or paid and secured, in the manner specified in the order.”