Court File and Parties
COURT FILE NO.: FS-14-19854
DATE: 20180405
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Patricia Singal AND: Samuel Singal
BEFORE: Akbarali, J.
COUNSEL: Elliot Birnboim for the applicant Eli Karp for the respondent
HEARD: March 20, 2018
ENDORSEMENT
1. Background
[1] The applicant, Ms. Singal, and the respondent, Mr. Singal, were married for 23 years before their separation in June 2009. Theirs was a traditional marriage. Ms. Singal did not work outside the home except for some assistance she provided to Mr. Singal with his business. The parties have two adult children who now work in, and apparently own part of, Mr. Singal’s business.
[2] In October 2009, the parties signed a separation agreement which provided Ms. Singal with an equalization payment of $425,000. The 2009 agreement states that Mr. Singal’s income was $42,000 and Ms. Singal’s income was $31,200. The 2009 agreement specifically does not address spousal support.
[3] In 2011, Mr. Singal commenced an application for a divorce. Having imprudently invested and lost the funds she received for equalization in 2009, Ms. Singal made claims in her answer. She sought spousal support and to set aside the 2009 agreement, alleging it had been procured by fraud, that she had been under duress, that the 2009 agreement was unconscionable and that Mr. Singal had failed to provide adequate financial disclosure.
[4] The parties then entered into a second agreement in 2012, which purported to amend the 2009 agreement. This agreement provided for spousal support for Ms. Singal in the total amount of $79,000, consisting of $7,000 that had already been paid and further payments of $1,000/month for 72 months. The agreement states that each party has made full financial disclosure to the other. Ms. Singal withdrew her answer.
[5] In 2014, Ms. Singal commenced this application, seeking to set aside the 2009 and 2012 agreements on the basis of lack of financial disclosure, duress and unconscionability. She alleges that Mr. Singal hid assets through his mother, Sonia Singal, or through her estate, took advantage of Ms. Singal’s precarious financial circumstances, alienated the children from Ms. Singal by claiming she was after their inheritance, and otherwise abused and bullied her. She alleges his continued failure to provide adequate disclosure means that apart from her suspicions about money hid through his mother, he may have further assets of which she is currently unaware.
[6] Mr. Singal argues that it is unfair for Ms. Singal to repeatedly enter into separation agreements, take their benefit, and then seek to set them aside. He argues that she knew about her claims that he was hiding assets through his mother when she entered into each of the agreements because she raised those concerns at the time. He states that Ms. Singal’s difficult circumstances were her own doing and there is no evidence that he exploited them in any way.
[7] Three motions were before me:
a. Mr. Singal’s motion to dismiss the application summarily on the basis that there is no genuine issue requiring a trial, the claim is an abuse of process, and the claim for equalization is statute-barred. In the alternative, Mr. Singal seeks bifurcation, and an order that Ms. Singal post security for costs and security for the equalization payment she received under the 2009 agreement.
b. Ms. Singal’s motion for answers to undertakings and answers to questions improperly refused on Mr. Singal’s questioning; and
c. Ms. Singal’s motion for disclosure, or more accurately, compliance with disclosure already ordered, against the estate of Sonia Singal.
[8] At the outset of the motion I was advised that Ms. Singal is not proceeding at this time with the third motion. There was not sufficient time booked for it in any event. It has not, however, been withdrawn, and may need to be dealt with if Ms. Singal’s claims survive Mr. Singal’s summary judgment motion.
[9] The parties agreed that procedurally, Mr. Singal’s motion must be addressed first, followed by Ms. Singal’s motion for answers to undertakings and questions improperly refused if the summary judgment motion is dismissed. However, Ms. Singal made a preliminary objection at the outset of the hearing, arguing that by failing to respect earlier, consent orders directing him to provide answers to undertakings, Mr. Singal was in breach of a court order and as a result, was not entitled to relief from the court. I declined to accede to this preliminary objection, noting the order of Moore J. dated February 23, 2017 in which he adjourned Ms. Singal’s motion for answers to undertakings and questions improperly refused in order that it be heard together with the summary judgment motion. Moore J. found that doing so would deal with the motions in an efficient, cost-effective fashion, having accepted Mr. Singal’s argument that if the summary judgment motion was granted, there would be no need to provide further disclosure.
[10] I turn first to Mr. Singal’s summary judgment motion.
2. Summary Judgment
a. When is summary judgment appropriate?
[11] Summary judgment is appropriate where there is no genuine issue requiring a trial. This will be the case where the summary judgment process provides me with the evidence required to fairly and justly adjudicate the dispute, by allowing me to make the necessary findings of fact and to apply the law to the facts, and where summary judgment is a timely, affordable and proportionate procedure: see Hryniak v. Mauldin, 2014 SCC 7, at paras. 49-50, 66, [2014] 1 S.C.R. 87.
[12] While it is the moving party’s onus to prove that there is no genuine issue requiring a trial, each party has the evidentiary onus to put its best foot forward on the motion. The court is entitled to assume that it has all the evidence that would be before it at trial: Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2015 ONSC 7695 at para. 161.
[13] There are three basis on which Mr. Singal seeks a dismissal of Ms. Singal’s application: (i) Ms. Singal has not met the evidentiary requirement to show that there is a genuine issue requiring a trial regarding her claims; (ii) her claims are an abuse of process; and (iii) Ms. Singal’s claim for equalization is time-barred.
b. Has Ms. Singal met her evidentiary burden to show there is a genuine issue requiring a trial regarding her claims?
[14] It is first necessary to clarify what is meant by Ms. Singal’s “claims”. In her application, Ms. Singal seeks relief setting aside the 2009 agreement and the 2012 agreement. She also seeks spousal support.
[15] When considering whether to set aside a domestic contract, the court has regard to s. 56(4) of the Family Law Act, R.S.O. 1990, c. F.3. This provision provides that a court may set aside a domestic contract or a provision in it for three reasons: (i) a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made, (ii) a party did not understand the nature or consequences of the domestic contract; or (iii) otherwise in accordance with the law of contract.
[16] Ms. Singal’s claim engages the first of these criteria (inadequate financial disclosure), and the last, in that she claims the contracts should be set aside by reason of unconscionability and duress.
[17] Setting aside a domestic contract is a two-step process. If the court finds that one of the three factors set out in s. 56(4) are engaged, the court moves on to the second step of the analysis, where the court must decide whether it should exercise its discretion in favour of setting aside the contract: LeVan v. LeVan, 2008 ONCA 388 at para. 51.
[18] Mr. Singal argues that I need only look at the circumstances surrounding the 2012 agreement to determine if there is a genuine issue requiring a trial, because the 2012 agreement “ratified” the 2009 agreement. Ms. Singal argues that the 2012 agreement only ratified the 2009 agreement if the conditions of duress, unconscionable and inadequate financial disclosure did not exist at the time the 2012 agreement was entered into.
[19] Any of these conditions could invalidate the agreements. I begin by considering Ms. Signal’s allegation that the agreements are unconscionable.
i. Unconscionability
[20] In Toscano v. Toscano, 2015 ONSC 487, at para. 63, the court held that the doctrine of unconscionability with respect to domestic contracts focuses on whether there were unconscionable circumstances surrounding the formation of the contract. “It is the circumstances at the time of the drafting and signing of the contract which must be examined, not the results…”
[21] The court noted that unconscionability in the matrimonial context is not equivalent to unconscionability in a commercial context. The question to be asked is whether there were any circumstances of oppression, pressure, or other vulnerabilities, and if one party’s exploitation of such vulnerability during the negotiation process resulted in a separation agreement that deviated substantially from the legislation: Toscano, at para. 64, citing Brandsema v. Brandsema, 2009 SCC 10.
[22] Examples may include one party being economically weaker or situationally weaker. However the presence of vulnerabilities alone will not justify the court’s intervention. The inbalance between the parties may be remedied by the degree of professional assistance received by the parties: Toscano, at para. 65.
[23] In determining unconscionability, the court must consider whether there was inequality between the parties that placed an onus on the stronger party to act with scrupulous care for the welfare and interests of the vulnerable party: Toscano, at para. 66.
[24] Mr. Singal admits that at the time the 2012 agreement was negotiated, Ms. Singal was in a weaker bargaining position due to her dire economic circumstances. At this time, she did not even have the funds for first and last month’s rent, and required Mr. Singal’s assistance to obtain rental accommodation. However, he argues that (i) her dire circumstances were of her own making by virtue of her failed investment; (ii) he did not threaten her, and in fact, was threatened by her that if he did not make a deal with her, she would report him to CRA and to the police for fraudulently hiding assets; and (iii) she received independent legal advice before signing the contract.
[25] Ms. Singal’s evidence on the motion with respect to the 2009 agreement includes evidence that:
a. Prior to separation, Mr. Singal ran up $80,000 of debt on a secondary credit card of which she was the primary card holder. She deposes this debt forced her into bankruptcy, so that by the time of separation, she had no access to credit.
b. In September 2009, after separation but before entering into the October 2009 agreement, Mr. Singal removed all the funds from a bank account she held jointly with Sonia Singal, depriving her those savings.
c. Prior to entering into the 2009 agreement, Mr. Singal threatened her that he would make her life miserable and that she wouldn’t be able to see the children if she didn’t settle with him. He threatened her that if they retained lawyers, the lawyers would take everything and there would be nothing left.
d. In these circumstances, Mr. Singal took her to his friend to mediate their financial issues. At this time, his financial disclosure was scant and “without prejudice”.
e. Mr. Singal dictated the terms of their 2009 agreement.
f. Mr. Singal’s friend suggested some lawyers from whom Ms. Singal could obtain independent legal advice. Ms. Singal went to see one of them. Mr. Singal drove her there. He threatened her not to say anything to the lawyer or else she would get nothing. Mr. Singal waited in the car while Ms. Singal received her independent legal advice, a meeting which lasted less than twenty minutes. Mr. Singal paid for the independent legal advice.
g. Shortly after the 2009 agreement was signed, Mr. Singal terminated Ms. Singal’s employment with his company, depriving her of the income she earned by assisting him.
[26] With respect to the 2012 agreement - the only one Mr. Singal claims is relevant - Ms. Singal’s evidence includes:
a. At the time the parties were negotiating this 2012 agreement, Ms. Singal was in desperate financial circumstances, having lost all her money in a failed investment.
b. She could not find work due to her lack of education and experience. She finally obtained a job making $12/hr. She had to live with a friend and was barely making ends meet.
c. Ms. Singal had no representation when she filed her answer that included her claims. Mr. Singal discouraged her from seeking legal advice.
d. Mr. Singal did not provide proper financial disclosure.
e. Mr. Singal told the parties’ children that Ms. Singal was going after their inheritance, and alienated the children from her.
f. Mr. Singal’s lawyer drafted the agreement based on Mr. Singal’s terms.
g. Ms. Singal received independent legal advice on the agreement that lasted less than five minutes. Again, Mr. Singal instructed her not to discuss any substantive issues with the lawyer or the lawyer would take all the money. Mr. Singal again paid for Ms. Singal’s independent legal advice.
h. Ms. Singal could not obtain her own lawyer as she had no access to money or credit.
i. Ms. Singal did not receive a copy of the signed 2012 agreement.
j. The file of the lawyer who gave Ms. Singal the ILA is not available and the lawyer has since died.
[27] Mr. Singal relies on emails between the parties in 2012 around the discussion of the agreement and suggests these do not support Ms. Singal’s narrative. However, his evidence does not specifically address the evidence she gave of the parties’ verbal discussions, the threats she claims he made, her allegations of parental alienation or her claims that her lack of access to credit and savings came about because he forced her into bankruptcy and depleted her joint account with Sonia Singal.
[28] In my view, there is a genuine issue requiring a trial as to whether Mr. Singal exploited Ms. Singal’s vulnerabilities to procure the 2009 and the 2012 agreements, and whether the degree of independent legal advice Ms. Singal received was sufficient to remedy the power imbalance between the parties.
[29] Moreover, Ms. Singal’s evidence raises significant and serious questions about the adequacy of disclosure she received in 2009 and in 2012, and up to the present time. For example, Mr. Singal claims that the $1.5 million he now has invested in his business, but which he did not have at separation, came from an inheritance from his mother who died after separation. His mother was a bakery cashier. He claims she earned her money by investing a $375,000 inheritance from his father, who was a painter, and also, Mr. Singal states, a land developer, although there is no evidence before me as to what kind of land development his father engaged in.
[30] In any event, I have serious concerns about this evidence:
a. Sonia Singal’s will purports to equally divide her estate between Mr. Singal and his sister.
b. Based on a list of estate assets provided by Ms. Singal’s sister (who Mr. Singal claimed was the executor of their mother’s estate, but who denied being the executor at a conference with Moore J.), if Mr. Singal’s $1.5 million growth in investments since separation came from his inheritance from his mother, his sister received little or nothing from the estate.
c. According to a list provided by Mr. Singal’s sister, Sonia Singal’s estate’s most significant listed asset was $1.1 million invested in Mr. Singal’s business.
d. Sonia Singal’s terminal tax return does not support a disposition of investments or investment income in amounts consistent with Mr. Singal’s alleged inheritance.
e. The claim that Sonia Singal built up well over $1 million in equity is advanced together with a claim that she was also the source of at least $400,000 given to Ms. Singal in 2009 (by way of loan to Mr. Singal), and that she also heavily supported the family for many years when Mr. Singal was not working, in the amount of $10,000-$15,000 a month. On Mr. Singal’s narrative, his mother’s money seems to account for the parties’ nice lifestyle during the marriage, including owning two properties, when he was earning approximately $41,000 per year. I am skeptical that a $375,000 inheritance plus a cashier’s wage would have allowed Mr. Singal’s mother to accumulate assets and gift or loan money in the way Mr. Singal claims.
[31] Moreover, there are serious deficiencies in disclosure from Sonia Singal’s estate and from Mr. Singal himself. It is reasonable for Ms. Singal to wonder whether there are assets that have not been disclosed, including assets about which she may currently have no knowledge.
[32] These concerns with financial disclosure indicate that there is a genuine issue requiring a trial as to whether the 2009 and 2012 separation agreements deviate substantially from the legislation with respect to equalization payments and spousal support.
[33] Moreover, in these circumstances, there is a genuine issue requiring a trial to determine whether, if the court finds one of the criteria in s. 56(4) FLA are made out, the court should exercise its discretion to set aside the agreements. In Quinn v. Keiper (2007), 2007 CanLII 45714 (ON SC), 87 O.R., (3d) 184 (S.C.J.) the court enumerated a number of factors that a court will consider in exercising its discretion, including financial disclosure, duress, and unconscionability. A court must reach its conclusions on these threshold issues before it can undertake the exercise of its discretion.
[34] In my view, there is thus a genuine issue requiring a trial as to whether the 2009 and 2012 agreements are unconscionable.
[35] Given this conclusion, it is undesirable to consider whether Ms. Singal’s claims to set aside the contracts on the basis of duress or inadequate financial disclosure should be dismissed. These claims and the unconscionability claim are interrelated on the facts, and the possibility of dealing with only some of them summarily raises the spectre of duplicative or inconsistent findings of fact. In my view, partial summary judgment would not be advisable in the context of the litigation as a whole: Butera v. Chown, 2017 ONCA 283 at paras. 27-34. I thus conclude that there is a genuine issue requiring a trial as to the validity of the 2009 and 2012 agreements.
c. Should Ms. Singal’s claim be dismissed summarily because it is an abuse of process?
[36] Mr. Singal argues that this claim is the second attempt by Ms. Singal to “extort” money from him, after her 2011 answer. He argues that having settled the claims in her 2011 answer, which included a claim to set aside the 2009 agreement, the reassertion of the claim invites relitigation and to allow it to proceed would bring the administration of justice into disrepute. He argues the claim should be dismissed summarily as an abuse of process.
[37] I disagree. If Ms. Singal’s claims are accepted, the 2012 settlement was unconscionable, made under duress and/or procured without adequate financial disclosure. If this is the conclusion reached at trial, the validity of the 2009 agreement is also highly suspect and may be found to be invalid.
[38] I appreciate Mr. Singal’s concern that parties not be allowed to return to re-argue matters that have been argued or settled. However, I am not prepared to find that settling a claim of, among other things, unconscionability, without adjudication on the merits, when the settlement itself is alleged to be unconscionable, means that a subsequent claim of unconscionability is an abuse of the court’s process.
d. Should Ms. Singal’s claim for equalization be dismissed summarily because it is statute-barred?
[39] Ms. Singal’s original 2014 claim sought to set aside the separation agreements but did not include a claim for equalization. Mr. Singal raised the lack of any such claim several times. In March 2017, the claim was amended on consent to include a claim for equalization.
[40] Mr. Singal argues that the claim for equalization is out of time. He relies on s. 7(3) of the Family Law Act which provides that an application for equalization shall not be brought after the earliest of two years after divorce or six years after separation. In this case, the parties separated in June 2009 and were divorced on October 26, 2012. He states that the controlling date is thus October 26, 2014. The amendment was made after the relevant time period.
[41] Mr. Singal also notes that Ms. Singal did claim equalization in her 2011 answer, when she was self-represented, but withdrew her answer after the parties entered into the 2012 agreeement. He argues that her failure to include the claim in her application in 2014, when she was represented by counsel, was intentional and likely because she understood the claim was time-barred.
[42] I would not accede to these arguments. In my view, they are overly technical.
[43] Ms. Singal asserted her claim to equalization in time. That is seen by the fact that an equalization payment was made pursuant to the 2009 separation agreement. Unless and until the claim to set aside the agreements succeeds, she has no claim for equalization. The addition of the claim to the pleading is a recognition that it will be asserted if and when it revives on the setting aside of the agreements. In this sense, it is implicit in her claim to set aside the agreements. If it were not, her claim would be to return the funds she received under circumstances she alleges are unconscionable, without adequate financial disclosure and when she was under duress and without any other remedy. This would be a non-sensical claim for her to make.
[44] The 2012 agreement does not change this analysis, because Ms. Singal seeks to set aside the 2012 agreement for the same reasons.
[45] If I am wrong and Ms. Singal is out of time, I exercise my discretion under s. 2(8) of the Family Law Act to extend the time for Ms. Singal to make her claim. Section 2(8) sets out three requirements to extend a time prescribed by the Act: (i) there are apparent grounds for relief; (ii) relief is unavailable because of delay that has been incurred in good faith; and (iii) no person will suffer substantial prejudice by reason of the delay.
[46] I have already found on the evidence that there is a genuine issue requiring a trial with respect to Ms. Singal’s claims. There are therefore apparent grounds for relief.
[47] In my view, the delay in asserting the equalization claim was incurred in good faith. Given that equalization was addressed in the 2009 agreement, and that the 2009 and 2012 agreements are the subject of serious claims of unconscionability, duress and lack of financial disclosure, I find that the delay in formalizing a claim for equalization is technical only.
[48] Mr. Singal argues that he is prejudiced because Ms. Singal’s claim is to include in his NFP assets that he claims belonged to his mother. His mother died in 2012 and obviously cannot respond to Ms. Singal’s claims. However, Sonia Singal died in 2012, before Mr. Singal states the limitation period expired. In my view, her death cannot thus be prejudice for the purposes of an analysis under s. 2(8) because it is not related to the expiry of the limitation period.
[49] I see no prejudice to Mr. Singal in allowing the claim for equalization to go ahead. He cannot have understood anything other than that Ms. Singal was seeking to revisit equalization when she commenced her 2014 application or filed her 2011 answer. If her claims are eventually proven to be meritorious, he should not be able to benefit from the unconscionability of the 2009 and 2012 agreements and the related passage of time to avoid a fair equalization payment.
[50] I note that s. 2(8) of the Family Law Act allows the court to extend time “on motion”. Mr. Singal argued that no motion had been brought before me. During argument, Ms. Singal’s counsel stated that if it were necessary, he was requesting leave to bring such a motion nunc pro tunc. In view of the primary objective in r. 2(2) of the Family Law Rules, I grant the leave sought and the motion in order to deal with Ms. Singal’s claims justly.
[51] Accordingly, I dismiss Mr. Singal’s motion for summary judgment. Ms. Singal’s claims raise genuine issues requiring a trial. They are not an abuse of the court’s process. In my view, her claim for equalization is not out of time, and if it is, I grant leave to bring a motion under s. 2(8) of the Family Law Act, and I grant the extension of time.
[52] I decline to convert the failed summary judgment motion into a mini-trial. In my view, a full trial is necessary to address the issues raised. Moreover, significant disclosure remains outstanding. However, in view of the direction of the court in Hryniak, I will hear the trial at the appropriate time if I am available.
[53] For clarity, to the extent I have made any findings of fact in my discussion of the summary judgment motion, none of these bind the trial judge, who will consider the issues between the parties on a fuller evidentiary record. However, my conclusion that Ms. Singal’s claims are not an abuse of process and my finding that her claim for equalization is not statute-barred are legal conclusions that dispose of these issues in the litigation.
3. Should the equalization claim be bifurcated from the claim for spousal support?
[54] Mr. Singal argues that the equalization claim should be bifurcated from Ms. Singal’s claim for spousal support, relying on r. 12(5) of the Family Law Rules. He argues that it would be more convenient to split Ms. Singal’s claims into two, as in Simioni v. Simioni, 2009 CanLII 934 (ON SC), [2009] O.J. No. 174 where Quigley J. severed the question of the validity of the separation agreement in order to allow it to proceed prior to determining the issue of the necessary financial disclosure from the respondent.
[55] Mr. Singal thus argues that the court should not order disclosure on the post-separation spousal support issues until a trial has been held to determine the validity of the 2009 and 2012 agreements.
[56] In Simioni, the court held that the Family Law Rules and the inherent jurisdiction of the court provide ample authority and power to permit the court to split cases. The court’s power to bifurcate should be exercised if it would be in the interests of justice, such as where there are clear time and expense benefits to be gained from the bifurcation and no prejudice accrues to either party: Simioni, para. 15.
[57] However, the court also cautioned that the splitting of a trial denies the fundamental principle that multiplicities of proceedings are to be avoided. The power to bifurcate is narrowly circumscribed and exercised only in the clearest of cases. The onus to prove that severance will result in the just, expeditious and least expensive determination of the proceeding on its merits lies on the party seeking bifurcation: Simioni, paras. 16-17.
[58] In my view, Mr. Singal has failed to discharge this onus.
[59] I accept Ms. Singal’s argument that the issues that Mr. Singal seeks to split are intertwined, and severance will not result in economies of time or money. At the very least, the question of the validity of the 2009 and 2012 agreements will engage evidence of the parties’ income and means, and their roles during the marriage. These are issues that will have to be canvassed in Ms. Singal’s claim for spousal support as well.
[60] In my view, this is not the clearest of cases that warrants the court exercising its power to bifurcate the trial.
4. Is an order for security for costs or security for monies paid in equalization warranted?
[61] In the event his motion for summary judgment is denied, Mr. Singal seeks an order that Ms. Singal post security for costs under r. 24(13)(d) of the Family Law Rules, arguing that there is good reason to believe that Ms. Singal’s case is a “waste of time or a nuisance” and that she does not have enough assets in Ontario to pay costs.
[62] The record demonstrates that Ms. Singal’s economic situation is precarious. I accept that she does not have enough assets to pay costs.
[63] However, I do not accept that her case is a “waste of time or a nuisance”. I have already found that there is a genuine issue for trial regarding her claim of unconscionability, and that her claims of duress and inadequate financial disclosure should also proceed. I have described only some of the serious concerns I have about the nature of the financial disclosure and Mr. Singal’s assertions about his assets and his mother’s assets that raise legitimate questions.
[64] In my view, an order for security for costs would be contrary to the primary objective to deal with cases justly. An order for security for costs would, in effect, stay Ms. Singal’s proceeding preventing a resolution of the serious issues it raises on their merits. I decline to make such an order.
[65] For the same reasons, I refuse to order that Ms. Singal post security for the equalization payment she received pursuant to the 2009 separation agreement.
5. Ms. Singal’s Motion for Answers to Undertakings and Answers Improperly Refused
[66] Since Mr. Singal has been wholly unsuccessful on his motion, it is necessary to consider Ms. Singal’s motion for answers to undertakings and answers improperly refused.
[67] With respect to answers to undertakings, Mr. Singal argues that he has already answered the undertakings he gave to the best of his ability. I review the undertakings for which Ms. Singal seeks answers below:
a. From questioning on January 26, 2016:
i. Q #49 - Mr. Singal’s single written request for the Minute Book of Secure Capital, without any evidence of follow up to obtain a response, is not sufficient to answer this undertaking. Mr. Singal must make better efforts to comply with his undertaking.
ii. Q #51 – a copy of Mr. Singal’s mother’s will has now been provided. Nothing further need be done to answer this undertaking.
iii. Q #65, 67 – Mr. Singal requested from his sister (who as I have noted advised Moore J. that she is not the executor of Mr. Singal’s mother’s estate) statements from Secure Capital showing Sonia Singal’s deposits and investments. He did not specifically ask for information about the money that Sonia Singal put into Secure Capital with supporting documentation or for records to identify all the accounts in Sonia Singal’s name from which Mr. Singal made transfers into Secure Capital. Mr. Singal must make this request of the estate. I note, however, that this may be dealt with in any event in Ms. Singal’s motion against the estate for disclosure.
b. From questioning on September 20, 2016:
i. Q #30 – Mr. Singal undertook to produce copies of all of his bank account and credit card statements for the years 2008 to 2010. Ms. Singal has identified some outstanding statements. With respect to those:
The HEPCOE chequing account #41905-1 from 2008 to 2010 is a joint account. Ms. Singal can access these statements herself.
TD chequing account #6288975 was opened in October 2008. Accordingly, Mr. Singal cannot produce statements from before that time. However, he has provided no information to indicate that he cannot produce the statements from January to December 2010. These must be produced.
Mr. Singal states that his RRSP account with Secure Capital from 2008 to 2010 is outside of his undertaking. If it is outside of the undertaking, the information sought is relevant and should be produced pursuant to r. 13 of the Family Law Rules;
Mr. Singal deposes that the TFSA with Secure Capital was not in existence from 2008 to 2010. There is nothing more to answer with respect to this undertaking.
Mr. Singal argues that his investment with Richardson GMP from 2008 to 2010 is outside of his undertaking. If it is, the information sought is relevant and should be produced pursuant to r. 13 of the Family Law Rules;
Mr. Singal deposes that he had no investments with Secure Capital from 2008 to 2010. There is nothing further to answer with respect to this undertaking.
Mr. Singal argues that his second mortgage investment is outside the scope of his undertaking. I accept that it is. However, the information sought is relevant and should be produced pursuant to r. 13 of the Family Law Rules;
Mr. Singal states, in his affidavit of February 16, 2017, that he will make a request for the Capital One MasterCard account #***9172 from January 2008 to September 2010. Counsel could not tell me whether the request had been made. In any event, this undertaking must be complied with.
ii. Q #36 – Mr. Singal undertook to produce a copy of the inquiry he made of his sister with regards to obtaining the file of the lawyer who finalized Sonia Singal’s estate. Mr. Singal deposes that there was no lawyer and no further request is necessary. He does not depose how he knows this or that he had any discussion about this with his sister whatsoever. This answer is not responsive to the undertaking. Mr. Singal must answer the undertaking he gave.
iii. Q #46 – Mr. Singal undertook to produce the accountant’s accounting records that substantiate the source of Mr. Singal’s business income in 2009. Mr. Singal deposes that he made the request of the accountant, but the accountant has no records except for the T5 which was produced. There is nothing further to answer with respect to this undertaking.
iv. Q #47 – Mr. Singal undertook to provide supporting documentation for the $25,000 of investment income reflected on his 2009 income tax return. He deposes that his counsel assumed that this would be provided by his accountant, but his accountant did not have these records. Mr. Singal has not explained what other steps he has taken to support this investment income. He must either produce supporting documentation or explain the efforts he has taken to do so and why they have failed.
v. Q #66 – Mr. Singal undertook to produce supporting documentation by which he kept track of the money he took out of his mother’s accounts. In his affidavit he deposed that no evidence is necessary concerning his efforts to obtain such information because he knows that his personal notes, which he took approximately twenty years ago, presumably for the purpose of keeping track of his use of his mother’s money, no longer exist. This leads me to wonder why he undertook at questioning to produce non-existent documentation. In my view, further information is required to answer this undertaking, including any efforts to obtain the information or recreate it from other sources.
[68] I turn next to the questions Ms. Singal alleges Mr. Singal has improperly refused to answer.
a. From questioning on January 26, 2016:
i. Q #24 seeks all emails in their native format that Mr. Singal provided prior to the execution of the separation agreements that provide financial disclosure. Mr. Singal states there is only one such document and it is in Ms. Singal’s possession. However, Ms. Singal seeks the document in its native format. Mr. Singal deposes that he does not have the document in its native format. In my view, the native form of the document would be relevant. Mr. Singal should explain why he no longer has the document in its native format and the efforts he made to locate it.
ii. Q #156 seeks Manulife and Richard account statements for six months prior to and after July 2009. Mr. Singal has produced the June 30, 2009 statement which shows that between January and June 2009, over $192,000 was withdrawn from the account. In my view, the statements are relevant to determine Mr. Singal’s assets at the date of separation and to understand the accuracy of the financial disclosure prior to the 2009 agreement being signed. The question must be answered.
iii. Q #197, 212, 290, 458 and 520 all seek information relevant to Mr. Singal’s current income and means for support purposes and must be answered. Mr. Singal deposes that he has provided the information of his interest in any private corporations “that [he] can recall”. Surely he can ascertain this information with certainty.
iv. Q #203 is relevant to the validity of the separation agreements. It seeks to determine Mr. Singal’s shareholding interest in private corporations as at the date of separation. It must be answered. Again Mr. Singal deposes that he has provided the information that he can remember. He ought to be able to identify this information with certainty, or explain why he cannot.
v. QQ #295 and 306 deal with information sought about Mr. Singal’s mother’s accounts. Mr. Singal refuses these questions on the basis that they deal with his mother’s assets, not his own, and are not relevant. He also argues that the agreements should be determined to be valid before these questions are ordered answered. I disagree. In my view, the question of whether Mr. Singal hid assets through his mother or her estate is squarely in issue and these questions should be answered.
vi. Q #321 asks what Mr. Singal received from his mother’s estate. He disputes the relevance of this question. In my view, it is relevant to the allegations that Mr. Singal has hidden his assets through his mother or her estate or otherwise and must be answered.
vii. Q #493 seeks financial statements for the numbered company that was the predecessor of Secure Capital. Mr. Singal deposes there was no predecessor company. This question has thus been answered.
b. From questioning on September 20, 2016:
i. QQ #10 and 22 seek a current client profile from TD bank for Mr. Singal’s access card ending in 7309 and copies of his bank statements, credit card statements, lines of credit and investment account statements for the past three years to date. Mr. Singal argues that this information is not relevant to his net value on the date of separation. The information is, however, relevant to his current means for support purposes. The questions must be answered.
ii. QQ #22 and 23 seek a copy of all pages of Mr. Singal’s passport and information as to where Mr. Singal has travelled in the past two years. Ms. Singal argues these questions are relevant to determining Mr. Singal’s income and lifestyle for support purposes. In my view, sufficient disclosure has been ordered from which to determine Mr. Singal’s income and means. I decline to order Mr. Singal to answer these questions.
iii. Q #24 seeks authorization to obtain Mr. Singal’s credit report and for a copy of the agreement of purchase and sale and application for financing for his BWM. In my view these questions relate to Mr. Singal’s income and means for support purposes and must be answered.
iv. Q #28 seeks copies of the minutes for when Mr. Singal acquired shares in Secure Capital. I accept Ms. Singal’s argument that this is relevant to the accuracy of Mr. Singal’s financial disclosure at the time the separation agreements were signed. Mr. Singal must answer this question.
v. Q #39 seeks Mr. Singal’s accountant’s complete file for the Secure Capital MIC which existed in 2009, the new Secure Capital MIC incorporated in 2010, and Mr. Singal personally. In my view, Mr. Singal was correct to refuse such a broad request. Ms. Singal may delineate more precisely what she is seeking and make that disclosure request of Mr. Singal, without prejudice to seeking further relief with respect to this information if Mr. Singal refuses to provide relevant information on a proper inquiry.
vi. Q #44 seeks information as to who actually paid business income listed in 2008 income tax return. Mr. Singal refused the question on the basis that the validity of the separation agreements should be determined before he answered the question. I have rejected that argument. The question must thus be answered.
vii. Q #58 seeks production of financial statements of the management company in which Mr. Singal had an interest from 2008 and forward. Mr. Singal deposes that he had no interest in the management company in 2008, but he does not answer the question going forward. The question is relevant to his income and means for support purposes and the accuracy of the financial disclosure Mr. Singal gave before the separation agreements were signed. The question must be fully answered.
viii. Q #80 asks what right, title or interest Mr. Singal understood Ms. Singal to have had in 1429927 Ontario Inc. Ms. Singal states this is relevant to determining the validity of the separation agreement. The phrase comes from a release signed by Ms. Singal. Mr. Singal should not have to interpret the release for Ms. Singal on questioning. This question is properly refused.
ix. QQ #82 and 83 relate to corporate records and the accountant’s file for 1429927 Ontario Inc. from 2007 to present. Mr. Singal deposes that this corporation is the predecessor of the management company which he did not own. It is not clear to me who owned the company. I decline to order these questions to be answered. However, I dismiss the request without prejudice to a further request if the relevance of these records can be shown following the disclosure I have ordered answered in these reasons.
x. QQ #84 and 85 seek information about Mr. Singal’s conversation with Mr. Couprie and his daughter. Ms. Singal argues this is relevant to determining whether Mr. Singal is, in fact, the controlling mind of Secure Capital. Mr. Singal argues these conversations have nothing to do with the litigation. In my view, the question is too broad and is rightly refused without prejudice to Ms. Singal’s ability to pose a more circumscribed question that addresses Mr. Singal’s role at Secure Capital.
xi. Q #87 seeks information about the circumstances under which Mr. and Ms. Singal’s children became employed or involved in management in either of the Secure Capital companies. In my view, this question is relevant to Mr. Singal’s income and means, and Ms. Singal’s allegation that Mr. Singal is the controlling mind behind Secure Capital Inc. The question must be answered.
[69] The undertakings and questions I have ordered answered should be answered within thirty days of the release of these reasons. To the extent the information is not available, I direct Mr. Singal to produce a sworn affidavit explaining the efforts he has taken to find the information and why it is not available.
Conclusion
[70] Mr. Singal’s motion for summary judgment is dismissed. Ms. Singal’s application raises genuine issues requiring a trial. Her claim for equalization is not statute-barred. Her claims are not an abuse of process.
[71] This is not one of the clearest of cases in which to order bifurcation.
[72] An order that Ms. Singal post security for costs or an order that Ms. Singal post security for the equalization payment paid to her pursuant to the 2009 agreement would be contrary to the primary objective.
[73] The undertakings and refusals ordered answered shall be answered within thirty days.
Costs
[74] If the parties cannot agree on costs of these motions, Ms. Singal may provide me with costs submissions not to exceed two pages within two weeks of the date of these reasons. Mr. Singal may provide me with responding costs submissions not to exceed two pages within one week thereafter.
Akbarali J.
Date: April 5, 2018