Brian Keyes v. Eve Lorraine Keyes, 2015 ONSC 1660

COURT FILE NO.: FS-14-395595-00

DATE: 20150317

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BRIAN KEYES, Applicant

AND:

EVE LORRAINE KEYES, Respondent

BEFORE: CHIAPPETTA, J.

COUNSEL: Allan M. Goldstein, for the Applicant

Frank G. Zambosco, for the Respondent

HEARD: February 9, 2015

ENDORSEMENT

Overview

[1] The parties seek various forms of relief from each other by way of a motion and a cross-motion. Central to the conflict is the fate of their only significant asset: the matrimonial home. The Applicant husband seeks an order for the immediate listing and sale of the matrimonial home while the Respondent wife seeks an order for temporary exclusive possession of the matrimonial home pending a determination of all the issues at trial. For reasons set out below, among other relief, I order an immediate listing and sale of the matrimonial home.

Background

[2] The parties were married on May 1, 1986. The husband was born on February 26, 1959 and is 55 years old. The wife was born on November 15, 1960 and is 54 years old. There are two adult children, who both live on their own and who are self-sufficient.

[3] The parties jointly own the matrimonial home, located at 372 Pinehurst Drive, Oakville Ontario. It is valued at approximately $1.2 Million. It has four bedrooms and 2.5 bathrooms.

[4] The husband left the matrimonial home on November 25, 2011, the date the wife considers as the date of separation. The husband considers the date of separation to be December 25, 2010, when he states it was common knowledge that the marriage was over and the parties began to live separate and apart under the same roof. The wife has resided by herself in the matrimonial home since November 2011.

[5] Since November 2011, the husband has been paying the expenses for the matrimonial home and those on behalf of his wife in the total amount of $4,224.00/month, particularized as follows:

• Mortgage on the matrimonial home including mortgage life insurance - $1,751.00/month;

• Joint personal line of credit - $950.00/month;

• Account fees for joint personal chequing account - $80.00/month;

• Car payments for the wife’s car (through Keyes Consulting) -$670.00/month;

• Property taxes - $583.00/month;

• Home insurance - $190.00/month;

• In addition, the husband is paying $1,000.00/month without prejudice spousal support payments to the wife for which he does not receive a tax credit.

[6] The husband was diagnosed with multiple myeloma in 2008, a malignant bone marrow disorder. This is an incurable malignancy. In 2008, the husband was given 5 to 6 years to live. He is now in the 7^th year since his diagnosis.

[7] The husband is self-employed as a human resources consultant. His main source of income is generated by Keyes Consulting Inc., a corporation owned equally by the parties. Keyes Consulting earns income by billing another company called Time Matters Inc. The husband personally owns 16.7 percent of Time Matters.

[8] The parties’ finances throughout the marriage were managed by the husband. The wife took no interest in the finances and left that accountability to the husband. The wife was largely unaware of these finances until receiving disclosure from the husband as a result of this proceeding. The husband’s personal and company income tax returns have always been prepared by an independent chartered accountant.

[9] Paul Mandel of Collins Barrow Toronto Valuations Inc. prepared a calculation of the income of the husband at the request of his counsel. His report is dated February 2, 2015. Mr. Mandel calculated the husband’s income from 2011 to 2014 as follows:

2011 – $104,000 2012 – $105,000

2013 – $117,000 2014 – $88,000.

[10] Mr. Mandel attributes the income loss between 2013 to 2014 to the following:

• $11,000 to a decline in revenue;

• $6,000 reduction in the gross up of personal expenses;

• $3,000 less in personal vehicle add back;

• $5,000 reduction in portfolio dividend income;

• The remaining is attributable to change in expenses.

[11] The husband acknowledges that the income numbers as concluded by Mr. Mandel are different from those listed on his income tax returns. Mr. Mandel’s valuation stands unchallenged on this motion.

[12] The husband states that his ability to work has been compromised due to his treatment schedule and pain. He had a CT scan conducted on February 2, 2015. The results are pending. It is possible that his cancer may have returned and is again aggressive.

[13] Since separation, the wife has not prepared an updated resume or looked for work, despite promising to do so in June 2013. In her affidavit sworn January 30, 2015, she states for the first time that she is and has been medically unable to work since July 2014 as a result of “severe lower back spinal problems” for which she is receiving medical therapy not covered by OHIP or private insurance. The wife filed a December 3, 2014 report of Dr. Lamb, which concludes in the relevant part that “She will require interventional spinal care to prevent relapse for at least 1 calendar year. She was not able to work during this period…I have not released her to do so at this time”. Dr. Lamb focuses his clinic on interventional pain and rehabilitation medicine. He has a patent for spinal botulism toxin/spinal growth hormone products for spinal remodeling.

[14] The parties have cashed in RRSP’s in the wife’s name in each of 2007 ($57,999.53), 2008($272,107.15) and 2009 ($46,803.54) to sustain a lifestyle beyond their means. Presently, both the husband and the wife are struggling financially. The wife recognized this on June 25, 2013, when she wrote in an e-mail to her husband: “between your business venture, your illness, and our marriage breakup our finances certainly went downhill and all savings, RRSP’s etc. depleted and assets going slowly”.

[15] The wife states that since separation she has been forced to continually borrow money from her mother’s estate, friends and family. She has borrowed $10,500 to date and the borrowing continues.

[16] The husband states that he cannot afford to continue to make all of the payments to maintain the matrimonial home. He is going further and further into debt to maintain the home and is at a point where he will have no choice but to let the mortgage and taxes go into default if it is not sold. He has already missed two property tax payments. As reflected on his most recent financial disclosure, he has all but depleted his savings. He states that this is as a result of trying to maintain two residences for the past four years.

[17] In April 2013, the parties attended at their bank and renegotiated the mortgage on the matrimonial home to obtain a better interest rate on the mortgage. The wife states that there was no discussion at that time that the home would be sold. The husband disagrees and states that he and his wife had already talked about the need to sell the home and the wife was excited about it.

[18] The wife alleges that the husband coerced her into executing a listing agreement for the sale of the matrimonial home in March 2014. After signing the listing agreement, she sought legal advice and advised the husband that she would not consent to the sale of the matrimonial home. The husband denies this. He states that in January 2014, he and the wife agreed to sell the matrimonial home. There is no evidence of duress, but for the wife’s statement. An e-mail from the wife to the husband in February 2014 reads that she would “happily” move quickly if the house is sold.

[19] The home was listed for sale on March 24, 2014, but on May 8, 2014, the wife unilaterally suspended the real estate listing. The husband learned from the real estate agent that the wife was interfering with the listing by hiding the key so that agents could not show the home and trying to withdraw the listing from MLS. It was not until June 18, 2014 that the wife’s lawyer wrote to the husband’s lawyer advising that the wife would not consent to the sale of the matrimonial home.

[20] The wife believes that the husband is hiding money and/or manipulating his income. She suggests that he lives a lifestyle far beyond that of his stated income, including a new car, long vacations and social outings. She alleges that “in an effort to bring [her] to [her] knees” in June/July 2014 the husband withheld the monthly deposits into Keyes Consulting bank account, depleted the Keyes Consulting business account, withdrew the business account overdraft protection from the Keyes Consulting Inc. business account, maxed out their line of credit, depleted their joint chequing account and withdrew $4,500 from the business account and $3,910.28 from Keyes Consulting Inc. Manulife Financial insurance policy without her consent. The wife also alleges that the husband opened up a separate Keyes Consulting Inc. bank account with CIBC without her consent and that she cannot obtain information for this account.

[21] In response, the wife states she withdrew $5,000 from the business overdraft account and $3,700 from the personal joint bank account.

[22] The husband denies that he is holding any money back. He submits that his financial situation is not what his wife believes it to be and it has only deteriorated as a result of the wife’s refusal to sell the matrimonial home.

[23] Beside the Respondent’s assertions, there is no evidence on this motion that the Applicant is living a lavish lifestyle or hiding money. The Applicant states that it was not until after the Respondent depleted their joint funds that he moved to sever all financial ties with her. The funds withdrawn from the Manulife policy were deposited into the Keyes Consulting business account. The Respondent has access to this account. The Applicant states that most of the joint expenses are paid from the joint chequing account through automatic deductions. If the Respondent continued to unilaterally deplete the account and the payments defaulted, his credit rating would be affected and he could also lose his life insurance coverage. Given his health issues, he would not be able to replace this insurance coverage. To protect himself from the Respondent’s financial attacks, he took steps to ensure that the Respondent did not drain the account.

The Issues

[24] The following issues are presented by the husband’s motion and the wife’s cross-motion:

1. Whether the Court should order an immediate partition and sale of the matrimonial home as requested by the husband or temporary exclusive possession of the matrimonial home as requested by the wife;

2. Whether the Court should grant the husband’s request to sever the divorce from the corollary relief;

3. What is the appropriate amount of interim without prejudice spousal support for the husband to pay to the wife;

4. Whether the husband should maintain the wife as a beneficiary to a $500,000 life insurance policy and a beneficiary on health and medical insurance policies that also have a life insurance component;

5. Whether the husband ought to be restrained from depleting or dissipating any property under his control and be required to preserve all such property pursuant to s. 40 of the Family Law Act, R.S.O. 1990, c. F-3;

6. Respective requests for disclosure.

Analysis

1. Whether the Court should order an immediate partition and sale of the matrimonial home as requested by the husband or temporary exclusive possession of the matrimonial home as requested by the wife

[25] The parties are joint owners of the matrimonial home. The wife has had exclusive possession of the matrimonial home since November 2011. The husband has been paying all of the expenses associated with the home, as detailed above at para. 5. The matrimonial home is the parties’ only significant asset.

[26] The husband seeks an order for the immediate partition and sale of the matrimonial home. The wife seeks an order under s. 24(3) of the Family Law Act for temporary exclusive possession of the matrimonial home. However, none of the situations in paragraphs (a) through (f) apply to the wife.

[27] Section 24(3) reads as follows:

In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

[28] The wife relies on s-s. (c) and (f). In my view, the financial position of both spouses mitigates against the wife’s request as it pertains to s. 24(3)(c). The evidence indicates that both parties are struggling financially. While it is true that the wife earns no income and the husband earned $88,000 in income in 2014, I accept that the husband has significantly increased his level of personal debt since November 2011 in his efforts to maintain the matrimonial home.

[29] Similarly, I am not prepared to conclude that there is violence in accordance with s. 24(3)(f). While I agree with the wife that violence as referred to in the statute is not restricted to physical violence and includes emotional and physical harm, the record before me fails to establish that the wife suffers emotional or psychological harm at the hands of the husband. The wife has failed to satisfy her onus in this regard.

[30] She states that she is fearful as the husband was abusive, bullied her and intimidated her. The husband denies this. Other than the wife’s asserted statements, there is no evidence of emotional or physical abuse or violence in the relationship. There is no evidence of restraining orders, no evidence that the police were called, no evidence of an e-mail to the husband or trusted friends or family describing such events and no allegation of such violence prior to responding to the husband’s motion to sell the matrimonial home.

[31] Further, the analysis concerning violence is typically conducted in the context of whether the continuation of joint cohabitation in the matrimonial home is practical: Kutlesa v. Kutlesa (2008), 2008 13187 (ON SC), 52 R.F.L. 164 (S.C.J.). In this case, the husband has no desire to cohabitate with the wife in the matrimonial home.

[32] The wife’s request for an order for temporary exclusive possession of the matrimonial home is therefore denied.

[33] The husband seeks an order for an immediate sale of the matrimonial home. The husband believes that the wife’s strategy is to delay these proceedings as long as possible in the hope that he passes away prior to the sale of the home. The wife would then collect on his life insurance and be able to remain in the matrimonial home. In her e-mail to the husband on February 2013, the wife wrote “I live in the house, you die, I keep it after the debt is paid”.

[34] The husband’s request for partition and sale is effectively a request for summary judgment. If his relief is granted, it will result in the final disposition of the matrimonial home. Rule 16(6) of the Family Law Rules, O. Reg. 114/99 requires that summary judgment be granted only when there is no triable issue.

[35] The parties did not rely on the Supreme Court’s decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. In my view, it can hardly be contested that the principles enunciated in Hryniak represent the direction for our Court in all contexts, beyond civil motions for summary judgment. As noted by Justice Karakatsanis writing for a unanimous Court, trials “have become increasingly expensive and protracted” and most Canadians “cannot afford to go to trial”. This calls for a “culture shift” that moves the “emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of a particular case”. Summary judgment is described as an “opportunity” to craft a new model of adjudication to “reflect modern reality”: paras. 1-2.

[36] The modern reality is particularly acute in this case. The parties’ main asset is the matrimonial home. It is valued at $1.2 Million and holds approximately $500,000 in equity. The financial statements of the husband indicate an increasing debt level. I accept his evidence that he is incurring debt to maintain the home. The husband suffers from a terminal disease. There are no children in the home. The wife has lived by herself in the 4 bedroom home since November 2011, without paying expenses. The wife is without income and is also incurring debt. She states that she is presently medically unable to work.

[37] In this proceeding, the wife seeks spousal support, an unequal division of net family property, permanent exclusive possession of the matrimonial home and the contents thereof and an order that the husband’s interest in the matrimonial home be transferred to her and vested in her as a lump sum spousal support or to secure the Applicant’s support obligations to her. She submits that immediate sale of the matrimonial home would prejudice her claims at trial to permanent exclusive possession and a vesting order.

[38] The question for the Court then is whether the wife’s claim at trial for a vesting order in her husband’s interest in the matrimonial home or permanent exclusive possession of the matrimonial home and its contents raise a triable issue such that a final order for immediate sale would prejudice her right to pursue a triable issue: Silva v. Silva, 1990 6718 (ON CA), [1990] O.J. No. 2183 (Ont. C.A.); Martin v. Martin (1992), 1992 7402 (ON CA), 38 R.F.L. (3d) 217 (Ont. C.A.); Partition Act, R.S.O. 1990, c. P4, ss. 2 and 3(1); and Cox v. Adibfar, [2000] O.J. No. 2238 (S.C.J.).

[39] The evidentiary record before the Court on this motion is sufficient to render a just and fair determination on the merits of the wife’s claims for permanent exclusive possession and a vesting order; to determine if they raise a triable issue. It does not serve the modern reality well therefore to have the parties wait on a trial for such a determination. Rather, it is proportionate, more expeditious and less expensive for the parties on this motion to undertake the necessary findings of fact, apply the law to the facts and render a final decision on the wife’s claim for permanent exclusive possession and a vesting order.

[40] In Batler v. Batler (1988), 1988 4726 (ON SC), 18 R.F.L. (3d) 211 (Ont. H.C.), Ganger J. held that a joint tenant has a prima facie right to the sale of the matrimonial home prior to trial. This right exists unless the other joint tenant claims that he or she would be prejudiced if the property were sold. The onus is on the party requesting exclusive possession to prove the presence of a statutory factor justifying a court order overriding the prima facie right to sale: see also Rondeau v. Rondeau (1979), 1979 3649 (ON SC), 12 R.F.L. (2d) 45 (O.C.J.) and Crane v. Crane (1988), 1986 6294 (ON SC), 3 R.F.L. (3d) 428.

[41] With regards to s-s. 24(3)(c) of the Family Law Act, (para. 27 above), the respective financial positions of the parties, the Court may be more willing to delay the sale and realization of the asset and make an order for the exclusive possession by one spouse where circumstances are such that there is no need to sell the home in order to realize the property entitlement: Meleszko v. Meleszko (1981), 24 C.P.C. 272, at para. 5 (Ont. Master).

[42] In Mouloin v. Mouloin, [1989] W.D.F.L. 925 (Ont. H. C.), the wife sought an order for permanent exclusive possession of the matrimonial home that extended beyond the date of the trial, at least until she finished her education. In refusing the wife’s application on the ground that she had failed to prove any of the statutory criteria under s. 24(3), the Court explained at para. 17:

Sale of the matrimonial home would enable each of the parties to pay off their debts out of their respective share of the proceeds, thereby reducing their monthly expenditures. With the balance being held in trust under a short term investment deposit pending resolution of the equalization claims, interest income would be generated. The husband's share of the interest as well as the capital would be available until otherwise ordered as security for past and future support including affordable housing for the wife. Interim support paid by the husband would reduce his tax liability.

[43] The wife has an onus to put her best foot forward on this motion. She has failed to demonstrate the presence of a statutory factor justifying a court order overriding the prima facie right of the husband as joint tenant to sell the matrimonial home. She has filed no evidence to demonstrate that she would be prejudiced if the property was sold. Rather, the evidentiary record indicates that the immediate sale of the matrimonial home is appropriate considering all of the circumstances.

[44] The matrimonial home is the main asset of the parties. It is necessarily central to the Court’s determination of net family property in accordance with s. 5(1) of the Family Law Act. There are no children living in the home. There is a demonstrated financial need to sell the matrimonial home. The immediate sale would enable each of the parties to pay off their debts out of their respective share of the proceeds and purchase alternative accommodations. The record before me indicates that the wife will not be able to afford to live in the matrimonial home with monthly spousal support or on transfer of title to her in lieu of spousal support. She has taken no steps to find employment in over 3 years and she asserts on this motion that she is presently medically unable to do so.

[45] Considering these facts as applied to the principles of the law outlined above, I have concluded that there is no merit to the wife’s claim to permanent exclusive possession of the matrimonial home; it is not a triable issue. It cannot be said therefore that an order for immediate partition would prejudice her claim at trial to permanent exclusive possession.

[46] The evidentiary record on this motion is similarly sufficient for the Court to reach a fair and just determination on the merits of the wife’s claim to a vesting order; to determine if it is a triable issue.

[47] In Lynch v. Segal, 2006 42240 (ON CA), [2006] O.J. No. 5014 (Ont. C.A.), leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 84, the Court of Appeal for Ontario explained the jurisdiction of the Court to grant a vesting order at paras. 27-29:

In Ontario, the court’s broad general power to grant a vesting order is found in section 100 of the Courts of Justice Act. In the specific context of family law claims, sections 9(1)(d)(i) and 34(1)(c) of the Family Law Act confer an equally broad power to grant a vesting order on an application for equalization of net family property or support, respectively. Vesting orders are discretionary and have their origins in the court’s equitable jurisdiction. In addition, the court should be satisfied that there is some reasonable relationship between the value of the asset to be transferred and the amount of the targeted spouse’s liability.

[48] Whether or not the court will make a vesting order depends on the particular circumstances of each case. The onus is on the person seeking a vesting order to establish that such order is appropriate: para. 32. In Lynch v. Segal, at paras. 32-33, Blair J.A. described the onus of the party seeking a vesting order and the evidence required to discharge this onus as follows:

As a vesting order - in the family law context, at least - is in the nature of an enforcement order, the court will need to be satisfied … that the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions: see Kennedy v. Sinclair (2001), 2001 28208 (ON SC), 18 R.F.L. (5th) 91 (Ont. S.C.J.), affirmed (2003), 2003 57393 (ON CA), 42 R.F.L. (5th) 46 (Ont. C.A.). Thus, the spouse seeking the vesting order will have already established a payment liability on the part of the other spouse and the amount of that liability, and will need to persuade the court that the vesting order is necessary to ensure compliance with the obligation.

[49] In Thibodeau v. Thibodeau, 2011 ONCA 110, [2011] W.D.F.L. 1344, at para. 42, the Court of Appeal for Ontario reiterated the applicable onus and evidence required for granting a vesting order in the context of enforcing equalization payments. At para. 42, Blair J.A. reasoned:

The onus is on the party seeking [a vesting] order, and as a general rule the court’s discretion will only be exercised in favour of a s. 9(1) order where it is established - based on the targeted spouse’s previous actions and reasonably anticipated future behavior - that the equalization payment order granted will not likely be complied with in the absence of additional, more intrusive provisions.

[50] The evidence is not sufficient to persuade the Court that the vesting order is necessary to ensure compliance. Rather, the facts are that the husband has voluntarily continued to pay the expenses for the matrimonial home since leaving the home in November 2011 and has voluntarily paid a sum for spousal support. There is nothing on the evidentiary record to suggest that the husband’s conduct has been such that he would not abide by any orders made by this Court in the absence of a vesting order. The wife has failed to discharge the onus on her to establish that a vesting order is appropriate.

[51] Considering these facts as applied to the principles of the law outlined above, I have concluded that there is no merit to the wife’s claim for a vesting order; it is not a triable issue. It cannot be said therefore that an order for immediate partition would prejudice the wife’s claim at trial to a vesting order.

[52] Finally, the wife has claimed an unequal division of net family properties. The wife agrees however that any disparity in the equalization calculation is not a factor causing prejudice to the wife if the home is sold, as this can be dealt with by a holdback of some of the proceeds of sale, without prejudice to the equalization payment at trial. The husband has indicated his consent to a holdback of some of the proceeds of sale for this purpose.

[53] For reasons set out above, I have concluded that the wife’s rights under the Family Law Act are not prejudiced by the immediate sale of the matrimonial home as her claims at trial to permanent exclusive possession and a vesting order do not raise triable issues. The husband is granted an order for immediate partition and sale of the matrimonial home pursuant to s. 2 of the Partition Act.

2. Whether the Court should grant the husband’s request to sever the divorce from the corollary relief

[54] The husband seeks an order severing the issue of the divorce from the other issues, pursuant to Rule 12 (6) of the Family Law Rules and an order allowing the issue of divorce to proceed by way of affidavit evidence.

[55] The wife submits that if the issue of divorce is severed from the corollary relief, the husband will not deal responsibly with the collateral relief requested by her and would not provide fulsome disclosure as requested by her. It would also effectively extinguish her claim for a permanent exclusive possession and a vesting order.

[56] The issue with respect to the wife’s claim for a permanent exclusive possession and a vesting order is now moot given my finding that neither represents a triable issue.

[57] The parties have been separated for more than a year. Both of them have claimed a divorce in their respective pleadings. There are no “children of the marriage” as that term is defined in the Divorce Act. There is no child support due or owing and child support is not an issue. The evidentiary record indicates no chance of reconciliation. There is no disadvantage to either party to sever the divorce from the corollary relief and allow the issue of divorce to proceed by way of affidavit evidence.

[58] The order is therefore granted as requested.

3. What is the appropriate amount of interim without prejudice spousal support for the husband to pay to the wife

[59] The husband has ownership of four companies:

1. Keyes Consulting Inc. - the wife and the husband are equal and joint shareholders. No valuation has been completed. The husband is willing to share the cost of the valuation with the wife;

2. Time Matters Inc. - the husband owns 16.67 percent of this business. The husband’s valuation as filed on this motion is that his shares at the valuation date are worth nil;

3. HAAK Ventures - this company was established solely to purchase and hold one piece of property. That property was sold in 2012. The husband’s evidence on this motion is that his share of net debt, before capital gains tax, was approximately $38,000;

4. Bark Ventures - this is a company that owns properties and collects rental income. It is owned by 4 shareholders, including Keyes Consulting, which owns 25 percent. No valuation has been completed. The husband is willing to share the cost of the valuation with the wife.

[60] The husband does not deny the wife’s entitlement to interim spousal support. He submits that it should be paid based on $88,000, his 2014 income as valued by the calculation of income prepared by Paul Mandel of Collins Barrow Toronto Valuations Inc. at the request of his counsel (see paras. 9 &10 above). Mr. Mandel’s valuation stands unchallenged on this motion.

[61] Orders for interim support are based on a triable or prima facie case. They are in the nature of a “holding order” (Jarzebinki v. Jarzebinski, 2004 Carswell Ont. 4600 (ONSC) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, 2012 Carswell Ont. 14841 (ONSC) at para. 24).

[62] I conclude that Mr. Mandel’s valuation is properly accepted as a prima facie indicator for the amount of interim spousal support. The husband’s spousal support Divorcemate calculation based on a 2014 income of $88,000 shows ranges of $2,750-$3,518/month. I agree with counsel for the husband that the midrange of $3,208/month is appropriate on an interim basis.

[63] The husband submits that minimum wage should be imputed to the wife for spousal support purposes given the wife’s refusal to make any attempts to find work. He further submits that the wife has other means available to her in the form of property and money as part of the wife’s mother estate. The wife submits that she cannot access her inheritance as the will has yet to be probated. The husband believes that the wife is delaying probating her mother’s will so that she can be in a position in this litigation to argue that she is unable to access those funds.

[64] I am not prepared at this interim stage to impute income to the wife. Questions with respect to her inheritance remain unanswered. There is evidence on this motion to suggest it is not reasonable to expect her to be working at this time.

[65] Commencing April 1, 2015, the husband shall therefore pay periodic spousal support to the wife in the amount of $3,208.00/month on an interim without prejudice basis, which shall be subject to retroactive and prospective adjustments at the discretion of the trial judge. On consent, he shall also pay half of the mortgage on the matrimonial home, half of the property taxes and home insurance and continue to pay the monthly costs for the joint line of credit and joint personal chequing account, fixed in total at $2,292.00/month.

[66] Commencing April 1, 2015 until the matrimonial home is sold, the wife shall pay half of the mortgage on the matrimonial home and half of the property taxes and home insurance fixed in total at $1,262.00/month.

4. Whether the husband should maintain benefits to the wife as provided through Keyes Consulting Inc.

[67] Keyes Consulting Inc. is not a party to this proceeding. As the named parties are the only two shareholders of the company, however, I am content to address the relief requested.

[68] Keyes Consulting Inc. maintains a life insurance policy with Manual Life Insurance of $1 Million, $500,000 on each of the lives of the parties (“the life insurance policy”). After separation, the husband changed the beneficiary on the life insurance policy from the wife alone to the wife and their two children. The wife is requesting that the husband change the beneficiary back to her.

[69] The husband is not adverse to securing spousal support by way of life insurance. He is prepared to consent to an order that the wife be made the irrevocable beneficiary to half of the policy, $250,000. He would then list the two children as equal beneficiaries for the remaining $250,000.

[70] While I understand that the husband would like to leave his children some money upon his death, the children are adults and self-sufficient. The husband is no longer able to obtain life insurance due to his past cancer diagnosis. He is now subject to an interim order to pay spousal support. Prior to separation the husband intended that the wife be the sole beneficiary of the policy. In my view, it is therefore appropriate for the husband to change the beneficiary back solely to the wife on an interim without prejudice basis.

[71] Similarly, it is appropriate on an interim basis for the husband to continue the Keyes Consulting Inc. policies of health and medical insurance for coverage of the wife and maintain the wife as sole beneficiary of the life insurance component thereunder.

[72] Finally, Keyes Consulting Inc. pays $670.00/month for the wife’s monthly lease car payment. On consent, this too shall continue on an interim basis.

5. Whether the husband ought to be restrained from depleting or dissipating any property under his control and be required to preserve all such property pursuant to s. 40 of the Family Law Act

[73] The wife is seeking an order pursuant to s. 40 of the Family Law Act restraining the husband from depleting or dissipating any property under his control and requiring the husband to preserve all such property until further order of this Court, including but not limited to the shares of Keyes Consulting Inc. Section 40 states:

The court may, on application, make an interim or final order restraining the depletion of a spouse’s property that would impair or defeat a claim under this Part.

[74] A non-depletion order may be made pending trial where a party has not complied with previous orders for support and the recipient is in need. In Samis (Litigation Guardian of) v. Samis, 2011 ONCJ 273, 2 R.F.L. (7th) 476, the wife sought a restraining order to prevent the husband from depleting assets. The judge found that he had exhibited blameworthy conduct and there was a prima facie case for spousal support made out by the wife, who was in need. In Samis, the parties had been in litigation for four years and the husband had not paid the wife spousal support since separation.

[75] Similarly, in Jones v. Hugo, 2012 ONCJ 381, [2012] W.D.F.L. 5454, the respondent had failed to comply with a previous temporary spousal support order. On application, the judge ordered support and found that there were many factors present to indicate that enforcement measures were necessary. The payor was in substantial arrears, had not complied with previous orders or undertakings, had failed to provide accurate financial disclosure, operated an underground business, had threatened to go bankrupt to avoid support orders, and was highly mobile and at risk of absconding from the Court’s jurisdiction.

[76] An order under s. 40 is usually made, therefore, when there is evidence that the payor is not complying with a support order or there is evidence of blameworthy conduct. The wife has produced no evidence that her rights would be at risk without making a “non-depletion order”. There is also no evidence sufficient to conclude that the husband intends to deplete his assets or those of Keyes Consulting Inc. The wife cannot rely on her bare allegations or assumed beliefs. There must be more that an “unsupported concern”. No support was offered to the Court for the wife’s concern. There is no evidence of noncompliance. Rather, unlike the cases referred to above, the husband has been voluntarily making interim spousal support payments and voluntarily paying all of the expenses for the matrimonial home and the parties’ joint banking charges and maintaining the wife’s monthly car payments through Keyes Consulting Inc.

[77] The Order pursuant to s. 40 of the Family Law Act is therefore denied.

6. Respective Disclosure requests from both the husband and the wife

[78] The husband and the wife seek an order for disclosure from each other. In my view, disclosure as requested on this motion has properly been answered by both parties respectively in the time period between serving the notice of motion and the scheduled motion date and no order is required on this motion.

7. I will continue to manage this file

[79] The parties asked that I continue to manage this proceeding. I agree that to do so would serve the goals of the Osborne Report as articulated by Karakatsanis, J. at para. 78 of Hryniak:

[the involvement of a single judicial officer throughout] saves judicial time since parties will not have to get a different judge up to speed each time an issue arises in the case. It may also have a calming effect on the conduct of litigious parties and counsel, as they will come to predict how the judicial official assigned to the case might rule on a given issue [p. 88].

[80] I will therefore continue to manage the proceeding and direct that the parties schedule a settlement conference with me within 90 days to address all remaining issues.

Disposition

[81] For reasons set out above, I make the following Orders:

1. The matrimonial home located at 372 Pinehurst Drive, Oakville, Ontario shall be sold pursuant to s. 2 of the Partition Act. The matrimonial home shall be listed by April 15, 2015 with a real estate agent acceptable to both parties, at a listing price recommended by the listing agent, with a closing date no later than July 31, 2015. If the parties are unable to agree on a listing agent counsel may contact my office to schedule an attendance with a view to resolve the disagreement prior to April 15, 2015.

2. The net proceeds of the sale of the matrimonial home shall be paid into Court pending further order of the Court or agreement of the parties, without prejudice to the final equalization payment, but for $300,000 which shall be dispersed to the parties equally, at $150,000 each.

3. The issue of divorce is severed from the corollary relief and may proceed by way of affidavit evidence. Counsel may forward a 14B motion for divorce judgment to my attention.

4. Commencing April 1, 2015, and on the first day of each month thereafter, the Applicant shall pay the Respondent periodic spousal support in the amount of $3,208.00/month, based on the Applicant’s 2014 income of $88,000 as set out in the income valuation of Paul Mandel, on an interim without prejudice basis. A support deduction order shall issue.

5. Commencing April 1, 2015, until the matrimonial home is sold, the Applicant shall pay one half of the mortgage on the matrimonial home, one half of the property taxes and home insurance and continue to pay the monthly costs for the joint line of credit and joint personal chequing account, fixed in total at $2,292.00/month.

6. Commencing April 1, 2015, until the matrimonial home is sold, the Respondent shall pay one half of the mortgage on the matrimonial home and one half of the property taxes and home insurance, fixed in total at $1,262.00/month.

7. The Applicant shall continue to maintain the Keyes Consulting Inc. Manulife life insurance policy No.-115 and by April 1, 2015 he shall name the Respondent as the sole beneficiary thereunder, on an interim without prejudice basis and he shall provide proof to the Respondent by April 8, 2015, that she has been named as the sole beneficiary.

8. The Applicant shall continue to maintain the Keyes Consulting Inc. Industrial Alliance health and medical insurance policy Nos. -519 and -242 for coverage of the Respondent and maintain the Respondent as sole beneficiary thereunder, on an interim without prejudice basis.

9. The Applicant shall continue to pay the Respondent’s monthly car lease payment of $670.00/month through Keyes Consulting Inc., on an interim without prejudice basis.

10. All remaining relief requested by motion or cross-motion is dismissed.

Costs

[82] If by March 31, 2015, the parties are unable to agree to an appropriate award of costs for this motion, I will accept written submissions of not more than 2 pages, Bills of Costs and relevant offers to settle first by the Applicant within 30 days then by the Respondent within 20 days thereafter.

CHIAPPETTA J.

Date: March 17, 2015