Menzel v. Larry, 2016 ONSC 6599
CITATION: Menzel v. Larry, 2016 ONSC 6599
COURT FILE NO.: FS-13-182
DATE: 2016 10 28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ursula Naomi Menzel Applicant
– and –
Mordechai Larry Respondent
Ms. Menzel representing herself
Gonen Snir, counsel for the Respondent
HEARD: September 19,20,21,22,23 and October 3,4,5,6,7, 2016
Justice Snowie
Judgment
Introduction and History
[1] This is a matrimonial trial. The wife is 47 years of age and the husband is 70 years of age. This was a second marriage for the wife and a third marriage for the husband. The parties have one child by this marriage; May Margaret Larry Menzel was born December 19, 2006. May (9) is the only child of the wife. May is the fifth child born to the husband.
[2] The parties were married on October 7, 2004 in Cypress. They were living in Israel at the time.
[3] The applicant wife is originally from Canada and the respondent husband is originally from Israel. They met in 1997 in the U.S.A. The applicant wife moved to Israel in 2002 and moved in with the respondent husband at that time. They married in 2004.
[4] In 2008 the wife returned to the work force part-time. She had been the primary parent to May for the first 19 months of May’s life. The wife attended teacher’s college and taught part-time in Israel.
[5] The parties decided to sell up and move to Canada, the wife’s home country, in early 2009 after the sale of the business known as “Beta.”
[6] The respondent husband told the applicant wife that he sold his business Beta or part thereof, in Israel for 5.5 million shekels or $1,500,000.00 in Canadian dollars in April 2009.
[7] The wife and child moved to Canada in July 2009 and moved in temporarily to her parents’ home in Toronto. The respondent husband joined his family in August 2009.
[8] The parties purchased their matrimonial home located at 39 Foxwood Crescent, Guelph Ontario, in October 2009. The applicant wife and child continue to live there. This property is registered in the sole name of the applicant.
[9] The respondent husband paid $428,000 in cash on October 10, 2009 for their new matrimonial home. On October 13, 2009, he paid $24,888.36 in cash for their new family car. It was always the applicant wife’s understanding that these monies came from the sale of the respondent’s business, Beta, in Israel in April 2009 (six months earlier), for $1,500,000 in Canadian dollars. This is what the respondent husband always told the applicant. The respondent testified that it was a content sale only and that the company remains alive. It is clear from the evidence that the respondent simply wrote a cheque for the matrimonial house ($428,000) and the car ($24,888.36) from Beta to himself for a total of almost half a million dollars. The Israeli Tax Authority has reassessed his 2010 income tax and deemed these monies all income to the respondent. As a result, he has an outstanding tax liability of approximately $127,000 to the Israeli Tax Authority. The money trail shows that the monies came from Mordechai Larry Israel to Mordechai Larry Canada. Either the respondent stole this money from Beta (no charges have ever been laid) or he was/is an owner and it was his money to take. The fact that the money was not sought to be returned until 4 years later and only after the respondent was sued in the Application for Divorce, leads this court to suspect that the respondent had the right to the money and it was his by way of ownership. There is further and better evidence of this fact referred to later in this Judgment.
[10] The respondent began working for Beta in the 1980s as an employee. In 1999, the owners at the time were looking to sell Beta. The business was not doing well at that time. A deal was to be had. The applicant testified that the respondent told her that the respondent recognized the potential of the business but could not purchase the business in his own name because he was an undischarged bankrupt. The respondent approached his brother to purchase the business in his brother’s name. The brother, Jacob, agreed on the condition that he had absolutely nothing to do with the business and its’ operations. Jacob told him that he had enough to do with his own successful businesses. The evidence of the respondent is that he did “everything in the business [and] Jacob did nothing”. The plan, which was carried out, was to transfer the shares to the respondent in 2006 when he was officially discharged from his bankruptcy. However, the applicant testified that in 2012 the marriage broke down. It is clear to this court now that in 2013 the respondent drafted a trust agreement backdated to 2006 indicating that the Beta shares were held by him for his brother Jacob. The alleged agreement and the alleged transfer of share deeds in trust were created to establish that the business was actually Jacob’s and that the respondent had no ownership in Beta at all. The court has found absolutely no corroborating evidence for the respondent’s story other than the alleged agreement and alleged share transfer deeds. This alleged trust agreement was meant to protect not only the remaining money held in Beta, but also the funds that were transferred by the respondent to Canada for the purchase of the matrimonial home and the car. Further this court can only assume that the respondent’s lack of disclosure regarding his business interests and bank accounts for his businesses, especially Beta in Israel, has been purposeful to try to protect his money in Israel from the applicant. There is further and better evidence of these facts contained later in this Judgment.
[11] Subsequently, the respondent’s electronic transmissions in evidence from 2013 between the respondent, his brother Jacob and Jacob’s lawyer outline the respondent’s plan to draft and post-date to 2006, the Trust Agreement between the respondent and his brother. The emails state that the shares that were in the respondent’s name after 2006 were being held by him in trust for his brother Jacob. This is contrary to the testimony of the applicant. The respondent called no corroborating testimony.
[12] Further to this evidence, the emails also stated that in 2005 and 2009 the respondent included the value (at 800,000 shekels) of Beta to the Israeli Tax Authorities in his personal net worth statements to them. He did this even though he was not a discharged bankrupt. He did this in this court’s opinion because it was a fact even if it was not legal for him to own a business until he was a discharged bankrupt in 2006. He was in fact the owner of Beta even in 2005 by his own admission.
[13] It was the wife’s evidence that it was some of the funds from the sale of the contents of Beta that allowed the applicant, the respondent and the child to move to Canada and to purchase the house and car outright in 2009. The respondent agreed and testified that he withdrew these funds from Beta. Beta had on deposit the sale proceeds from the Beta content sale of April 2009 plus other operating funds, etc.
[14] The wife testified that the respondent continued to spend months at a time working in Israel after the August 2009 move to Ontario, Canada. The applicant wife always understood that the respondent was working in Israel and the respondent testified that he was working for Beta to assist the new owners. This was allegedly a term of the April 2009 sale. No independent evidence to corroborate this arrangement was produced at trial. The respondent continued to support the wife and child in Canada from Israel.
[15] In September 2011, the respondent unilaterally cut off the support to the applicant and their child and returned to Israel “permanently”. That was her evidence of what he said to her.
[16] In 2009 the applicant wife was unable to secure a teaching job in Canada unless she obtained a Bachelor of Education from Ontario. She returned to teacher’s college in Ontario in September 2010 and graduated in May 2011.
[17] The applicant wife began working as an “emergency supply teacher” in Ontario thereafter. She had to start at the bottom of the supply teacher list, as there is a surplus of teachers in the Province of Ontario according to the wife’s testimony. The wife and child tried to subsist on her meager and irregular income; however, in November 2011, the wife asked the husband to return to the marriage as she could not afford even daycare for their daughter.
[18] The respondent returned but still travelled regularly back and forth to Israel for extended periods of time. The applicant always understood that he was continuing to work in his businesses in Israel. He confirmed this fact in his testimony.
[19] In September 2012 the husband declared that he would voluntarily contribute the sum of $1,000 - $1,100 per month to support the family.
[20] In January 2013, following an allegation of domestic violence, the respondent was criminally charged. At that time the respondent husband returned to Israel and ceased all contributions to the support of his family. The husband was acquitted in July 2013.
[21] The applicant wife is still presently on the supply teacher list for the Upper Grand School Board. She moved up three years ago from being an “emergency supply teacher” to a “long term temporary supply teacher.” She still does not have a full-time permanent teaching contract and does not anticipate the same for years to come yet. In 2015 she earned approximately $62,000, as she was fortunate to obtain a long term temporary contract for a teacher on a maternity leave. Presently she is only supply teaching day to day. She had no income over the summer of 2016.
[22] In March 2013 the application for divorce and corollary relief was issued and served by the wife. Emery J. granted the divorce on June 15, 2015. The corollary issues are at issue in this trial.
[23] In August 2013 the respondent husband served and filed his Answer. The wife testified that this was the first time she learned of the respondent husband’s assertion that the money he used to purchase their matrimonial home and car in Canada were monies that belonged to his brother Jacob and that the respondent held those monies “in trust”. The applicant testified that she was shocked! The applicant denies any such trust to the respondent’s brother Jacob ever existing.
[24] In January 2014, the respondent husband’s brother Jacob issued an action in Israel with the assistance of the respondent (see emails and texts in Exhibit “H”, Volume 2 of the Applicant’s Document Brief pages 90 and onwards), suing in Israel the respondent and his wife for the said Canadian matrimonial home and car monies plus interest.
[25] The applicant wife produced at this trial a number of emails and text messages from the respondent’s cellular telephone that show that the respondent husband had extensive contact with the brother’s lawyer Oren Chen and the brother Jacob framing and drafting the lawsuit against himself and his wife. I find this all very suspect. There appears to be a conspiracy between the respondent and his brother. I have exercised my discretion on the basis of relevance in admitting the emails and text (screenshots) found on the respondent’s cellphone into evidence in this trial. The validity of the trust agreement and the validity of the transfer of the share deeds are central to this case and relied upon by the respondent. I have considered whether or not these documents (e-mails and texts) were wrongly obtained and I find there is no live issue of wrong doing here. I have found them relevant and central to this case and I have exercised my discretion as such to admit them. The respondent has been cross-examined on these transmissions.
[26] The applicant wife testified that she was not served and did not even know of this Israeli action until May 2014, when Jacob moved for a default judgment before the Israeli court. The wife testified that Jacob claimed to have served her and his brother, the respondent, at P.O. Box 4294, Bazra, Israel. That is the address for the respondent husband’s business, Beta, in Israel. Jacob Larry knew that the wife and child had been residing in Canada since July 2009 (for almost five years) and that the parties had been separated since January 2013. Jacob Larry knew that the applicant wife would never receive the documents at this Israeli business address that he claimed to have served her at. In any event, the Israeli judge refused the default judgment and ordered that the wife be served in English and in Canada. The Israeli matter went to trial in July 2015. The best evidence before the Israeli court was the alleged trust agreement and alleged share transfer deeds. The electronic transmissions from the respondent’s cellphone were not then available or even known to the court.
[27] The brother Jacob produced at trial in Israel documents of an alleged “Trust Agreement” and alleged “Share Transfer Deeds” (these are the same documents that the applicant has testified in this trial were fraudulent and backdated to 2006.) The respondent husband and applicant wife were found joint and severely liable in the Israeli action for the amount claimed plus interest (approximately $750,000), according to the wife’s testimony. That Israeli decision is currently under appeal on numerous grounds including new evidence (re: fraud), by the wife. Since the Israeli Judgment there has now come to light numerous emails and texts between the respondent husband, the brother’s lawyer, Oren Chen, and the brother, Jacob, preparing these documents in 2013, not 2006. Clearly they were backdated.
[28] The husband did not appeal the decision of the Israeli Court. However, the judgment is currently “stayed” on terms, pending appeal by the applicant wife. The applicant argues now that the evidence was fraudulent before the Israeli court originally. Interestingly, the respondent appears content to have this joint and severable judgment for $750,000 plus, stand.
Issues
[29] The outstanding issues in this trial are:
Custody;
Access;
Child support and s. 7 expenses and access costs;
The husband’s imputed income;
Exclusive possession of the matrimonial home;
Dispensing of the husband’s signature with respect to the child’s passport;
An order prohibiting the husband from holding the child’s passport and or identification documents;
The change of name issue (I have been told at the outset of the trial this is a non-issue now). The name of the child contains both parents’ last names. There is evidence that the respondent knew of the name change as he was served;
Equalization and the back-dating of the “alleged” Trust Agreement and the share transfer deeds;
Spousal support to be paid by the wife to the husband;
Sale of the matrimonial home and
The validity of the alleged trust agreement and the alleged share transfer deeds
Custody
[30] It is clear from the evidence that the wife has had the primary and almost exclusive care of the child since birth. Even when the parties were living together the husband spent weeks and months away from the matrimonial home, working in Israel, leaving the child in the applicant wife’s exclusive care. The respondent is not seeking to remove the child from the applicant’s care. The respondent testified that the applicant is a good mother.
[31] It was the wife’s evidence, and it is undisputed, that the parties had agreed before the child’s birth that she would be the child’s primary caregiver and he would continue to work and provide for the family.
[32] The child has lived in the present matrimonial home in Ontario since she was 2 ½ years of age. She is now almost 10. She is well settled in school and is an excellent student. She has continued to attend the same school (Kortright Hills Public School) since junior kindergarten. She is now in grade five. She has neighborhood friends and is active in her community. For example, she is involved in swimming, drama, soccer, ballet and a community daycare.
[33] It is clear to this court that the child should continue in her mother’s care and custody where she is thriving, as well as for the child’s stability and continuity. The respondent is supportive of the child’s primary residence remaining with the applicant wife in Ontario.
[34] The husband is however seeking joint custody. He does not live in Canada. He lives in Israel. The respondent testified that he will not ever reside permanently and/or continuously in Canada.
[35] This is not a case for joint custody in my opinion. The father is not living here in Canada. He claims that the wife does not involve him in the major decisions regarding the child. I do not accept his allegations. The evidence I have in the form of emails between the parties and oral testimony supports the wife’s testimony that she tries to involve the respondent husband with the child as much as possible. She facilitates the child’s almost daily contact with the husband. She provided the child with her own phone for this purpose. She sets up the Skype for their visits. More recently she has been actually paying the child a $1.00 allowance each time she initiates a Skype call with her father. Although I cannot say I agree with her methodology, I have to admit she is successful and the child is happy to take responsibility to call her father daily with this arrangement. Additionally, the applicant testified and it is undisputed evidence that it was the applicant wife who hired a psychologist to assist in the reunification of the child and father via Skype after he left the matrimonial home and went to Israel permanently in 2013. These are not the actions of an ‘alienating’ parent. The respondent complains that the Skype calls are always on the applicant or child’s cell phone and the format is difficult because it is too small. This is understandable. The applicant wife shall provide a proper computer screen (i.e. laptop) for better quality Skype access between the child and the respondent immediately. The father shall bear the costs and maintenance of the same as part of his s. 7 expenses.
[36] The parties have a strained relationship. The respondent had not given the applicant his address or even his city of residence in Israel until a week before the trial for years. This lack of even basic information sharing does not bode well for a joint custody arrangement. All the access to date in Canada has centered around the respondent husband’s mandatory court appearances in Ontario. On the one occasion in November 2014 when the parties were able to consent to an order in advance of the court date appearance, the husband unilaterally cancelled his trip to Canada, despite the fact that the child had been told by him that he was coming to visit her. The child was extremely upset when he cancelled. This type of unilateral action does not bode well for joint custody leaving the other parent to pick up the pieces.
[37] In order to have the child visit with her father and her extended paternal family in Israel in the summer of 2015, the applicant wife travelled with the child to Israel. Both parties agree that it was a very successful trip. The applicant mother is content for the child to have annual access with her father and extended Israeli family in Israel on the following terms:
That the applicant or her designate, accompany the child during travel. The child is nine years old. This term will terminate when the child is 12 years of age;
That the applicant be provided with an itinerary, phone numbers, and locations where access will be exercised, two weeks in advance of access occurring;
That the child can have reasonable Skype and/or telephone access to her mother during the access period at the child’s request; and
That the father does not hold the child’s passport. The mother does not trust the respondent father to return the passport to the mother. This fact also does not bode well for joint custody.
[38] The applicant wife testified and it is undisputed that the parties are able to communicate more successfully at a distance. The applicant wife testified that the husband is verbally abusive towards her when they meet in person. This fact does not bode well for a joint custody arrangement. The applicant wife believes that it is in the child’s best interests to continue the status quo with the applicant mother having sole custody. The husband is seeking joint custody arguing that it will prevent the wife from “marginalizing” his role with their daughter. I find no evidence to support this allegation of “marginalizing.” In fact most of the evidence speaks to the opposite behaviour by the applicant wife. The Applicant encourages daily contact between the father and child. She has taken the child to Israel to visit with the respondent and his extended family and is content to repeat this trip annually in the future. It was/is the respondent husband’s choice to have moved to Israel, away from the child. I agree that sole custody on terms to the applicant wife is in the child’s best interest, for all of the above reasons.
Order Sought Dispensing with the Husband’s Signature for the Child’s Passport
[39] The applicant testified that she has a very difficult time obtaining the husband’s signature on documents that require the same. She cited several examples:
a. In May 2015, the applicant made her second request of the respondent husband in obtaining his signature on a standard Israeli Government form to be able to obtain a copy of her income tax return for 2010. That income tax return had been filed jointly by the respondent. The Israeli authorities will not release it without both the husband and wife’s signature. The respondent husband has never, prior to trial, signed the same or provided a copy of the joint tax return to the applicant, (emphasis added); and
b. In June 2015 the respondent husband was ordered by Emery J. to produce his full immigration file to the applicant wife. The respondent husband up to August 2016 refused to sign the standard Canadian government consent form to allow the applicant to have a copy of the same despite repeated written requests over many months. On August 23, 2016, the respondent finally did sign the aforesaid form at the insistence of his new lawyer. His delay had been so lengthy however, that the Canadian government would not accept the form as her file for disclosure had been closed due to delay. She needs to start again. She had needed this information for this trial. Clearly that did not happen.
[40] It is clear that the respondent is not responsible and/or considerate enough of the applicant to be allowed to hold the child’s passport. It is apparent that his attitude with the applicant wife is often obstructionistic. Therefore, in the best interest of the child, the respondent’s consent will be waived with respect to obtaining any and all future passports for the child (Canadian and or Israeli) and/or official identification documents and the applicant shall hold these documents for the benefit of the child providing them temporarily to her designates only as required and in her discretion.
[41] The applicant has testified that the respondent told her that he had a previous criminal conviction in Israel for fraud in 1988 related to his declaration of bankruptcy of his first company. The respondent denied a criminal record in his testimony but produced no corroborating evidence to support his denial to this court. He told the applicant as a result of his bankruptcy he could not own any assets or businesses and that is why the business Beta was in his brother Jacob’s name. The facts support the testimony of the applicant. The respondent was an undischarged bankrupt until 2006. This is an undisputed fact. It is the applicant’s understanding from the respondent that his brother has simply assisted him in circumventing the Israeli law regarding ownership while being an undischarged bankrupt. It is clear from the evidence that the respondent and his brother Jacob are very close. For example, on Monday October 3, 2016 the respondent testified gratuitously that his brother Jacob had called him on October 2, 2016 and told him that he missed the respondent. He admitted their closeness
[42] The respondent testified that in 2006 Jacob was having financial difficulties. This court has no independent evidence to corroborate this statement as a fact. The respondent testified that Jacob asked him to place the shares of Beta in his name to avoid and escape his creditors. He testified that he did this. The respondent acknowledged that this might not have been an honest thing to do but he did it anyway. It is reasonable and probable that Jacob would be expected and do exactly the same thing for the respondent, which this court believes Jacob has done. During the respondent’s testimony he often referred to “we”. He testified: “We registered the company” (Solatube); “We own the company” (Shav Kal) etcetera. These are inclusive possessory words and phrases indicative of some ownership. It is interesting to note that Jacob apparently (according to the respondent) came out of this “alleged” financial crisis with no losses of any kind. Again, there is no evidence to corroborate these statements of economic hardship or good fortune.
[43] The respondent was clear in all his testimony, repeatedly, that Jacob did “absolutely nothing in Beta and that the respondent did everything in Beta.” Jacob was never involved in any of the management or operation of Beta. Jacob had his own successful businesses to run in Israel. Jacob and his wife are in the furniture business and are very successful. This seems to this court like an improbable explanation of why the shares were placed in the respondent’s name in 2006 – the very year that the respondent became a discharged bankrupt and could finally put the shares legally into his name. Coincidence? This court does not think so. The applicant testified that the respondent is the undisclosed owner of Beta. It is the testimony of the respondent that Jacob took absolutely no part in the day-to-day running of Beta. Jacob had no time or interest in Beta. The respondent testified, on the other hand, that he worked night and day at Beta. He grew the company from 4 employees to 80 employees at the time of the content sale in 2009.
[44] Due to the gross lack of disclosure of the respondent regarding Beta and all of the related companies, tracing the money has been made impossible for the applicant. The respondent has hidden behind his assertion that he was not the owner of these businesses and therefore cannot give disclosure for these companies. The fact is that for almost four years the respondent has stonewalled (2013-2016) the flow of disclosure with respect to his businesses. The respondent cannot benefit as a result of his misleading this court or the Israeli court by his failure to obey various court disclosure orders and/or his failure to make proper disclosure under the Rules.
[45] I find from the evidence that the husband is a “wheeler/dealer” with his hands in many businesses in Israel. Much of the disclosure ordered by Justice Wein, Justice Emery, Justice Bloom, and Justice Mossip of this court has not been provided by the respondent husband to the applicant, in the four years since separation.
[46] It is the opinion of this court that the respondent is a gifted businessman that manipulates the law for his own benefit.
[47] The order of Justice Wein dated February 24, 2014, ordered the following specific disclosure in paras. 1,3,4 and 5:
On an incomplete basis, the parties will produce documents and disclose all information, including transit numbers, and including best efforts regarding the corporate documentation (the business sold in 2009) and money flow through from that date forward, plus on the list of additional companies provided by the applicant, Ursula Naomi Menzel. …
The Respondent, Mordechai Larry, shall produce the following:
a. Statement dated January 24, 2013 from his personal bank account in Israel entitled postal Bank Ltd.;
b. Statement dated January 24, 2013 from his personal bank account in Israel entitled Bank Poalim Ltd.;
c. Statement dated January 24, 2013 from Mizrahi Tfakhat, the bank account held by his business, Larry lane.
d. The respondent shall contact the financial institutions where his personal accounts are held in Israel (Postal Bank Ltd. and the Bank Poalim Ltd., and Mizrahi Tfakhat) and shall make the following inquiries:
i. All bank statements available from 2009 forward with respect to these accounts; and
ii. What is the cost of providing the statements from 2009 forward and to provide any and all documents available to him, to a cost of $2,000.00 (Canadian)?
- The Respondent shall use his best efforts to produce all company bank accounts from January 2009 to date for all companies that the Respondent had or has an interest in, directly or otherwise, including:
a. Shav Kal Systems Ltd.;
b. Erder-Thermotek Ltd.;
c. Beta Vacuum Systems Ltd.;
d. Larry Lanes; and
e. Electobeam
- The Respondent shall provide information regarding his Israeli Old Age Pension.
[48] In the order of Justice Emery dated June 15, 2015, at paras. 5-10, specific disclosure was further ordered that:
The Respondent, Mordechai Larry (hereinafter “Mr. Larry”) shall provide a copy of his income tax returns, with all attachments and schedules filed with the government of Israel for 2011, 2012, 2013 and 2014 to Mr. Martin as counsel for the Applicant by fax or email on or before June 30, 2015, and by sending proper copies of those returns by mail to Mr. Martin by July 10, 2015, together with the Israeli equivalent of a Notice of Assessment for each of those years.
Mr. Larry shall produce the bank account statements from January 2009 to June 15, 2015 for Larry Lanes Ltd. and Electrobeam Inc. wherever those companies have ever banked, by July 10, 2015.
All personal bank accounts and statements for Mr. Larry’s accounts in Canada and Israel shall be produced by Mr. Larry for the months between January 1, 2012 and June 15, 2015, including but not limited to accounts he operated solely or together with any other person at Bank Paolim in Israel, or the TD bank in Ontario.
Mr. Larry is to produce a copy of his income tax returns, together with attachments and schedules, filed with the government of Canada for the years 2009 to 2014 together with any related Notice of Assessment by July 10, 2015.
Mr. Larry shall provide a copy of any and all VISA card and MASTERCARD statements for all months of 2015 up to the trial of this application.
Mr. Larry shall provide a copy of his entire immigration application to become a permanent resident and any updates to that application, by July 10, 2015.
[49] There is limited disclosure of the respondent’s acknowledged business interests in Larry Lanes and Electro Beam but even those have been sketchy in the extreme and/or almost non-existent.
[50] The respondent did confirm that Larry Lanes Inc. is his business. The respondent testified Larry Lanes Inc. did not do any business. However the applicant produced evidence that in 2012 large sums of money (i.e. August 2012 $190,000.00 shekels and $180,000.00 shekels - see volume 5 tab 11 pages 5,8,13,14,18 and 19) moved through this company. No disclosure has ever been provided to explain the same. With respect to Larry Lanes Inc. the respondent husband provided some limited banking statements for 2012 only along with two pages from 2014.
[51] The respondent generally did not comply with respect to the disclosure order of Wein J. dated February 2014 for all the business records of all of the companies from January 2009 to February 2014. He has hidden behind his position that he was not an owner so he could not produce disclosure.
[52] With respect to Electro Beam Inc. the respondent admitted ownership but again provided little documentation despite the various court orders and requests by the applicant wife again. He has told the wife that this company is “not in business.” The wife produced evidence at trial that:
a) On January 19, 2010 there was a deposit of $359,993. Canadian dollars into that company and a week later the sum of $375,000 was transferred out by “a wire to a customer” (???) The only explanation was at trial. He testified “this was a mistake” but provided no corroborative evidence to support his statement of a “mistake”, other than large sums of money went in and out.
b) The applicant also produced a letter at trial dated May 9, 2011 acknowledging a $3,000 transfer for the purposes of Electro Beam importing. Clearly, Electro Beam Inc. was active as a company in 2011. No explanation of this transfer has ever been provided by the respondent to the applicant or this court.
[53] The respondent husband’s “Notice of Assessment” from the Israeli Government for 2010 (the wife and child moved to Canada in July 2009), shows an income (jointly claimed by the respondent) totalling $1,409,902 shekels or approximately $500,000. Canadian dollars. The wife was unemployed and had been living in Canada since July 2009. The applicant wife has no knowledge of this income tax return and she has been seeking disclosure of this return for four years with no success. The respondent has repeatedly refused to sign the standard Israeli Government Consent Form for release of it to her until midway through this trial. Neither has the respondent provided a copy of his tax return to her. She needed his consent in writing to obtain a copy from the Israeli Government because their income tax for 2010 was jointly filed in Israel by the respondent. He has been again totally obstructionistic.
[54] It is impossible for this court to believe that the monies used for the purchase of the matrimonial home in Canada and family vehicle back in 2009 was a “loan” from the brother Jacob as the respondent testified. The respondent husband always claimed to the wife that these were sales proceeds from the sale of the contents of his company Beta. The respondent never mentioned to the applicant wife that this was a loan “from Jacob”, until August 2013 after the applicant wife served the respondent for divorce. The evidence is clear and undisputed that the Israeli Tax Authority reassessed the respondent’s 2010 income tax liability to include the monies for the matrimonial home ($428,000) and the car ($25,000 approximately) as part of the respondent’s income in 2010 not income to Jacob Larry. As such the respondent has an outstanding tax debt in Israel for approximately $127,000 on the said income.
[55] The respondent’s story has changed several times regarding these funds – “loan”, “withdrawal”, “income”, “overdraft”. An electronic transmission dated July 23, 2013 from the respondent husband to his brother Jacob’s lawyer, Oren Chen (a third party) was filed into evidence at this trial in the Applicant’s Evidence Volume 2 Exhibit “H”. The respondent husband stated in that transmission, that the said funds were an “overdraft” of his, not a loan from his brother. It reads as follows:
Subject: Two Financial Statements
Date: July 23, 2013
From Mordechai Larry
To: Oren
I found two of my financial statements from the tax authority, one close to the marriage, and the second, nine months after the sale of business activities. It’s interesting that the company “Beta” was recorded as part of my assets when in 2005, I was still formally bankrupt and I wasn’t the shareholder. It’s likely that I gambled that the declaration of assets was confidential. My biggest overdrawn balance in 2009 stemmed from transfer of money to Canada for the house purchase. Attached is the Excel File. (Emphasis added)
[56] A further electronic transmission in evidence titled “The Path of the Money” dated October 8, 2015, 4:50 p.m. from the respondent to Oren Chen, his brother’s lawyer, and copied to his brother Jacob Larry further supports this as “a transfer” from Mordechai Larry in Israel to Mordechai Larry in Canada not a loan as alleged. It reads as follows:
Subject: The Path of the Money
Date: Thurs, October 8, 2015 4:50
From Mordechai Larry
To: Oren Chen, orenchen@barak.net.il
Jacob Larry jacoblarry@wall.com
I am very afraid that the judge will follow the path of the money and say that the money was stolen in Israel, that the money was transferred from Mordechai Larry in Israel to Mordechai Larry in Canada. Stop.
Therefore, Mordechai Larry must return the money to Jacob Larry. If Mordechai Larry feels wronged by this, he has his day in the divorce proceedings in Canada (emphasis added)
[57] The respondent further makes reference in the electronic transmission of July 23, 2013 that Beta was recorded by the respondent as part of his assets in 2005 to the Tax Authority in Israel even though he was not yet a discharged bankrupt. This is an undisputed fact. In other words he claimed to the Israeli Tax Authority that he owned Beta in 2005. He further claimed the same in 2009 to the Israeli Tax Authority. Was he lying then or is he lying now?
[58] The respondent husband further wrote on July 23, 2013 that “it is likely that I [he] gambled that the declaration of assets was confidential” with the Tax Authorities in Israel. Not so! It appears to this court that the respondent plays loosely with the truth, the laws and the Rules.
[59] I have found that the truth is vague and elusive with the respondent husband. His testimony was often evasive, especially on cross-examination. The lack of disclosure and the lack of compliance to this court’s numerous disclosure orders and the Rules have made the equalization calculation difficult. I have made a fresh calculation based upon the best evidence this court has had before it (see attached Schedule “A”). This court has indicated on the face of this fresh Net Family Property Statement that forms part of this judgment, where this information was obtained (to the best of its ability) and the figures that this court accepted and/or agreed upon has accepted based upon evidence. Those figures omitted were found not to be supported by the evidence. This court in fairness has given the respondent the benefit of the value of Beta on the date of marriage as he claimed to the Israeli Tax Authority of 800,000 shekels as an exemption and this court has included his tax liability from 2010 of $127,000 as a deduction.
[60] The applicant wife has been attempting to establish some sense of the respondent’s income and assets since separation in 2012. She has obtained various court orders from various judges of this court outlining clearly the disclosure that is to be produced by the respondent. The respondent has flagrantly ignored and/or tried to circumvent those orders time and time again. On October 26, 2015 Mossip J. ordered for example:
The respondent husband shall produce his American Express Statements from 2012 to the start of trial.
The respondent husband shall produce his American Express Statements from September 2012 to September 2015 by no later than June 31, 2016.
[61] The said statements have never been produced and the respondent husband stated and testified repeatedly that he does not have a “personal” American Express Card. However, that statement turns on the word “his.” The fact is he has had access to an American Express Card that he uses through Beta. This is now a fact. There is no doubt in my mind that his repeated denial statements, on the balance of probability, were meant to mislead this court. It is a word game to the respondent husband, he plays fast and loose and looks for loop holes. The applicant wife produced a Red Car Limo Service receipt at trial for the respondent husband’s transportation from Toronto Airport to Guelph return, marked with payment method “charged to American Express Credit Card.” The respondent finally admitted under cross-examination at trial that he does have access to an American Express Card that he uses through Beta. No disclosure has ever been made for this card because he claims he is not the owner of Beta.
[62] Additionally, the applicant produced at trial evidence of an invoice for, and method of payment for, the Gai Beach Hotel in Israel, in the name of the respondent. The respondent husband, his extended family and the child May vacationed there last summer for two days and the invoice is in the name of the respondent, in the amount of almost $4,500.00 Canadian dollars or 13,627 shekels. Again he paid by his Beta American Express credit card, reference #147663. This is just a continuation of the respondent’s evasive and obstructionistic behavior. Clearly this was personal use. He testified at trial that everyone else paid this invoice but again there was no corroborating evidence of the same. It is difficult to believe that a man who lives on only 3 allowances totalling $35,000 only per year before tax could afford to spend $4,500 on a 2 day weekend vacation.
[63] The various disclosure orders have been ignored by the respondent husband. He has produced little of value for this court. It has been a game of hiding his income and hiding his assets in this court’s opinion. His behaviour is found to be shocking and abusive of this court system. While it is true that he signed the Consent for Release dated June 15, 2015 to allow the applicant to obtain disclosure directly through her lawyer as quoted below, the respondent clearly had no intention of complying in any meaningful way. The total extent of his disclosure was as follows on one sheet of paper. It read as follows:
Businesses
Shav Kal Systems (he struck this)
Erder-Thermotek Ltd. (he struck this)
Beta Vacuum Systems Ltd. (he struck this)
Larry Lanes
Electro Beam
The Green Key Group of Companies
Banks
Mizrahi Tfakat
Postal Bank Ltd.
Bank of Poalim Ltd.
T.D. Canada Trust”
[64] That is an abusive and a totally inadequate disclosure response. This was his complete answer to Justice Wein’s disclosure order of February 24, 2014 regarding his business disclosure which was ordered as follows in paras. 1,3,4 and 5:
On an incomplete basis, the parties will produce documents and disclose all information, including transit numbers, and including best efforts regarding the corporate documentation (the business sold in 2009) and money flow through from that date forward, plus on the list of additional companies provided by the applicant, Ursula Naomi Menzel. …
The Respondent, Mordechai Larry, shall produce the following:
a. Statement dated January 24, 2013 from his personal bank account in Israel entitled postal Bank Ltd.;
b. Statement dated January 24, 2013 from his personal bank account in Israel entitled Bank Poalim Ltd.;
c. Statement dated January 24, 2013 from Mizrahi Tfakhat, the bank account held by his business, Larry lane.
d. The respondent shall contact the financial institutions where his personal accounts are held in Israel (Postal Bank Ltd. and the Bank Poalim Ltd., and Mizrahi Tfakhat) and shall make the following inquiries:
i. All bank statements available from 2009 forward with respect to these accounts; and
ii. What is the cost of providing the statements from 2009 forward and to provide any and all documents available to him, to a cost of $2,000.00 (Canadian)?
- The Respondent shall use his best efforts to produce all company bank accounts from January 2009 to date for all companies that the Respondent had or has an interest in, directly or otherwise, including:
a. Shav Kal Systems Ltd.;
b. Erder-Thermotek Ltd.;
c. Beta Vacuum Systems Ltd.;
d. Larry Lanes; and
e. Electobeam (one page)
- The Respondent shall provide information regarding his Israeli Old Age Pension.
Child Support
[65] It has been difficult to impute income to the respondent husband due to his lack of financial disclosure and lack of credibility regarding the financial issues in this trial. Further difficulties have been created by the fact that, as this court has found that on a balance of probabilities, the respondent husband has attempted to mislead this court with respect to his lack of ownership of the company Beta and her sister companies and/or subsidiaries, in Israel. However, I am imputing a minimum modest income of $47,000.00 per year to the respondent for the following reasons.
[66] It is the respondent husband’s claim that he only earns $35,000.00 per year. I accept that this is the approximate sum received from his three allowances (polio, mobility and old age). I am ordering that the respondent husband pay to the applicant wife the sum of $424.00 per month exclusive of his 50% share of the child’s monthly section 7 expenses being:
$70 – Child’s camp;
$200 – Child daycare;
$40 – Child’s activities;
$20 – Child’s school fees;
$90 – Child’s dental and medical fees. The majority of the costs over and above this amount are covered when the wife is working on a teacher’s contract.
Plus a further $250 per month – represents installments on the $3,000 (estimate for the child and wife (or her designate) to fly with the child directly to Tel Aviv from Toronto to facilitate access between the father and the child in Israel in July each year).
$100 miscellaneous per month, initially this money can be used for the purchase and maintenance and upgrading of a proper computer and screen or laptop for the child for Skype access.
[67] I do not accept that the respondent husband earns only $35,000 per year and I have found that he has significant assets earning interest that he has omitted being approximately $1,000,000. ($1,500,000. Canadian dollars, for the sale of the business in April in 2009 less the cash purchase of the house of $428,000 and the cash purchase of the car $24,888.36 leaving approximately $1,000,000 Canadian dollars). I impute the quantum of at least $500 to $700 per month on interest earned or that could be earned on this quantum per month. This equates to a minimum imputed amount of approximately $47,000 per year. The Child Support Guideline amount of child support due is therefore approximately $424.00 per month. This $424 is then added to the s. 7 expenses I have ordered being approximately $560 for a total amount of $1004 per month.
[68] The applicant wife testified that she does not believe that the respondent husband lives on a $35,000 per year income. I agree. She stated that he has income from various business and allowances as he always has had. I agree. It appears that he continues to hold his money inside Beta but he has free access to this money as he wishes.
[69] The Applicant testified that their life style when they were married was “high”. She was a stay at home mother and money was never a problem. They rented a “nice” house near to the respondent’s business. They went out to dinner to good restaurants, live concerts and took regular vacations. They travelled to Thailand for 10 days, Germany for 5 days, Bulgaria for a weekend, Ireland for a week, London, Cypress and she came home to Canada every summer.
[70] The applicant testified convincingly that the respondent throughout their marriage repeatedly told her that he was the owner of Beta. I accept her testimony. Even before their live-in relationship and their marriage, the respondent (in their professional relationship back to 1997) always told her that he was the owner of Beta. Never once did he ever tell her or even hint that his brother Jacob was the owner of Beta and that he held Jacob’s shares “in trust”. In fact, what he told her was the reverse. The respondent husband told her repeatedly that he could not own any assets or businesses due to his bankruptcy (and fraud conviction) until 2006 and as such his brother had agreed to hold his (the respondent’s) shares “in trust” for the respondent until 2006. The plan was that in 2006 when his bankruptcy was discharged, the respondent would be able to hold his shares in his own name – “get his shares back” were his words. He did “get his shares back” in 2006 but as of 2013 he claims his shares were “in trust” since 2006 for Jacob. I do not believe the Jacob ownership story, and the evidence does not support such a story.
[71] The applicant testified that she believes the alleged signed “Trust Agreement” and the “Share Transfer Deed” between the brothers dated 2006 is fraudulent as it was signed in 2013 and not in 2006. I concur on a balance of probabilities, based on the evidence in this trial.
[72] In the Applicant’s Document Brief Volume 2, Exhibit “H”, page 90 and thereafter, are a series of screenshots from the respondent husband’s cell phone. Unfortunately for the respondent, he lost his cellphone outside the applicant’s house on an access visit in March 2016. The applicant found the cellphone. She did not know whose cellphone it was and opened it. She learned that it was that of the respondent. She then searched it. She found a series of electronic messages from 2013 between the respondent and his brother Jacob and Jacob’s lawyer, Oren Chen, on the topic of drafting an “Update Trust Agreement”. This drafting was all taking place in July 2013 and August 2013, not 2006 as alleged on the face of the Trust Agreement produced for the court in Israel and this court.
[73] The respondent’s counsel totally avoided the issue of these electronic transmissions in his direct examination of the respondent. It was established on cross-examination that these were electronic transmissions of the respondent husband to the satisfaction of this court
[74] This court found that the respondent’s testimony on these electronic transmissions (screenshots) ranged from a blanket disclaimer, to statements that the transmissions had been “cooked”, to totally acknowledging the more innocent transmissions. I find no evidence of tampering by the applicant. I accept the transmissions at face value.
[75] The respondent testified that there was ever only one Trust Agreement being from 2006 and as such I find that the Trust Agreement drafted in 2013 has been backdated to 2006. There is no other conclusion that can be reached on a balance of probabilities.
[76] A portion of the electronic transmissions supporting this court’s findings are as follows:
• Subject: FWD: Giora Azulai, General Manager—Personal Employment Agreement
Date: Wed, July 10, 2013 5:22
From: Mordechai Larry
To: Oren Chen orenchen@barak.net.il
Giora Azulai was the general manager of Beta Systems Ltd from May 1, 2004 until the end of November 2008. During this time, I fulfilled other roles that he assigned to me.
Really, I worked for him. For example, I was for a time, Operations Manager, another time I fulfilled the role of manager for the subsidiary company, ShavKal. I conducted long and exhausting negotiations with him regarding the terms of his employment; in the end, when we agreed, we took the final version to the owner, Jacob Larry, and signed a contract.
From this you can understand the following.
The period when Giora was general manager was partially concurrent (until December 21, 2006) with the time Jacob Larry was a shareholder.
The latter part of the period (from January 1, 2007), I was a shareholder (=in trust) and I still served in a role under Giora.
The big boss and the real decision maker was Jacob Larry, regardless of who was the formal shareholder.
Attached is the draft of the agreement. Giora and I can’t find the signed copy, but the parties are willing to re-sign. (Emphasis added)
[77] The respondent clearly states that there is no signed agreement from 2006!
Forwarded message
From: Adv. Zvi Zeff
Date: Wed Jul 10, 2013 11:18 am
Subject: Personal Employment Agreement
• Subject: David Blas
Date: Wed, July 10, 2013 6:00
From: Mordechai Larry
To: Oren Chen orenchen@barak.net.il
The guy, my brother-in-law, is married to my sister, is brilliant. He has a company with accountant Elan Krane, dealing with business mergers and acquisitions.
Jacob Larry, my brother, gave me an order to find a buyer for the company’s business. I didn’t manage to do it. It was actually my wife who advised me to hire the services of an external party.
In about July 2008, I entered an agreement with David Blas and Elan Krane and their company, to provide consultations services and to find a buyer for Beta Systems Ltd and its subsidiaries.
After sifting through a number of candidates, we began serious negotiations with Avi Ben-Haim and Zamir Harel that progressed well.
David Blas and I represented Beta together. David Blas and I were linked through every step of the negotiations.
David Blas can testify as someone who was with me the whole time through the negotiations, that each time we arrived to a crossroads, and there was a need to make important decisions, I would leave the meeting room to consult with Jacob Larry, my brother.
Of course, it’s possible to get an affidavit and evidence about this.
This could be great testimony. David is an impressive person. Articulate and dedicated to the issue. (Emphasis added)
• Date: Wed, Jul 10, 2013 6;17
From: Oren Chen
To: Mordechai Larry
Good.
• Subject: Deadlines
Date: Thurs, July 11, 2013 23:08
From: Mordechai Larry
To: Oren Chen orenchen@barak.net.il
My lawyer in Canada told me that within a short deadline, only days, we must supply documents which support the claim that property registered in my name is not mine and it’s only held by me in trust. It won’t be accepted and will look bad. (Emphasis added)
Mordechai Larry
054-9005505
• Subject: Deadlines
Date: Thurs, Aug 8, 2013
From: Oren Chen
To: Mordechai Larry
She can say what she wants.
This is what you argue
And explain that your brother is going to sue you (emphasis added).
• Subject: Deadlines
Date: Thurs, July 12, 2013
From: Mordechai Larry
To: Oren
Answers like that are not worthy. Lawyers should respect one another and the client as well. We are talking about the form, “Sworn Deposition”. If I give data like that without backup they will not refer to it and the procedure will continue as if I didn’t submit a statement of defence. Why can’t we determine the deadline? A timeline or maybe “when you return from holidays”? (Emphasis added).
• Subject: Two Financial Statements
Date: Thurs, Aug 8, 2013 5:39
From: Oren Chen
To: Mordechai Larry
It seems that I don’t understand what exactly do you need
Please specify.
Oren Chen, Advocate
Sent from my iPhone
• Subject: Deadlines
Date: Thurs, July 12, 2013
From: Mordechai Larry
To: Oren
When I’m swearing an affidavit that a particular property isn’t mine, even though it is registered in my name, I actually argue that what is registered with the government doesn’t reflect the legal truth.
My statement alone it is not sufficient. It needs support. The burden of proof is on me, to prove that the property is not mine. Otherwise, every property owner who is sued will say that the “property is not theirs”.
Now I’m off to Canada, without the evidence. That’s ok. I must explain why the evidence is not with me. Why I’m not presenting it and when I will be presenting it.
In order to explain the lack of evidence, I was thinking of saying that my lawyer is on vacation. And then I’ll add when I’ll be able to produce evidence.
Asking for your consent and permission.
Please, encourage Irena to arrange your Skype account. When I land in Canada on Sunday at 18:00, it will be 1:00 in the morning your time. (Emphasis added)
• Subject: The Entanglement with my brother (emphasis added)
Date: Thurs, July 12, 2013 12:28
From: Mordechai Larry
To: Oren Chen orenchen@barak.net.il
Attachment: The complication with my brother.docx
Size: 12KB
Preview
Is this what you mean?
Is this not dragging my brother to Canada, rather than being managed in Israel? (Emphasis added)
• Subject: The Entanglement with my brother (emphasis added)
Date: July 12, 2013
From: Oren Chen
To: Mordechai Larry
Absolutely not.
These are convincing explanations, reasonable, logical and legitimate. (Emphasis added)
• Subject: Deadlines
Date: July 12, 2013
From: Oren Chen
To: Me
Now I understand.
At first I thought you couldn’t prepare a defense without documents. The explanations: Documents are with your brother + translation is needed + his lawyer is considering joining the proceedings + an angry brother + a consultation with more Canadians in order to understand how to save his assets
In other words, within two months, you will provide translated documents (emphasis added)
The only thing is, bank documents have to be produced as well in order to show the source of the money. Collecting information from the banks takes time and also depends on your brother.
Oren Chen, Advocate
Sent from my iPhone
• Subject: The Trust (emphasis added)
Date: Thurs, July 18, 2013 3:39
From: Mordechai Larry
To: Oren Chen orenchen@barak.net.il
Until you can talk, I’ll write.
If I write in our divorce papers that the house and the Beta shares are held by a trust, with no supporting documents, the court here will not even listen to me and move immediately to divide the assets as part of assets accumulated during the marriage.
They work quickly and decisively here. (Emphasis added)
• Subject: Two Financial Statements
Date: Thurs, Aug 8, 2013 5:39
From: Oren Chen
To: Mordechai Larry
Hello Larry,
I need the original documents which were submitted to the authorities. It is possible to use the one from 2009 which doesn’t show the company Beta. (Emphasis added)
• Subject: Two Financial Statements
Date: Thurs, Aug 8, 2013 5:44
From: Mordechai Larry
To: Oren Chen
Attachment: image...1.jpg Size 2KB
The name of the company starts with “Beta”.
The company is shown as part of my assets, and it is worth 800,000 shekels in both financial statements.
Do you still need the original documents? This works against our interests, doesn’t it?
Below are our responding documents for my wife’s divorce claim in Canada. Jacob Larry’s claim is woven into it.
I must confirm and sign the documents in front of a lawyer in Israel, urgently. We don’t have an extension and time is running out. FYI. (Emphasis added)
[78] The respondent husband states at the Applicant’s Document Brief Volume 2, of the Applicant’s Exhibit H, “in the end I forgot to take the revised Trust Agreement with me…” (Emphasis added).
[79] On page 87 of Volume 2 of Exhibit H of the Applicant’s Document Brief at trial, the respondent writes to Mr. Chen with (above) three comments (or changes) to the “revised” Agreement that he requires. It is clear to this court that the respondent is giving instructions to Mr. Chen for the drafting of this Agreement in the summer of 2013, not 2006. This is fraudulent.
[80] The “Agreement” produced to this court appears on a balance of probabilities to be backdated to December 31, 2006 (drafted and signed) based upon the evidence. I do not believe the date of 2006 to be true.
[81] The respondent wrote at page 87 in the Applicant’s Document Brief Volume 2, Exhibit D that he wished to meet with his brother Jacob on August 13, 2013 to sign all the papers, that is, the three Agreements plus the Share Transfer Deeds. He specifies these documents. It appears on a balance of probabilities to this court that there was no “Agreement” or “Share Transfer Deeds” signed on December 31, 2006 and that the respondent husband, Mr. Chen and Jacob Larry fabricated and backdated the alleged Agreement to 2006 in 2013. This is fraud.
[82] To further strengthen this argument the applicant wife produced further evidence at the Applicant’s Document Brief Volume 2 page 95, exhibit H of the respondent’s evaluation of the net worth of his asset (emphasis added) Beta at 800,000 shekels in both 2005 and in 2009 in tax documents for the Israeli Tax Authorities referenced in respondent’s email of August 8, 2013 to Oren Chen. (See page 95, the Applicant’s Document Brief Volume 2, Exhibit H). The respondent clearly recognized that he had slipped up and writes, “it is likely that I gambled that the declaration of assets was confidential.”
Subject: Two Financial Statements (emphasis added)
Date: July 23, 2013
From Mordechai Larry
To: Oren
I found two of my financial statements from the tax authority, one close to the marriage, and the second, nine months after the sale of business activities. It’s interesting that the company “Beta” was recorded as part of my assets when in 2005, I was still formally bankrupt and I wasn’t the shareholder. It’s likely that I gambled that the declaration of assets was confidential. My biggest overdrawn balance in 2009 stemmed from transfer of money to Canada for the house purchase. Attached is the Excel File. (Emphasis added)
• Subject: Two Financial Statements
Date: Thurs, Aug 8, 2013 5:39
From: Oren Chen
To: Mordechai Larry
Hello Larry,
I need the original documents which were submitted to the authorities. It is possible to use the one from 2009 which doesn’t show the company Beta. (Emphasis added)
• Subject: Two Financial Statements
Date: Thurs, Aug 8, 2013 5:44
From: Mordechai Larry
To: Oren Chen
Attachment: image...1.jpg Size 2KB
The name of the company starts with “Beta”.
The company is shown as part of my assets, and it is worth 800,000 shekels in both financial statements.
Do you still need the original documents? This works against our interests, doesn’t it? … (Emphasis added).
Credibility
[83] I find that the respondent has been dishonest, obstructionist, vague, elusive and non-transparent throughout these proceedings in both his testimony and his evidence and lack thereof produced. His lack of financial disclosure has created hardship for the applicant wife and has made these proceedings for this court unnecessarily protracted and difficult. On the other hand the applicant wife has been honest, forthright and open. Her financial disclosure was complete and her organization at trial was commendable even by the standard of a lawyer despite the respondent husband’s lack of full disclosure. As such where there is a difference in the evidence of the applicant and the respondent, I prefer the evidence of the applicant wife every time. I do not find the respondent credible.
[84] Due to the respondent’s obstructive behaviour and lack of open financial disclosure this court has had to rely on the best evidence before it. This has been the applicant wife’s evidence to a large extent. The respondent cannot prosper from his dishonesty, breaches of the disclosure orders and Rules of this court.
Order to go as follows:
(1) The applicant wife shall have sole custody of the child May Margaret Larry Menzel born December 19, 2006; a separate order dealing with custody only may be issued and entered for the convenience of the wife and child while travelling.
(2) The applicant wife shall confer with the respondent husband on all major issues involving the child’s major medical, educational and religious issues. The applicant shall seek out the respondent’s opinions however, regarding major decisions only. The applicant wife shall have the final decision making power after conferring with the respondent;
(3) The respondent husband/father’s consent in obtaining any and all passports and government identification cards (Canadian and/or Israeli) is dispensed with;
(4) The applicant wife/mother or her designate at her discretion shall be the holder of the child’s passport;
(5) The respondent husband shall give the applicant two weeks written notice of any trip that he may make to Guelph. For the time that the respondent is in Guelph he shall have access to the child:
i. Every day from after school to 8:00 p.m. for a maximum of 14 days every two months; and
ii. On the weekend from Friday after school until Monday before school.
(6) The respondent shall have an uninterrupted time with the child each summer commencing in 2017 for the full month of July each year;
(7) The child may exercise her access in July each year, in Israel with her father on the following terms;
i. The applicant or her designate shall accompany the child during international travel to and from Israel until the child is 12 years of age, after which time the child may travel as an unaccompanied minor with the airlines providing care and control.
ii. The respondent/father shall pay all the costs associated with access including but not limited to the costs of the air flight of a companion to accompany May to and from Israel, until she is 12. The quantum of $250.00 per month is included in the monthly child support figure for this purpose.
iii. That companion may be the child’s mother or her designate in the mother’s discretion.
iv. Any and all meals, hotels etcetera incurred by the companion shall be the sole responsibility of the mother or her designate in Israel.
v. The flights shall be direct flights between Toronto and Tel Aviv.
vi. The mother shall allow the father privacy with the child and shall not remain nearby during access.
(8) The respondent father shall have liberal and generous access with the child via Skype at least five times each week. The mother shall provide for the child a regular size computer screen and/or laptop for at least three of the five weekly Skype access visits. This will allow the child to do “show and tell” with her father. Skype times will be at reasonable hours for both the father and the child. Note there is a seven hour time difference between Israel and Canada. The cost of the computer, ongoing maintenance and upgrading, etc. is that of the respondent and is included in the present s.7 order in the $100 miscellaneous expense included.
(9) The respondent shall provide to the mother 2 months before each Israeli trip, each year a complete itinerary for the child in Israel, all the contact phone numbers for the child and the respondent’s current home phone number and his current living address.
(10) Exclusive possession of the matrimonial home is no longer an issue as the parties are divorced. The applicant has exclusive possession through beneficial title; the respondent has no interest in the matrimonial home any longer.
(11) No order for sale of the matrimonial home;
(12) The change of name issue is a non-issue now and it is acknowledged that the new name reflects both parents last names;
(13) No order of spousal support to be paid by the wife to the husband. The wife has no full-time permanent employment. The wife has no ability to commit to an order of spousal support. She is currently a supply teacher working day-to-day. The respondent has not shown “need” in any event. The respondent husband’s disclosure has been totally inadequate.
Equalization
(14) The respondent husband shall pay to the applicant wife an equalization payment of $235,209.75 forthwith. Said payment is inclusive of any interest in the matrimonial home. The respondent’s interest in the matrimonial home has been taken into consideration in coming to this figure already. See the revised court calculated Net Family Property Statement for the parties (Schedule “A” attached). The respondent ceases to have any interest possessory or monetary in the matrimonial home. The home is no longer a matrimonial home. At trial the vast majority of the items reflected on Schedule “A” (Net Family Property Statement) were agreed to by the parties. The notable exceptions are the $1,000,000 attributed from the sale of Beta to the respondent husband. I have already analyzed in detail my finding on this fact. I have taken the liberty of giving to the respondent husband a deduction for the date of marriage value for Beta of his figure of 800,000 shekels or $228,571.42. The respondent husband gave this figure to the Israeli Tax Authority. I also have accepted the respondent husband’s original estimate of $300,000 (1,035,791 shekels) for his investments as per his August 30, 2013 sworn financial statement. The respondent husband now denies such investments but has failed to make meaningful disclosure. As such I find that he made this statement under oath early in this litigation and it must have been based upon some knowledge he had.
(15) The respondent husband shall pay to the applicant wife, child support for the child in the amount of $1,004.00 per month commencing on the first day of October 2016 and payable on the first day of each month hereafter. The said child support includes the respondent’s 50% share of the child’s section 7 expenses and the up-front contribution to the air fare costs of the child and of someone to accompany the child to and from Israel for access with her father until she is 12 years old. This figure was difficult to arrive at due to the lack of disclosure by the respondent. The respondent himself set the approximate amount of $1,000 - $1,100 as reasonable in 2013.
(16) The applicant wife shall use some of the s. 7 miscellaneous funds to purchase and maintain and upgrade a proper computer screen and/or laptop for better quality access between the child and the respondent immediately for the child’s benefit.
(17) Support Deduction Order to issue.
Costs
[84] If the parties cannot settle the cost issue between them by December 15, 2016 the parties may submit no more than 3 type written pages on the issue of costs by January 30, 2017.
Justice Snowie
Released: October 28, 2016
CITATION: Menzel v. Larry, 2016 ONSC 6599
COURT FILE NO.: FS-13-182
DATE: 2016 10 28
ONTARIO
SUPERIOR COURT OF JUSTICE
Ursula Naomi Menzel
Applicant
– and –
Mordechai Larry
Respondent
judgment
Justice Snowie
Released: October 28, 2016