COURT FILE NO.: FD967/12
DATE: December 18, 2012
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Angela Hope Lathangue, applicant
AND:
Neil Lathangue, respondent
BEFORE: HENDERSON J.
COUNSEL:
William Clayton, for the applicant
Brenda Barr, for the respondent
HEARD: December 14, 2012
ENDORSEMENT
[ 1 ] There are two motions before the court. The applicant seeks the following relief:
- A preservation order in respect of the parties’ joint assets:
a) the joint investment with CIBC Wood Gundy bearing account #500320012 (“5003”);
b) the joint investment with CIBC Wood Gundy bearing account #41537571C (“The Lathangue Family Trust”).
A preservation order in respect of assets owned personally by the respondent and on behalf of the respondent.
An order authorizing the applicant to draw from account 5003, $10,000 per month pending further order of the court or agreement of the parties.
[ 2 ] The respondent seeks the following relief:
a declaration that the parties are owners of one half of the money held in account 5003 and an order that such account be divided equally between the parties;
in the alternative, an order the respondent shall be entitled to withdraw $200,000 from account 5003;
in the further alternative to 1, an order that both the applicant and respondent be permitted to withdraw $10,000 per month from account 5003;
an order that no funds be removed from “The Lathangue Family Trust” account without further court order or agreement of the parties;
in the alternative to 1, 2, and 3, an order for the preservation of the assets personally owned by the applicant whether jointly or individually, on behalf of the applicant.
Background
[ 3 ] The parties were married July 18, 1992 and separated April 9, 2012. They have three children who have their primary residence with the applicant.
[ 4 ] In the latter years of the marriage the respondent earned significant income. In 2004, he was hired as president of Omni Facility Services at a salary of $160,000. In 2008, he with other employees purchased the company as an investment. The company was sold in 2010 and according to the applicant, the respondent received $4.2 million for his shares. He was also paid a salary of $250,000 for 2010 and 2011. He also entered a non competition agreement with the company purchasers.
[ 5 ] Over the next two years the parties vacationed extensively and joined the Hunt Club. The respondent purchased a diamond ring for the applicant which he says cost $45,000.
[ 6 ] In early 2012, the respondent pursued another venture buying into a company called Innovative Cleaners Inc. with two other partners. Since the beginning of the year, the respondent has been receiving a salary of $52,000. He says that this is all the company can afford now. However, he hopes to have the same success in the future as he did with Omni.
[ 7 ] The respondent is paying child support in the amount of $1,003 per month based on his current salary.
[ 8 ] Based on the applicant retaining the matrimonial home, there appeared to be no significant dispute at this stage of the proceedings that the applicant would owe the respondent an equalization payment of $430,000.
[ 9 ] There has been no cross-examination on the parties’ financial statements or affidavits filed in support of the motions.
[ 10 ] There is approximately $1 million currently sitting in account 5003. The parties partially by court order and agreement have each withdrawn $10,000 per month for October, November and December.
[ 11 ] The applicant in her motion has not asked for child or spousal support. Rather she wants exclusive access to account 5003 to the extent of withdrawing $10,000/month and tying up the respondent’s assets with a preservation order. The respondent says first let the parties just split the account and they then can do what we want with the funds. Alternatively, he says let the parties both have the same access to the account while tying up the applicant’s assets with a preservation order.
Analysis
[ 12 ] The applicant in her financial statement sworn June 20, 2012, attested to a budget of $10,300 per month. The respondent’s latest financial statement sworn December 10, 2012 contains a budget of $11,100 per month.
[ 13 ] There is no question that the parties’, separation or not, were going to have to live off savings to maintain their lifestyle until the respondent’s new venture got off the ground. Similarly, there is no question two households are more expensive to run than one. Consequently, the budgets have to be pared down, which I believe both parties acknowledge.
[ 14 ] The applicant in her affidavit sworn September 7, 2012 stated that she needed $7,500 per month. She shall be entitled to withdraw $6,500 per month from account 5003. This is based on the assumption the respondent continues to pay the child support in the amount of $1,003 per month. There are three items that find their way onto both of the parties’ financial statements: car insurance, and life insurance premiums, and membership dues at the Hunt Club. I order the respondent to maintain these payments.
[ 15 ] The respondent’s primary request is to divide account 5003. At this stage in the proceedings I am not prepared to do that.
[ 16 ] The respondent’s alternate request is to access account 5003. He is currently earning $52,000 per year with a car allowance. He has more income available and therefore requires less need to access the account. He shall be entitled to access $3,000 per month from account 5003. He shall also be entitled to withdraw $200,000 from account 5003 which shall be credited against his half of the account balance the day before this order is issued. This should assist with the respondent’s cash flow. These funds are released on the condition they be applied first to the CIBC Line of Credit account, #****329933, then to TD First Class Visa account #****6233, and then to Amex account #****91007. If there are sufficient funds to pay off the CIBC Line of Credit, it shall be discharged and no further encumbrance shall be registered against the respondent’s home at 1311 Springbank Drive, Unit 2, London, Ontario without agreement of the parties or order of the court. If there are insufficient funds, no further advances beyond the remaining balance shall be permitted without agreement of the parties or court order.
[ 17 ] In order to maintain the financial status quo at this time, a preservation order shall issue all property owned by the parties individually or jointly or on behalf of either party including specifically:
Account 5003 except as herein ordered.
CIBC Wood Gundy account #415137571C (“The Lathangue Family Trust”).
1311 Springbank Drive, Unit 2, London, Ontario.
This order shall not prevent Innovative Cleaners Inc. from conducting its business in the ordinary course of business.
[ 18 ] In summary, the following order shall issue:
From the joint proceeds of CIBC Wood Gundy account #500320012, commencing January 1, 2013, the applicant may withdraw $6,500 per month and the respondent $3,000 per month.
The respondent shall withdraw further the sum of $200,000 from CIBC Wood Gundy account #500320012 which shall be directed first to CIBC Line of Credit account #****329933, secondly, to TD First Class Visa account #****6233, and lastly to Amex account #****91007. This withdrawal shall be credited against the respondent’s one-half share of the account.
If there are sufficient funds to pay off the CIBC Line of Credit, it shall be discharged and no further encumbrance shall be registered against the respondent’s home at 1311 Springbank Drive, Unit 2, London, Ontario without agreement or court order.
If there are insufficient funds to discharge the CIBC Line of Credit, no further advances beyond the remaining balance shall be permitted without agreement of the parties or court order.
The parties shall preserve all property owned by them individually or jointly or on behalf of them including specifically:
a) CIBC Wood Gundy account #500320012 except as herein ordered.
b) CIBC Wood Gundy account #415137571C (“The Lathangue Family Trust”).
c) 1311 Springbank Drive, Unit 2, London, Ontario.
This order shall not prevent Innovative Cleaners Inc. from carrying on its business in the ordinary course of business.
- The respondent shall pay the following:
a) car insurance and registration on any vehicle in the applicant’s possession.
b) all life insurance policies held on the lives of either party.
c) Hunt Club membership for both parties.
[ 19 ] The parties shall make short submissions as to costs within 30 days.
“Justice Paul J. Henderson”
Justice Paul J. Henderson
Date: December 18, 2012