Court File and Parties

Court File No.: FS-11-373679-0000
Date: 20121003
Superior Court of Justice - Ontario

RE: Edelmira Strauss, Applicant

AND:

Jonathan Robert Strauss, Respondent

BEFORE: Czutrin J.

COUNSEL: Jaret Moldaver , for the Applicant

Jack M. Straitman , for the Respondent

HEARD: February 7, 2012

ENDORSEMENT

[ 1 ] It took well over an hour to deal with a contested adjournment. The Applicant sought the adjournment of the Respondent’s motion seeking to reduce the temporary-temporary spousal support order of $12,000 per month I ordered on February 28, 2012 retroactive to January 1, 2012, based on the Respondent’s income of $431,693 as disclosed by his November 29, 2011 Financial Statement for the previous year.

[ 2 ] The Respondent also asked that I make on order converting the funds the he submits that he provided to the Applicant in 2011 of $181,223 as periodic payments of $8,899 per month so that he could get a tax deduction and the Applicant would, then have to claim as taxable income. I questioned my jurisdiction to do so. While the amount the Respondent claimed he gave the Respondent in 2011 would average $15,102 per month, the $8,899 per month was his calculation, based on his position that in 2011 his income as was $339,000 based on his expert’s opinion as to his income and applying the Spousal Support Advisory Guidelines (if applicable) mid-range support of $8,899 per month for 18 years of cohabitation.

[ 3 ] The Respondent also requested that I order the Applicant to provide disclosure consistent with his Request for Information dated January 18, 2012.

[ 4 ] The Respondent asked that I order the Applicant to allow access to the matrimonial home by an expert he chooses to provide an appraisal of the value of the matrimonial home.

[ 5 ] It became evident that the time required to hear the motion on its merits, would require a long motion (likely a half-day).

[ 6 ] The issue became whether any further temporary-temporary orders should be made by me pending a long motion and whether such motion could proceed this year. The Respondent was anxious to have the motion heard this year in an effort to obtain a reduction from the existing support order and to obtain some potential tax relief for payments made in 2011.

[ 7 ] At my direction, counsel were able to agree, on consent, and I so ordered dealing the Respondent’s disclosure, fixing dates for questioning, a meeting of the parties’ respective experts retained to deal with the financial issues, and to have the Applicant’s expert deliver her critique prior to questioning (proposed for November or December 2012).

[ 8 ] By this endorsement I will settle the order to be issued arising from my February 28, 2012 endorsement and will reconsider the order as it relates to the Respondent’s uncle and the Respondent’s obligation to request such disclosure from him.

[ 9 ] I find that questioning is important and a pre-requisite for my considering the issue of changing the existing support I ordered. I expect full cooperation between the experts and delivery of the critique by the Applicant’s expert prior to questioning. This should take place without delay and even prior to the Applicant’s request for any funds for disbursements. The payments required by my current order are to be made and any adjustments can be addressed either on a long motion after questioning or, perhaps, a settlement conference or trial, if necessary, based on readiness.

[ 10 ] As far as the 2011 funds paid, unless the parties agree as to its treatment that too maybe adjusted either on the property issues, or the quantum, or duration of spousal support.

[ 11 ] The parties disagree on the length of cohabitation with the wife’s (Applicant) position being 20 years and the husband’s (Respondent) being 18 and ½ years.

[ 12 ] The Respondent’s expert produced a report that was served on the Applicant’s counsel on August 18, 2012.

[ 13 ] The Respondent’s income is at the core of the spousal support issue, whether temporary or any final disposition.

[ 14 ] Determining his income is no easy task given his employment.

[ 15 ] While I was advised that the Respondent had retained his expert at the time I heard the motion in February 2012, as I have noted, the report was not delivered until August 18, 2012.

[ 16 ] The report provided the opinion that for child support guideline purposes, and appropriate consideration (subject to any discretion that a judge may exercise) for income for spousal support considerations was:

a. For 2007 was $671,000.

b. For 2008 was $750,000.

c. For 2009 was $752,000.

d. For 2010 was $526,000.

e. For 2011 was $339,000.

f. Projected for 2012 $262,000.

[ 17 ] By this report, the year preceding separation the Respondent’s income was $752,000 and in 2010 (the year I used at $431,693) the husband’s expert suggested $526,000.

[ 18 ] When I heard the motion in February, the Respondent suggested 2011 income of $281,000 and his expert now suggests $339,000. The now projected income as provided in the expert’s report is $262,000 and very close to the income advanced by the Respondent when I heard the motion in February.

[ 19 ] In support of the Applicant’s request for an adjournment, she filed an affidavit of September 24, 2012. In addition to the history of events since my last endorsement and attaching the Respondent’s expert’s reports, the Applicant attaches a letter from her expert that includes preliminary comments by her and disclosure requested.

[ 20 ] As I have decided that this motion, out of fairness to both sides, should and needs to be adjourned, it would be inappropriate for me to make comment at this preliminary stage, as about the Respondent’s expert’s reports or the Applicant’s experts comments. To do so might impact on questioning or the upcoming meeting of the experts or the critique report anticipated from the Applicant’s expert.

[ 21 ] I rely on counsel to make certain that the timetable that they have agreed to, and that I have now ordered, is complied with so that this case now (started in 2011) can proceed with a motion and a settlement conference as early in the New Year as possible.

[ 22 ] Costs of the attendance will be fixed by me when the motion ultimately proceeds.

[ 23 ] While I cannot anticipate all that may occur in the next several months, my expectation is a good faith process on both sides to move reasonably and without delay.

[ 24 ] As far as settling the order arising from my February 28, 2012 endorsement I note that on June 27, 2012, counsel wrote to me. I asked the trial coordinator to call counsel and to set a half hour before me within two weeks of that date to settle that order. I note that a call was made to the Applicant’s counsel to call back but I am not sure what happened afterwards.

[ 25 ] Attached to the letter was an annotated draft of the proposed order noting differences between the parties’ counsel. I will use that as the basis of settling the order.

[ 26 ] While my February 28, 2012 endorsement makes clear that the Respondent has the obligation to satisfy the court as to his income and net family property statement that should not be in the order.

[ 27 ] This is true as well for his obligation to compel disclosure from third or non-parties should also not be in the order.

[ 28 ] I would leave in the proposed paragraph 3 but would not include the Respondent’s uncle. I understand that the Trust established by the Respondent’s uncle is unrelated to the family business; the costs of any motion that may be brought to compel his uncle to make disclosure, if necessary will be left for such motion. That does not change my endorsement that before any such motion is brought, the Respondent should seek the disclosure The Applicant may decide whether she wishes to pursue the issue. I would encourage the parties to resolve the issue given the fact that the Respondent appears to be a discretionary beneficiary of his uncle’s Trust.

[ 29 ] I would leave paragraph 4 of the proposed order in based on the Respondent’s assertion as to how his bonuses are dependent on the business’ performance.

[ 30 ] For the same reasons I would leave in proposed paragraphs 5, 6, 9, 10, but would not include proposed paragraph 13. I make no comments on the agreed to paragraphs as they should go in.

[ 31 ] If counsel now prepare the order, I can sign to expedite the order being issued.

Czutrin J.

Released: October 3, 2012