Citation: Ballanger v. Ballanger, 2017 ONSC 6642

Court File No.: FS-16-413743 Date: 2017-11-03 Superior Court of Justice – Ontario

Re: Colleen Debra Ballanger, Applicant And: Michael John Ballanger, Respondent And: Kelly Hearnden, Respondent

Before: C. Horkins J.

Counsel: Colleen Debra Ballanger, appearing in person William Abbott and Aaron M. Mastervick, for the respondent Joseph Neal, for Respondent Hearnden

Heard at Toronto: October 31, 2017

Endorsement

[1] This application was commenced on March 22, 2005. More than 12 years later, there is no trial date and the parties are still fighting about disclosure and support.

[2] The applicant, Colleen Bellanger (“applicant wife”) and the respondent Michael Bellanger (“respondent husband”) started living together in April 1979. They were married on June 8, 1985. The respondent husband says that they separated on October 1, 2002. The applicant wife says that they separated in April 2004. They are not divorced.

[3] In 2004, the applicant wife was 46 years old and the respondent husband was 49 years old. Before separation, the applicant wife did not work outside the home. The parties have three children. The youngest child, Kristen Brianne Ballanger is now 24 years old.

[4] The respondent Kelly Hearnden is the respondent husband’s business partner.

[5] There are two long motions before the court. These reasons will deal with both motions.

[6] The applicant wife seeks the following relief in her notice of motion dated August 3, 2017:

• An order that the respondent husband pay her $150,000 for her interim disbursements under Family Law Rule 24(12).
• An order that the respondent husband provide the disclosure in Schedule A of her notice of motion dated August 3, 2017.
• An order that the respondent Ms. Hearnden provide disclosure in Schedule B of her notice of motion.
• An order that the respondent husband pay the spousal support owed for August 2008 and January and February 2016.
• An order that the respondent husband pay $3,305.65 for s. 7 expenses incurred in 2005.
• An order that the respondent husband reinstate the applicant wife as irrevocable beneficiary of his life insurance policy (the parties confirm that this was done prior to the hearing of this motion).

[7] The respondent husband seeks the following relief in his notice of motion dated August 23, 2017:

• An order imputing a yearly income to the applicant wife of $43,400.
• An order varying the interim spousal support order of Gordon J dated February 20, 2008 (“the Gordon order”). The respondent husband asks the court to set spousal support at $2,402 based on an income of $130,000 and the applicant wife’s imputed income of $43,400.
• An order that para. 1 of the Gordon order, requiring the respondent husband to pay child support for Kristen Brianne Ballanger, be terminated as of November 1, 2017.
• An order that the applicant wife produce the disclosure in para. 9 of the respondent husband’s notice of motion (see Schedule A attached).
• An order permitting service by email.

[8] The parties have been represented by counsel for most of this litigation. They have not always had the same counsel. The applicant wife did not have counsel when the motions were heard.

[9] The applicant wife filed two lengthy affidavits dated August 4, 2017 and September 21, 2017. The respondent husband filed an affidavit dated August 23, 2017 and affidavits dated October 20 and 24, 2017 from a law clerk at MacDonald & Partners.

The applicant wife’s motion

Disclosure

[10] This is not a case where the respondent husband has failed to provide disclosure. He has been providing disclosure during this lengthy litigation and was questioned in 2005, 2007 and 2016. The applicant wife alleges non-disclosure when in fact the respondent husband has provided extensive disclosure.

[11] Most of the disclosure items listed on the applicant wife’s schedule “A” have been produced. The items on Schedule A that the applicant wife says are still outstanding are addressed below. I note that there is minimal evidence in the applicant wife’s affidavits that addresses the disclosure she seeks. For most of the items there is no evidence at all.

Canada Pension Statement

[12] The applicant wife wants the respondent husband’s “Canada Pension Statement”. The respondent husband has complied with this request. He provided the applicant wife with a direction to obtain this statement.

Kalex Valuations’ Request

[13] In 2014, the applicant wife had retained Melanie Russell of Kalex Valuations Inc. to analyze the respondent husband’s income for support purposes. On May 7, 2014, Kalex sent applicant wife’s then counsel a letter itemizing the disclosure that was required to prepare an income report.

[14] The respondent husband’s accountant, Mr. Leftwick, sent the husband’s counsel a letter responding to the Kalex request. This letter provided information and enclosed many of the documents requested. Mr. Leftwick’s letter requested clarification for some requests that could not be answered. This letter and all of the enclosures were delivered to the applicant wife’s counsel on January 14, 2015. The respondent husband and his counsel never received a reply.

[15] The applicant wife now seeks an order that the respondent husband produce all of the disclosure that Kalex requested. She does not clarify what is missing and does not seek to answer Mr. Leftwick’s request for clarification.

[16] Kalex is no longer retained in this matter. The applicant wife wants to retain AP Valuations Limited. She has produced a letter dated May 3, 2017 from this valuator setting out the anticipated cost of preparing an income report. It is not known if AP Valuations reviewed Mr. Leftwick’s letter and enclosures.

[17] I am not going to make a blanket order that the respondent husband provide all outstanding items in the Kalex letter for the following reasons. Much of the disclosure was provided. The clarification that Mr. Leftwick requested was reasonable. The applicant wife, her counsel and/or expert never replied to Mr. Leftwick’s letter in any way. Kalex is no longer retained by the applicant wife. I have no evidence from AP Valuations. It is not known if they reviewed Mr. Leftwick’s letter and enclosures, whether they need anything further and if so what clarification they can offer to Mr. Leftwick.

[18] This request is denied.

Undertakings – Questioning in 2005, 2007 and 2016

[19] The applicant wife wants an order for “all outstanding disclosure from list of undertakings from questioning”. This is a broad request with no evidence. The applicant wife has not provided a list of the undertakings or any of the transcripts from the questioning. It is simply a general request with nothing to back it up.

[20] Current counsel for the respondent husband was on record at the 2016 questioning. They provided the applicant wife’s counsel with a disclosure brief that answered the 2016 undertakings.

[21] This request is denied.

List of Accounts registered with the Panama Papers

[22] The respondent husband states that he does not have any accounts “registered with the Panama Papers”. The applicant wife offers no evidence to explain the basis for this request. It is denied.

Business License in Bahamas and Bank Accounts

[23] The applicant wife wants the respondent husband to produce a copy of his business licence registered in the Bahamas with bank accounts. There is no basis in the affidavit to support this request, other than the applicant wife’s general statement that the respondent husband “always had offshore accounts in Switzerland and the Bahamas” during the marriage.

[24] The respondent husband states that he does not have a business licence registered in the Bahamas and does not have any bank accounts in that country.

[25] There is no basis in the evidence to allow this request and it is denied.

Copy of Cell Phone Statements

[26] The applicant wife wants the respondent husband’s cell phone statements for the last three years. She does not explain the basis for this request and why it is relevant.

[27] The cell statements will show when the respondent husband made or received a call. The substance of the call will not be revealed. The statement may reveal private contact information pertaining to the respondent husband’s clients that should not be produced. The applicant wife has not satisfied the court that these records are relevant to any of the issues between the parties. This request is denied.

The Rule 24 (12) Motion

[28] The applicant wife seeks an order that the respondent husband pay her $150,000 within 30 days to cover interim disbursements.

[29] Family Law Rule 24(12) states that "[t]he court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer's fees."

[30] Rule 24(12) is discretionary. In exercising discretion under rule 24(12), the court must ensure that the primary objective of fairness as set out in rules 2(2) and (3) is met. Specifically, the court must deal with cases justly and ensure that the procedure is fair to all parties. As Mesbur J. stated in Ludmer v. Ludmer, 2012 ONSC 4478 at para.14, "One of the primary themes of the case law is that orders may be required in order to 'level the playing field' between the litigants."

[31] The party seeking a payment under rule 24(12) does not have to prove that exceptional circumstances exist. Instead, the respondent must satisfy the following factors (see Stuart v. Stuart (2001), 2001 28261 (ON SC), 24 R.F.L. (5th) 188 at para. 8; Ludmer at paras.15-17; Sadlier v. Carey, 2015 ONSC 3537 at paras. 34-38 and Turk v. Turk, 2016 ONSC 4210 at paras. 4, 24; McCain v. Melanson, 2017 ONSC 916 at paras. 2 to 4):

1. On a balance of probabilities, the moving party's claim/defence has sufficient merit.
2. The legal fees are necessary and reasonable given the needs of the case and the funds available.
3. The moving party is incapable of funding the requested amount.

[32] As explained below, the applicant wife has not satisfied the above factors. As a result, this relief is denied.

[33] This is the second motion the applicant wife has brought for an order under rule 24(12). On October 24, 2014, McGee J. dismissed her motion for an order that the respondent husband pay her $100,000 for interim disbursements. McGee J dismissed the first motion because the applicant wife provided nothing to support her $100,000 estimate of expected costs. For example, there was no projected Bill of Costs. McGee J accepted that the applicant wife would be at a disadvantage if she had to proceed to trial without an expert to value the respondent husband’s income. As she explained, this ground “is insufficient to make the order sought”. The motion was dismissed without prejudice to the applicant wife’s right to seek a rule 24(12) payment on better evidence.

[34] The evidence on this motion does not satisfy the criteria.

[35] The applicant obtained a fee estimate from AP Valuations and they state that their fees to provide an income report should not exceed $50,000. There is no evidence to account for the additional $100,000 that it is requested.

[36] It could be for legal fees though the applicant wife does not state this in her affidavits. A fee estimate alone would be insufficient. As McGee J stated, the party seeking the order should provide a proposed Bill of Costs. None was provided.

[37] I accept that the letter from AP Valuations provides a sufficient explanation to support a request for $50,000. However, the applicant wife must satisfy all of the remaining factors and she has failed to do so.

[38] The applicant wife has not shown that the fees are necessary and reasonable given the needs of the case and the funds available. Aside from alleging her belief that the respondent husband must have funds hidden, there is no evidence that he has funds available to pay $150,000 or even $50,000.

[39] There are some key facts to support the respondent husband’s position that he does not have funds available to pay the applicant wife interim disbursements.

[40] In February 2008, Gordon J. ordered the respondent husband to pay child and spousal support based on an income of $350,000. Specifically, he pays $8,500 a month for spousal support and $2,734 for child support for one child. He was also ordered to pay arrears that the court fixed.

[41] The respondent husband is a former stock broker and wealth manager in the resource sector. His income varied during the marriage because it consisted of commissions and consulting income.

[42] After the Gordon order, the respondent husband’s income fluctuated. In 2014, his employer, Richardson GMP, terminated his employment. There is outstanding litigation between the employer and the respondent husband. The employer is seeking return of monies that they say were advanced to the respondent husband as a loan. The respondent husband alleges wrongful dismissal and claims damages. He says that his reputation has been damaged as a result of the termination. This litigation is outstanding.

[43] The respondent husband has found it very difficult to secure another job given his age (64) and the fallout from his dismissal. He started a company called Bonaventure Explorations Ltd. This is a resource and consulting company that is jointly owned by the respondent husband and his partner Ms. Hearnden.

[44] The respondent husband’s income tax returns reveal that in nine years since the Gordon order, his income has been less than $350,000 in six of the nine years. In particular, the drop in income since the dismissal for Richardson is significant. The respondent husband’s yearly income since 2009 is set out below:

Year	Amount
2008	$403,404
2009	$291,005
2010	$554,566
2011	$942,636
2012	$230,386
2013	$325,740
2014	$209,234
2015	$106,000
2016	$130,000

[45] In 2012, the respondent husband reported $76,857 in RRSP income. He collapsed some RRSPs that year to pay his support obligations. His earned income that year was $153,529. In 2013, the gross amount includes a $140,000 loan from the respondent husband’s former employer. If this is accurate then his earned income in 2013 was the $176,187 in commission income.

[46] The 2016 financial statement for Bonaventure is being prepared. The respondent husband states in his affidavit that gross revenue in 2016 was $479,000. There is one known significant expense of $133,790 plus other typical expenses. Based on this evidence, the respondent husband’s 50% share of the net revenue is at best $172,605.

[47] CRA has assessed the respondent husband’s 2011 and 2012 income tax returns. He was found to owe $121,187.90. In 2015, CRA froze the respondent husband’s bank accounts. It appears this was done because of the CRA debt. Since the accounts have been frozen, the respondent husband has been using Bonaventure’s corporate bank accounts to pay the support.

[48] The respondent husband’s 2016 notice of assessment confirms that he still owes CRA $72,532.93.

[49] The financial statements also show that this is not a case where a rule 24(12) order is required to level the playing field.

[50] The respondent husband’s August 4, 2017 financial statement and changes confirmed in the October 24, 2017 affidavit reveal the following. His 2016 gross yearly income is $130,000. In 2017, his monthly income from all sources is $10,833.33. He owns a boat worth $80,000 that is mortgaged ($90,000). There is no equity in the boat. He bought the boat before he lost his job. Aside from an old car, he has no assets. In addition to the boat loan and the CRA debt, the respondent husband has other significant debts ($19,000 credit cards and a $527,000 loan from his former employer that is the subject of litigation). He has a negative net worth of $680,775.66.

[51] The applicant wife’s August 4, 2017 financial statement reveals the following. Her yearly gross income is $102,000. Aside from a small balance of $1,325 on a credit card she has no debts. The applicant wife has no assets.

[52] The parties sold the matrimonial home in 2006. The cottage was sold in 2002. While the applicant wife still seeks to equalize the net family property, there is no evidence that there is anything left to equalize. The parties divided the net sale proceeds although there is conflicting evidence as to who received what amount.

[53] The applicant wife alleges that the respondent husband is essentially hiding money by transferring money to Ms. Hearnden. The only evidence of money being transferred comes from the respondent husband. He admits that he transferred $545,000 to Ms. Hearnden. This amount is the loan from his former employer and is the subject of the outstanding litigation. This loan money cannot be considered income on the record before me. The applicant wife relies on the corporate bank account for Bonaventure to support her allegation that the respondent husband is hiding and/or diverting his income elsewhere. The activity in this bank account reflects what the company invests for clients. It is not evidence that the respondent husband is hiding and/or diverting income.

[54] Finally, there is the merit of the applicant wife’s claims. She must show on a balance of probabilities that her claims have merit.

[55] Dealing with equalization of net family property, I have no evidence that the applicant wife is owed an equalization payment.

[56] Dealing with spousal support, it seems that the applicant wife is seeking the continuation of spousal support that the court ordered in 2008. The applicant wife has not shown on a balance of probabilities that the continuation of the 2008 order has merit. There is a real risk that the quantum of spousal support will be reduced for these reasons: the drop in the respondent husband’s income, the respondent husband’s age, the likely imputation of some income to the applicant wife (i.e. minimum wage) and the respondent husband’s request for a retroactive adjustment to the spousal support.

[57] I add that the applicant wife also faces the respondent husband’s claim that he has overpaid child support and s. 7 expenses. There is a risk that there has been overpayment. The applicant wife has provided no evidence of current entitlement to child support.

[58] In summary, the applicant wife has failed to satisfy the criteria for a rule 24(12) payment. This part of her motion is dismissed.

S. 7 Expenses from 2005

[59] The applicant wife seeks an order directing that the respondent husband pay her $3,305.65 for s. 7 expenses. In her notice of motion, she states the expenses were incurred in 2005. In her first affidavit, she includes one paragraph that deals with this relief. She makes a general statement with no particulars. She says that she provided the expenses to the respondent husband and he refused to pay. The respondent husband denies that he has refused to pay any s. 7 expenses.

[60] There is no evidence to support this relief and it is denied. Simply stating that the request for payment was made and denied is insufficient. There are no documents to prove that s. 7 expenses were incurred and payment refused by the respondent husband.

[61] Even if the applicant wife had provided sufficient proof, I would not allow on an interim motion, a request that relates to expenses incurred 12 years ago. There are too many retroactive support adjustments that must be considered at trial. Claims dating back to 2005 are best dealt with at trial.

Support Payments

[62] The applicant wife states that the respondent husband owes her spousal support for three months: August 2008, January and February 2016. She seeks an order that he pay her spousal support for these months.

[63] The respondent husband states that he has paid spousal support for August 2008. He admits that in January and February 2016 he only paid 50% of what was owed. The respondent husband has explained his financial problems and the basis for a retroactive adjustment to the support.

[64] There is an existing court order for spousal support. The issue at this point in the litigation is whether spousal support on a final basis should be reduced retroactively and what is owed going forward.

[65] In these circumstances, the issue concerning the three spousal support payments is best dealt with at trial. The applicant wife’s request is denied.

Disclosure from Ms. Hearnden

[66] The applicant wife sets out the disclosure that she wants from Ms. Hearnden in Schedule B attached to her notice of motion.

[67] On January 27, 2016, McGee J. ordered Ms. Hearnden to provide specific disclosure. Ms. Hearnden filed an affidavit showing that she has complied with this order. Extensive disclosure was provided to the applicant wife.

[68] At the hearing of this motion, the applicant wife agreed that most of the items in Schedule B have been produced. She seeks disclosure of the remaining items that I will now consider.

Ms. Hearnden’s Passport

[69] The applicant wife wants to see Ms. Hearnden’s passport because she believes that the respondent husband and Ms. Hearnden are hiding money offshore. There has been a considerable amount of disclosure from the respondents and there is no evidence to support this suspicion. Ms. Hearnden may have travelled outside of Canada and this would be revealed in her passport, but it is not evidence of hiding money offshore.

[70] The applicant wife has not established that the passport is relevant. The request is denied.

An Equifax Credit Report

[71] The applicant wife has not explained why an Equifax credit report concerning Ms. Hearnden is relevant. Such a report would disclose Ms. Hearnden’s private credit information that has nothing to do with the issues in this application.

[72] The request is denied.

Bank and credit card statements

[73] Ms. Hearnden has already produced various banking statements. The applicant wife is now asking her to produce accounts from Union Security that have already been produced. She also seeks accounts from Sun Life and BMO credit card statements. Ms. Hearnden does not have any accounts with Sun Life or a BMO credit card. It is not known why the applicant wife believes that she does.

[74] Given Ms. Hearnden’s evidence and the lack of any evidence from the applicant wife, the request it is denied.

Proof of Various Deposits

[75] The applicant wife has a list of 13 amounts that were withdrawn from Ms. Hearnden’s account. She asks for the accounts and account statements showing where each amount was deposited. Ms. Hearnden has complied and provided the information for 10 of the 13 amounts. Ms. Hearnden has no record of the remaining three amounts.

[76] I find that Ms. Hearnden has satisfied this request.

An Account linked to BMO Investoreline Account

[77] The applicant wife has offered no evidence to support this request and Ms. Hearnden does not know what this request refers to.

[78] The request is denied.

Signed Authorizations

[79] The applicant wife wants Ms. Hearnden to sign an authorization giving her access to all financial institutions where Ms. Hearnden has an account. The applicant has offered no evidence to support such a broad request. It is denied.

[80] The applicant wife wants Ms. Hearnden to provide a signed Authorization “to disclose the Highcroft Account into which $101,590 was invested on November 15, 2012. There is nothing in the applicant wife’s affidavit to explain the reason for this request. It is denied.

The respondent husband’s motion

Disclosure

[81] The respondent husband seeks an order that the applicant wife produce the list of disclosure in Schedule A (items (a) to (m)) attached to these reasons.

[82] The applicant wife confirms that she is not putting her health in issue in this proceeding. As a result, the respondent husband withdraws items (l) and (m) in Schedule A.

[83] During her submissions on this motion, the applicant wife submitted that last July she produced to the respondent husband’s counsel, the documents requested in items (a), (b), (e), (g), (h), (i), and (k).

[84] Counsel for the respondent husband states that they did not receive any of this disclosure. The respondent husband’s motion was served after July when the applicant wife claims to have produced the documents. The respondent husband’s motion clearly lists the disclosure he is seeking. If the applicant wife had already produced some of these documents she should have provided proof in her affidavit. Instead the affidavits are silent.

[85] The items are clearly relevant and this is not disputed. Given that I have no evidence of previous disclosure, the applicant wife is ordered to produce the disclosure in Schedule A items (a) to (k). This disclosure shall be produced by December 31, 2017.

[86] Item (d) requires the applicant wife to provide a yearly chart of what she is seeking for past child and/or spousal support. Such a chart will present her position at trial and help to set out the orders she is asking the judge to make. The chart itself is not evidence unless accepted as such by the trial judge. The respondent husband should provide his own charts dealing with the orders he seeks, retroactively and going forward, for child and spousal support.

Termination of Child Support

[87] Paragraph 1 of the Gordon order requires the respondent husband to pay child support for Kristen Brianne Ballanger, born April 17, 1993. This is the only child support order that has been made.

[88] Kristen is now 24 years old. The respondent husband seeks an order that child support be terminated effective of November 1, 2017, without prejudice to his right to seek orders at trial that this child support should be terminated sooner and that he has overpaid child support and s.7 expenses and is entitled to be reimbursed.

[89] In paras. 106 to 113, the respondent husband sets out what he has paid for child support. He details Kristen’s post-secondary education and when she has not been attending school. In particular, he states that Kristen is no longer living with either parent and is employed.

[90] The applicant wife responded to the respondent husband’s affidavit and in particular paras. 106-113. She vigorously disputes the respondent husband’s evidence about the child support he has paid in the past. Her affidavit says nothing about the respondent husband’s evidence that Kristen does not live with either parent and is now working. This undisputed evidence confirms that child support is no longer payable.

[91] Based on these facts, there is no obligation to pay child support for Kristen. Effective November 1 2017 the child support ordered in paragraph 1 of the order of Gordon J dated February 20, 2008 is terminated. This is without prejudice to the respondent husband’s right to seek orders at trial that this child support should be terminated sooner and that he has overpaid child support and s.7 expenses and is entitled to be reimbursed.

Variation of spousal support and Imputing Income

[92] The respondent husband seeks a variation of para. 1 and 2 of the Gordon order that requires him to pay the applicant wife spousal support of $8,500 a month based on an income of $350,000. As part of this variation, he seeks an order imputing a yearly income of $43,400 to the applicant wife.

[93] This is a variation of a temporary order. The test for variation of a temporary order is set out in Oxley v Oxley, 2010 ONSC 1609 at paras 25-26:

25 Temporary orders for support, as the name suggests, are not final orders. They were formerly known as "interim orders", referencing the fact that they were intended to cover the interim period between the commencement of proceedings and trial. The Family Law Rules now use the term "temporary" to underscore the notion that they are not intended to be long term solutions. They are by their nature imperfect solutions. They are based on limited and typically untested information. They are meant to provide "a reasonably acceptable solution to a difficult problem until trial": see Chaitas v. Christopoulos, 2004 66352 (ON SC), [2004] O.J. No. 907 (S.C.J.) per Sachs J.

26 Variations of temporary orders are not encouraged. They should not become the focus of the parties' litigation: Cutaia-Mahler v. Mahler, 2001 28138 (ON SC), [2001] O.J. No. 3473, 2001 CarswellOnt 3054 (S.C.J.) per Benotto J.. There is, therefore, a heavy onus on a party who seeks to vary a temporary order - essentially replacing one imperfect solution with another imperfect solution - pending trial: Boissy v. Boissy, [2008] O.J. No. 2783, 2008 CarswellOnt 4253 (S.C.J.) per Shaw J.. A substantial change in circumstances is typically necessary before a variation to a temporary order will be granted: Biddle v. Biddle, [2005] O.J. No. 737 (S.C.J.) per Blishen J..

[94] The Gordon order was issued more than nine years ago. The support order was an imperfect solution intended to provide a temporary solution until trial. The fact that the parties have lived with this temporary solution for more than nine years is very unusual.

[95] The respondent husband first raised his request to vary the support in 2013. The attempt to mediate the issue failed. The respondent husband then brought a motion in 2016 to vary the spousal support order. Up to that point, this application was before the Family Court in Newmarket. The motion did not proceed because the court ordered that the file be transferred to Toronto. This is where the applicant wife now resides. According to the respondent husband, there was considerable delay in getting the transfer order issued and entered and the file was not delivered to Toronto until late 2016. A settlement conference was heard in June 2017 and a date for these long motions was set.

[96] The parties are attending a Trial Scheduling Conference on November 24, 2017. There are dates available for a 10 day trial starting in January 2018 with availability in the months that follow.

[97] While I recognize that the respondent husband’s income has declined, I am very reluctant, on the eve of fixing a trial date, to grant a temporary variation of a temporary spousal support order and impute an income to the applicant wife.

[98] A trial date must be set at the Trial Scheduling Conference. The parties have had more than 12 years to gather whatever evidence they might require. They have had ample time to get ready.

[99] The parties have attended multiple case conferences and 12 years later a trial date has not been set. The court has an obligation under rule 2(5) to actively manage cases so that they are dealt with justly. Similarly parties have an obligation to actively move their disputes forward to settlement or a trial if necessary.

[100] Given that this matter can and must proceed to trial immediately, I am not prepared to issue a temporary variation when the issues can be finally decided on a full record at trial, as early as January 2018, or in the spring if necessary.

Miscellaneous Matters

[101] On consent, an order is granted allowing service on the other party by email.

[102] Pursuant to Family Law Rule 2(2) to (5), I have made orders set out below to ensure that this case moves ahead to a conclusion in 2018.

Conclusion

[103] In summary, I make the following orders:

1. The applicant wife’s motion for disclosure from the respondent husband is dismissed.
2. The applicant wife’s motion for an order that the respondent husband pay her $150,000 for expenses pursuant to Family Law Rule 24(12) is dismissed.
3. The applicant wife’s motion for an order directing the respondent husband to pay s. 7 expenses incurred in 2005 is dismissed. This is without prejudice to her right to seek this relief at trial.
4. The applicant wife’s motion for an order for payment of past spousal support in August 2008 and January and February 2016 is dismissed. This is without prejudice to her right to seek this relief at trial.
5. The applicant wife’s motion for an order for disclosure from the respondent Kelly Hearnden is dismissed.
6. The applicant wife is ordered to provide the respondent husband with the disclosure set out in items (a) through (k) in the attached Schedule A by December 31, 2017. Items (l) and (m) in Schedule A are withdrawn.
7. Effective November 1, 2017, the child support ordered in paragraph 1 of the order of Gordon J dated February 20, 2008 is terminated. This is without prejudice to the respondent husband's right to seek orders at trial that this child support should be terminated sooner and that he has overpaid child support and s.7 expenses and is entitled to be reimbursed.
8. The respondent husband’s motion to impute an income to the applicant wife is dismissed without prejudice to his right to seek this relief at trial.
9. The respondent husband’s motion seeking to vary paras. 1 and 2 of the order of Gordon J dated February 20, 2008 dealing with his income and the amount of spousal support is dismissed. This is without prejudice to his right to seek this relief at trial.
10. On consent, an order is granted allowing service on the other party by email.
11. Each party shall complete the Trial Scheduling Endorsement Form and file it with their Trial Management Conference Brief for the November 24, 2017 conference.
12. The Trial Scheduling Endorsement Form requires the parties to list the issues for trial. If either party is seeking equalization of net family property they shall prepare a net family property statement and file it with their Trial Management Conference Brief. All documents that either party seeks to rely on to support a request for equalization, shall be identified and produced to the other party before the November 24 2017 confernece.
13. The parties shall be prepared to fix a date for trial at the Trial Management Conference on November 24, 2017.
14. The trial shall be held and completed by the end of 2018.
15. Approval of this order as to form and content is waived. The order shall be directed to my attention for signing.
16. If either party is seeking costs and wishes to make brief submissions about any offers to settle then they shall do so by November 17. Submissions are limited to two pages.

C. Horkins J.

Date: November 3, 2017

Ballanger v. Ballanger

Court File No: FS-16-413743

Schedule “A”

An Order that the Applicant, Deborah Colleen Ballanger, shall provide the following disclosure to the Respondents’ counsel within 45 days:

(a) Statements from all of the Applicant’s bank accounts, including but not limited to, all chequing accounts, all savings accounts, investment accounts, lines of credit and credit cards over which she has signing authority from January 1, 2015 to October 31, 2017, unless previously provided.

(b) A complete Income Tax Return including all schedules and attachments for the years 2015 and 2016, as well as copies of her Notices of Assessment and/or Re-Assessment for the years 2015 and 2016.

(c) Proof of all contributions that the Applicant allegedly made to any child’s post-secondary education costs, including tuition, books, travel, housing, meals, and other living expenses. The Applicant’s contributions shall be broke down on an annual basis for each year the child was in post-secondary education and include third party confirmation of all payments made by the Applicant (e.g. bank statements, cancelled cheques, etc. confirming payment by the Applicant).

(d) A yearly chart from the Applicant summarizing how much she is seeking in alleged retroactive child and/or spousal support from the Respondent, with an annual breakdown for each alleged expense.

(e) Proof of all efforts that the Applicant has made to obtain employment (part-time or full-time or casual) from January 1, 2014 to October 31, 2017, including copies of all applications submitted and copies of all rejection correspondence received.

(f) Copies of all applications for credit and statements of net worth that the Applicant has completed from January 1, 2014 to October 31, 2017.

(g) A complete copy of the Applicant’s expired and unexpired passport pages from 2014 to October 31, 2017.

(h) Proof of bankruptcy, including a copy of her assignment in bankruptcy or petition into bankruptcy, statement of affairs, and any discharge.

(i) A copy of any bankruptcy proposal signed by the Applicant and the trustee under the Bankruptcy and Insolvency Act.

(j) A copy of the projected cash flow statement of the Applicant, signed by the Applicant and filed by the Trustee along with her final proposal.

(k) A copy of the Trustee’s cash flow statement, the Trustee’s report on reasonableness of cash flow statement, and the Trustee’s Report containing prescribed representations of the insolvent party regarding the preparation of the cash flow statement.

(l) If the Applicant is putting her health into issue in these proceedings, she shall provide:

(i) A decoded Ontario Health Insurance Plan (OHIP) summary;

(ii) A copy of her medical file including all doctor’s letters and any on-going treatment and summaries provided by her treating physician;

(iii) Proof of all alternative treatments (massage, chiropractor, physiotherapy, etc.) that the Applicant has attended and received from January 1, 2014 to October 31, 2017.

(m) If the Applicant is not putting her health into issue in these proceedings, she shall provide a sworn Affidavit confirming that she does not intend to put her health into issue in these proceedings.