Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gloria Freedman – Applicant v. Joel Freedman - Respondent
BEFORE: The Honourable Mr. Justice Robert L. Maranger
COUNSEL: Sean Jones, for the Applicant
Bryan Delaney, for the Respondent
HEARD: December 14, 2012
Endorsement
[1]
Introduction
This was a motion by Joel Freedman to vary the order of Justice Hugh McLean dated November 23, 2010. Gloria Freedman also brought a cross-motion seeking security for support and the fixing of arrears of support.
2The November 23, 2010 order was a consent order obtained as a result of a negotiated settlement that took place on the eve of trial. This was an intensely litigated matter. The respondent has acted unreasonably throughout, especially following the consent order.
3The order settled amongst other things the following: child support as well as arrears ($28,000), spousal support as well as arrears ($71,557), obligations with respect to life insurance, and a substantial amount of costs payable to the applicant Gloria Freedman ($71,000).
[4]
Background
The relevant background to this matter can be summarized as follows:
The parties were married on August 30, 1987 and separated on March 9, 2008.
The moving party Joel Freedman is businessman and owns a company called Metro suburban Realty Limited, a commercial real estate business.
Gloria Freedman has not worked outside of the home in many years, entitlement to support was not an issue.
Joel Freedman has chronically failed to comply with the consent order of a Justice McLean. The breaches of the order have been openly flagrant. He was found in contempt on numerous occasions and has been ordered to pay cost awards arising from these contempt findings.
The method of determining Joel Freedman's income for the purposes of support was an issue throughout the litigation.
As part of the settlement of the support issue the parties agreed to create a mandatory mechanism for determining Mr. Freedman's income and consequently Mrs. Freedman's support. They retained the services of Steve Pittman a certified business evaluator to prepare a guideline income report concerning Mr. Freedman's income. This report is to be prepared every year. This is how the parties decide what the income is and what the support should be in the future the purpose was to avoid further litigation.
[5]
Motion to Vary
The motion before the court as regards spousal support cannot succeed as it would require determining Mr. Freedman's income in a manner that is different from what the parties agreed to, there is no reason whatsoever to justify rewriting the tortured history of this case. Mr. Freedman has to pay support in accordance with the income report prepared by the expert nothing more nothing less.
6The moving party also submitted that the principles in Boston v. Boston (2001), 2001 SCC 43, 17 R.F.L. (5th) 4 S.C.C. should apply to this case because Mr. Freedman is paying support from a business that has been equalized. The argument does not succeed the reasons can be found at para. 57 of the Boston decision:
"When a pension produces income the asset is being liquidated. The same capital that was equalized is being converted into an income stream. By contrast, when a business or investment is producing income, that income can be spent without affecting the asset itself. In fact, the business or asset may continue to increase in value. The value of the business or investment can be equalized, but neither are depleted solely by producing income."
7Therefore the motion to vary the existing order is dismissed.
[8]
Cross-Motion
With respect to the cross-motion the arrears of support should be based entirely on the expert reports. The calculations prepared by the applicant appear to be correct and an order is granted in accordance with paragraph 86 of the applicant’s factum with any necessary modifications resulting from the most recent report of Mr. Pittman.
9With respect to the issue of security for support the history of this case justifies such an order, Mr. Freedman has a history of doing everything he can to avoid his responsibility and consequently such an order is supported by the evidence in this case. Whatever inconvenience it may be to him, Mr. Freedman can rest assured that he is entirely the author of his own misfortune.
10Therefore there will be an order in accordance with paragraphs 7 and paragraph 8 of paragraph 86 of the factum filed by Gloria Freedman.
[11]
Costs
With respect to the issue of costs Mrs. Freedman is entitled to her costs for resisting the motion. I will receive one page written submissions from counsel representing Mrs. Freedman within 15 days of the release of this decision, those submissions are to be provided counsel representing Mr. Freedman who will have seven days thereafter to reply. If I do not hear from counsel within that timeframe I will assume that the issue of costs has been resolved.
The Honourable Mr. Justice Robert L. Maranger
Date: 2013-01-02
COURT FILE NO.: FC-08-1285-1
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Gloria Freedman - Applicant
AND
Joel Freedman - Respondent
BEFORE: Mr. Justice Robert L. Maranger
COUNSEL: Sean Jones, for the Applicant
Bryan Delaney, for the Respondent
ENDORSEMENT
Maranger J.
Released: 2013-01-02