CITATION: Ho v. Ho, 2016 ONSC 1226

NEWMARKET COURT FILE NO.: FC-14-46730-00

DATE: 20160219

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

Mary Hang Yee Ho Applicant

– and –

Alain Chi-Piu Ho Respondent

Ken H. Nathens, for the Applicant

Stephanie Ansky, for the Respondent

HEARD: February 17, 2016

RULING ON MOTION

JARVIS J.

[1] This is a Motion by the applicant wife (“the wife”) for an Order for spousal support, striking the pleadings of the respondent husband (“the husband”) for alleged non-compliance with the disclosure Order made by Nelson J. on February 9, 2015 and that the husband pay to the wife the sum of $25,500 that she had loaned him after the parties separated pursuant to his written promise to repay her right away.

[2] The husband has been paying $3,000 monthly support without the benefit of a court Order or written agreement and maintains that his circumstances are such that he cannot repay the borrowed funds unless and until the parties’ net family properties have been equalized.

Background

[3] The parties were married on November 17, 1975 and separated on November 12, 2013. There are two children of the marriage, both adults, neither of whom is any longer financially dependent on their parents. The wife is 63 years old and the husband is 68.

[4] The wife is a chiropractor and a certified rehabilitation doctor in the field of rehabilitation medicine. She had an active practice for 25 years until she was obliged (as she describes) to give up her practice in 2011 due to exhaustion and distress caused by marital issues. In 2014 (after the parties separated) the wife was injured when she was struck by an automobile driven by the husband. She was hospitalized for what a treating physician described as a “very serious” accident involving left ACL tear, left wrist and head injuries and multiple contusions. When this Motion was argued the wife was continuing treatment. Her complaints include weakness and loss of sensation in her limbs. The husband was charged with failing to remain at the accident scene and was convicted under the Highway Traffic Act after pleading guilty.

[5] The wife’s current income is about $17,700 a year comprising interest and other investment income, and some capital gains. She resides in the matrimonial home.

[6] The husband is an engineer employed by provincial Crown Corporation. In 2014 he earned $157,176. This comprised his earned income together with a modest federal pension. His 2015 income is not known. He resides in a home with whom is alleged to be a new partner and her children, and he contributes $2,000 monthly to his living expenses there.

[7] Before the parties finally separated in 2013 there had been an earlier separation in 2007 after the wife discovered, and the husband subsequently admitted, extramarital activities. Expensive gifts and other benefits were provided to third parties which the husband is prepared to concede may total about $130,000. The husband regretted his behaviour and later pledged in writing to his wife and sons to support them. About four months later the parties signed a domestic contract, the provisions of which materially favoured the wife’s financial interests. Financial disclosure was noted as having been made; both parties obtained independent legal advice. The parties resumed cohabitation.

[8] But in November 2013 the wife discovered evidence that suggested that the husband was involved with another woman. She attempted suicide and was briefly hospitalized. The parties separated for a final time.

[9] In January 2014 the husband approached the wife and asked to borrow $25,500 from her to deposit into a TFSA in his name. There is no question that the funds for this loan originated, for the most part, from the husband’s earnings but were ultimately drawn from a bank account owned solely by the wife. In a January 17, 2014 email to the wife, the husband wrote,

“Any money I borrowed will not be any responsibility of you and family. I will take fully (sic) ownership and pay back myself. As a matter of fact, the $25,500 TFSA deposits you made to my account should be withdrew (sic) and returned to you immediately. I do not want to take any savings from you without cause.”

[10] This Application was started by the wife on or about September 23, 2014. In his Answer the husband has challenged the domestic contract.

[11] On February 9, 2015 a Case Conference Order was made by Nelson J. that, among other things, required an exchange of disclosure by the parties. At the outset of argument counsel advised that the parties consented to an Order dealing with most of the outstanding disclosure but there remained issues relating to the husband’s production of proof of his living expenses and back up documentation for the money spent by him on his extramarital activities.

[12] In addition, after the parties separated, the husband paid nothing for spousal support until November 2014 when he began paying $3,000 a month without the benefit of a court Order or written agreement. Although not always timely, he has paid this amount to date. He says he cannot afford more. In light of the provisions of the domestic contract, the husband contends that together with her ownership of the matrimonial home, which was appraised in March 2015 as being worth $1,316,937 on the valuation date, the wife has about $2,700,000 in assets compared to his far more modest net worth, and that she can access her own capital to assist her support.

[13] The wife’s expenses, many of which the husband says are inflated, are about $9,000 monthly although this amount includes $2,000 a month for housing repairs and maintenance and $1,000 for RRSP contributions and vacation. As a result of her injuries the wife claims that she needs about $6,800 monthly for attendant care, transportation to and from medical appointments and housekeeping services. Clearly the wife’s living and medical expenses significantly exceed the family income needed to service them. She says that she has had to encroach on her savings to help meet these costs.

Analysis

(a) Support

[14] Although canvassed during argument, it is unlikely that the parties will be able to conclude their disclosure and, in the wife’s case, deliver (as she proposes) a medical report compliant with the Rules before the upcoming May Trial sittings. That report would deal with her health and ability, if any, to contribute to her own support. The husband may seek to have the wife independently examined. A November trial is probable.

[15] The parties agree that the SSAGs suggest a monthly spousal support range between $4,332 to $5,560. While there is some merit to the husband’s argument that the wife is obliged to prudently manage her resources to maximize her income, it is clear law that she is not otherwise obliged to encroach on her capital in circumstances where, as here, the husband has the ability to pay. Although the court raised the issue of what health care and related benefits were available to the wife through the insurer as a result of the automobile injuries sustained, there was no explanation forthcoming other than the matter was “under consideration.”

[16] In my view, a deductible spousal support Order in the amount of $5,000 a month will result in the wife having slightly in excess of $700 more net disposable income than now being paid, and a slightly less after-tax cost to the husband. This is a mid-range amount and should in no way be interpreted as suggesting that spousal support at the high end of the SSAG range is not appropriate. It is without prejudice.

[17] The evidence is unclear about how, or by whom, the housing and other family expenses were paid after the parties separated so the Order now made is without prejudice to either party’s claim for support and credits predating the effective date of this Order which shall be March 1, 2016.

(b) TFSA

[18] The husband’s promise to repay the wife $25,500 that she advanced was unequivocal. His position that he made that promise in circumstances where he understood that he would be entitled to one-half of the equity in the matrimonial home is unsupported by his email and contradicted by the clear terms of the parties’ earlier domestic contract and, even before that, the written declaration he gave to the wife when they first separated in November 2008. The husband claims that being required to repay these monies now would jeopardize his ability to retain counsel. However, despite delivering an affidavit updating his Financial Statement sworn December 1, 2014, and in which he deposed that he had been obliged to redeem $50,000 of RRSP savings, the husband would appear to have in excess of $94,000 liquid savings.

[19] In my view, therefore, the husband should be required to forthwith repay to the wife the sum of $25,500. Any interest that the wife may claim with respect to the date when she first requested the husband to repay these funds shall be reserved to be determined by the trial judge when the parties’ affairs are fully and finally concluded.

(c) Outstanding Disclosure

[20] The disclosure of which the wife complains that the husband has been non-compliant with the Order of Nelson J. is as follows:

(a) a copy of the lease, if any, of his [i.e. the husband’s] accommodations and proof of his own living expenses that he claims on his Financial Statement; and

(b) a list with supporting documentation (as may be available) of money spent pursuing extramarital relations for the period 2007 – November 2013.

[21] The husband has sworn in his affidavit that there is no lease and that he contributes $2,000 monthly to his current living expenses. In my view, evidence of his remittances of that amount to the owner (or head tenant) of the property in which he is currently residing should be provided. As for a list of money or other benefits provided with respect to the husband’s extramarital activities the only evidence that the husband has advanced is a letter from his counsel that he has no records other than what are already in the wife’s possession and that he was prepared, in any event, to acknowledge a $130,000 amount.

[22] It seems to me that best way to deal with this outstanding disclosure is to require the husband to provide an answer to these two outstanding disclosure requests by way of affidavit sworn by him and delivered no later than April 29, 2016. In the event that the wife is dissatisfied with the contents of that affidavit then leave is granted for the husband’s questioning on that affidavit such questioning to be completed no later than June 30, 2016 and limited to 1 ½ hours.

[23] As for the balance of the disclosure sought in the wife’s motion, the parties have signed a consent to an Order.

Disposition

[24] Accordingly, the following Order shall issue:

(1) The husband shall pay to the wife on a without prejudice basis monthly spousal support of $5,000 effective March 1, 2016 and continuing monthly thereafter on the first day of each and every succeeding month until varied by further Order of the court;

(2) The Order made pursuant to paragraph (1) above is without prejudice to either party’s claims for retroactive support from and after the valuation date and applicable credits for any other monies advanced or paid from and after that date;

(3) The husband shall pay to the wife the sum of $25,500 forthwith. Any claim for interest shall be reserved to the trial judge to determine;

(4) On or before April 29, 2016 the husband shall deliver a sworn affidavit complying with the Order for disclosure made by Nelson J. on February 9, 2015 and as set out in paragraphs 1 and 2 of the wife’s Notice of Motion dated November 17, 2015;

(5) If the wife is dissatisfied with the husband’s affidavit then she shall have the right to question the husband on or before June 30, 2016 on that affidavit, such questioning being limited to 1 ½ hours;

(6) The husband shall also provide within 30 days of February 18, 2016 the disclosure set out in the parties written consent dated that day and filed with the court.

[25] If the parties are unable to resolve costs then the wife shall file submissions by March 4, 2016, with any responding submissions by the husband to be filed by March 11, 2016. Reply submissions, if necessary, limited to one page to be served and filed by March 18, 2016. Submissions shall be limited to three pages, exclusive of a detailed Bill of Costs, and copies of any Offers to Settle. Any Brief of Authorities or index to case citations to be bound separately, not within the record. All submissions are to be filed in the Continuing Record.

Justice D.A. Jarvis

Date Released: February 19, 2016