ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-2492-0000
DATE: 2013-03-26
B E T W E E N:
CATHERINE JANE HORNER
David Pomer, for the Applicant
Applicant
- and -
RICK KHOMAL BENISASIA a.k.a. KHOMAL RICK BENIPERSAUD and JYOTI JOHAL a.k.a. PRABHJOT KAUR JOHAL
Stephen Codas, for the Respondents
Respondents
HEARD: January 09, 2013,
at Brampton, Ontario
Price J.
Reasons For Order
NATURE OF PROCEEDING
[1] A Case Conference has been held in this matter on January 9, 2013. Ms. Horner began the current proceeding on June 12, 2012, nine months after the parties separated on September 9, 2011, following an 18 year relationship that began on July 10, 1993. She has applied for custody of their two children, Spencer, who is 18, and Dylan, who is 16, spousal and child support, exclusive possession of the matrimonial home and its contents, and an unequal division of Net Family Property.
ORDER
[2] Upon reviewing the parties’ Case Conference Briefs and hearing their submissions, it is ordered that:
- Ms. Horner shall by February 15, 2013, produce the following to Mr. Benisasia:
(a) An up-dated sworn Financial Statement, and supporting documents for the assets and liabilities set out in the financial statement;
(b) A detailed accounting of the $250,000.00 cash that was removed from the parties’ bank account in about November 2004;
(c) Copies of monthly statements from June 1, 2011, to the present, for all bank accounts held and all credit cards operated by Ms. Horner, alone or with others (other than accounts or credit cards held jointly with Mr. Benisasia) at any time during that period;
(d) Ms. Horner’s personal income tax returns, including all schedules and attachments, and Notices of Assessment and Re-Assessment, for the years 2009 to 2011;
(e) Monthly or quarterly statements (depending on the frequency with which the statements are issued by the financial institution) from June 1, 2011, to the present, for all lines of credit operated by Ms. Horner, alone or with others (other than jointly with Mr. Benisasia), or over which she has had signing authority, at any time during that period;
(f) All applications for credit, including mortgages, lines of credit, credit card, or personal loans, made by Ms. Horner, alone or with another, at any time from June 1, 2011, to the present, and any credit agreements made or rejection notices received during that period;
(g) A list of all safety deposit boxes held by her, alone or with others, or in trust for her, with particulars of institution where they are held, when they were opened, and in whose name, and a list of their contents;
(h) All bills and invoices for any cell phones, cable and internet connections maintained by or for Ms. Horner at any time during the period from June 1, 2011 to the present;
(i) All bills and invoices, with proof of payment, for loans made for any motor vehicles operated by Ms. Horner at any time from June 1, 2011, to the present;
(j) All invoices, with proof of payment, for expenses claimed in Ms. Horner’s sworn Financial Statement;
(k) Invoices, with proof of payment, for the children’s school fees, and their attendance records;
(l) Particulars of Ms. Horner’s current employment;
(m) Particulars of Ms. Horner’s efforts to obtain employment;
(n) All reports regarding Ms. Horner’s ability to work and any circumstances affecting her ability to do so.
- Mr. Benisasia shall, by February 15, 2013, produce the following information and documents to Ms. Horner:
a) The marriage contract between Mr. Benisasia and Ms. Johal, and the financial statements and supporting documents for the assets and liabilities described or referred to in the marriage contract. Mr. Benisasia shall advise by March 31, 2013, whether Ms. Johal will produce supporting documents for the assets, liabilities and income of hers listed in the marriage contract;
b) All monthly statements from January 1, 2002, to the present, for all bank accounts held and credit cards operated by him, directly or indirectly, alone or with others, personally or through any business in which he had an interest, in Canada or elsewhere, at any time during that period;
c) All applications for credit, including mortgage, line of credit, credit card, and personal loan made by him, alone or with others (other than Ms. Horner), directly or through any corporation in which he had a controlling interest, at any time from 2002 to the present;
d) The statements in his possession, power and control, for any bank account or accounts into which he deposited $37,500.00 generated from the mortgage financing of the property at 3263 Derry Road. If any such statements are not in his possession, he shall, by that date, request them from the financial institution and provide proof of the request to Ms. Horner’s solicitor, together with a Direction authorizing and directing the bank to produce the documents, at Mr. Benisasia’s expense, directly to Ms. Horner’s solicitor;
e) His information (or confirmation that he has no information) regarding the source of financing or mortgages on the property at 1583 Flamborough and, if he has such information, and all documents in his possession, power or control relating to the financing or mortgaging of that property, and a direction to such non-party as may be in possession of them, authorizing and directing that party to produce them, at Mr. Benisasia’s expense, directly to Ms. Horner’s solicitor;
f) All Records of Employment from January 1, 2002, to the present, from any employers of Mr. Benisasia, and of any stress leave from employment, taken by him from the funeral home at any time during that period;
g) All documentation from January 1, 2002, to the present, in his possession, power, or control, including reporting letters and invoices for legal services, arising from the transfer of any funeral home from Mr. Benisasia to Ms. Johal at any time during that period;
h) Confirmation that he has been petitioned or made an assignment of bankruptcy or consumer proposal only once during the period January 1, 2002, to the present, and production of all documents in his possession, power and control relating to the bankruptcy, including statements of affairs or statements of assets and liabilities, to the extent that these have not previously been produced;
i) All documentation in his possession, power, or control, including lawyers’ reporting letters and invoices for legal services, relating to the transfer of Mr. Benisasia’s interest in a funeral home to Nori Pacheo and payments made by or to Mr. Pacheo. If he is unable to produce such documents, he shall produce a direction, signed by him, authorizing and directing the lawyer who assisted him in the transfer to produce them, at Mr. Benisasia’s expense, directly to Ms. Horner’s solicitor;
j) Sources of private mortgage financing secured by him, alone or with any other, including any mortgages with Marilyn Slater, (apart from mortgages held with Ms. Horner) at any time from January 1, 2002, to the present, together with all mortgage documents and related bank statements;
k) All documents in connection with the acquisition of a property at 3295 Derry Road, including Trust ledgers, statements, and sources of all funds, from the date of purchase to the present, and Independent Legal Advice, with particulars of the lawyer, and he shall make a request to the lawyer and show proof of same, and produce copies of the lawyer’s trust ledger and statements and the record of disbursements of funds regarding the purchase;
l) Copy of the minute book of 206918 Ontario Inc., all Form 1 documents, bank statements, solicitor’s reporting letter, and documents, including Certificate of Independent Legal advice, and shall provide a signed direction to the solicitor who acted in such acquisition, mortgage or transfer to permit Ms. Horner’s solicitor to inspect the lawyer’s file and accounts in connection with that company and its acquisition of any real estate;
m) The source of funds paid to Demand Construction for the construction of Benisasia Funeral Home, and all bank statements documenting the payment to that company and all contracts for the building of the funeral home, and any postponement agreement signed by either him or Ms. Johal for the purchase or financing of the funeral home;
n) All pleadings for litigation involving Demand Construction, reasons for judgment in such litigation, minutes of settlement, and reporting letter, and identification of the source of funds for legal fees and settlement, and bank statements documenting such payments;
o) Tax returns, including all schedules and attachments, and Notices of Assessment and Re-assessment, for 2002 to 2012;
p) Financial statements and tax returns for all corporations in Canada or elsewhere in which he had an direct or indirect interest at any time from 2002 to the present;
q) All pleadings in connection with any litigation, other than his divorce, to which he or any corporation in which he had a controlling interest was a party, at any time from 2007 to the present, and copies of all minutes of settlement, reasons for judgment, and the source of funds and bank statements evidencing the payment of any settlements.
r) A list of all cash payments made to Casey or Spencer or Dylan from 2010 to the present;
s) Identification of all vehicles used by him for his personal use, and copies of purchase or lease agreements and agreement of sale or trade-in for those vehicles, or his sworn statement that he does not have and never did have an interest in such a vehicle;
t) All documentation in connection with the acquisition, including purchase, encumbrance, or lease, and the disposition of the yacht Benisasia Star, and documentation in connection with the docking fee and staff for the yacht from the date of its purchase or lease to the present, or his sworn statement confirming that he does not and never did have an interest in such a yacht;
u) All documentation in connection with the acquisition, including purchase, encumbrance, or lease, and the disposition of aircraft, and documentation in connection with the purchase of fuel, terminal fees, and hiring of staff for the aircraft, from the time of the purchase or lease of it to the present, or his sworn statement confirming that he does not and never did have an interest in such an aircraft;
v) Purchase and sale agreement, transfer, and disposition of property on Holland Street, and Alexandria Bay, including reporting letter, and the source of funds for the acquisition, and documentation in connection with the disposition of each of those properties;
w) Documentation in connection with his loan of approximately $58,000.00, and the front and back of the cheque representing the funds for such loan;
x) Information and documentation regarding any benefits he received at any time from January 1, 2002, to the present, from any corporation in which Ms. Johal had an interest, directly or indirectly.
- Mr. Benisasia shall, by January 31, 2013, request the following information and documents from Ms. Johal and shall, by February 15, 2013, provide proof to Ms. Horner of the request and of Ms. Johal’s response:
a) The source of funds used to purchase, directly or indirectly, alone or with others, personally or by any corporation in which she had an interest, an airplane, and that she produce the monthly statements of any account from which the funds were derived, from the date of the purchase to the present;
b) The marriage contract between Mr. Benisasia (or Benipersaud) and Ms. Johal, and the financial statements and supporting documents for the assets and liabilities described or referred to in the marriage contract;
c) All documentation from January 1, 2002, to the present, in her possession, power, or control, including reporting letters and invoices for legal services, arising from the transfer of any funeral home from Mr. Benisasia to Ms. Johal;
d) Information as to what remuneration paid or benefits provided to Mr. Benisasia at any time from January 1, 2002, to the present, from any corporation in which Ms. Johal held an interest, directly or indirectly and the statements recording the payments made and the statements recording the payments received and deposited.
Mr. Benisasia shall, by January 31, 2013, request from Nori Pacheo: The sources of payments made by Mr. Pacheo for the purchase of Bennaisa Funeral Home and lands and, where funds were paid to a lawyer, the sources of funds and amounts of repayments to Mr. Pacheo for funds invested by Nori Pacheo in the funeral home or property, and shall, by February 15, 2013, provide proof of such request and of Mr. Pacheo’s response to Ms. Horner;
Mr. Benisasia shall, by January 31, 2013, provide a signed direction to Norm Silver and any lawyer involved in the transaction, to obtain a copy of the file of 1429036 Ontario Ltd. and of any files in connection with the purchase, mortgage, or transfer of that company or its property, at any time from January 1, 2002, to the present, and shall produce all transfer documents, including all Form 1 Notices, minute book, directions, and reporting letters in connection with such transactions, from the date of incorporation to the present, and shall, by February 15, 2013, provide proof of his request and of Mr. Silver’s response to Ms. Horner.
Mr. Benisasia shall, by January 31, 2013, request from the mortgagee’s solicitor and provide a direction to him/her authorizing that solicitor to produce the trust ledger, bank statements, authorizations, and directions regarding the purchase, mortgage or transfer of 1357 Queen Street, Toronto and shall identify the sources of all funds used to purchase that property, and shall, by February 15, 2013, provide proof of the request and of the mortgagee’s response to Ms. Horner.
Each party shall deliver to the other by February 15, 2013, an up-dated Financial Statement and any supporting documents in their possession, power, or control with respect to any assets, liabilities, and income set out in their Financial Statements.
If either party fails to produce a document required by this Order by the dates specified, that party shall, by that date, produce a sworn affidavit setting out the steps taken to obtain the document, the reason it was not produced, and a signed direction to any non-party believed to be in possession, power, or control of the document directing that party to produce it, at the expense of the party required by this Order to produce it, directly to the requesting party’s solicitor.
If any dispute arises in connection with the implementation of this Order, either party has leave to apply to the court, which may be by a motion on notice to the other party, in the form of a letter from counsel, with appropriate attachments, to my judicial secretary, for hearing by teleconference between 9 and 10 am on a date when I am presiding, to be arranged in advance with my judicial secretary.
In the event that any of the parties, including Ms. Johal, Mr. Pacheo, Mr. Silver, or others, refuse to produce any of the information or documents that Mr. Benisasia requests pursuant to this Order, Ms. Horner has leave to apply to the court, on notice to the non-party, for its production and/or for examination of the person as a non-party.
Mr. Benisasia shall advise Ms. Horner’s solicitor in writing by January 18, 2013, whether he is able and willing to remove the mortgages from the matrimonial home in order to facilitate its sale. By January 31, 2013, Ms. Horner shall make a proposal to Mr. Benisasia regarding the listing of the matrimonial home for sale, which will identify what payments shall be made with the proceeds of sale and how the balance of the sale proceeds are to be disbursed or held pending written agreement of the parties of further order of the court.
The parties shall, by April 15, 2013, bring motions, if necessary, for compliance with this Order and production of information or documents, including motions for production of documents from non-parties, and, if they conclude that such motions are not required, they shall notify each other of same by that date.
Following the hearing of the parties’ motions for compliance with this Order and production of information or documents, or notification that such motions are not required, the parties have leave to conduct questioning.
The proceeding shall return for a Settlement Conference on April 25, 2013.
Price J.
Released: March 26, 2013
COURT FILE NO.: FS-12-2492-0000
DATE: 2012-03-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CATHERINE JANE HORNER
Applicant
- and –
RICK KHOMAL BENISASIA a.k.a. KHOMAL RICK BENIPERSAUD and JYOTI JOHAL a.k.a. PRABHJOT KAUR JOHAL
Respondent
REASONS FOR ORDER
Price J.
Released: March 26, 2013