Wachsberg v Wachsberg, 2019 ONSC 1336

COURT FILE NO.: FS-15-404067-00 DATE: 20190304 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHARLES DAVID WACHSBERG Applicant – and – ALLYSON ANNE WACHSBERG Respondent

George Karahotzitis and Melanie A. Larock for the Applicant Harold Niman and Kristen Normandin for the Respondent

HEARD: February 21, 2019

REASONS FOR DECISION

DIAMOND J. :

Overview

1The parties were married on September 6, 1999, and separated on August 6, 2013. On June 25, 2015, they entered into a Separation Agreement which purported to resolve all issues arising from their marriage and separation, including:

(a) custody of the three children of the marriage; (b) equalization claims; (c) child support; and (d) spousal support.

2Within a month of the execution of the Separation Agreement, the applicant commenced this proceeding seeking only a divorce. In response, the respondent served and filed an Answer which claimed both spousal and child support in amounts different than those provided for in the Separation Agreement.

3As described hereinafter, the applicant has brought a motion for summary judgment seeking an order dismissing all of the corollary relief claimed in the respondent’s Answer. That motion for summary judgment is currently scheduled to proceed on May 2-3, 2019.

4The parties are proceeding with questioning in late March 2019. In advance of that questioning, the respondent brings this motion seeking an order compelling the applicant to provide extensive financial disclosure (including numerous corporate and property interests) for the years 2014-2018 inclusive.

5The respondent’s motion was argued before me on February 21, 2019, and I took my decision under reserve.

6These are my Reasons

The Separation Agreement

7As stated, the parties executed the Separation Agreement on June 25, 2015 and agreed to be bound by all of its terms. For the purpose of this motion, the salient clauses in the Separation Agreement are as follows:

“ 5.2 For purposes of calculating Charles' current child support obligation, the Parties have agreed to base the obligation on an income for Charles of $1,000,000 per year. The Parties do not agree upon whether this represents Charles' income for child support purposes, as the term "income" is defined in section 2(1) of the Guidelines, but agree that child support based on this figure is an appropriate amount, taking into account the children's conditions, means, needs and other circumstances of the children , including , but not limited to the children's private school, summer camp and other expenses being paid solely by Charles, the equal shared parenting regime and the financial ability of each parent to contribute to support.

5.3 Commencing on the first day of the month that Allyson moves from the home, and on the first day of each month thereafter, Charles will pay to Allyson Table child support for the three children in the amount of $14, 851 based on $1,000,000 per year. The amount of child support payable to Allyson will be fixed and non-variable, subject only to a catastrophic change in circumstances (as provided for in paragraph 5.8 below), the annual cost of living increase (as provided for in paragraph 5.13 below, and the provisions of 5.8 and 5.9 below).

5.4 Charles will also be solely responsible for payment of the following expenses for the children, which are currently approximately $140,000 per year. Charles has done a further estimated calculation, and as he estimates that private school expenses alone are approximately $110,000, he is of the view that $140,000 is a more accurate figure.

(a) expenses associated with the children's attendance at private school, including tuition, books, necessary computer equipment, uniforms, school bookstore accounts, and transportation during Charles' time with the children; (b) reasonable and necessary tutoring; (c) reasonable and necessary computer equipment; (d) reasonable and necessary expenses associated with the children's extracurricular activities, which currently include hockey, tennis and dance (including the cost of all required equipment); (e) the children's summer camp fees, including for overnight summer camp, which will include reasonable and necessary clothing and accessories for camp; (f) reasonable and necessary cellular telephone expenses for each child; (g) reasonable and necessary expenses associated with the childre n ' s post-secondary education (including tuition, books, accommodation , meals and travel to and from school if such is outside Toronto). Nothing requires Charles to pay costs for any child at a school outside of Canada unless he agrees to do so in writing. Nothing precludes Charles from voluntarily contributing to the costs of any child's graduate education.

5.8 Charles may request a change in the amount of child support being paid to Allyson in the event of a catastrophic change in circumstances. This provision is limited to child support only. A catastrophic change in circumstances for the purposes of this Agreement is limited to a decrease in Charles' income (as defined in s. 2(1) of the Guidelines) to an amount being $700,000 or less. If the Parties are unable to agree on a change to child support, the Parties will use the section of this Agreement entitled " Dispute Resolution" to resolve the issue.

5.18 Subject to paragraph 5.8, the Parties agree that they each intend that the child support arrangements hereunder are fixed and non-variable no matter any change in the Parties circumstances or the children’s circumstances.

8.2 Commencing on the first day of the month following the execution of this Agreement, and on the first day of each month thereafter, Charles will pay to Allyson spousal support in the amount of $16,000.00 until the first to occur of the termination dates referred to below. The monthly spousal support payments will be taxable to Allyson and deductible to Charles in the calculation of their respective taxable incomes. The amount of spousal support payable to Allyson will be fixed and non­ variable, subject to an annual cost of living increase (as provided for in paragraph 8.7 below).

8.3 Subject to paragraph 8.5(a) and (c), the final spousa l support payment will be made by Charles on March 1, 2021, at which time Charles' obligation to pay spousal support to Allyson ends foreve r.

8.6 Neither Allyson nor Charles has any obligation to inform the other of changes in either party's financial position until Charles seeks a change as a result of a catastrophic change in circumstances pursuant to paragraph 5.8 above.

22.16 Charles has attached a copy of his lawyer's letter dated November 17, 2014 setting out the disclosure that was provided to Allyson's counsel, excluding his 2014 tax return. Allyson acknowledges that her counsel received all of the disclosure referred to in the November 17, 2014 letter and that since that time neither her nor her counsel has requested any further financial disclosure, except for the 2014 tax return, which Charles has produced .

22.18(a) Allyson and Charles have both had independent legal advice, Allyson from Samantha Chousky and Charles from Laurie Pawlitza.

22.18(b) Allyson and Charles:

(i) understand their respective rights and obligations under this Agreement and its nature and consequences; (ii) acknowledge that this Agreement is fair and reasonable; (iii) acknowledge that they are not under any undue influence or duress; and, (iv) acknowledge that both are signing this Agreement voluntarily; (v) acknowledge that this Agreement fully and finally satisfies all rights, claims and obligations either has pursuant to the Marriage Contract, under the existing legislation or in common law or equity.

22.21 This Agreement was prepared jointly by both Parties and their solicitors.”

8Under the Separation Agreement, the spousal support ($16,000.00 per month) and child support ($14,851.00 per month) are payable by the applicant on a fixed and non-variable basis. The applicant is at liberty to request a change in the amount of child support in the event of a catastrophic change in circumstances, which is defined as a decrease in his income to an amount being $700,000.00 or less.

9Neither party has an obligation to inform the other of a change in their respective financial position unless and until the applicant requests a change in the amount of child support due to a catastrophic change defined above.

10There is no dispute that both parties had independent legal advice and legal representation during the negotiations leading up to and the execution of the Separation Agreement.

The Respondent’s Theory of her Case

11In order to assess the merits of the respondent’s motion for financial disclosure, it is important to review the theory of her case set out in her Answer. In support of her claim for child and spousal support, the respondent alleges the following:

• The applicant was emotionally abusive and extremely controlling throughout the marriage, including being abusive towards their three children;
• At the time of the Separation Agreement, the respondent had been living in the matrimonial home with the applicant for two years post-separation with “nowhere to go and no financial independence”’;
• The respondent signed the Separation Agreement only after the applicant’s counsel threatened that the applicant would sell the home the respondent was supposed to move into unless the respondent signed the Separation Agreement within 48 hours;
• The respondent signed the Separation Agreement under duress and significant stress;
• The Separation Agreement was not negotiated fairly;
• The child and spousal support were based upon a $1,000,000.00 income attributed to the applicant, which the respondent now claims was “a fraction of the applicant’s true income for support purposes”; and,
• The respondent had an unequal bargaining position and signed the Separation Agreement under influence of the applicant who was “continuingly pressuring and threatening her to accept his terms.”

12In her Answer, the respondent is not explicitly seeking an order setting aside the Separation Agreement. Rather, it is the respondent’s position that the Separation Agreement does not meet the test set out in the Supreme Court of Canada’s seminal decision of Miglin v. Miglin, 2003 SCC 24, and in particular the first stage of that test when the Court must examine (a) the circumstances in which the agreement was negotiated, including the presence of any oppression, pressure or other vulnerabilities; and (b) the substance of the agreement to determine whether its terms are in substantial compliance with the objective of the Divorce Act at the time the agreement was signed.

The Corbett Order

13After the delivery of the respondent’s Answer, a case conference took place before Justice Corbett on December 19, 2016. At that case conference, the respondent asked the Court to compel the applicant to produce extensive financial disclosure.

14Justice Corbett refused to grant the respondent’s request for financial disclosure, as he believed that the issue of disclosure (including the applicant’s request for the production of the respondent’s former solicitor’s file) be dealt with on a contested motion. Justice Corbett’s complete Endorsement was as follows (my emphasis in bold):

“ I decline at this time to order production of financial disclosure from Mr. Wachsberg given the nature of the claims i n this case. I consider that issues about disclosure on both sides, and possibly a case management order will be appropriate on a contested motion. On the one hand, Mr. Wachsberg has bargained for non-disclosure after the date of the Separation Agreement. That agreement is fresh - signed in 2015, with the assistance of senior and experienced counsel on both sides. On the other hand, Ms. Wachsberg may need some disclosure to persuade a Judge that there is real substance to the claim. These are difficult issues to balance in cases such as this and in my view the motions Judge should start with a tabula rata to craft a fair procedural approach to the case .

There are s imilarities between this case and Mantella, and the parties (and the Court) may well benefit from case management as was so in that case.

The parties shall book a long motion for one day, to address all procedural, production and related issues respecting the financial issues. They may seek directions from me (if I am available) if there are procedural problems prior to the motion.

To be clear, Mr. Wachsberg will be moving for production of Ms. Wachsberg"s solicitor's file (pertaining to the Separation Agreement). Ms. Wachsberg will be moving for financial disclosure, an advance order for disbursements. Both sides may address case management issues in light of the motions Court's decision on the main motion.

No costs today."

The Kruzick Order

15The contested motions contemplated by Justice Corbett’s order were argued before Justice Kruzick on December 5 and 8, 2017. The financial disclosure sought by the respondent was quite extensive and all-encompassing. Specifically, the respondent sought an order “for all disclosure relevant to the determination of the applicant’s income, and without limiting the generality of this statement, a full and complete accounting corporate and personal holdings, business interests and property in which he has an interest, in any jurisdiction, whether such interest is direct or indirect, legal or beneficial.”

16At the time the contested motions were argued before Justice Kruzick, the applicant had advised the respondent that he intended to bring a motion for summary judgment seeking an order dismissing the respondent’s corollary claims set out in her Answer. That said, the applicant had yet to prepare, serve or file a motion record as of December 2017.

17In his Endorsement released on December 18, 2017, Justice Kruzick acknowledged the applicant’s stated intention to seek summary judgment dismissing the respondent’s claims for corollary relief, and permitted the respondent to proceed with that motion pursuant to Rule 16 of the Family Law Rules.

18The relevant excerpts from Justice Kruzick’s Endorsement are as follows (again, my emphasis in bold):

“ The summary judgment provisions of the Family Law Rules refer to evidence on the motion. Subrule 16(4.1) allows for evidence of the responding party. The issues raised on the motions before me, and as would be on the motion for summary judgment, are questions of law and fact. Subrule 16(4.1) requires that a party who is responding to a summary judgment motion " may not rest on mere allegations or denial but shall set out, in affidavit or other evidence specific facts" given the nature of the position of the responding party to the summary judgment motion, in this case the wife. I am of the view that the husband should swear and provide a Financial Statement (Form 13) together with his income tax returns as filed in the years 2014, 2015 and 2016 together with the required attachments.

If I am wrong in making this order pursuant to R. 16, I rely on R. 13. I am of the view where the wife in her answer makes a claim for support, pursuant to R. 13 of the Family Law Rules , the husband"as the party against whom the claim is made" is obligated to serve and file a Financial Statement (see subrules 13(i)(b) and 13(3.1)).

For the purposes of the wife's claim the sworn financial statement will likely not be sufficient and I, therefore, order the additional income tax information bearing in mind the issues and the nature of the relief as sought. As set out in the primary objectives of the Family Law Rules to ensure the procedure is fair and to save expense and time this should be done.

I make no decision on the relief as sought by the wife for a full and complete accounting of all the husband's corporate and personal holdings and for the husband to provide an income analysis in the year 2013 to present. I am of the view that request, at this stage of the proceedings, is premature ."

19I note that the applicant takes the position that the “prematurity” of the respondent’s request for a full and complete accounting of the applicant’s corporate personal holdings means that disclosure would be appropriate after the motion for summary judgment is argued and determined. Not surprisingly, the respondent submits that her request for a full and complete accounting of the applicant’s corporate and personal holdings still needs to be argued in advance of the motion for summary judgment (which is why she brought the motion argued before me).

Further Steps in this Proceeding

20The applicant appealed the Kruzick order, and in particular the term of the order requiring the applicant to provide a sworn financial statement together with his income tax returns and attachments for the 2014-2016 years. That appeal was ultimately quashed by the Court of Appeal for Ontario for lack of jurisdiction on May 31, 2018.

21After the applicant’s appeal was quashed, the applicant complied with Justice Kruzick’s order. Within the applicant’s 2015 income tax return (the year the parties signed the Separation Agreement), the respondent learned for the first time that his line 150 income was in excess of $16,000,000.00 which sum including a $15,180,000.00 dividend declared in the fall of 2015.

22For his part, the applicant gave evidence on this motion that during the fall of 2015, Canada Revenue Agency announced that the tax rate in relation to eligible dividends would significantly increase from 33.8% to 39.3% commencing in 2016. In light of this pending tax change, the applicant determined that it would be tax efficient to take advantage of the lower tax rate in 2015 by declaring a significantly larger dividend during that year. The applicant thus states that the additional income was a one-time tax planning event and not a true reflection of his actual annual income.

Position of the Respondent

23It is of course trite to state that parties to a family law proceeding must provide full and complete financial disclosure. As the Court of Appeal for Ontario recently held in Beaver v. Hill, 2018 ONCA 415, “full and prompt financial disclosure is a key element of this province’s family law regime.”

24On a motion for summary judgment, the presiding judge is not only entitled to, but arguably should, infer that no better evidence from the parties will be available at trial. The respondent submits that in the absence of the financial disclosure sought from the applicant, she will be unable to put her best foot forward and lead trump to substantiate the substance of her claims as she is required to do by the governing summary judgment jurisprudence.

25Specifically, the respondent submits that her claims for both child and spousal support cannot be determined absent the applicant’s full and complete financial disclosure. As child support is the right of the child (and not the parents), the financial disclosure sought from the applicant is relevant to, at a minimum, her claims and entitlements to child support.

26In addition, the respondent submits that the Court will be unable to conduct the necessary Miglin analysis on the motion for summary judgment without the applicant’s financial disclosure. As a separation agreement is only one factor among many to be considered in a Miglin analysis, the respondent argues that production of the applicant’s financial disclosure will substantiate her claims even in the face of the Separation Agreement.

Position of the Applicant

27The applicant takes the position that this motion is a third attempt on the part of the respondent to seek financial disclosure in the face of two court decisions refusing to do so, and as such this motion constitutes an abuse of process as the issue of the applicant’s financial disclosure is being re-litigated again.

28The applicant also submits that the terms of the Separation Agreement are clear, and presumed to be valid. To the extent that the respondent alleges that there were “disclosure shortcomings” on the part of the applicant in 2015 when the Separation Agreement was signed, the applicant submits that the jurisprudence is clear that a party cannot rely upon such alleged shortcomings if that party executed the separation agreement while aware of such shortcomings (which is confirmed from a review of the file from the respondent’s former solicitor at the time of the execution of the Separation Agreement).

29In addition, as the Court has the jurisdiction under Rule 3(5) of the Family Law Rules to defer disclosure, and Justice Kruzick already found the respondent’s request for financial disclosure to be premature, the applicant argues that the relief sought by the respondent should wait until after the summary judgment motion is determined.

Decision

(a) Abuse of Process

30In Toronto (City) v. C.U.P.E. Local 79, [2003] S.C.R. 77 (S.C.C.), the Supreme Court of Canada held that the doctrine of abuse of process in civil proceedings engages the inherent power of the court to prevent the misuse of its procedure, in a way that would bring the administration of justice into disrepute. The Court has an inherent and residual discretion to prevent an abuse of its process. Where the elements of issue of estoppel are not necessarily satisfied, the Court may invoke the doctrine of abuse of process to preclude re-litigation that risks violating judicial economy, finality and the integrity of the administration of justice.

31In my view, the record before me does not support a finding of abuse of process. To begin, Justice Corbett declined to order production of financial disclosure of the applicant during a case conference, and not a motion. While the Court has jurisdiction to make disclosure orders at a case conference, Justice Corbett explicitly (and correctly in my view) reserved the issue of the appropriateness and timing of the respondent’s request for financial disclosure to be argued at a formal, contested motion. Such a contested motion would include sworn evidence in support of and in opposition to the respondent’s request. At the time of the case conference, no sworn evidence was filed before Justice Corbett, and as such a different “process” (i.e. something other than a motion) was engaged.

32With respect to Justice Kruzick’s order, I am not prepared to find that his description of the respondent’s request as “premature” means that any such request must wait until after the applicant’s motion for summary judgment is determined. Justice Kruzick’s order does not explicitly make such a finding, and rather than dismiss the respondent’s request for financial disclosure at that time, Justice Kruzick in fact “made no decision” on the relief sought by the respondent due to his view that such a request was premature “at that stage of the proceedings”.

33In addition, while Justice Kruzick was alive to the fact that the applicant intended to bring a motion for summary judgment, he was not privy to the grounds in support of the motion, or the evidence of the applicant to substantiate the relief sought. Justice Kruzick exercised his discretion to order partial disclosure (a sworn financial statement and the applicant’s 2014-2016 income tax returns) for the purposes of both a response to a potential summary judgment motion and in furtherance of the respondent’s claims themselves. Justice Kruzick could thus not assess the merits of the respondent’s request for financial disclosure in a vacuum and the balance of the requested financial disclosure was viewed by Justice Kruzick to be premature at that stage of the proceedings.

34Justice Kruzick did not “determine” the matter in the way that the applicant suggests. I do not view the respondent’s motion as an attempt to re-litigate the same issues raised before Justice Kruzick and on the same record filed before Justice Kruzick. The motion argued before me did not violate the integrity of the administration of justice or bring it into disrepute. .

35For these reasons, the applicant’s request that the respondent’s motion be dismissed as being an abuse of process is refused.

(b) Financial Disclosure

36Unlike Justice Kruzick, I am in a position to review the applicant’s Motion Record filed in support of his request for summary judgment dismissing the respondent’s claims for corollary relief.

37The applicant has sworn an affidavit dated November 12, 2018 in support of his motion for summary judgment. In his affidavit, the applicant summarizes the respondent’s allegations set out in her Answer with respect to the negotiation and execution of the Separation Agreement, namely: lack of proper financial disclosure, undue influence, duress, stress, an inequality of bargaining power, vulnerability on the part of the respondent, and unfair negotiations.

38The balance of the applicant’s evidence relates solely to facts, representations, correspondence, disclosure and the state of events leading up to and including the execution of the Separation Agreement. In other words, the applicant’s position in response to the claims in the respondent’s Answer is that the Separation Agreement is a bar that precludes all claims being advanced by the respondent in this proceeding.

39In my view, the issue to be decided by the judge hearing the applicant’s motion for summary judgment is whether the respondent has an entitlement to seek child support or spousal support by operation and application of the valid Separation Agreement signed by the parties. In order to lead trump and put her best foot forward, the respondent must demonstrate (or at least raise a genuine issue requiring a trial) that the Separation Agreement does not bar her claims for corollary relief. As such, the evidence relevant to the disposition of the applicant’s motion for summary judgment relates to the state of events leading up to and at the time of the execution of the Separation Agreement.

40If the Separation Agreement does not bar the respondent’s claims for corollary relief, then the applicant’s post-Separation Agreement financial disclosure is clearly relevant. However, until such time as the applicant’s motion for summary judgment is determined, in my view the majority of the financial disclosure requested by the respondent will play no role in the disposition of the applicant’s motion for summary judgment.

41This analysis is akin to a bifurcation order with partial disclosure. The applicant is raising a threshold issue, namely whether the Separation Agreement precludes the respondent’s claims for corollary relief, and thus ends this matter. I make no comment or offer no opinion as to the merits of the applicant’s motion for summary judgment. However, the income earned by the applicant from 2016-2018 plays no role in any Miglin analysis. While I agree that child support is indeed the right of the child, it will be for the applicant to argue at his motion for summary judgment that the Separation Agreement precludes further claims for child support other than what is set out in the Separation Agreement.

42I find support in the decision of Justice Quigley in Simioni v. Simioni and in particular the following passage (my emphasis in bold):

“ Regardless of this concern, however, it is equally obvious that the central issues relative to the determination of the validity of the Separation Agreement can neither be considered nor adjudicated upon in the absence of full, true and plain disclosure as to the state of Denis’s financial assets and liabilities on June 29, 2007 when the Separation Agreement was entered into . In his unreported decision in Mantella v. Mantella (November 2, 2005), Corbett J. of this region had to consider whether to order a bifurcation of the enforceability of the parties’ separation agreement and staying the husband's obligation to disclose his financial circumstances pending that determination. Similar to the facts of this case, the wife sought to set aside the parties’ agreement, and she sought financial disclosure. In that case, Justice Corbett declined the motion to bifurcate, and ordered that the husband disclose his income and assets at the date of the parties’ Separation Agreement , and his financial circumstances as at that date. Subsequently, Justice Corbett ordered that Mr. Mantella disclose all of his documents relevant to the issues of equalization and support as of the date of the separation agreement : Mantella v. Mantella, [2006] O.J. 1337 at para. 64 (S.C.J.O.).

While I have reached a different conclusion in this case on the issue of severance, I find that no realistic or considered determination could be made on the validity of the Separation Agreement on June 29, 2007 in the absence of meaningful disclosure relating to the state of Denis’s financial worth as of that date. Full disclosure at that date will reduce the disclosure costs for multiple dates that would otherwise arise, but still ensure that information necessary to determine the key question at the first trial is available .”

43In Simioni, Justice Quigley was clear that the key question at trial was the validity of the separation agreement between the parties, and thus ordered full disclosure of the husband’s financial worth as of the date of that separation agreement. I see no reason to reach any other conclusion on the record before me, as the same central question (the validity of the Separation Agreement) is the issue to be determined at the applicant’s motion for summary judgment.

44I also rely upon and adopt the comments of Justice Hood from his recent Endorsement in Laliberte v. Monteith (Court File No. FS-15-20247, unreported decision dated January 25, 2018) wherein he stated as follows (my emphasis in bold):

“ Because of the bifurcation order I cannot see that the disclosure of the respondent’s current financial circumstances, as set out in Schedule D, is appropriate. The applicant has alleged that much of the evidence required and necessary disclosure, to determine equalization and support, should the Separation Agreement be set aside, will be the same as that required to determine the validity of the Separation Agreement. This is a conclusion without any evidentiary foundation . Mr. Cohen does not say that he requires the disclosure in Schedule D in order to value the respondent’s interests as of separation or the date of the Separation Agreement.

For the same reason, the respondent does not need to file a current statement or certificate of financial disclosure until it has been decided whether the Separation Agreement should be set aside or not and whether the applicant is proceeding with a support and equalization claim or by mediation/arbitration under the Agreement.”

45Nothing in my decision precludes the respondent from bringing a further motion seeking financial disclosure in the event the applicant’s motion for summary judgment is dismissed, or the presiding judge finds the presence of a genuine issue requiring a trial. However, for now, the only relevant financial disclosure relates to the state of the applicant’s financial worth and income as at June 25, 2015.

46In reviewing the extensive list of financial disclosure sought by the respondent, I am prepared to order production of certain financial documentation, some of which in fact existed in the latter half of 2015. While these documents likely contain information which existed after June 25, 2015, practically speaking, there is no way of extracting pre-June 25, 2015 information from financial documents which relate to the entire 2015 calendar year.

47Accordingly, I order the applicant to produce the following disclosure to the respondent within 14 business days:

(a) any relevant documents which existed in 2015 leading up to the $15,180,000.00 dividend declared by the applicant in his 2015 income tax return; (b) financial statements, general ledgers and corporate tax returns for the 2014 and 2015 years (if such documents exist) relating to the following companies: Cnutra Corp., 684538 Ontario Ltd., Cwachsberg Holdings Inc., Apollo Soup Corporation, Generic Health Corporation, Simcoe Leisure, Book Store Holdings, Corner Store Holdings Inc., and 253648 Ontario Limited, Apollo Nutraceuticals Inc., Apollo Health and Beauty Care Corporation, Apollo Health Corporation, Apollo Health and Beauty Care Partnership, and Blue Sky Energy Inc.; and, (c) any documentation relating to the sale or disposition of 10730 E Monument Dr., 85262 and 27199 N 95 St. 85262 if those transactions took place before June 29, 2015.

Costs

48In my view, success has been divided on this motion, and the parties should likely bear their own respective costs. If either party takes a different view, they may serve and file written costs submissions, totaling no more than four pages including a Costs Outline, in accordance with the following schedule:

(a) the applicant within 14 business days of the release of this decision; and, (b) the respondent within 14 business days from the receipt of the applicant’s costs submissions.

Diamond J.