ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-11-FA17374
DATE: 20120305

BETWEEN:

Beatrice Duhot Applicant – and – Jean-Jacques Duhot Respondent

Georgina L. Carson, counsel for the Applicant
Robert N. Kostyniuk, counsel for the Respondent

HEARD: February 21, 2012

KITELEY J.

REASONS FOR DECISION

Background

1 . The husband and wife began cohabiting in 1993 and were married in July 1995 in France. Before the marriage they signed a marriage contract which includes an agreement that the French Civil Code applies to govern their affairs. Their three children are aged 15.5, 12 and Sasha now almost 10. During the marriage, the family lived in London, England for 8 years, then back to France in 1998 and back to England in 2001. In 2008, the family moved to Montreal and in August 2010, they moved to Toronto. All of the moves were to respond to career opportunities available to the husband.

2 . At the time of the move to Toronto, the wife insisted that the husband put the title to the matrimonial home in their joint names. The husband said that his wife refused to move to Toronto unless the home was in their joint names and he agreed. They took possession in August, 2010. In early October, 2010, the husband said that he discovered his wife had been having an affair. This put the spouses in considerable turmoil and provoked a separation which the wife says occurred on October 12 th , 2010 and the husband says occurred on November 3rd. According to the wife, he insisted that she transfer her interest in the matrimonial home to him and in return he would pay her $500000. The wife said she was forced to sign the agreement on October 15 th . The husband said she did so voluntarily.

3 . The husband and wife lived separately but in the matrimonial home until July 3 rd , 2011.

4 . On March 1 st , counsel for the wife sent an email to the husband indicating that she was acting. According to the wife, in reaction the husband retained a lawyer in France and, on March 3 rd , a divorce application was issued on behalf of the husband. According to the husband, he had initiated the process to begin the divorce in France long before that March 1 st letter. The wife learned of the French proceeding on March 22, 2011 when she received notice of a hearing in June.

5 . On behalf of the wife, an Application was issued on May 16, 2011 in this court. She sought child support, spousal support, custody of the children, an equalization of net family properties and other relief. She also sought a declaration that Ontario is the appropriate jurisdiction to adjudicate the custody, support and property rights arising out of the marriage breakdown.

6 . On May 30, 2011, the husband filed an Answer in which he asserted that the proper forum was France because the marriage contract was signed in France, the parties are French citizens, and his divorce was started before her Application

7 . On May 31, 2011, on the return of a motion brought by the wife, the husband and the wife and their counsel signed a consent in which the motion was adjourned to June 21 st ; the husband agreed to adjourn the hearing in France then scheduled for June 16 th for at least 6 weeks and agreed to take no other steps in that proceeding in the meantime; neither party was to remove the children from Canada; a schedule was set for filing materials; and an emergency case conference was set for June 10 th . An order was made incorporating those terms.

8 . The husband and wife and counsel attended at the case conference with Justice Backhouse on June 10 th . The issue of jurisdiction was discussed at some length. Eventually, the husband and the wife and their counsel signed a consent the content of which was as follows:

Interim Minutes of Settlement and Consent to Court Order

The parties agree to the following order:

1. A Declaratory Order that Ontario is the appropriate jurisdiction to adjudicate the custody, support, and property rights arising out of the parties’ marriage breakdown.

2. The Applicant (“the wife”) will relocate the children’s primary residence to France commencing July 3, 2011 which will be reviewed in advance of the next academic year and accordingly this provision is on a temporary basis. The children’s next academic year (2011/2012) will be in France.

3. If the parties are unable to resolve other interim issues including the Husband’s access to the children, they will be adjudicated at the motion returnable June 21, 2011.

4. Costs are reserved.

9 . A Notice of Change in Representation dated August 9, 2011 was served which indicated that Mr. Kostyniuk was replacing Stephen Grant as counsel for the husband.

10 . The wife brought a motion returnable September 29, 2011 for disclosure and for interim spousal and child support. The wife had left for France in July as indicated above. The husband attended at court for this motion. A consent was signed by the lawyers which was incorporated into a court order. The wife’s motion for support was adjourned to November 1, 2011. Mr. Kostyniuk had indicated that he intended to bring a motion on the issue of jurisdiction. Pursuant to the consent order, he was required to serve and file his materials by October 17 th in the expectation that his jurisdiction motion would be heard on the same occasion as the wife’s support motion. The husband was directed to immediately adjourn the hearing of the application scheduled to be heard in France on October 3 rd to a date not less than four weeks following the hearing of the long motion on November 1 st . The closing of the sale of the matrimonial home was scheduled for October 17 th . The consent order indicated as follows:

The sale proceeds . . . shall be held in trust by the real estate solicitor conducting the sale, pending further agreement or court order, subject to the following disbursements, to be made immediately upon sale, which disbursements are made without prejudice to the Applicant’s claim that she is a 50% owner of the home and entitled to the remaining half proceeds as of right:

(a) From the Respondent’s share of the proceeds, $200000 shall be paid to MacDonald & Partners, in trust, to be credited to the Respondent on an unallocated basis and characterized at a later date.

(b) From the Respondent’s share of the proceeds, the Respondent shall be paid $625000 which the Respondent shall use to purchase alternate accommodation in Toronto.

(c) All remaining funds from the sale will remain in trust, pending further agreement or court order.

11 . The husband was ordered to provide disclosure listed in one of the affidavits as well as evidence to support the value of his assets and debts at the date of marriage and separation. Costs were reserved.

12 . A notice of motion dated October 15, 2011 and affidavit sworn that same day were served on behalf of the husband returnable November 1, 2011 in which he raised the issue of jurisdiction. The motion did not proceed on November 1 st . Indeed, there were considerable delays on the part of counsel for the husband in delivering materials and in responding to disclosure. Mr. Kostyniuk takes responsibility for delays in late December and in January.

13 . On November 29 th , Goodman J. made an order adjourning the motions to January 30 th on terms to which there was a consent including the following:

(a) The Respondent shall immediately adjourn the hearing in France scheduled for December 5, 2011 to a date no earlier than May 2011. The June 10, 2011 Ontario Order confirming that Ontario has jurisdiction over the issues arising from the parties’ marriage breakdown remains in effect. The Respondent shall immediately provide copies of these Orders to the French court and instruct his counsel to adjourn on these terms.

(b) The Respondent shall immediately authorize and direct McCarthy Tetrault to release the portions of his file that relate to the jurisdictional issue, to the Applicant.

(c) The Respondent’s solicitor shall immediately pay to MacDonald & Partners in trust for the Applicant $100000 from the proceeds of sale of the matrimonial home, such amount to be characterized at a later date.

(d) The remaining matrimonial home sale proceeds shall continue to be held in trust by the Respondent’s solicitor, pending further agreement or court order, without prejudice to the Applicant’s claim that she is a 50% owner of the home and entitled to 50% of the proceeds as of right.

(e) The Respondent shall preserve the $625000 paid out to him from the matrimonial home proceeds for the purchase of a Toronto home. He shall provide proof that these funds are preserved in a chartered Canadian bank in Toronto and their location within 14 days. The Respondent shall preserve these funds pending proof of their investment in a Toronto home, further agreement or court order.

(f) Costs were reserved to the hearing of the long motion.

14 . The husband was directed to provide specific disclosure within 14 days as well as his year end statement of earnings and all 2011 T-slips as soon as they became available.

15 . On January 26 th , 2012 I heard submissions on Mr. Kostyniuk’s request that the long motions scheduled to be heard January 30 th be further adjourned. I made a lengthy endorsement on January 26 th adjourning to February 21 st on conditions that included a requirement that by noon on January 27 th , the husband would:

(a) Produce his statement of earnings for the year ended December 31, 2011;

(b) Deposit to Mr. Kostyniuk’s trust account $625,000 and provide proof of that deposit. Those funds will be held in trust until further order;

(c) From the funds now in trust in Mr. Kostyniuk’s account, provide to Ms. Carson a cheque payable to the wife in the amount of $100,000 out of the husband’s share of the proceeds of sale of the matrimonial, to be allocated in the future.

16 . I also directed disclosure by February 1 st of all outstanding matters.

Preliminary motion as to standing

17 . On February 21 st , Ms. Carson made submissions that I ought not to hear the jurisdictional motion and that I should find that the husband lacked standing to bring it. I heard submissions and made a brief oral ruling. In a consent order dated September 29, 2011 the husband had been directed to adjourn the hearing of the French application scheduled for October 3 rd to a date not less than four weeks following the long motion then scheduled for November 1 st . He failed to do that. According to wife’s counsel who attended on October 3 rd , the husband’s counsel had no such instruction. The judge reluctantly agreed to adjourn to December 5 th . The husband has provided an explanation that he thought Mr. Kostyniuk was looking after it and Mr. Kostyniuk thought he was looking after it. That is unsatisfactory. His breach of that aspect of the consent order dated September 29 th is serious.

18 . As for disclosure, the husband is clearly in breach of his obligations to provide disclosure as is apparent from Exhibit U attached to the February 17 th affidavit as well as his failure to produce the portion of the McCarthy Tetrault file as ordered on November 29 th . He failed to provide his year-end earnings statement until ordered the second time by me on January 26 th and then it disclosed information that was inconsistent with his earlier evidence about 2011 earnings.

19 . The husband is also in breach of the order made September 29 th and my order dated January 26, 2012 as to the proceeds of sale of the matrimonial home in that he received $600000 but did not use it for purchase of a residence in Toronto; his lawyer received $25000 from the trust funds without authorization by the court; and he failed to put $625000 into trust by January 27 th . His failure to comply is very serious.

20 . Orders are not suggestions but the husband seems to think they are. Having found him in breach, I nevertheless agreed to hear the jurisdiction motion because (a) it had been on the horizon since September and it needed to be addressed because it was delaying consideration of the merits of the case; and (b) because I intended to impose conditions that would respond to his many flagrant breaches including costs which I indicated I would address later. As I indicated in that ruling, one effect of his non-compliance with the order to produce the file of his prior lawyer was that I intended to draw an adverse inference against him.

Jurisdiction Issue

21 . In his notice of motion the husband sought the following relief:

1. An order staying this action to permit the action in France to continue, and the French Court to determine all issues arising out of the breakdown of the marriage including the granting of a divorce.

2. Alternatively, an Order varying the Temporary Order of June 10, 2011 transferring this action to the French Court to be combined with the French action, for determination of all issues of custody, access, child support, spousal support, property, and legal costs by the French Court.

22 . The grounds asserted in the notice of motion are as follows:

(a) Both parties are French nationals.

(b) The French divorce action, which includes claims for collateral relief, was commenced prior to the Ontario action.

(c) France domestic and matrimonial law is neither unfair nor unreasonable.

(d) The parties have by agreement identified France as the jurisdiction for determination of financial issues, and divorce, in the event of a marriage breakdown.

(e) The wife and the children are now permanently resident in France.

(f) The wife has failed to disclose significant assets in Europe, which will be easier for the French Court to determine, and consider, on issues of support, property division, and legal costs.

(g) The applicant’s residence in Ontario was short.

(h) The parties have substantial assets in France, which should be subject to determination under French law.

(i) The husband’s assets in Ontario are identified and limited.

(j) The only connection to Ontario is the husband’s employment here.

(k) The balance of convenience favours France.

(l) The Order granting jurisdiction to the Ontario Court was temporary, and issued on the basis that the applicant and the children of the marriage were then residents in Ontario, subject to the applicant’s expressed intention of moving permanently to France as soon as the children’s school year finished.

23 . In the notice of motion, in the factum and in submissions, the position taken was that the issue of jurisdiction was still at large because the order made on June 10 th was temporary. I disagree with that submission and I dismiss the motion for these reasons.

24 . As indicated in the text of the consent and the ensuing order, paragraphs 2 and 3 were referred to either as “temporary” or referring to “interim issues”. There is no time frame in paragraph 1. However, I note that in the introductory sentence, the word “temporary” was struck out between the words “following” and “order”. Since there is a temporal aspect to paragraphs 2 and 3, the deletion of the word “temporary” in the preamble can only refer to paragraph 1. It is only logical to infer that paragraph 1 was not temporary.

25 . It is the case that when the order was signed and entered, the box on the top right hand page of the form was checked off as “temporary”. I place no weight on that tick box. The simple act of checking off a box does not convert paragraph 1 into a temporary order.

26 . I turn to the husband’s evidence as to his understanding at the time the consent was signed. In his affidavit sworn October 15, 2011 in support of his motion the husband said the following:

2. On June 10, 2011, under intense pressure from the lawyers retained who represented me, I signed a consent to this Court taking jurisdiction to determine issues of custody, access, support and property division, even though I strongly objected to such an Order, objections which I had strongly conveyed to my lawyers on many occasions prior to signing the consent. Because I was told it was without prejudice, I understood the Order to be temporary, as noted on the Order itself.

3. If the Order of June 10, 2011 is determined to be final, I signed it unwittingly, and without adequate legal advice. My belief, and the instructions I conveyed to my lawyers at all times has been that the claims arising out of the marriage breakdown should be determined under French law, in accordance without prenuptial agreement, my wife’s declared, and implemented, intention to return permanently to France with our children, and the divorce application which I believed was properly commenced in France on March 3, 2011. This action was not commenced until May 16, 2011.

27 . In view of that evidence, Ms. Carson understandably asked for Mr. Grant’s file and it was for that reason that the consent order made by Goodman J. on November 29 th included a direction that McCarthy Tetrault was to release the portions of the file that relate to that issue to counsel for the wife .

28 . In his affidavit sworn January 20, 2012, the husband provided further evidence in which he said he had been “pushed” by his lawyer to sign the consent and that he did not understand the reference to property as he was then and remained of the opinion that any property issues were to be decided under the French Civil Code. He said that he had frequently sent emails to Mr. Grant “with my concerns with the opinion that the Ontario Court would take jurisdiction.” He said that he thought that the order would be temporary to permit his wife to secure interim custody and take the children to France without fear she would be accused of kidnapping or misconduct. He said that on June 10 th he was “not sufficiently knowledgeable” when Mr. Grant’s associate insisted he sign the consent. He suggested that perhaps there was a misunderstanding between him and Mr. Grant’s associate on June 10 th and he noted that his primary language is French. He said he can communicate in English but is not fluent in the English language and that his fluency is in banking and investment language.

29 . Mr. Kostyniuk made some efforts to obtain access to the McCarthy Tetrault file. It appears that he was not successful. He wrote a letter to Ms. Carson dated January 3 rd advising that he had not heard from Mr. Grant with respect to the disclosure of his file. On February 8 th , he wrote to her as follows:

With respect to the non-privileged portions of McCarthy Tetrault’s file, I have been unable to meet with Steven Grant, or a representative at McCarthy’s. However, I have the emails between Mr. Duhot and McCarthy’s and am currently reviewing them with regard to privilege . I should have the non-privileged communications sent to you tomorrow. [ emphasis added]

30 . In a letter dated February 9 th Mr. Kostyniuk indicated that he had reviewed several times the e-mail communications between McCarthy’s and Mr. Duhot, for the period between retainer and June 28, 2011. He had 95 emails. He said that several emails dealt with jurisdiction combined with other issues and that it was “virtually impossible for [him] to extract relevant communications that I believe are not privileged, and those that are.” He enclosed non-privileged portions of 3 emails.

31 . Since Mr. Kostyniuk had not had access to the lawyer’s file, I infer that the husband provided the emails to Mr. Kostyniuk. I have no confidence that he provided all of the emails. Furthermore, there could well be other portions of the file including notes to file by Mr. Grant and or his associate on the issue of jurisdiction and the June 10 th consent order. I conclude that the order made November 29 th still has not been complied with. As I mentioned in the ruling on Ms. Carson’s preliminary issue as to standing, I draw an inference that, had he complied with the order, the disclosure would not have assisted him. The husband is an educated and sophisticated financial manager. His evidence blaming his counsel is regrettable. The failure to provide any evidence to support that very significant allegation is profound. There seemed to be a disconnect between the order which clearly required the production of privileged material relating to jurisdiction and Mr. Kostyniuk’s letter in which he was only producing non-privileged material. The seriousness of the allegation along with the absence of any corroboration means that I give no weight to his assertion that he did not understand what he was doing when he signed the consent on June 10 th .

32 . Finally, in view of his extensive career in complicated international financing in which he routinely used English, I consider the suggestion that language was a barrier to his understanding of the very simple language of the June 10 th consent to be without merit.

33 . In my view, the consent order clearly applied to the proceeding as a whole, not to any temporary step in the proceeding. A consent order operates as res judicata . [Lee v. Lee 2010 CarswellOnt 6080 ; 2010 ONSC 4524 ] There is no legal basis to challenge that order. The outcome of the motion is predicated on the final enumerated ground in the notice of motion. For the reasons indicated above, I am not persuaded that there is any merit to the argument that the order made on June 10 th was temporary.

34 . All of the other grounds relate to an argument of jurisdiction had it been made in June. It was not made. Jurisdiction was established in June. Anything that happened since then does not affect that consent order. All of those enumerated grounds are irrelevant.

35 . The allegations the husband made about the June 10 th consent order and the fact that he has no corroboration may have an impact on his credibility on other issues in the proceeding. For that reason, I will order that he fulfill that part of the order made on November 29 th even though his motion on jurisdiction is dismissed.

Motion by the Husband for release of proceeds of sale

36 . In a motion served February 8 th , 2012 the husband asked for an order for the immediate release of $625,000 representing proceeds of sale of the matrimonial home.

37 . Ms. Carson took the position that I ought not to entertain that motion because: (a) as indicated in her submissions on the preliminary issue, the husband is in breach of various orders; (b) it was served recently and long after the motion for interim support which has been outstanding since September, awaiting the readiness of the jurisdiction motion. Because of the time estimated by Mr. Kostyniuk for the submissions on the jurisdiction motion and the submissions on her preliminary motion, that long outstanding motion for interim support had to be adjourned; and (c) there is no time available in this day set aside for hearing of the husband’s motion. I agreed and did not hear submissions on that motion. The evidence about the $625000 must however be considered.

38 . After my order dated January 26 th , Mr. Kostyniuk wrote to Ms. Carson to comply with those aspects of my order that required compliance by noon. In his January 27 th letter, Mr. Kostyniuk said the following:

I’m awaiting confirmation from CIBC that $625000 of Mr. Duhot’s Investment account has been set aside into a separate account on which I will be the sole trustee, without authority to draw on the account, or disburse without an Order of the Court. This will permit the funds to be enhanced by interest, which will not be achieved by deposit into my interest-free trust account.

39 . On January 30 th , Mr. Kostyniuk sent a letter to Ms. Carson that included the following:

With respect to the special trust account of $625,000, Mr. Duhot instructed CIBC on Friday morning to set aside a special trust, but the employee dealing with private banking was not in until today and his assistant did not have the power to deal with such a large amount. I received confirmation this morning that the special trust has been set aside pursuant to the Order of Justice Kiteley of January 26, 2012.

40 . In that letter, Mr. Kostyniuk enclosed a copy of an email dated January 27 th at 4:16 p.m. from Jonathan Hass, Senior Private Banker at CIBC Private Wealth Management that indicated as follows:

Please be advised that we have frozen $625,000 in your e-Advantage Savings account at CIBC, account ending 6495, as per the instructions from your solicitor and the Order of Justice Kitely. The funds will only be released upon the written and signed instructions of Mr. Robert Kostyniuk and official court confirmation that Justice Kitely’s Order has been lifted.

41 . In her letter dated January 30 th , Ms. Carson objected and insisted on compliance with the January 26 th order.

42 . In his affidavit sworn February 8 th in support of his motion for an order transferring the case to France and his additional motion to release $625,000, the husband said that as of February 3, 2012 his employment with CIBC had terminated and he had returned his blackberry, computer, notes, information and all documentation to the CIBC. He provided a copy of his Termination Agreement which indicates that he agreed to accept eight weeks pay in lieu of notice. Based on his annual salary of $250,000, he will receive salary until March 30, 2012. Subject to uncertainty in the marketplace, he said that he expected to receive certain bonuses in December 2012, 2013 and 2014.

43 . The husband also said that he had entered into an employment agreement with Millennium Management LLC effective April 2, 2012 in London England to manage a segregated capital allocation. He said his base income will be 100000 pounds and he is eligible for a bonus.

44 . In that affidavit, the husband explained what he had done as a result of the orders made with respect to $625000 from the proceeds of sale of the matrimonial home. He said that as a result of the order made September 29 th his lawyer had advised him to hold back $625000 in a special account and he kept a minimum of $625000 in a special account at the CIBC. He said that he never had any intention of removing those funds, or using them for other purposes, unless he had first received a release by the court, whether in Ontario or in France. He said that he did not use the money for accommodation in Toronto because his employment was uncertain. He had disclosed earlier that he thought CIBC would move him to New York. He said he would need the funds to establish a residence in London and possibly for business expenses and certainly for travel to and from Paris to see his children. He observed that there had been serious problems with title to the former matrimonial home and that there had been claims totalling approximately $45000. He attached as an exhibit the email from Jonathan Hass referred to above.

45 . In her affidavit sworn February 17 th , the wife referred to the September 29 th consent order and she noted that it was not disclosed at the time that Mr. Kostyniuk intended to act as real estate solicitor on the sale of the home. Attached as Exhibit B was a copy of a Trust Statement produced by Mr. Kostyniuk which indicated that on October 20 th , $25000 had been paid to Kostyniuk & Bruggeman as payment on account, $200000 had been paid to MacDonald & Partners and $600000 had been paid to Mr. Duhot. On November 18 th , $12889.90 had been paid to Kostyniuk & Bruggeman as payment on account.

46 . During submissions, I queried how $25000 had been paid to Kostyniuk & Bruggeman when that had not been authorized by the consent order made on September 29 th . Mr. Kostyniuk provided an explanation that was not in evidence.

47 . On February 24 th , 2012 I received from Mr. Kostyniuk a three page letter attached to which was a statement of account in the amount of $27233 that was paid to a builder who was retained to respond to purchaser’s requisition, and a statement of account rendered by Kostyniuk & Bruggeman dated November 17 th , 2011 in the amount of $12889.90 which reflects services rendered in connection with the closing of the sale of the matrimonial home and the title issues. In the letter Mr. Kostyniuk attempted to explain again how it was that he received a retainer of $25000 on account of the matrimonial proceeding when it was not authorized by the September 29 th consent order. He closed by saying that he had no objection to paying all of the balance of the net sale proceeds and the $625000 released to his client into Court.

48 . Ms. Carson received a copy of that letter. She did not object, probably because she knew it was not necessary. This is the third time Mr. Kostyniuk has written directly to a judge. He had earlier written to Justice Goodman and to me each time when the motion was imminent. Such direct correspondence with the court is inappropriate.

49 . Based on all of the foregoing, it is apparent that Mr. Duhot cannot be trusted to comply with the order that he was to receive $625000 for purposes of accommodation in Toronto. He has had no intention of obtaining accommodation in Toronto because of the uncertainty about his employment. Notwithstanding a clear order on January 26 th that by January 27 th at noon he was to deposit into Mr. Kostyniuk’s trust account $625000 and provide proof of that deposit, he failed to do so. Even accepting Mr. Kostyniuk’s assertion that 24 hours was insufficient time to accomplish the transfer, there is no explanation for not complying between January 26 th and February 21 st . Instead, Mr. Duhot decided to create a “special trust account” at the Bank that he ceased working at a few days later. I infer that he has no intention to comply with the order dealing with the $625000. His flagrant breach of the order of January 26 th and his refusal to accept responsibility for non-compliance suggest that all of the funds that are available from the proceeds of sale of the matrimonial home must be taken out of his possession, power or control.

50 . One of the alternatives is to direct that the balance of the net sale proceeds and the $625000 be paid into Court. As indicated, payments have been released to the wife from time to time. Payments into and out of Court attract additional unnecessary documentation and legal services. Under these circumstances, I will direct that the funds be placed in a trust account with the firm of MacDonald & Partners.

Costs

51 . As I indicated when I proceeded with the jurisdiction motion even though Mr. Duhot was in breach of various orders, he will be required to pay costs associated with his failure to comply including costs of counsel in France on October 3 rd and December 5 th . His motion as to jurisdiction has been unsuccessful. I refused to hear his motion for an order releasing $625000 but Ms. Carson had to respond to it. I need not hear submissions as to whether he will pay costs. The only question is how much.

52 . I encourage counsel to immediately attempt to negotiate the amount of costs and the date by which costs will be paid. Failing agreement, submissions will be made as indicated below.

Wife’s motion for interim child support and interim spousal support

53 . For reasons indicated above, the wife’s motion for interim relief has been postponed since it was returnable September 29 th and no interim spousal or child support has been paid. She has received capital payments but no funds specifically characterized as support. Ms. Carson will likely bring that motion back on. I cannot require the husband to make an offer to settle although it is prudent for him to do so for costs purposes. However in this case, I strongly encourage the husband to make a written offer to settle the issues pending in that motion in an effort to avoid the time and attention it will require. It would be far better to focus on disclosure, questioning, and an early settlement conference.

ORDER TO GO AS FOLLOWS:

54 . The motion by the husband to stay this action to permit the action in France to proceed is dismissed.

55 . The motion by the husband to vary the order of June 10, 2011 and transfer this action to the French court is dismissed.

56 . The husband shall personally immediately take steps to ensure that the divorce proceeding in France is withdrawn. He shall provide proof in writing to counsel for the wife by March 21 st , 2012.

57 . By March 8 th , 2012 at noon EST, the husband and/or Mr. Kostyniuk shall provide a cheque, cheques or bank draft or any other negotiable instrument payable to MacDonald & Partners in trust that incorporates the sum of $625000 currently held in the “special trust account” and the balance of the proceeds of sale from the matrimonial home in Mr. Kostyniuk’s trust account. Ms. Carson shall take steps to place all of the funds in an interest-bearing account. No payments shall be made out of those funds without court order. Immediately after complying, counsel shall provide a trust ledger that accounts for all disbursements and reflects a nil balance.

58 . The motion by the husband with respect to releasing $625000 from the proceeds of sale is adjourned indefinitely to be brought back on after his questioning has been completed and all undertakings have been fulfilled.

59 . The husband shall attend for questioning on a date fixed by Ms. Carson on at least 4 business days notice.

60 . The husband shall provide all outstanding disclosure as indicated in Exhibit U to the affidavit of the wife sworn February 17 th , 2012 at least 2 business days prior to the date for questioning.

61 . The wife shall attend for questioning in Toronto on a date agreed to by counsel and if counsel are unable to agree, I will fix the date.

62 . By March 21 st , 2012, the husband and Mr. Kostyniuk shall produce the portion of the file at McCarthy Tetrault that relates to the issue of jurisdiction, whether privileged or not.

63 . The motion by the wife for interim spousal and interim child support may be brought back on, before me if I am available, on a date picked by Ms. Carson at no less than 7 business days notice.

64 . If by March 21 st , 2012 counsel have not agreed as to the amount of costs to be paid by the husband and the terms on which those costs will be paid, then submissions as to costs will be made as follows:

(a) By March 30 th , 2012, Ms. Carson shall provide submissions not exceeding 3 pages together with an outline of costs and any offer to settle;

(b) By April 10 th , 2012, Mr. Kostyniuk shall provide submissions not exceeding 3 pages together with any offer to settle.

65 . By March 30 th , counsel shall arrange a 3 hour settlement conference in June or July and shall agree on a timetable to ensure readiness for that event, including a timetable for the exchange of settlement conference briefs that will address all issues such as the impact of the marriage contract and the validity of the agreement made on October 15, 2010, current financial statements, without prejudice net family property statements, and offers to settle.

Kiteley J.

Released: March 5, 2012

FILE NO.: FS-11-FA-17374
DATE: 20120305

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Beatrice Duhot Applicant AND Jean-Jacques Duhot Respondent

REASONS FOR JUDGMENT

Kiteley J.

Released: March 5, 2012