Court File and Parties
COURT FILE NO.: FS-11-00367261 DATE: 20160412 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cindy Adler, Applicant AND: Kerry Adler, Respondent
BEFORE: Kiteley J.
COUNSEL: Harold Niman and Donna Wowk, for the Applicant Martha McCarthy and Sarah Young, for the Respondent
HEARD: April 7, 2016
Endorsement
[1] This is a motion by the Applicant for orders pursuant to s. 12 and s. 40 of the Family Law Act. The motion was originally returnable February 4, 2016 and was adjourned for a long motion on March 2. It was further adjourned to March 31 and then to this date. Along the way, the Notice of Motion was amended three times by altering the relief sought. In addition to those amendments, the relief requested was further amended in the confirmation form and is as follows:
The Respondent shall not, by any means whatsoever, dissipate, encumber or deplete any assets or property, real and personal, any corporate or personal holdings, business interests or trusts in which he may have an interest, in any jurisdiction, in which he may have a direct or indirect, legal or beneficial interest, including the following specific assets:
(i) Account ***690 at the Union Bank of Switzerland (ii) BMO Investorline Account 444 (iii) Gold bar(s) held in a safety deposit box at the Union Bank of Switzerland (iv) Cash held in safety deposit boxes at the Union Bank of Switzerland and at Toronto Dominion Bank and Bank of Montreal (v) Eagle Capital Investment Corp. including the Maple Grove cottage (vi) Respondent’s interest in the parties’ Crescent Harbour cottage
Costs of this motion on a full recovery basis.
[2] The aggregate value of the property listed in (i) to (iv) and (vi) and the Maple Grove cottage is $9 million to $9.3 million depending on the range of value of Maple Grove.
[3] The basis upon which the motion was launched was that the Applicant alleged that the Respondent has been depleting his capital at an alarming rate and if he were permitted to continue the depletion, there will be insufficient funds for him to pay the Applicant’s equalization claim or her retroactive support claim, plus pre-judgment interest and costs.
[4] When the motion was initiated in early February, the Applicant had relied on an affidavit sworn January 28, 2016 attached to which were 28 exhibits. The Respondent’s affidavit (with 25 exhibits) was sworn March 9 and his financial statement form 13.1 was sworn March 8. The Applicant’s reply affidavit is dated March 29, 2016 and attaches over 30 exhibits and, as Ms. McCarthy noted, was served on the eve of the return date of the motion on March 31, as a result of which the Respondent did not have an opportunity to respond. The motion was further adjourned to April 7. In addition, the parties have filed other evidence including, for example, an affidavit attaching the original notice of motion and subsequent three amendments.
[5] According to Ms. McCarthy, from the outset when the motion was brought on an urgent basis, the matter has been pursued on behalf of the Applicant in the most aggressive way possible; the relief sought has been excessive and overreaching; the relief sought has been modified in four notices of motion and appeared to change yet again, improperly, in the confirmation form to which the Respondent could not respond. Ms. McCarthy took the position that the excessive and overreaching approach had been unfair to the Respondent and meant that the Respondent has been in a reactive mode, or “on his back leg” from the outset. She observed that she and her client had done the best job they could to comprehensively respond even in the face of what appeared to be a moving target.
[6] The position taken on behalf of the Respondent is that the Applicant has failed to meet the burden of proving that an order under either s. 12 or s. 40 should be made and the motion should be dismissed.
[7] Suffice it to say that the parties have vastly different views of what has occurred. It is not possible nor is it necessary for me to make findings of fact or of credibility in a record as complex as this in the context of a motion for a temporary order.
Background
[8] The parties married on November 23, 1996. They have 4 children born in 1997, 1999, 2002 and 2004 all of whom are in school. The parties separated on December 26, 2010 and were divorced on March 15, 2012.
[9] This Application was issued March 8, 2011. My endorsements dated December 11, 2015 2015 ONSC 7806 and January 15, 2016 2016 ONSC 386 provide the procedural context. The trial is scheduled tentatively for the week of November 7, 2016 for 15 days. The settlement conference and trial management conference is scheduled for April 15, 2016.
Family Law Act
[10] Pursuant to s. 12, in the context of an application for an equalization of net family property, the court has jurisdiction to make an interim order to restrain the depletion of a spouse’s property and to order preservation of the property. Pursuant to s. 40, in the context of an application for support, the court has jurisdiction to make an interim order to restrain the depletion of a spouse’s property that would impair or defeat the claim for support.
[11] Counsel referred to the usual authorities and others that each thought would be relevant.
Analysis
[12] Assuming that the relief sought is as reflected in the confirmation form, I will address the issues as follows:
(a) What is the claim by the Applicant for an equalization of net family property? (b) What is the claim by the Applicant for retroactive child and spousal support? (c) Since valuation date, has there been a depletion in value of the property owned by the Respondent at valuation date? (d) Has the Applicant proven that the Respondent recklessly depleted his property? (e) Should the court make orders pursuant to s. 12 or s. 40? (f) What orders should the court make?
A. What is the claim by the Applicant for an equalization of net family property?
[13] The value of the Applicant’s property is not controversial. The Respondent alleges that she has failed to fully disclose all her assets but the reality is that it is the Respondent’s assets that are controversial.
[14] In his earlier financial statements, the Respondent repeatedly showed TBD in critical sections and therefore reflected his net family property as $3.1 million, $3.1 million, $3.9 million, and $4.2 million. It was only in the financial statement sworn March 8 that he indicated that his net family property was $29.7 million based on the “mid-point value” in the reports of Cohen Hamilton Steger dated October 6, 2015 with addendum dated January 12, 2016. The form 13C prepared on behalf of the Respondent indicates that according to the Respondent he owes an equalization payment of approximately $13 million while according to the Applicant, he owes an equalization payment of approximately $14 million. I leave aside for the moment the fact that the reports on which the Respondent relies are dated October 6, 2015 and January 12, 2016 and as such, the Applicant and her advisors have not had sufficient time to comprehensively respond. Accepting the form 13C for purposes of this motion, there is no question that the Respondent owes to the Applicant a substantial equalization payment.
[15] It is the case that the Respondent has made advances against the equalization payment. According to him, he is entitled to credits in the amount of $4,950,000. He claims other credits or set-off but for this motion I accept only those which appear to have been acknowledged by the Applicant. He also asks for credits against the equalization payment on account of what he says are undifferentiated payments, some of which appear to have been in the context of support obligations. For purposes of this motion, I do not take those into account.
[16] The Applicant differs on the extent to which the Respondent is entitled to credits but I need not resolve that issue. For purposes of this motion, I accept the credit of $4,950,000 as indicated above. Accordingly, on this record, the Respondent owes to the Applicant an equalization payment of $8 million to $9 million. In addition, the valuation date is December 26, 2010 and accordingly, there is a risk that the Respondent will be required to pay pre-judgment interest.
B. What is the claim by the Applicant for retroactive child and spousal support?
[17] There is no question that the Respondent has had an obligation to pay child support. For purposes of this motion, I assume that after a marriage of 14 years during which the Applicant was primarily a homemaker raising 4 children, that she is entitled to spousal support.
[18] The key issue is the income of the Respondent. The following is what he has reflected in his financial statements:
| Financial Statement Form 13.1 | Last year gross Income all sources | Income Currently receiving | Annual Expenses |
|---|---|---|---|
| April 28, 2011 | $411,081 | $399,999 | $720,431 |
| September 19, 2011 | $326,150 Line 150 on 2010 ITR | $412,999 | $837,875 |
| May 31, 2013 | TBD *Note 1 | $62,888 *Note 2 | $948,964 |
| October 10, 2014 | $ *Note 3 | $0 *Note 3 | $1,075,514 |
| March 8, 2016 | $Nil *Note 4 | $0 * Note 4 | $1,292,993 |
Note 1: Martin Pont prepared an income report for 2010 and an estimate for 2011. Neil Maisel of Crowe Soberman is in the process of preparing a final report of my income for 2011 and a report for 2012. Note 2: employment income before deductions in 2012 $415,263.11 including a car allowance paid by my employer $34,605.25 plus interest income of $64.89 plus actual dividends, total $50/year, plus other income total $170.11/year, less business loss of $353,373. Note 3: see Calculation of Income Report for 2010 to 2013 prepared by Crowe Soberman dated October 9, 2014 Note 4: see Income Report for 2010 to 2015 prepared by Cohen Hamilton Steger dated January 12, 2016 [should be October 6, 2015] containing various scenarios.
[19] On all of those financial statements, the Respondent lives far beyond his income and leaves many questions to be answered.
[20] As reflected in the notes to his various financial statements which I have reproduced above, Martin Pont, Neil Maisel, and Farley Cohen have all provided reports with respect to the Respondent’s income. In his report dated October 6, 2015 Mr. Cohen provided a table listing 8 possible scenarios over the years 2011 to and including 2015. I agree that there may be legal issues involved in the establishment of his income so as to take into consideration non-recurring items, double dipping and losses. But what the 8 scenarios demonstrate is that the income of the Respondent for purposes of establishing the amount he has been obliged to pay since December 26, 2010 and prospectively is unknown. It is complex based on the record before me, including the multiple professionals he has engaged to opine on his income. It is confounded by other factors including (a) the fact that there are potentially millions of dollars that should be attributed as income to him since December 26, 2010 on account of expenditures on his behalf, for example, the ongoing expenses for the Maple Grove cottage which is owned by a corporation and which are summarized at Exhibit M of his affidavit as totaling over $300,000 from 2011 until the end of 2015; (b) the almost $3 million he has spent on professionals in connection with these proceedings; and (c) the extraordinary expenditures required to maintain his lifestyle.
[21] At this point, I have no idea what his income will be found to be since separation or prospectively.
[22] The Applicant has provided calculations of retroactive child and spousal support including s. 7’s that totals $8.5 million less credits of $5 million leaving $3,458,059 plus PJI. In that calculation, she credited the Respondent with the amount of $3,450,000 which, as indicated above, I have accepted against the equalization payment. After removing that credit, for purposes of this motion, the Applicant claims approximately $7 million plus PJI with respect to her retroactive claim. The Respondent is critical of all of the calculations for reasons indicated in his evidence including an excessive income amount, failure to take proper credits into account, and double dipping. However, based on this record, since I have no idea what his income will be found to be, I will rely on her calculations for purposes of this motion and I estimate her claim to be $7 million plus PJI.
[23] Although not quantified, counsel also referred to the extraordinary amount of legal and professional costs that the Applicant is incurring which Mr. Niman says have been significantly increased by the multiple professionals whom Mr. Adler has retained and the delays and repeated work required by his having been represented by now 6 law firms. Mr. Adler has expended $3 million to this point. In addition, Mr. Adler has been required to pay (and has paid) $130,000 in costs. As my endorsements indicate, getting Mr. Adler to the point of appropriate disclosure has been challenging and time-consuming. For the purposes of this motion only, I will infer that there is a risk that he will be ordered to pay 1/3 of what he says he has paid, or $1 million.
C. Since valuation date, has there been a depletion in the value of the property owned by the Respondent at valuation date?
[24] Andrew Freedman was retained by the Applicant to calculate the Respondent’s income for 2008 to 2014. He prepared a letter dated January 22, 2016 which was attached to his affidavit sworn February 1, 2016 in which he swore that the contents were accurate. Mr. Freedman wrote as follows:
As described further below, based on our review of Mr. Adler’s personal income tax returns, the financial statements of companies in which he holds an interest and his sworn Form 13.1 Financial Statements, we note the following:
The book value of the net assets of Mr. Adler’s investment companies have declined by approximately $20.3 million between December 31, 2010 and December 31, 2014 as set out in the financial statements for those companies.
Mr. Adler incurred approximately $4.7 million of trading losses between the Date of Separation and September 2015 as set out in his personal income tax returns; and
The value of Mr. Adler’s bank and investment accounts declined by $2.3 million between the Date of Separation and October 10, 2014.
[25] Mr. Freedman wrote that $17.4 million of the decline in book value was the result of capital dividends having been withdrawn, namely $10 million in 2011, $4.9 million in 2013 and $2.5 million in 2014. He noted that a portion of that had been advanced to the Applicant and that the parties did not agree as to whether Mr. Adler had advanced $7.2 million or $8 million but that between $9.4 million and $10.2 million was withdrawn by Mr. Adler from his companies and not advanced to Ms. Adler.
[26] At the time Mr. Freedman provided his affidavit, he had not received the Respondent’s March 8, 2016 financial statement form 13.1.
[27] In his affidavit sworn March 8, 2016, Mr. Adler acknowledged that the book value of his investment companies decreased by $20.3 million between December 31, 2010 and December 31, 2014. Mr. Adler went on to provide various explanations including the payment to him of capital dividends totaling $17.4 million to the end of 2014 (plus a further capital dividend in 2015 of $1,200,000 which he said was required in order to fund his expenses and make payments to Ms. Adler), losses suffered as a result of market forces and currency changes and other reasons. He provided an explanation for the trading losses he had experienced both personally and through his corporation as well as for the decline in the bank and investment accounts.
[28] There is no question that the value of the assets owned by the Respondent at valuation date has been depleted.
D. Has the Applicant proven that the Respondent recklessly depleted his property?
[29] Because of the approach I take to this motion, I need not decide whether the Applicant has proven that the Respondent recklessly depleted his property. However, much of the evidence and the submissions dealt with this issue and it deserves analysis.
[30] At paragraph 3 of her affidavit sworn January 28, 2016, the Applicant said that she is “extremely concerned that the Respondent is depleting his capital that has been disclosed, in an attempt to thwart my equalization claim and retro-active support claim”. At paragraph 11, she said that the Respondent’s behaviour throughout the proceeding has provided him with time to deplete his assets thereby ensuring she never receives what she is owed. At paragraph 12, she said she believed that the Respondent is “stashing” away his new earnings while concurrently depleting the assets that have been disclosed. At paragraph 17, she said she believed that the Respondent is depleting his capital in this jurisdiction and otherwise rendering himself judgment proof. At paragraph 27, she noted that the Respondent does not own property in this jurisdiction other than a cottage that is jointly owned and that the Respondent’s wife is an American citizen currently residing with their son in the U.S. At paragraph 30, she said that the Respondent had been depleting his capital by making reckless investments that have caused substantial business losses. At paragraph 31, she said as follows:
Concurrently with depleting his assets, the Respondent has taken every step he can to delay the proceeding. This has included changing counsel five times, changing expert valuators three times, not providing his first valuation report until over 3 years after the start of the proceeding, delivery of reports at the eleventh hour causing steps to be adjourned, and non-disclosure. In addition to all these steps, the Respondent aggressively sought the adjournment of the trial the parties were to start on January 18, 2016, discussed further below.
[31] In response, Mr. Adler provided calculations which he says demonstrate that after crediting the proper amount for advances on the equalization payment he will owe no more than $4.3 million. Furthermore, based on his calculations, he has overpaid child and spousal support and is currently overpaying at $50,000 per month undifferentiated. He seeks credits for overpayments, for 100% of the expenses on Maple Grove, 50% of the expenses on Crescent Harbour, 50% of fees paid for the s. 30 assessment, mediation fees and other family law professions. He claims credits totaling $3.2 million. He then raised various issues about the net family property of the Applicant which will cause a further reduction.
[32] His March 9, 2016 affidavit includes the following:
The Applicant has shown no basis for the oppressive relief she is seeking. (paragraph 3)
The changes in his financial circumstances can be accounted for, with changes largely attributable to amounts paid to the Applicant; amounts paid on account of the children’s special and extraordinary expenses; amounts used for my own living expenses; amounts paid to third party professionals; and investment losses. (paragraph 4)
His career has been built based on his reputation and his credibility. For the Applicant to suggest that he would divert funds or make fraudulent transfers to avoid legal obligations he may have is to attack his credibility both personally and professionally. (paragraph 24)
[33] There is no question that the value of the property owned by the Respondent at valuation date has been depleted. However, I accept his evidence that he is “not incented to lose money” and that to the extent that losses have been incurred, they have not been because he is motivated to deprive the Applicant. I agree with Ms. McCarthy that the assertions by the Applicant that the Respondent has recklessly depleted his assets are based on conjecture. For purposes of this motion, I am not persuaded that the depletion in the value of property has been caused by recklessness.
E. Should the court make orders pursuant to s. 12 and s. 40 of the Family Law Act?
[34] The Applicant has made significant claims for equalization of net family property, retroactive child and spousal support and costs, summarized as follows:
| Equalization payment | $8 to $9 million plus PJI |
|---|---|
| Retroactive child and spousal support | $7 million plus PJI |
| Costs | $1 million plus PJI |
| TOTAL | $16 – $17 million plus PJI |
| Less credits – guesstimated | $3 – $5 million plus PJI |
| TOTAL AMOUNT OF CLAIMS FOR PURPOSES OF THIS MOTION | Say: $12 million plus PJI |
[35] I emphasize that that amount is estimated based on the record available to me, and in the case of credits, I have guesstimated. The point is that the Applicant is poised to recover a significant judgment.
[36] Given the value of his net family property at valuation date, there was sufficient value in his corporate assets to have been available for the equalization payment. Instead, with the passage of time largely caused by him, he has arranged his affairs such that he has a modest income from employment that dwarfs in comparison with his expenditures, and such that he has depleted that most liquid aspect of his property. Without finding that the Respondent deliberately orchestrated that circumstance, I do find that if a remedy is not granted, there is a real risk that the Applicant will not be able to collect on her judgment.
[37] The Respondent is adamant that he has done nothing to attract this motion which he calls “oppressive”. He insists that everything he has done has been reasonable. While he has provided significant evidence in his attempt to explain what has transpired, he is not apologetic for the delays he has caused or for the expenses the Applicant has incurred in her efforts to recover her entitlements. He is more than annoyed at this latest motion. He spent much of his affidavit explaining the righteousness of his position in response to the Applicant’s claims but he said not a word about how the Applicant would recover on a judgment should she be successful.
[38] The Form 13.1 and the affidavit sworn March 9 do provide a significant amount of information. However, there are two issues on which the Respondent has not provided evidence: his evidence as to his income and his evidence as to the value of his business interests at valuation date. In the case of the value of his key business interest, he refers to the “mid-point value of the report prepared by Cohen Hamilton Steger dated January 12, 2016” but he does not depose that it is a value that he adopts. Similarly, he refers to the various income reports that have been prepared and most recently, the Cohen report dated October 6, 2015. But he does not depose that he adopts any one of the scenarios and instead defers to there being legal issues engaged. In the introduction to his March 9, 2016 affidavit, he says that “when I have been advised of something by a third party, I believe it to be true unless I state otherwise”. In his form 13.1, the introductory sentence is “I swear/affirm that the following is true”. But neither of those introductory statements mean that he adopts what the professionals have said and that as owner of the assets in question and recipient of the income, those amounts are fair and reasonable.
[39] The other omission relates to his “date of statement column” in his form 13.1 financial statement sworn March 8, 2016. In part 4(c), he indicates accounts that have been closed since valuation date but it does not appear that he has opened accounts since then that would appear in the date of statement column other than two investment accounts on page 11. I consider it unlikely that he has not opened other accounts at other financial institutions in the last 5 years. He has “not calculated” the value of the SkyPower stock options at date of statement. He has remarried and has a child but has not reflected any life insurance for either his wife or child in the date of statement column.
[40] Most importantly, in the category of business interests, for which he showed “mid point value” of his 100% interest in 746 Ontario Limited at valuation date in the amount of $26,445,000, in the today column it shows “N/A” and for other assets including Eagle Capital Investment which owns Maple Grove cottage, he shows “not calculated” or “N/A”.
[41] As indicated above, his current income is shown at $0.00 and there is no reference to the Cohen report because that report does not include 2016 income.
[42] I understand why the attention has focused on the valuation date column because that has an impact on the amount of the equalization payment. But the “date of statement” column is equally as important. If, for example, it reflected since valuation date an increase in value of assets owned at valuation date or the value of assets acquired since valuation date, that might have an impact on a motion such as this. Likewise, evidence as to his current income and sources of income in 2016 would be relevant. The Respondent has not provided any of that information. He is adamant in his opposition to the motion but does not assist the court in determining how the Applicant’s claims would be addressed on the status quo and without an order.
[43] As indicated in my earlier endorsements, the Respondent’s first effort to adjourn the trial failed and his second succeeded but only because, as a result of his conduct, procedural chaos would have occurred if the trial was not delayed.
[44] It has taken 5 years to get from the Respondent documents and information that ought to have been provided 2 to 3 years ago. He has consistently shown a disregard for court orders. He is frequently absent from Toronto for various reasons including his global investments and his wife and child in the U.S. However, it seems that his attention has been recently focused on this proceeding from which I infer that he realized there was a risk that the order sought might be made. As a result of this motion, he is finally responsive: according to my notes, he attended in court on February 4, 2016; his form 13.1 was sworn in Toronto on March 8 and his affidavit was sworn in Toronto on March 9; he was present in court for the expected hearing on March 31; and while Ms. McCarthy expected he would not be in attendance on April 7, he did arrive about 20 minutes after the commencement of the hearing of the motion.
[45] In these circumstances, I am satisfied that the court should make orders pursuant to s. 12 and s. 40.
F. What orders should the court make?
[46] As Ms. McCarthy said in her submissions, words matter. The relief sought in the original notice of motion and much of the ensuing amendments would have had the effect of making it impossible for the Respondent to operate in the ordinary course of business without serious risk of breaching the order. I do note that as the notice of motion was amended and including the further revision contained in the confirmation form, counsel for the Applicant did attempt to be responsive to the concerns raised on behalf of the Respondent for example, as to whether banks and other financial institutions ought to be put on notice or be made subject to an order. And counsel did suggest that terms such as “in the ordinary course of business” could be included in the order even though not specified in any of the notices of motion.
[47] In his evidence, the Respondent also spoke about the nature of his business, his credit and credibility internationally, and the risks of undermining his reputation if the orders originally sought were made. Although the Applicant asserts that his reputation ought not to trump her rights, she did not challenge his evidence as to his investments. Indeed, as indicated in paragraph 26 of her March 29 affidavit, the Applicant said that his corporation is “one if not the biggest solar developer in the world with offices in more than 30 countries”.
[48] I accept that if the introductory paragraph of the order referred to in paragraph 1 above is made, there is a probability that (a) it will have an impact on his ability to carry on business; (b) it may have an impact on his credibility in the field in which he operates; (c) it will be difficult to monitor and therefore challenging to ensure compliance; (d) it will have impacts beyond what is appropriate to respond to her claims.
[49] My objective is to make an order that responds to the need to create a situation where the Applicant’s claims for an equalization payment are protected and her claims for support are not impaired or defeated. Ironically, the more complex and the more global his enterprise, and the more need he has for unfettered flexibility in his financial affairs, the greater the need to make an order pursuant to s. 12 and s. 40.
[50] The Applicant is the registered owner of the matrimonial home and a registered joint owner of the Crescent Harbour cottage. She does not need remedial orders with respect to those properties because her title interest provides her with protection.
[51] However, I am persuaded that the court must impose a remedy that is of lesser reach but will respond to the need to reduce the harm to which she is exposed. The remedy is partly directed to specific assets, whether owned by the Respondent directly or indirectly through shares in a corporation and partly to posting security.
Costs
[52] Counsel will have an opportunity to make written submissions as to costs. I make these observations which I trust will inform counsel in their negotiations to resolve costs or in their submissions as to costs. First, it was reasonable for the Applicant to bring this motion immediately following the second (successful) attempt to adjourn the January 2016 trial date. But for that adjournment, the issues would have been raised at the trial. Second, success has been divided.
INTERIM ORDER TO GO AS FOLLOWS:
[53] The Respondent shall not, directly or indirectly as shareholder of Eagle Capital Investment Corp., by any means whatsoever, transfer, encumber, deplete or dissipate the value of the “Maple Grove cottage”.
[54] By April 19, 2016, the Respondent shall obtain on Form 14B motion returnable before me, an order authorizing the registration of a certificate of pending litigation against the “Maple Grove cottage” and by April 22, 2016, the Respondent shall ensure that the order is registered against title and provide proof of same to counsel for the Applicant.
[55] The Respondent shall preserve the following assets:
Account ***690 at the Union Bank of Switzerland currently with a balance of approximately $1,611,259.32;
BMO Investorline Account 444 currently with a balance of approximately $1,770,277.47;
Gold bar(s) held in a safety deposit box at the Union Bank of Switzerland currently in the amount of approximately $2,201,015;
Cash held in safety deposit boxes at the Union Bank of Switzerland and at Toronto Dominion Bank and Bank of Montreal currently in the amount of approximately $1,206,400.
[56] By April 14, 2016 the Respondent shall provide to counsel for the Applicant the un-redacted account number for the accounts and assets referred to in paragraph 55.
[57] Without further court order permitting it, the Applicant shall not, directly or indirectly, advise or inform the financial institutions referred to in paragraph 55 of the terms of this order or otherwise contact those financial institutions.
[58] The Respondent is permitted to make transactions in the ordinary course of business in the assets referred to in paragraph 55 provided that, within 2 business days of issuance by the financial institution of a statement (monthly or otherwise) or issuance of a transaction record with respect to each of the assets referred to in paragraph 55 above, the Respondent shall provide to counsel for the Applicant a copy of the statement or transaction record and shall, within 48 hours of a request, provide an explanation in writing for transactions for which counsel for the Applicant seeks an accounting.
[59] By April 25, 2016, the Respondent shall post a bond or letter of credit in the amount of no less than $4 million dollars CDN to be held on account of the claims made by the Applicant in this proceeding. If the parties are unable to agree as to any of the terms of the bond or letter of credit, they may attend before me for a determination of the terms.
[60] The issues in the notice of motion with respect to the children’s s. 7 expenses are adjourned to the combined settlement/trial management conference scheduled for April 15, 2016 for discussion and attempted resolution, and if the issues in the motion are not resolved at that time, shall be further adjourned to a date after the conference.
[61] If by April 22, 2016 the parties have not agreed as to costs of this motion, counsel shall make written submissions as to costs not exceeding 3 pages plus costs outline plus offer(s) to settle, if any, on this timetable:
(a) Applicant by May 2, 2016 (b) Respondent by May 9, 2016 (c) Reply by Applicant, if any, by May 16, 2016.
[62] Counsel may forward approved draft order to my attention.
Kiteley J. Date: April 12, 2016