COURT FILE NO.: FS-14-80168
DATE: 2014-08-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FORD SPENCER CLAPP
Janice E. Younker, for the Applicant
Applicant
- and -
CLAUDIA MARGARET CLAPP
Ilana Zylberman Dembo, for the Respondent
Respondent
HEARD: July 22, 2014,
at Brampton, Ontario
Price J.
Reasons For Order
NATURE OF PROCEEDING
[1] When Claudia Clapp’s mother, Judith Michie, suffered a stroke and died in late July 2012, Ms. Clapp and her family went to Bermuda for her funeral. Ms. Clapp’s husband, Ford Clapp, went on a fishing trip instead. In the ten days that followed, Ms. Clapp shared with her family the struggles she and her husband had faced for several years, which she attributed to Mr. Clapp’s anger. On August 20, 2012, following Ms. Clapp’s return from Bermuda, she and Mr. Clapp separated, ending their 17 year marriage.
[2] In 1997, Ms. Michie created “Oceana Trust”, a family trust, for the benefit of Ms. Clapp and her siblings and their respective children. She also helped Mr. and Ms. Clapp, during her lifetime, with money which they used to buy and renovate a cottage in Parry Sound and to buy two family cars.
[3] When Mr. Clapp began his present divorce proceeding in March 2014, he claimed spousal support from Ms. Clapp, as well as equalization of their net family property. In her Answer, Ms. Clapp also claims spousal support from Mr. Clapp. At this case conference on July 22, 2014, Mr. Clapp sought disclosure of information about the Oceana Trust, as he seeks to have the court include Ms. Clapp’s interest in the Trust among her assets for purposes of equalization and for purposes of determining each of the parties’ entitlement to spousal support from the other.
[4] Before Mr. Clapp issued his application, Ms. Clapp gave him her own financial statement in form 13.1, and a brief containing the deed of settlement of Oceana Trust and its financial statements for the years 2010, 2011, and 2012. At the Case Conference, Mr. Clapp sought further disclosure, including additional information from the Trust. Ms. Clapp stated that she had requested further information from the institutional trustee of the Oceana Trust, who had refused to provide it.
[5] These are the reasons for disposition of the parties’ disclosure requests, subject to further evidence and/or argument as to disclosure in connection with Oceana Trust as the parties may wish to make in the future.
BACKGROUND FACTS
[6] Mr. Clapp is 50 years old. Ms. Clapp is 51. They have one child, Spencer Douglas Clapp, who is now 15 (born October 9, 1998), who has continued residing with his mother following the parties’ separation.
[7] Ms. Clapp obtained certificates in Hotel Reception and Hospitality from 1987 to 1992 in Bermuda, where she grew up, and in Ontario. She worked as a receptionist at a Ramada Hotel in Toronto from 1990 until September 1992, when she resigned to help her mother after her father’s death. Before she retired, Ms. Clapp earned about $19,000 per year. When the parties met, she was working at a garden centre, and taking correspondence courses in Interior Design.
[8] Mr. Clapp holds a B.A. in Economics from Trent University, and worked for several years as a residential real estate appraiser for JMS Realty Appraisers. When the parties met, he was earning approximately $90,000 from that employment. Soon after the parties married in 1995, Mr. Clapp left JMS and began working for Cornwall Property Consultants, where he did commercial real estate appraisals. He stopped doing that work several years later, when he failed his examination for designation as an accredited appraiser (AACI) by the Appraisal Institute of Canada. On March 31, 2014, he obtained his real estate license, and is now employed with Canlight Hall Real Estate. He reports earnings of $28,814 in 2013.
[9] Ms. Clapp was not employed during the marriage, but Mr. Clapp alleges that she received gifts worth approximately $100,000 each year from her mother, as well as distributions from Oceana Trust. He says that he and Ms. Clapp relied on these gifts and distributions to maintain a luxurious lifestyle, including an expensive home, worth over $800,000, a cottage in Parry Sound, valued at a million dollars, private school for their son Spencer, and two family vehicles.
[10] Ms. Clapp states that, while living, her mother authorized the trustee of Oceana Trust to make only a few specific disbursements to her, mainly for the purpose of helping her renovate the matrimonial home. For that purpose, she was required to give the trustee a copy of their renovation contract. The trustee made a total of four payments to her, as follows:
a) May 14, 2004: $60,000
b) Sept. 1, 2004: $70,000
c) Oct 21, 2004: $14,150
d) Oct 26, 2004: $60,000
[11] The trustee also made one disbursement of $9,000 directly to Ms. Clapp on March 30, 2005. Ms. Clapp denies Mr. Clapp’s assertion that funds flowed freely from the Trust to her, to support a lavish lifestyle. She says that, during the marriage, the parties received other gifts from her mother, but that Ms. Michie made these gifts at her discretion, and did not disburse them from Oceana Trust. They helped Mr. and Ms. Clapp buy and renovate their cottage, and buy two family vehicles.
[12] The parties sold their matrimonial home on July 24, 2013, for $810,000 and divided the net proceeds of sale of $359,817.73 evenly between them. On March 1, 2014, they listed the Parry Sound cottage, which is registered solely in Ms. Clapp’s name, for sale. They initially listed it for $999,000 from March 1 to May 31, 2014, and have re-listed it for only $1,000 less ($998,000) until September 31, 2014. Ms. Clapp states that Mr. Clapp’s insistence on an inflated listing price has prevented its sale.
[13] On March 19, 2014, twelve days before Mr. Clapp obtained his real estate license, he began the present proceeding, in which he claims a divorce, spousal support, custody of the children, child support, sale of family property, and equalization of net family property. He seeks further disclosure from Oceana Trust, and a declaration that:
The contingent income and capital that [Ms. Clapp] is likely to receive or has received from the Oceana Trust is property within the meaning of the Family Law Act, and that it shall be included in the calculation of the equalization of net family property.
[14] Before Mr. Clapp issued his application, Ms. Clapp gave him, through counsel, a sworn Financial Statement in Form 13.1, and a supporting document brief, which included the following documents with respect to the Oceana Trust:
a) Deed of Settlement which established the Oceana Trust;
b) Deed of Retirement and Appointment of St. George’s Trust Company Limited as Trustee (April 17, 2001);
c) Oceana Trust’s Financial Statements for 2010 (including summaries of distributions to beneficiaries);
d) Oceana Trust’s Financial Statements for 2011 (including summaries of distributions to beneficiaries); and,
e) Oceana Trust’s Financial Statements for 2012 (including summaries of distributions to beneficiaries.
[15] Subsequently, Ms. Clapp produced to Mr. Clapp Oceana Trust’s financial statements from December 31, 2001, to December 31, 2010 inclusive, as well as a copy of her mother’s Last Will and Testament.
[16] At the Case Conference on July 22, 2014, Mr. Clapp requested further disclosure, as follows:
Personal:
a) Ms. Clapp’s personal income tax returns, with all slips, schedules and attachments for the years 1998 to 2008, 2012, and 2013;
b) Ms. Clapp’s notices of assessment and reassessment for the years 1998 to 2008, 2012 and 2013;
c) Ms. Clapp’s mother, Judith Michie’s will and all disclosures related to the distribution of her assets detailing when and to whom assets were distributed;
d) Schedule of all gifts received by Ms. Clapp from Ms. Michie or any other source during the period 1995 to the present;
e) Details of Ms. Clapp’s and/or The Oceana Trust’s direct/indirect interest in New Century Holdings XI, L.P. at any time from 1995 to the present; and,
f) Confirmation that Ms. Clap has or had no other present or future, vested or contingent, beneficial interests in any other trusts but for the Oceana Trust from April 22, 1995, to date;
The Oceana Trust
g) Financial statements for the years ended 1997, 1998, and 2000, and 2013;
h) Copy of all income tax returns filed from 1997 to date;
i) Schedule of distributions to beneficiaries for the years 1997, 1998, and 2000 to 2009 and 2013, if not specifically outlined in the financial statements;
j) Any amendments/Trustee Resolutions to the trust deed dated December 19, 1997;
k) Information as to how many grandchildren Ms. Michie had in each year from 1997 to the present.
l) Any benefits paid on behalf of Ms. Clapp from 1995 to the present;
m) All loans received by Ms. Clapp from 1995 to the present.
ISSUES
[17] The Court must determine what further disclosure Ms. Clapp must provide.
THE PARTIES’ POSITIONS
[18] Mr. Clapp asserts that Ms. Clapp’s interest in the Oceana Trust was worth more than $5 million on December 31, 2012. He says that, based on the gifts she received from her mother during their marriage, $100,000 in annual income should be imputed to her for the purposes of calculating his entitlement to spousal support.
[19] Ms. Clapp states that she is one of several beneficiaries of Oceana Trust, which is managed by an institutional trustee, St. George’s Trust Company Limited. She states that she has no control over what the trustee produces, and that she has produced all that she has received. This documentation discloses when the Trust was settled, the value of its assets, and what funds it has disbursed. Ms. Clapp argues that, contrary to Mr. Clapp’s assertions, she does not receive frequent disbursements from the Trust.
ANALYSIS AND EVIDENCE
[20] The Divorce Act provides, in section 15.2(4), that the court, in making orders for spousal support, “shall take into consideration the condition, means, needs and other circumstances of each spouse.”
[21] The court employs the methodology set out in the Federal Child Support Guidelines to determine income for purposes of spousal support as well as child support.[^1] Olah J. noted in Rilli v. Rilli that the test for imputing income for child support purposes applies equally to claims for spousal support.[^2] The Spousal Support Guidelines provide, in this regard:
The starting point for the determination of income under both formulas is the definition of income under the Federal Child Support Guidelines, including the Schedule III adjustments.
The Advisory Guidelines do not solve the complex issues of income determination that arise in cases involving self-employment income and other forms of non-employment income. In determining income it may be necessary, as under the Federal Child Support Guidelines, to impute income in situations where a spouse’s actual income does not appropriately reflect his or her earning capacity.[^3]
[22] The issue of whether Ms. Clapp’s interest in Oceana Trust, or any distributions she receives from the Trust, should be included in her income, then, is determined by reference to the Federal Child Support Guidelines. Section 19 of the Guidelines provides that the court, in appropriate circumstances (that is, where the other methods set out in sections 16 to 20 of the Guidelines are found not to be fair), may impute an amount of income to a spouse:
- Imputing income. – (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
[23] Mr. Clapp submits that he requires the disclosure requested in order to show the lifestyle of the parties during the marriage and the financial resources that Ms. Clapp has had during the marriage and since the parties’ separation.
[24] In determining a spouse’s entitlement to support and the amount of such support, the general principle, as Aiken J. held in MacLaren v. MacLaren, is that the court does not require capital to be depleted to pay support.[^4] In emergency situations, the court makes an exception to this principle. In Plaxton v. Plaxton, Granger J. stated,
… In my view, an order for interim support which would require that it be paid from capital should only be made where the recipient requires such funds to maintain a minimal standard of living. If the effect of an interim support order is that it will be paid from capital, the order may be viewed as an attempt to equalize capital through a support order.[^5]
[25] Pardu J., in Jackson v. Jackson, made an exception to the general principle and ordered a husband to use capital to pay interim support where he had received over $1 million from his father, or trusts established by his father, but had a very modest income. He stated,
Where there is a substantial history of use of capital to support a joint lifestyle, and where there has been a moderately lengthy marriage, I do not believe that a spouse should necessarily be relegated to a lifestyle appropriate to income only, rather than the other means available to the spouse, at least on an interim basis.
…While there is no evidence that the husband could obtain more remunerative employment at this time, it does not seem appropriate that his wife and children should suddenly be relegated to a lower standard of living while he enjoys a very comfortable lifestyle without any obligation on his part to seek employment.
It may be that the wife ultimately will accept a lower standard of living, and pursue more meaningful employment herself, however, I am of the view that on an interim basis, something approaching the pre-separation lifestyle should be provided to the family unit comprised of the wife and children.[^6]
[26] Similarly, in Gonzalez v. Ross, Thorburn J., awarded spousal support to a woman based on amounts that her co-habitant, who earned only $18,000.00, had received as an inheritance and as gifts from his father. He stated:
The case before me does not involve a long-term marriage and it is not clear on the evidence adduced by Ross, that he can or should provide spousal support in the long-term as he contends that his capital and his own standard of living have been reduced. However, there has been a sudden and dramatic decline in Gonzalez’ income. As such, notwithstanding my reservations set out above, I believe Gonzalez should receive some interim support.[^7] [Emphasis added]
[27] In Laurain v. Clarke, after reviewing the jurisprudence, I concluded that capital amounts should not generally be regarded as income for the purpose of calculating support but that the income they can reasonably generate should be imputed to the payor spouse for purposes of calculating the amount of support.[^8]
[28] The court has identified the following factors, most of which help distinguish between income and capital, that should be considered when determining whether an amount received should be included in income for the purposes of calculating child or spousal support:
a) Is the amount included in income for purposes of income tax?
b) Is the amount capital that generates income?
c) Is the amount, if capital, compensation for loss of income?
d) Has the amount, if capital, been equalized, or is it exempt?
e) Is the payment of the amount gratuitous?
f) Is the payment of the amount recurrent?
g) Were the funds typically used to finance a significant proportion of the recipient’s living expenses?
[29] My review of these factors leads me to the following conclusions:
a) Ms. Clapp has not included gifts she received from her mother, or the distributions from Oceana Trust, in her income for purposes of income tax.
b) Ms. Clapp used the amounts she received to purchase and renovate the parties’ cottage, and to purchase two family vehicles. She did not use them to generate income.
c) The amounts which Ms. Clapp received were not compensation for loss of income.
d) To the extent that Ms. Clapp commingled the amounts she received with family property, she is dividing that property with Mr. Clapp. To the extent that she did not commingle the amounts, they are exempt from inclusion in her Net Family Property pursuant to section 4(2)(1) of the Family Law Act.
e) The amounts which Ms. Clapp received were apparently gratuitous and not recurrent in the sense of having been received regularly each year.
f) The amounts which Ms. Clapp received were sporadic and applied to singular purposes, namely the purchase and renovation of a cottage and the purchase of two vehicles, and were not used to fund a significant portion of the Clapps’ living expenses.
[30] The material before me does not support a conclusion that Ms. Clapp received capital amounts, as gifts from her mother during her lifetime, or as distributions from Oceana Trust, other than those that she commingled with family property and that she is dividing with Mr. Clapp. It does not appear that the amounts she received were income from the Trust, or should be regarded as her own income, or that there are emergency circumstances that would justify an order requiring her to use capital to pay spousal support to Mr. Clapp.
[31] Mr. Clapp relies on the decision of this court in Waese v. Bojman,[^9] and the decision of the Divisional Court in Lay v. Lay,[^10] to support the proposition that income from a trust, when paid at the discretion of the trustee, should be taken into account in determining the recipient spouse’s obligation to pay support. Both of those decisions involve income from a trust, as distinct from capital, and payments that the trust deed explicitly provided were to be added to the recipient’s income. The material before me does not satisfy me that the distributions from Oceana Trust were from the Trust’s income, or that they were intended to supplement Ms. Clapp’s income. For the reasons stated above, the evidence produced so far supports a contrary conclusion.
Ms. Clapp’s personal income tax returns and notices of assessment
[32] In his Case Conference Brief, Mr. Clapp requested her returns and notices of assessment for 1998 to 2008, and for 2012 and 2013. At the Conference, he acknowledged that he has received the returns for all years except 1998 to 2001, and all notices of assessment except those for 1998 to 2008.
[33] Rule 13(7) of the Family Law Rules requires a party to file, with his/her financial statement, notices of assessment and reassessment for the three previous tax years. The material before me does not distinguish the relevance of amounts which Ms. Clapp received from 1998 to 2008 from those she received in more recent years, and does not support a conclusion that records from the earlier period have any exceptional relevance. Mr. Clapp’s request for the earlier returns and notices of assessment are overly remote and I am not satisfied, on the material before me, that they should be produced.
Ms. Michie’s Will and the distribution of her estate
[34] Ms. Clapp has produced her mother’s Will. Mr. Clapp requests the details of when and to whom distributions of her estate were made. He argues that because Ms. Michie established trusts for her children, Ms. Clapp could easily make an arrangement with her siblings and the trustee to withhold distribution of amounts due to her and secure loans from her siblings, secured by the amounts withheld. This argument has no bearing on distributions of Ms. Clapp’s mother’s estate, unless the trustee of the estate is withholding a portion of Ms. Clapp’s inheritance, which is not suggested. Ms. Clapp has produced her mother’s Will, which discloses her own inheritance, and I will order her to request an inventory of her mother’s estate, and to disclose what distributions have been made to her thus far, and any information she has as to her own undistributed inheritance. Unless this discloses that her mother made bequests to her that are, as yet, undistributed, there is no basis for an order requiring the estate trustee to disclose bequests and distributions to other beneficiaries. Such an order would result in an unwarranted intrusion on the other beneficiaries’ privacy.
Gifts from Ms. Michie or others
[35] Mr. Clapp requests disclosure of all gifts that Ms. Clapp has received from her mother or anyone else from 1995 to the present. I will order each of the parties to disclose gifts of a value exceeding $1,000 that they have received during the period from three years prior to their separation. The gifts made in previous years have minimal relevance and requiring disclosure of them would impose a burden on the parties that is disproportionate to its relevance.
Ms. Clapp’s and/or Oceana Trust’s interest in New Century Holdings
[36] Mr. Clapp requests disclosure of Ms. Clapp’s and/or Oceana Trust’s interest in New Century Holdings XI, L.P. at any time from 1995 to the present, and a list of all shareholders of that or any other company in which the Trust owns shares. The trustee has produced the financial statements of Oceana Trust from 2010 to 2013. The statements disclose the assets of the Trust and the distributions it has made. The material, to this point, does not satisfy me that there is any relevance to further disclosure of the Trust’s investments. In the absence of such relevance, an order for disclosure of this information would be an unwarranted intrusion on the privacy of the other beneficiaries.
Oceana Trust’s Financial Statements
[37] Mr. Clapp initially requested Oceana Trust’s financial statements for 1997, 1998, 2000 to 2009, and 2013. Ms. Clapp states, and Mr. Clapp accepts, that she has produced the financial statements from 2001 onward. Mr. Clapp therefore requires only the financial statements for 1997 to 2000.
[38] The Federal Child Support Guidelines set out, in section 21, the Income Information that a spouse who is applying for child support, or the respondent to such an application, and whose income information is necessary to determine the amount of the order, must produce. Section 21 provides as follows, with regard to the beneficiary of a trust:
- OBLIGATION OF APPLICANT –
(1) A spouse who is applying for a child support order and whose income information is necessary to determine the amount of the order must include the following with the application:
(g) where the spouse is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s three most recent financial statements;
(2) OBLIGATION OF RESPONDENT – A spouse who is served with an application for a child support order and whose income information is necessary to determine the amount of the order, must, within 30 days after the application is served if the spouse resides in Canada or the United States or within 60 days if the spouse resides elsewhere, or such other time limit as the court specifies, provide the other spouse or the order assignee with the documents referred to in subsection (1). [Emphasis added]
[39] Mr. Clapp acknowledges that he has received the Trust Settlement Agreement for Oceana Trust and the Trust’s financial statements for 2010 to 2013. For the reasons stated above, I am not satisfied that the financial statements for 1997 to 2000 are relevant to the determination of Ms. Clapp’s net family property in 2012, or to the determination of her income for purposes of spousal support. In the absence of evidence showing the relevance of the information, Ms. Clapp will not be required to ask the trustee to produce the Trust’s financial statements for earlier years.
Oceana Trust’s Tax Returns
[40] Mr. Clapp requests Oceana Trust’s tax returns for 1997 to the present. No relevance has been shown for this information. Absent evidence supporting their relevance, no order will be made requiring Ms. Clapp to request these returns from the Trustee.
Oceana Trust’s Distributions to Beneficiaries
[41] Mr. Clapp requests a schedule of all distributions by Oceana Trust to its beneficiaries in 1997, 1998, 2000 to 2009, and 2013, if not specifically outlined in its financial statements. The Trust’s financial statements contain schedules of its distributions. No basis has been shown for requiring the financial statements prior to 2010, or the schedule of distributions made in those years. In the absence of evidence supporting their relevance, no order will be made for the production of these records.
Amendments/Trustee Resolutions to the Oceana Trust Deed
[42] Mr. Clapp requests disclosure of all amendments to the Oceana Trust Deed dated December 19, 1997 and of all Trustee Resolutions during that period. Ms. Clapp states that there have been no amendments to the Trust Deed. No order is required in this regard, unless Mr. Clapp requires a sworn statement from Ms. Clapp to confirm her statement in this regard.
Number of Ms. Michie’s grandchildren
[43] Mr. Clapp requests the number of Ms. Michie’s grandchildren each year from 1997 to the present. No relevance has been shown for this information and no order will be made in this regard.
Benefits paid on behalf of Ms. Clapp
[44] Mr. Clapp requests disclosure of all benefits that Oceana Trust has paid on behalf of Ms. Clapp from 1995 to the present. I am satisfied that the schedules of distributions contained in the Trust’s financial statements would include benefits that the Trust has paid on Ms. Clapp’s behalf. For the reasons stated above, no order will be made for the disclosure of such information before 2010.
Loans from Oceana Trust
[45] Mr. Clapp requests disclosure of all loans made by Oceana Trust to Ms. Clapp from 1995 to the present. The Trust’s financial statements disclose the assets and liabilities of the trust and its distributions. This information would include any loans made to Ms. Clapp from 2010 to the present, and accordingly, no further order is required in this regard.
CONCLUSION AND ORDER
[46] Based on the foregoing, it is ordered that:
- Ms. Clapp shall produce the following documents to Mr. Clapp by September 30, 2014:
(a) Her Confirmation in writing that she has or had no present or future, vested or contingent, beneficial interests in any trust other than Oceana Trust from April 22, 1995, to the present;
(b) A list of the distributions made to her thus far from her late mother’s estate, and all information she has as to her own undistributed inheritance.
(c) A list of all gifts of a value exceeding $1,000 that she has received from August 20, 2009, to the present, identifying each gift, its grantor, and its estimated value.
Ms. Clapp shall request from the trustee of her late mother’s estate an inventory of the estate and a list of the distributions made to Ms. Clapp of her inheritance, and of any undistributed portion of that inheritance.
Mr. Clapp shall produce the following to Ms. Clapp by September 30, 2014:
(a) Mr. Clapp’s confirmation in writing that he has not incorporated any business since the date of separation;
(b) Mr. Clapp’s confirmation in writing that he has not received income from any source other than those disclosed on the tax returns he has produced;
(c) A list of all gifts of a value exceeding $1,000 that he received during the period from August 20, 2009 to the present, identifying each gift, its grantor, and its estimated value.
Mr. Clapp shall make available for inspection by Ms. Clapp’s lawyer the documentation of his business expenses for the years 2012 to the present.
The Case Conference is adjourned to a date in October when I am presiding, to be arranged by counsel with the Trial Office, in consultation with my judicial secretary. The parties have leave to deliver further evidence and argument, at least two weeks prior to the Conference, in support of requests for further disclosure.
Price J.
Released: August 6, 2014
COURT FILE NO.: FS-14-80168
DATE: 2014-08-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FORD SPENCER CLAPP
Applicant
- and -
CLAUDIA MARGARET CLAPP
Respondent
REASONS FOR ORDER
Price J.
Released: August 6, 2014
[^1]: See, for example, Boston v. Boston, 2001 SCC 43, 2001 SCC 43, [2001] 2 S.C.R. 413 at para. 66.
[^2]: Rilli v. Rilli, [2006] O.J. No. 2142. See also: Pellerin v. Pellerin, 2009 60671 (ON SC), 2009 60671 (ON S.C.).
[^3]: Online at: http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/p3.html#a332
[^4]: MacLaren v. MacLaren [2004] O.J. no 1473, S.C.J. per Aitken J at page 6.
[^5]: Plaxton v. Plaxton 2002 49545 (ON SC), 2002 49545, (2002), 27 R.F.L. (5th) 135 (ON S.C.), at para. 33
[^6]: Jackson v. Jackson, 1997 12392 (ON SC), 1997 12392, [1997] 35 R.F.L. (4th) 194, (ON.S.C.), paras. 20, 24, and 25
[^7]: Gonzalez v. Ross, 2007 3880 (ON SC), 2007 3880 (ON SC), paras. 53 to 56
[^8]: Laurain v. Clarke, 2011 ONSC 7195, at para. 55
[^9]: Waese v. Bojman, 2001 28221 (ON SC), 2001 CarswellOnt 1813, 19 RFL (5th) 220, para. 5
[^10]: Lay v. Lay, 1997 CarswellOnt 4083