ENDORSEMENT

CITATION: Schulman v. Ganz, 2015 ONSC 3254

COURT FILE NO.: FS-14-398942-00

DATE: 20150522

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JERRY SCHULMAN, Applicant

• and -

MINDY gANZ, Respondent

BEFORE: S. Stevenson, J.

COUNSEL: Daniel S. Melamed, for the Applicant

Harold Niman/Meysa Maleki, for the Respondent

HEARD: April 9, 2015

ENDORSEMENT

[1] Both parties brought motions seeking various relief. On a previous attendance before me on February 24, 2015, a number of issues were resolved on consent and an order was made. Pursuant to my order inter alia, the cottage owned jointly by the parties is to be immediately listed for sale. The net proceeds of sale are to be divided equally between the parties. The respondent is at liberty to list for sale the matrimonial home registered in her name and the applicant is to vacate the matrimonial home no later than 90 days from April 9, 2015. The applicant’s motion for temporary spousal support was adjourned to be heard at the same time as the respondent’s bifurcation motion that was previously scheduled for April 9, 2015 and costs were reserved to the April 9, 2015 motion.

[2] The remaining issues before me to determine include the applicant’s claim for temporary spousal support; the respondent’s request for an order bifurcating the issues and directing a trial to determine the validity of the Marriage Contract dated November 1, 1996 (the “Marriage Contract”) and her request for an order that she not be required to provide any additional information or documents pursuant to Rule 13(11) of the Family Law Rules, O. Reg. 114/99 (the “FLRs”) until the validity of the parties’ Marriage Contract has been determined by the Court. Both parties also seek costs.

Background

[3] The parties were married on November 5, 1996. They separated on May 8, 2014 after approximately 18 years of marriage. At the time of marriage the applicant was 42 years-old and was divorced while the respondent was 40 years-old and divorced. The applicant is now 60 years of age and the respondent is 58 years of age.

[4] There are no children of the marriage; however, both parties had a child from a previous marriage at the time of their marriage to each other. The applicant’s daughter was approximately 6 years of age at the time of the parties’ marriage while the respondent’s daughter was approximately 10 years of age.

[5] Although the parties take different positions on whose idea it was to be married, they both concede that a Marriage Contract was completed on November 1, 1996, four days before the wedding ceremony.

[6] The applicant states that he is presently unemployed. His position is that he did not earn any income in 2014, and when he was employed, his income averaged approximately $50,000 gross over the last few years. The respondent states that her income is approximately $215,000 gross per year. This is disputed by the applicant as he contends that additional cash income is earned by the respondent and should be added to her income.

Issues

[7] The following are the issues to be determined:

(i) Should there be an order for bifurcation and a trial ordered to proceed first with respect to the issue of the validity of the Marriage Contract?;

(ii) Should the respondent pay spousal support to the applicant on an interim basis?; and

(iii) Is the respondent obligated to provide any additional information or documents pursuant to Rule 13(11) of the FLRs until the validity of the parties’ Marriage Contract has been determined by the Court?

Issue # 1: Should there be an order for bifurcation and a trial ordered to proceed first with respect to the issue of the validity of the Marriage Contract?

[8] Under the terms of the Marriage Contract, the parties agreed that they would be separate as to property at all times. Both parties waived entitlement to equalization of net family property under the Family Law Act, R.S.O. 1990, c. F.3 and both released any claims in equity by way of constructive, implied or resulting trusts, or by way of any other doctrine in equity. The parties also agreed that if property is in the name of both parties, they are considered to own the property as tenants in common as to an undivided one-half interest and not as joint tenants, unless title to the property indicates otherwise. Both parties also waived entitlement to spousal support. They also agreed to be solely responsible to support their own child and agreed not to seek child support from the other even if the other party were to treat the child as his or her own.

[9] Pursuant to section 22 of the Marriage Contract, both acknowledged that they had: “disclosed to the other all of his or her significant assets, debts or other liabilities existing when this agreement was made; [have] made such investigation of the financial circumstances of the other as he or she considers reasonable; and is satisfied with the information furnished and disclosure made.”

[10] In section 23 of the Marriage Contract, the parties both acknowledged that each of them: “has had independent legal advice, or the opportunity to obtain independent legal advice; understands his or her rights and obligations under this agreement and the nature and consequences of this agreement; and is signing this agreement voluntarily.” Each party’s lawyer completed a Certificate and Affidavit of Solicitor and these were attached to the Marriage Contract. The Certificate and Affidavit of Solicitor indicated that the lawyer had acted for their respective client, was a witness to the contract, and was present and saw their client execute the Marriage Contract. Additionally, it indicated that the lawyer had advised his or her respective client with respect to the contract, the lawyer believed that his or her client was fully aware of the nature and effect of the contract, and that his or her client was signing it voluntarily.

The Applicant’s Position Regarding the Marriage Contract

[11] In his Amended Application, the applicant seeks to have the Marriage Contract declared null and void and set aside in its entirety. He seeks an order granting him a one-half interest in all of the respondent’s assets under the doctrine of constructive trust and/or resulting trust. In the alternative, he seeks a declaration that the parties were engaged in a joint family venture and an order granting the applicant a monetary remedy equal to one-half of all of the respondent's assets regardless of ownership interest of those assets and without regard to date of marriage deductions. Further, in the alternative, he seeks an order for equalization of net family property or an unequal division of net family property in his favour. The applicant also seeks among other relief, an order for spousal support retroactive to the date of separation and an order for disclosure as of the date of marriage, the date of separation, and current.

[12] The applicant submits that there is a triable issue with respect to the validity of the Marriage Contract. He contends that at the time of entering into the Marriage Contract, there was an obligation on the respondent to provide full and frank disclosure and she failed to do so. He indicates that no value was provided with respect to the respondent's stated 25% common shares owned in a corporation known as “Rhyl” and on the face of the documentation provided, it was impossible to know the respondent’s net worth. He relies upon the Ontario Court of Appeal decision of LeVan v. LeVan, 2008 ONCA 388 in support of his position that there is a positive duty on every spouse to make complete, fair and frank disclosure of all financial affairs before the contract is entered into. He contends that the Marriage Contract setting out that the respondent is the “owner of very substantial assets” does not satisfy this test. The applicant further contends that the issue of whether there was full and frank disclosure sufficient enough for the applicant to understand what he was giving up by entering into the Marriage Contract is a matter for trial.

[13] The applicant submits that he did not fully comprehend the implications of what he was signing. He also contends that he was under duress given how quickly the Marriage Contract was presented to him and signed. He alleges that he did not have adequate time to consider the Marriage Contract properly and did not understand what would happen if the parties were to divorce after a lengthy marriage. He relies upon section 56(4) of the Family Law Act in support of his position that a court can set aside a domestic contract or a provision in it if a party failed to disclose to the other significant assets or significant debts or other liabilities existing when the domestic contract was made; if a party did not understand the nature or consequences of the domestic contract; or otherwise, in accordance with the law of contract.

The Respondent’s Position Regarding the Marriage Contract

[14] In contrast, the respondent contends that the Marriage Contract should not be set aside as the facts set out by the applicant upon which he is relying do not support the setting aside of the Marriage Contract. The respondent maintains that both parties had independent legal advice and the applicant chose his own counsel. She contends that there were back-and-forth negotiations regarding the contract before it was finalized and that the applicant and his lawyer, as evidenced by his lawyer’s invoice to the applicant, met for the purposes of reviewing the Marriage Contract and for the applicant's lawyer to provide advice to the applicant with respect to the Marriage Contract. Additionally, the respondent contends that in the applicant's lawyer’s reporting letter, there are no concerns expressed by the applicant's lawyer to the applicant with respect to the validity of the Marriage Contract.

[15] The respondent deposes that the issue of marriage was discussed between the parties in October of 1996. She contends that it was the applicant who insisted on marriage as she was content to continue to reside together in a common-law relationship. The respondent deposes that the applicant clearly understood that the respondent’s parents insisted on a Marriage Contract to protect the significant wealth of the respondent’s family. She indicates that both parties agreed that the Marriage Contract would be simple and neither would owe anything to the other in the event of a separation and divorce.

[16] The respondent further contends that the applicant was not under duress in signing the Marriage Contract. He was previously divorced and he knew that the purpose of the Marriage Contract was to protect the respondent’s family wealth. She contends that he acknowledges this in his Amended Application. The respondent deposes that the applicant was under no pressure to sign the Marriage Contract. There was no rush to marry and the wedding could have happened on any other day. She sets out in her Affidavit that the parties did not send out invitations or hire caterers. The respondent's mother prepared the dinner, they did not have any out-of-town guests and no photographer was arranged. Further, no reception hall was booked. The Rabbi attended at the respondent's parents’ home to conduct the ceremony. The respondent also deposes that it was a small ceremony with only 14 people attending.

[17] The respondent further deposes that the Marriage Contract indicates at paragraph 2.3 that the respondent is the “owner of very substantial assets and may inherit or be gifted further very substantial assets.” She asserts that her assets and net worth were always known to the applicant. She contends that had the parties not signed the Marriage Contract, her father never would have structured his business affairs in the manner he did nor complete estate planning following the respondent’s marriage which significantly increased the respondent’s net worth.

[18] Further, the respondent contends that her lawyer at the time prepared a draft marriage contract and sent it to the applicant's lawyer on October 29, 1996. Enclosed in her lawyer's letter, is a list of her assets, the financial statements of the company known as Rhyl of which the respondent held 25% of the common shares, and the list of the properties owned by Rhyl. Subsequent to this, a revised schedule of the properties owned by Rhyl, including an address of each location was forwarded to the applicant's lawyer. She contends that, as evidenced by the correspondence at the time, the applicant and his lawyer were invited to ask any further questions but chose not to do so.

[19] The respondent points to paragraph 22 of the Marriage Contract as outlined above, as evidence that the applicant acknowledged that he was satisfied with the disclosure that was provided by the respondent.

[20] The respondent also deposes that the Marriage Contract was negotiated fairly and that none of its terms are unconscionable. She contends that the accumulation of wealth during the parties’ marriage had nothing to do with any contributions made by the applicant to the marriage. It is solely as a result of business and estate planning by the respondent's father in reliance upon the Marriage Contract. She further contends that the applicant was self-supporting at the date of marriage and throughout the marriage. She indicates that the parties lived within their means which was modest. Additionally, each party remained solely responsible for the support of their own child.

[21] The respondent further deposes that even though the funds for purchasing a jointly owned cottage came primarily from her, she wanted the applicant to be a joint owner. As a result of the parties agreeing to sell the cottage and split the proceeds equally, she contends that the applicant will receive a significant sum of money. She deposes that the applicant has been resisting the sale of the cottage and has delayed the sale despite my order for sale that was made on consent on February 24, 2015.

[22] The respondent contends that it is unlikely that the applicant will be successful in setting aside the Marriage Contract. She submits that the validity of the Marriage Contract is a discrete issue and is relatively straightforward. She contends that the central and pivotal issue is the validity of the Marriage Contract. The respondent asserts that by determining the issue of the validity of the Marriage Contract, this may put an end to the case or may narrow the remaining issue to that of spousal support. However, the respondent does not believe that the applicant is entitled to spousal support.

Discussion

[23] Section 12(5) of the FLRs provides that if it would be more convenient to hear two or more cases, claims or issues together or to split a case into two or more separate cases, claims or issues, the court may, on motion, order accordingly.

[24] Multiplicity of proceedings should generally be avoided and all issues determined in one trial. However, there are instances where the interests of justice are served by bifurcation of the issues as long as no prejudice is caused to either party. Numerous cases have been provided by both parties regarding this issue. Quigley J. in Simioni v. Simioni, 2009 934 (ON SC), [2009] O.J. No. 174, 74 R.F.L. (6th) 202, 2000 CarswellOnt 258 at paras. 15-17 (S.C.J.) provides a helpful analysis of the legal principles with respect to bifurcation. This analysis and framework has been followed in many subsequent decisions (see Grossman v. Grossman, 2014 ONSC 2090 and Klasios v. Klasios 2015 ONSC 1173 (S.C.J.)):

¶15 First, it should be accepted as non-controversial that both the Family Law Rules and the inherent jurisdiction of the Court provide ample authority and power to permit cases such as this to be split: Family Law Act, section 2(10); Rule 12(5). The jurisprudence confirms that this is an authority and power that ought to be exercised if convenient, and if the exercise of the power would be in the interests of justice. The interests of justice will be served if there are clear time and expense benefits to be gained from the bifurcation and determination of the threshold issue, provided no real or meaningful prejudice is caused to either party: Elcano Acceptance Ltd. et al v. Richmond, Richmond, Stambler & Mills, 1986 2591 (ON CA), [1986] O.J. No. 578 (O.C.A.); General Refractory Companies of Canada v. Venturedyne Ltd., [2001] O.J. No. 746 (S.C.J.O.); Royal Bank of Canada v. Kilmer van Nostrand Co., [1994] O.J. No. 1476 (Ont. Ct. Jus.(Gen. Div.)).

¶16 Nevertheless, it is equally important to remember that the splitting of a trial effectively denies the fundamental principle that as far as possible, multiplicities of proceedings are to be avoided, and thus the power to split a case should be regarded as one that is narrowly circumscribed and to be exercised in only the clearest of cases – in cases that exhibit the exceptional merit that calls upon the Court to exercise its inherent power: Courts of Justice Act, section 138; Elcano, above; Carriero (Litigation Guardian of) v. Flynn, [2004] O.J. No. 3117 (S.C.J.O.). In light of this caution, the onus necessarily lies upon the party seeking to bifurcate to satisfy the Court on a balance of probabilities that if granted, severance will result in the “just, expeditious and least expensive determination of the proceeding on its merits”.: Merck & Co. v. Brantford Chemicals Inc., 2004 FC 1400, [2004] F.C.J. No. 1704 (F.C.C.) at para 4.

¶17 There are a number of questions the Court should consider in deciding whether the severance of the trial in this instance is just and expeditious. These include whether the issues for the first trial are relatively straightforward and the extent to which the issues proposed for the first trial are interwoven with those that will arise in the second. They include whether a decision from the first trial will likely put an end to the action, significantly narrow remaining issues, or significantly increase the likelihood of settlement. They include the extent to which resources have already been devoted to all issues, the possibility of delay, the advantages or prejudice the parties are likely to experience and whether the severance is sought on consent or over the objections of one or more parties: see General Refractories Co. of Canada, above at para. 16. However, as Himel J. noted there, emphasizing the observations of Wilkins J. in Royal Bank v. Kilmer, above, the focus of these questions on expediency does not displace fairness and justice as the dominant considerations.

Are the issues separate or interwoven?

[25] As indicated, the respondent submits that the validity of the Marriage Contract is a discrete, stand alone issue and it is relatively straightforward. She contends that the issues that will be the subject of the two trials are not interwoven and are temporally distinct. Counsel for the respondent submits that a trial will take only five days and will involve few witnesses.

[26] In contrast to this, the applicant submits that the evidence is interwoven and will overlap. He submits that as he has agreed to the respondent’s date of separation, being May 8, 2014, there will not be competing dates of separation. He contends that the same witnesses will be required and the same evidence as the trial to determine the parties’ property and spousal support claims. As an example, the applicant asserts that the expert analysis may include an analysis of the values reported at the date of marriage and the respondent's current income for spousal support purposes. He contends that these would be required at both trials concerning the validity of the Marriage Contract and the respondent's spousal support obligation if the Marriage Contract is set aside.

[27] The applicant also submits that whether the Court orders that the matter be bifurcated or not, the respondent's current income would have to be determined. He contends that this exercise must be conducted to determine the validity of the Marriage Contract having regard to the principles underlying unconscionability. He submits that it would have to be determined whether the waiver of the right to spousal support resulted in unconscionable circumstances in accordance with section 33(4)(a) of the Family Law Act or whether it is inconsistent with the objectives of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). The applicant contends that these overlapping and interwoven legal considerations would have to be considered, and the same evidence led, for the purposes of determining the quantum of spousal support.

[28] The applicant submits that even though he contends that the evidence is interwoven and will overlap, in the interests of a just and more expedient proceeding, if the Court orders that the issues not be bifurcated, he is prepared to agree to the respondent’s values as set out in her sworn Financial Statement of January 19, 2015, as at the date of separation for her corporate interests and notional disposition costs for her corporate interests. As such, he submits that no valuation of these corporate interests will be required. He also agrees to admit to the other values set out in the respondent’s Financial Statement, removing the need for valuations for the respondent’s assets as at the date of trial. Further, he agrees to the respondent’s values as at the date of marriage for the purposes of equalization, but not as to the adequacy, accuracy or consistency of value as disclosed at the time of the signing of the Marriage Contract. The applicant also submits that he will agree to the respondent’s values even though he believes that the respondent has failed to disclose bank accounts jointly held with others and cash received by her. The applicant also points out that if the Court orders bifurcation and the trial of the validity of the Marriage Contract proceeds first, he does not concede any of the values set out above.

[29] In response to the applicant’s concessions as to the respondent’s values if the matters are not bifurcated, counsel for the respondent states in his factum and submits in his oral submissions, that even though the applicant has made this “qualified agreement” to accept the respondent’s values, the applicant has requested a complete Affidavit of Documents from the respondent and requires expert evidence with respect to the respondent’s interest in Rhyl as of the date of marriage which “masks the real cost of his proposal”.

[30] Counsel for the respondent submits that the applicant has made a claim to a one-half interest in the respondent’s assets under the doctrine of constructive trust and/or resulting trust or in the alternative, a joint family venture. He has also made a claim under section 5(6) of the Family Law Act for an unequal division of net family property. Counsel for the respondent contends that these claims will require detailed evidence regarding the relationship of the parties over the entire history of their marriage and, as such, the applicant’s concessions will not assist. Counsel submits that in keeping with the analysis as set out by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, 2011 1 S.C.R. 269 (S.C.C.), this will require specific evidence and will not be straightforward. Counsel for the respondent further contends that all of these claims are precluded by the Marriage Contract and such analysis will be unnecessary if the Marriage Contract is upheld.

[31] Counsel for the respondent further submits that if there is no bifurcation ordered, the respondent will need to amend her Answer and Claim to pursue a claim under section 5(6) of the Family Law Act, on the basis of unconscionability. He contends that the substantial assets received by the respondent after the date of marriage were in the nature of a gift from her father and the respondent’s father made those gifts in reliance on the Marriage Contract. Numerous witnesses would have to be called regarding this reliance on the Marriage Contract. It is also noted that the respondent’s father has passed away.

Analysis

[32] I agree with the submissions of the respondent that the validity of the Marriage Contract is a discrete issue. There will be relatively few witnesses to testify and the evidence will be focused on the circumstances surrounding the execution of the Marriage Contract and what financial information was disclosed by the parties at the time of the execution of the Marriage Contract. This disclosure that the respondent alleges was provided to the applicant prior to the execution of the Marriage Contract has also been provided to the applicant with respect to this litigation. The argument of the applicant that there were no values attributed to the respondent's assets and the disclosure provided by the respondent at the time of the execution of the Marriage Contract was insufficient, are issues that will be before the trial judge determining the validity of the Marriage Contract.

[33] If the Marriage Contract is upheld, the trust claims, joint family venture claim and alternatively, the equalization of net family property or unequal division of net family property claims advanced by the applicant, will not need to be addressed. I agree with the respondent’s position that those claims would require much detailed evidence involving the entire relationship of the parties. This evidence would not be required at this point if the issues are bifurcated and the determination on the validity of the Marriage Contract resolved first. Additionally, the respondent’s assertion that her father gifted her substantial assets in reliance on the Marriage Contract, and that it would be unconscionable for the applicant to share in these assets, would not need to be explored prior to the determination of the validity of the Marriage Contract.

[34] I do not view the issues as being so interwoven as to require the determination of all issues at the same time. The first trial would deal with the validity of the Marriage Contract and if the contract is upheld, the issue of division of property is resolved and perhaps spousal support. However, the trial judge has the discretion to uphold the Marriage Contract with respect to the issue of property while ordering a trial with respect to the issue of spousal support. Any further disclosure issues regarding spousal support and the need for an expert income determination of the respondent, can be addressed at that point.

Will bifurcation end the proceedings, narrow the issues or increase likelihood of settlement?

[35] If the Marriage Contract is upheld, the applicant's claims for constructive and resulting trust, joint family venture, equalization of net family property and his claim under section 5(6) of the Family Law Act and spousal support will end or the issue may be narrowed to that of only spousal support. I agree with the submissions of counsel for the respondent that the findings made and the evidence adduced in the first trial will likely assist with any settlement discussions. The trust claims, the joint family venture, equalization and unequal division of net family property claims made by the applicant are significant issues. The determination of the validity of the Marriage Contract may not end the proceedings completely given the spousal support claim; however, it will likely narrow the issues and increase the potential for settlement.

What resources have already been devoted to all issues?

[36] At this stage of the proceedings, no questioning has taken place and the motion for bifurcation has been brought relatively early in the proceedings. I am not persuaded that significant time and money has been expended prior to the commencement of the bifurcation motion that would justify the refusal to bifurcate.

Is there possibility of delay?

[37] The respondent contends that if the matter is not bifurcated there will be considerable delay and costs incurred. She submits that this would involve the cost and time to complete 54 individual commercial and industrial appraisals; significant costs for tax professionals; significant cost for the valuation of corporations partially owned by the respondent's interest in a numbered company 1406976; and time to complete a valuation report of Ganz Realty given the complexity of the business and its international nature and international market conditions.

[38] The applicant refutes this argument on the basis that if the matter is not bifurcated, he is prepared to accept the date of separation values as stated by the respondent and to accept the respondent’s stated marriage values for her business interests for the purposes of calculating an equalization payment owing to him if the Marriage Contract is set aside. The applicant argues that the estimates of the time and costs that the respondent provides to value her business interests are therefore moot if the matters are not bifurcated. The applicant also submits that he is prepared to proceed to questioning as soon as possible and is also prepared to proceed to a settlement conference as soon as possible. The applicant contends that a trial on all of the issues would only take between five to seven days. He contends that counsel for the respondent has indicated that a trial regarding the validity of the Marriage Contract alone would take five days, but he has not provided an estimate of the time needed for trial on all issues stating only that it would be lengthy.

Analysis

[39] As indicated, if bifurcation is ordered and the validity of the Marriage Contract determined first, this will likely lead to a resolution at an earlier stage and promote settlement. If the matter proceeds as one trial, I do not see the concessions made by the applicant as significantly reducing the costs that would be incurred and the delay that would ensue. This is particularly so with respect to the outstanding issues and the complexities involved in obtaining appraisals and values pertaining to the steps taken post-separation by the respondent’s father and the respondent’s position that it would be unconscionable to proceed with an equalization of net family property.

What advantages or prejudice are the parties likely to experience?

[40] The applicant contends that he will suffer real prejudice if bifurcation is ordered that outweighs any expediency. The applicant submits that if he is successful at the first trial on the validity of the Marriage Contract, given his financial circumstances, he may be unable to litigate a further trial. The applicant deposes that he is presently earning no income and has only made approximately $50,000 per year in recent years. He submits that he cannot afford to continue to litigate while the respondent can as she deposes that she has a net worth of approximately $70 million and her income as stated by her is approximately $215,000 gross per year.

[41] Counsel for the respondent submits that a trial on the validity of the Marriage Contract could proceed within months. He further contends that time would be saved by having the threshold issue proceed to an early trial. He suggests that advantages are gained by controlling spiralling costs and court time by ensuring that disclosure, Affidavits of Documents, evidence, witnesses, questioning and further steps proceed on the relevant issue only. Counsel for the respondent further contends that no specific prejudice has been demonstrated by the applicant.

[42] Counsel for the respondent further submits that the applicant’s case is entirely dependent upon setting aside the Marriage Contract. Only if he is successful will there be two trials. Additionally, he submits that the respondent is prejudiced because if she is required to produce significant disclosure, an income report and valuations of her date of marriage assets before the applicant’s entitlement is determined, she may be unable to recover her costs from the applicant if she is successful at trial.

Analysis

[43] Given the complexity of the issues, I do not perceive how a trial on all of the issues would be completed within five to seven days as suggested by counsel for the applicant. As stated by Quigley J. at para. 20 of Simioni: “It seems impossible to imagine that a comprehensive trial, including the inevitable trial within a trial on the validity of the Agreement, would not be substantially lengthier than a bifurcated trial that focused first solely on the validity of the Separation Agreement and closely related accessory issues.”

[44] I am not persuaded that having the threshold issue of the validity of the Marriage Contract decided first will prejudice the applicant. A bifurcated trial may significantly reduce costs for both parties. As indicated, it is likely that many issues will be resolved or that the issues will be narrowed. Depending on the result regarding the validity of the Marriage Contract, it is also likely that the parties will engage in serious settlement negotiations so that all issues are resolved. Similarly, as stated by Gordon J. in Dillon v. Dillon, 2013 ONSC 7679, [2013] O.J. No. 5744 at para. 35, there is more potential prejudice to the applicant if he proceeds with a trial on all of the issues. If the applicant is successful on the first trial he will likely receive a significant cost award. If he is unsuccessful on the validity of the Marriage Contract issue, his exposure to a cost award is minimized. He would face a much larger exposure to a cost award if he is unsuccessful on the lengthier trial.

Disposition

[45] For all of the above reasons and taking into consideration fairness and justice along with Rule 2 of the FLRs, I order that the issue of the validity of the Marriage Contract shall be severed from the remaining issues. A trial shall first proceed on the validity of the Marriage Contract. Counsel shall schedule a Settlement Conference to be held no later than July 31, 2015 before me. Counsel for the respondent submits that a trial can take place as early as September 2015. As such, taking into consideration the availability of trial dates, I order that the trial on the issue of the validity of the Marriage Contract shall be heard the week of October 5, 2015 for five days. Questioning shall be conducted on the validity of the Marriage Contract prior to the Settlement Conference on dates as arranged between counsel. Questioning shall be limited to one-half day for each party.

Issue #2: Should the respondent pay spousal support to the applicant on an interim basis?

The Applicant’s Position

[46] As indicated, the applicant seeks an order for temporary spousal support. He deposes that he earned approximately $46,000 in 2013 and 2011. In 2012, his income was $119,754 as a result of a capital gain that he declared from the sale of the parties’ cottage. The applicant submits that his income has been approximately $50,000 averaged over the last number of years but that he is currently unemployed.

[47] The applicant further deposes that he is presently 60 years of age and he earned no income in 2014. He contends that he was not self-supporting during the marriage given the parties’ lavish lifestyle. The applicant indicates that he works in the computer science industry and that there were many periods of time throughout the marriage when he was without a contract. The applicant asserts that given the nature of the industry, by necessity one must focus and become an expert in a very specific area. The applicant was able to do this during the parties’ marriage and he entered into contracts that allowed him to work remotely from home or at the parties’ cottage.

[48] The applicant deposes that in November 2011 the parties decided to buy a new cottage. After the purchase of the cottage, he contends that he was occupied with the cottage almost on a full-time basis. This included dealing with the contractor and township issues. At the time he did not have an employment contract. Given the work related to the cottage and his need to care for his elderly mother, the applicant states that was not employed from November 2011 until September 2012. However, he deposes that he was working hard for the benefit of both parties. He contends that the respondent is failing to acknowledge the significant work associated with the upkeep and maintenance of the cottage that was performed by him to the benefit of both parties. The applicant also states that the respondent never expressed any concerns about the applicant's lack of contract work during the marriage.

[49] The applicant deposes that in September of 2012 he entered into another employment contract that ran until July 2013. As the parties had planned a trip to Nepal and a trip to Israel, the applicant indicates that the parties decided that it was not practical for him to seek a new contract until they returned from their trip to Israel which was scheduled for January 2014. After his return from Israel, he continued his studies to enhance his employment opportunities. The applicant contends that he was able to enter into intermittent contract work because of the significant income and other monies received from the respondent and the respondent's family throughout the marriage. He further contends that the respondent was completely supportive of the move to contract work as it afforded both parties freedom and greatly enhanced their lifestyle. It allowed both parties to spend more leisure time together at the cottage which the applicant submits was the respondent's preference.

[50] The applicant indicates that as time went on, as his skills were focused in a niche area, some of his computer skills became outdated. In time, work began to shift to being outsourced to India and other competing clinical programming tools became popular. The applicant was not trained in these programs.

[51] The applicant further deposes that he took an active role with the respondent's daughter, Emma, and was very involved in her life. He also indicates that he accompanied the respondent when she would visit her various properties in Hong Kong and Tel Aviv when meeting with property managers at these locations.

[52] The applicant deposes that the respondent is the Executive Director of two family trusts. He contends that during the marriage she received a monthly income from each foundation that was deposited into the parties’ joint chequing account out of which many expenses of the matrimonial home and cottage were paid. He further deposes that the respondent assisted at an annual warehouse sale where she worked 20 to 25 days between October and December and was paid in cash by her father for this work.

[53] The applicant disputes that the respondent’s income is only $215,416 gross as indicated by her. For the purposes of this motion, the applicant is seeking an order that the Court impute an income to the respondent in the amount of $314,338 which adds on to the respondent’s income undeclared cash and benefits derived from her family business. Based on the respondent’s income as imputed and his income at zero, the applicant seeks spousal support in the amount of $9,430 per month in accordance with the Spousal Support Advisory Guidelines (the “SSAGs”). In the alternative, he seeks spousal support in the amount of $6,462 per month based on the respondent's declared income of $215,416 gross, his income at zero and the SSAGs.

[54] As indicated previously, the applicant seeks to set aside the Marriage Contract entered into between the parties on November 1, 1996. I have already summarized above the reasons for the applicant wanting to set aside the Marriage Contract. The applicant deposes that he never expected that after a lengthy marriage he would be deprived of the division of assets and support. He contends that the parties enjoyed a very luxurious and expensive lifestyle during the marriage. The applicant deposes that this lifestyle and the properties purchased by the parties during the marriage were made possible by the funds provided directly to the respondent as well as by expenses paid for by the respondent's family and the family businesses.

[55] The applicant describes a lifestyle of extravagant holidays, fine dining and high-priced entertainment. He deposes that during the course of the marriage, the parties resided in the matrimonial home which is a large upscale home, and they own a luxurious cottage. The applicant contends that he is economically dependent on the respondent. He indicates at present that he is unable to secure alternate accommodations for himself and fund his own expenses until he knows how matters are going to be resolved.

The Respondent’s Position

[56] The respondent denies that the applicant is entitled to spousal support. She relies upon the waiver of spousal support as set out in the Marriage Contract and the fact that the applicant has been self-supporting throughout the marriage.

[57] The respondent also denies that the Marriage Contract is unconscionable. She contends that pursuant to the Marriage Contract, any property owned jointly is to be shared equally, such as the cottage. The respondent deposes that even though the majority of the funds came from her to purchase the cottage, she wanted the applicant to be a joint owner. The cottage is now worth approximately $1,650,000 to $1,800,000 (there is no mortgage) and is to be listed for sale pursuant to a consent order. The applicant will receive one-half of the proceeds.

[58] Further, the respondent indicates that the applicant was self-supporting at the time of marriage and was self-supporting throughout the marriage. She indicates that the applicant has never been without a job for as long as he has been since separation. She denies that the applicant ever acted as a father to her daughter Emma, and maintains that Emma always had a close relationship with her father who has resided in Israel since Emma was young. The respondent also denies that the parties lived lavishly. She contends that the parties lived within their means; however, from time to time when there was a major purchase or expense, the respondent's family would assist her.

[59] The respondent deposes that she has an annual income of $215,416 gross with respect to the work that she performs at Ganz Realty Ltd. and the family foundation.

Discussion

[60] Counsel for the applicant contends that there is a triable issue with respect to the validity of the Marriage Contract. He relies on the decision of Price J. in Pitchford v. Pitchford, [2009] O.J. No. 3468 at para. 19 in support of the applicant's position that interim spousal support may be granted in spite of a waiver of spousal support contained in a marriage contract where there is a triable issue as to the validity and enforceability of the contract.

[61] Counsel for the applicant also relies on s. 33(4) of the Family Law Act which states:

33. (4) The court may set aside a provision for support or a waiver of the right to support in a domestic contract and may determine and order support in an application under subsection (1) although the contract contains an express provision excluding the application of this section,

(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;

(b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or

(c) if there is default in the payment of support under the contract at the time the application is made. R.S.O. 1990, c. F.3, s. 33 (4); 2006, c. 1, s. 5 (1).

[62] Counsel for the applicant submits that it is settled law that the applicant on an interim motion need not demonstrate that one or more of the conditions set out in section 33(4) of the Family Law Act are met, but rather the applicant must only demonstrate that there exists a triable issue as to the enforceability of the agreement where there is a waiver of spousal support. He contends that if the court finds a triable issue exists, and that the spouse meets the tests that entitle him or her to support, a court has the discretion to make an order for interim support. Counsel for the applicant relies upon the decision of LaFrance v. Charbonneau, [2011] O.J. No. 4819 (S.C.J.) and Chaitas v. Christopoulos, 2004 66352 (ON SC), [2004] 12 R.F.L. (6th) 43, OJ. No. 907 (S.C.J.) in support of the applicant’s position.

[63] In Chaitas, Sachs J., on a motion, granted interim spousal support in spite of a marriage contract after determining that there was a serious issue to be tried with respect to the enforceability of the agreement and conducting the two-step investigation as set out in Miglin v. Miglin, [2003] S.C.J. No. 20. Sachs J. sets out the two-stage investigation in para. 12 of Chaitas and then concludes at para. 21 that on an application for interim support, the court is required to conduct the Miglin analysis:

[13] The ruling in Miglin requires the court to engage in a two-stage investigation. At the first stage, the court must look at the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it. The court must also examine whether the agreement, when it was signed, substantially complied with the objectives for spousal support set out in the Divorce Act. At the second stage, the court must ask whether, at the time of the application, the agreement still reflected the parties' original intentions and whether it was still in substantial compliance with the objectives of the Divorce Act. …

[21] In my view, the court, on an application for interim support, is required to conduct the Miglin analysis. If, on the evidence filed, a serious issue to be tried has been raised with respect to the circumstances under which the contract was negotiated and executed, then the contract will not act as a bar to the application. This is particularly the case in circumstances where, as here, if the contract is upheld at trial, there are assets in the applicant's name that can be used to compensate the respondent for any support that should not have been paid. Interim orders are not final orders. As noted by Granger J. in Cafik, they are meant to provide "a reasonably acceptable solution to a difficult problem until trial".

[Emphasis original]

[64] As set out in his factum and in his oral submissions, counsel for the applicant contends that the applicant has demonstrated in his affidavit material that a triable issue exists. He submits that the applicant would be entitled to spousal support on an interim and permanent basis but for the existence of the Marriage Contract, the validity of which is a triable issue. He contends that the circumstances surrounding the drafting of the Marriage Contract (it was drafted by the respondent's lawyer) and the fact that it was provided to the applicant only eight days before the wedding and signed four days before the wedding, raises an issue of duress and a triable issue concerning the validity of the Marriage Contract. Further, counsel for the applicant submits that the respondent was obligated to provide full and frank disclosure and failed to do so. He also contends that the Marriage Contract is unconscionable i.e., not enforceable, in light of the huge disparity in the parties’ financial circumstances; the full releases contained therein despite an 18-year marriage and the respondent's wealth; and the role that the applicant assumed acting as a father to the respondent's child, Emma.

[65] In contrast, counsel for the respondent submits that the applicant is not entitled to spousal support and that entitlement is highly contested by the respondent. As such, counsel for the respondent has proposed in his draft order that the respondent immediately advance the sum of $200,000 to the applicant as an advance against the net proceeds of sale to be received by the parties upon the sale of the jointly held cottage. This would provide the applicant with funds pending trial on the issue of the validity of the Marriage Contract. Among other terms, the draft order provides that the applicant’s motion for interim spousal support be adjourned until the validity of the parties’ Marriage Contract has been determined by the Court. Counsel for the applicant is opposed to this proposal as he submits that the applicant is entitled to spousal support and the applicant should not have to resort to using his capital to support himself.

[66] The respondent relies on the Supreme Court of Canada decision of Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550 in support of the respondent’s position that the Court should give deference to agreements, especially where there has been independent legal advice as the respondent submits was evident with the Marriage Contract entered into by the parties. At para. 9 of Hartshorne the Court states: “The authorities generally agree that courts should respect private arrangements that spouses make for the division of their property on the breakdown of their relationship. This is particularly so where the agreement in question was negotiated with independent legal advice.”

[67] The respondent also relies on the Ontario Court of Appeal decision of Dougherty v. Dougherty, 2008 ONCA 302, [2008] O.J. No. 1502 (C.A.) in support of her position that there is no presumption that the courts will be hesitant to enforce a pre-nuptial agreement. As Rosenberg J.A., speaking for the Court, states at para. 11: “…there is no presumption that the courts will be hesitant to enforce a pre-nuptial agreement. The burden is on the party seeking to escape the effect of the agreement to show that there are grounds for setting it aside.”

[68] The respondent submits that the applicant waived his right to spousal support and paragraph 14.3 of the Marriage Contract states that the agreement may be pleaded as a complete defence to any claim by one party against the other. She further submits that as the motion Judge’s ability to make findings of credibility is limited, courts have held that it is not appropriate to order interim support where there is a valid Agreement. The respondent also contends that if the Marriage Contract is set aside, the Court may make an order for retroactive support at trial.

[69] Counsel for the respondent submits that even if the Court were to engage in a Miglin analysis, the applicant’s claim would still not succeed. The respondent contends that disclosure was provided and no requests were made by the applicant or his counsel for further disclosure. In addition, the applicant acknowledged in the Marriage Contract that the financial disclosure was sufficient. The respondent also submits that there was no duress as the applicant insisted on getting married; there was no rush to sign the Marriage Contract; this was a second marriage for the applicant, that he was 42 years-old; and he understood that the intent was to protect the significant wealth of the respondent’s family. Further, she contends that the applicant acknowledged that he signed the Marriage Contract voluntarily and his lawyer acknowledged that the applicant was signing voluntarily.

[70] The respondent also submits that there was no unconscionability. She contends that the Marriage Contract was negotiated fairly and in accordance with accepted practices and governing law.

[71] The respondent submits that the Marriage Contract also meets the objectives of the Divorce Act as set out in s. 15.2(6). The respondent submits that the applicant has not suffered any economic disadvantage arising from the marriage or its breakdown. She contends that the applicant has always been self-supporting, he has substantial savings and investments (approximately $500,000) plus he will receive substantial funds from his one-half share of the cottage. The respondent submits that the applicant’s choice to be an independent contractor and take contract work is unrelated to the marriage and is of his own choosing. She further submits that each party was responsible for their own child.

[72] Counsel for the respondent also contends that on this record spousal support should not be granted to the applicant as he has failed to provide recent Income Tax Returns for 2011 to 2013 as only Notices of Assessments were provided despite his self-employment; he has failed to provide his 2014 Income Tax Return (although it is noted that at the time of the hearing of the motion, the deadline for filing of the applicant’s 2014 Income Tax Return had not passed); and he has failed to provide any evidence of efforts to find employment. Counsel for the respondent points out that the applicant has approximately $500,000 in assets (not including his one-half interest in the cottage) and no income is shown from his investments. Counsel for the respondent further contends that the applicant has not produced any financial statements for his company and no medical evidence to support an inability to work. He submits that this is all despite the fact that the applicant has always been self-supporting and that this is the longest period of time that the applicant has been without work. Counsel for the respondent contends that this is strategic on the applicant’s part to overcome the threshold of entitlement as is his initial refusal to list the properties for sale and his refusal to list the cottage despite the consent court order.

Analysis

[73] Section 15.2 of the Divorce Act states as follows:

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[74] As set out in Pitchford and Chaitas, interim spousal support may be granted in spite of a waiver of spousal support contained in a marriage contract where there is a triable issue as to the enforceability of the contract. Although I agree with counsel for the respondent’s submissions that some of the facts set out in Pitchford and Chaitas are distinguishable from this matter, in my view there are circumstances in which the Marriage Contract was executed in this case that raise a triable issue.

[75] The Marriage Contract was provided to the applicant only eight days before the wedding and executed four days before the wedding. There is conflicting evidence as to which party was insistent upon the wedding, but there is no question that the contract was completed quickly. Although it is acknowledged that each party had a lawyer, the applicant raises the issue of duress given the speed at which the Marriage Contract was completed.

[76] There is no dispute that some disclosure was provided by the respondent to the applicant prior to the execution of the Marriage Contract, however, the applicant takes the position that it was the respondent's obligation to provide full and frank disclosure and that she failed to do so. In my view, the issue of whether the disclosure provided by the respondent was sufficient to enable the applicant to determine what he would be giving up as a result of entering into the Marriage Contract also raises a triable issue.

[77] The applicant also raises the issue of unconscionability given his concern that the respondent failed to provide proper financial disclosure, resulting in what he contends was an unconscionable bargain. The applicant contends that the terms of the Marriage Contract are also unconscionable given there is no equalization of the parties’ net family property and no provision for spousal support regardless of the length of marriage, the role that each of the parties played in the marriage, and the accumulation of wealth during the marriage. I agree with the submissions of counsel for the applicant, that this is also a triable issue given the length of marriage, the conflicting evidence with respect to the applicant's economic dependency on the respondent versus the respondent's position that the applicant has always been self-sufficient and the contributions made by each party to the marriage and to each other's children.

[78] Pursuant to s. 15.2(4) of the Divorce Act, in making an order for spousal support and in considering the condition, means, needs and other circumstances of each spouse, the existence of the Marriage Contract and its waiver of spousal support is only one of the factors to be considered. The factors and objectives set out in the Divorce Act for the court to consider are also the same whether or not the court is making an interim or final order. In reviewing the Marriage Contract and the evidence before me, I have concerns that the Marriage Contract is not in substantial compliance with the objectives as set out in section 15.2 of the Divorce Act. The result of the Marriage Contract is that the applicant is not entitled to spousal support after 18 years of marriage and despite his contributions to the marriage. Save for one-half of the cottage property and savings of the applicant, the matrimonial home of the parties (it is registered in the respondent’s name alone) and the majority of the wealth is retained by the respondent.

[79] While I acknowledge the respondent’s position that most of her wealth accumulated during the marriage is as a result of steps taken by her father in reliance on the Marriage Contract, the reality is that the parties were married for 18 years and the applicant is now 60 years of age. The applicant has worked in a niche area on a contract basis for some time and he is also presently unemployed. Hopefully this situation will change in the very near future as the applicant does also have an obligation to try to become self-sufficient and there is currently no evidence that he is actively pursuing employment. However, the applicant’s line 150 income as shown by his Notices of Assessments for 2011 and 2013 was $47,934 and $45,467. In 2012 the applicant’s line 150 income was $119,754 as a result of capital gains that were included in his income regarding the sale of a previous cottage. It does not appear that the applicant has recently earned a significant income. The evidence before me is that the applicant has had periods of time where he has been unemployed or in between contracts during the latter part of the marriage. The parties did enjoy wonderful trips and other opportunities, including time at their cottage, which would not afford the applicant as much opportunity to secure regular contracts or be employed by a third party.

[80] Even if the applicant was gainfully employed, the standard of living that the parties enjoyed together during their marriage far exceeds the standard of living that the applicant can provide for himself. The applicant has suffered an economic hardship and disadvantage from the breakdown of the marriage. There is a great disparity in the incomes of the parties presently. For all of these reasons, there is entitlement to spousal support. Currently there is a need for interim spousal support and the respondent is able to pay spousal support.

[81] Additionally, as of July, the applicant will be moving out of the matrimonial home and he has not secured any accommodations. He will receive one-half of the equity in the cottage but there has been no sale of the cottage. The respondent’s proposal to advance the applicant $200,000 out of the parties’ cottage proceeds may result in the applicant using his capital in order to support himself pending trial. He should not be expected to access his capital to support himself.

[82] The applicant seeks support in the amount of $9,430 per month in accordance with an income for the respondent of $314,338 gross per year. This figure is based on the addition of cash income which he contends is undeclared by the respondent and other benefits that she receives. In the alternative, he seeks the amount of $6,462 per month based on the respondent's declared income of $215,416 gross per year.

[83] I am not prepared to impute additional income to the respondent based on the evidence before me. I am not persuaded at this stage that there is additional cash income earned by the respondent or other benefits that should be added on to the respondent’s income. The appropriate income of the respondent to use for support purposes is $215,416 gross. At that income level, the SSAGs provide a range of $4,847 to $6,462 support per month.

[84] Commencing May 1, 2015, the respondent shall pay to the applicant spousal support in the mid-range amount of $5,655 per month until further order of the court. This order of interim spousal support is entirely without prejudice to either party’s position at trial. The applicant has an obligation to try to become self-sufficient. He shall provide updates every three months to the respondent’s counsel of his ongoing efforts to obtain employment and shall immediately advise the respondent’s counsel in writing when he has obtained employment. Upon obtaining employment, the applicant shall immediately provide in writing to counsel for the respondent all particulars of his employment, including any remuneration paid and available benefits.

Issue #3: Is the respondent obligated to provide any additional information or documents pursuant to Rule 13(11) of the FLRs until the validity of the parties’ Marriage Contract has been determined by the Court?

[85] Counsel for the respondent submits that even with the applicant’s “qualifying agreement” to accept the values of the respondent on her sworn Financial Statement, the applicant is insistent upon a complete Affidavit of Documents. This includes the value of the respondent’s shares in Rhyl on the date of the marriage and in the numbered company 1406976 at the date of separation. Counsel for the respondent contends that this information requested by the applicant may become relevant only after the determination of the validity of the Marriage Contract and to order this disclosure now would seriously prejudice the respondent.

[86] The applicant contends that the parties agreed by way of a consent order on January 30, 2015 that they would exchange Affidavits of Documents by March 16, 2015. The applicant submits that the respondent is now attempting to resile from this agreement. He also contends that the information is absolutely necessary to determine the issue of the validity of the Marriage Contract and whether the spousal support provision is unconscionable.

[87] I agree with the submissions of counsel for the respondent that the issue of the validity of the Marriage Contract needs to be determined prior to ordering disclosure regarding the value of the respondent’s shares on the date of marriage and of the numbered company 1406976 at the date of separation. The trial judge, on the issue of the validity of the Marriage Contract, will review the circumstances at the time of the signing of the Marriage Contract along with the disclosure provided at the time to determine its sufficiency and how this may affect the validity of the contract. I also agree that an expert income analysis of the respondent’s current income is unnecessary presently. It is clear that there is currently a disparity in the incomes of the parties and an expert income analysis at this time would not assist the Court in determining the issue of the validity of the Marriage Contract. Disclosure shall be limited to that which is necessary to determine the issue of the validity of the Marriage Contract. Any additional disclosure issues can be addressed later in the proceedings if the Marriage Contract is set aside at the first trial.

[88] I order the following:

i) The issue of the validity of the Marriage Contract shall be severed from the remaining issues. A trial shall first proceed on the validity of the Marriage Contract. Counsel shall schedule a Settlement Conference to be held no later than July 31, 2015 before me. The trial on the issue of the validity of the Marriage Contract shall be heard the week of October 5, 2015 for five days. Questioning shall be conducted on the validity of the Marriage Contract prior to the Settlement Conference on dates as arranged between counsel. Questioning shall be limited to one-half day for each party;

ii) Commencing May 1, 2015, the respondent shall pay to the applicant spousal support in the amount of $5,655 per month until further order of the Court. This order of interim spousal support is entirely without prejudice to either party’s position at trial. The applicant shall provide updates every three months to the respondent’s counsel of his ongoing efforts to obtain employment and shall immediately advise the respondent’s counsel in writing when he has obtained employment. Upon obtaining employment, the applicant shall immediately provide in writing to counsel for the respondent all particulars of his employment including any remuneration paid and available benefits;

iii) Any disclosure provided by the parties shall be limited to that which is necessary to determine the issue of the validity of the Marriage Contract. For clarity, the respondent shall not be required for the trial on the issue of the validity of the Marriage Contract, to value the shares owned by her on the date of marriage and of the numbered company 1406976 at the date of separation. She shall not be required to provide an expert income analysis of her current income. Any additional disclosure issues shall be addressed later in the proceedings if the Marriage Contract is set aside at the first trial;

iv) I urge the parties to agree on costs; however, if the parties are unable to agree, any party seeking costs shall do so by filing written costs submissions, not to exceed two double-spaced pages within 14 days, along with a Bill of Costs and any Offers to Settle. A party wishing to respond shall do so by filing written costs submissions, not to exceed two double-spaced pages, 14 days thereafter.

Stevenson J.

DATE: May 22, 2015