Court File and Parties

COURT FILE NO.: FS-17-415500 DATE: 20190328 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Bradley C. Friesen Applicant – and – Ana Friesen by her representative/Litigation Guardian, the Public Guardian and Trustee Respondent

Counsel: Jeff Rechtshaffen, for the Applicant Rui Alves/Jessica Braude, for the Respondent

HEARD: March 26, 2019

Endorsement on Motion

C. Gilmore, J.

Overview and Factual Background

[1] This is the respondent’s motion for the following relief:

a. To set aside the corollary relief in the Divorce Order dated November 3, 2017 in its entirety with each party to receive credit for payments made pursuant to that order;

b. The applicant to pay temporary spousal support to the respondent in the amount of $4,849 per month with the applicant to receive credit for spousal support payment made pursuant to the Divorce Order.

c. An order requiring the applicant to preserve his property and be restrained from depleting it, except in the ordinary course of business and for his usual personal expenditures pending further court order.

d. Dr. Eliana Cohen to provide to the parties’ counsel within 30 days confirmation of the dates of the parties’ counselling with her and a copy of her notes and records of all counselling sessions.

e. Costs.

[2] These motions arise as result of the default Divorce Order obtained by the applicant (“Bradley”) on November 3, 2017. It is helpful to recite certain uncontested facts in this matter as follows:

a. The parties were married on July 8, 2000.

b. The parties have no children.

c. Bradley moved out of the jointly owned matrimonial home on December 26, 2012. The parties never lived together after that nor did eat, sleep or socialize together.

d. The application was issued on February 16, 2017 and served on the respondent (“Ana”) personally on February 21, 2017.

e. Bradley is the joint owner and managing partner of Starshot Digital Marketing.

f. Bradley has repartnered and now has a three-year old daughter.

g. As a result of the November 3, 2017 Divorce Order, Bradley has been paying spousal support payments to Ana in the amount of $3,990 from January 1, 2017. In addition, in April 2017 Ana received proceeds from the sale of the matrimonial home and an equalization payment totaling $1,425,949.70. Bradley received $411,404.52 from the house sale proceeds.

h. Spousal support payments to Ana as per the Divorce Order are current.

i. Bradley was awarded all-inclusive costs of the default divorce hearing in the amount of $37,027. Those costs were deducted from Ana’s share of house sale proceeds and paid to Bradley.

j. The parties attended counselling with Dr. Eliana Cohen in 2015 and 2016. The parties are not in agreement as to the purpose of the counselling.

k. The parties attended a six hour mediation with Ms. Mary Joseph on December 12, 2016.

l. The PGT paid a retainer of $7,500 to Ms. Joanne Stewart of Lerners LLP on January 13, 2017. Ms. Stewart was in communication with Bradley’s counsel between February 3 and March 9, 2017 but took no specific steps on Ana’s behalf.

m. Bradley’s lawyer served a copy of the Divorce Order (dated November 3, 2017) on Ana as soon as he received it in the mail.

n. An appeal of the Divorce Order has never been filed. The PGT does not seek to set aside the divorce itself, only the corollary relief.

o. On December 9, 2017 Ana retained Mr. Chris Mamo in relation to concerns about the Divorce Order.

p. On June 28, 2018 Bradley brought a motion seeking compensation from Ana in the amount of $9,614 related to her share of the costs of deficiencies related to the house sale and other costs related to the packing and moving of Ana’s personal property. That motion was withdrawn on March 13, 2019.

q. On September 11, 2018 the court declared that Ana was a Special Party. The Public Guardian and Trustee (the “PGT”) is now Ana’s Litigation Guardian. The PGT has retained counsel who argued the within motion.

r. The PGT brought this motion in late 2018. The motion was subsequently amended to include the request for counselling records from Dr. Cohen.

[3] It is not contested that Ana has a history of mental illness which began in 2007. Some background with respect to her mental health issues is necessary as the PGT is seeking to set aside the default order on the grounds that Ana was not capable of either instructing a lawyer or understanding the content of the application when it was served on her or the implications of not responding to it.

[4] Bradley set out a history of Ana’s mental illness in his 23C affidavit in support of the uncontested trial. Bradley deposed that Ana started showing signs of mental illness in 2007. In July 2012, she showed serious signs of paranoia, delusions and hostility towards family, friends, neighbours and Bradley. She was hospitalized on four separate occasions. Ana agreed to attend a voluntary day program but refused to take prescribed medication.

[5] After Bradley left the matrimonial home in December 2012, Ana’s concerning behaviour continued. In the winter of 2013, she turned off the gas and the heat in the home in the middle of winter. When Bradley found out about it and arranged with Enbridge to restart the systems, Ana called the police seeking to have Bradley charged with trespassing.

[6] In April 2013 Ana went to visit family in Windsor, Ontario and disappeared for several days, causing extreme worry to her parents.

[7] Later that month Ana called the police to report that someone had entered her home and defecated on the floor. It was later discovered that she had neglected to let the dog outside.

[8] In November and December 2013 Ana arrived at the U.S. Border with a packed van and the family dog. Having no destination to declare, she was turned away by border authorities.

[9] In February 2014 Ana was taken into police custody at La Guardia airport in New York City. She was transported to a hospital in Queens, New York and flown by air ambulance to Toronto East General Hospital.

[10] In May 2014, Ana was released from St. Joseph’s hospital under a Community Treatment Order. Bradley was appointed Ana’s substitute decision maker at this point as well as her Power of Attorney for Personal Care. The PGT assumed property oversight.

[11] Bradley’s evidence was that throughout the balance of 2014 and 2015 Anna remained stable, however, he began to notice problems in early 2016 and it became clear that Ana was relapsing.

[12] In April 2016 Ana was a patient of the mental health ward at Sunnybrook Hospital for two months. She applied on two occasions to the Consent and Capacity Board for release but was denied. In June 2016 she was transferred to Ontario Shores and again applied for release but was denied.

[13] In August 2016 she was released from Ontario Shores with Bradley designated as her substitute decision maker. Neither Bradley nor Ana’s family thought she should be released from Ontario Shores at that time. During the period in which she was at Ontario Shores her psychiatrist, Dr. Kevin Chopra, diagnosed Ana as having schizoaffective disorder with lack of insight.

[14] Ana was again hospitalized between September and November 2017. The PGT was appointed guardian of Ana’s property during that time. In December 2017, the Consent and Capacity Board terminated the PGT’s statutory authority to manage Ana’s property.

[15] As indicated above, Ana was declared a Special Party by this court on September 11, 2018.

The Issues

The Law on Setting Aside Orders

[16] The Family Law Rules (Rule 25 (19)) provide certain grounds for setting aside orders. They include the authority to set aside an order where the order was obtained by fraud, where the order contains a mistake, requires a change because the court did not decide an issue that was before it; or, where the order was made without notice, with inadequate notice, or the party was unable to be present for a reason satisfactory to the court.

[17] Given the authority of the court to set aside orders, the court must then determine if Ana’s reason for not responding to the Application is satisfactory and if so, whether the Order should be set aside in whole or in part.

[18] The PGT submits that Rule 25(19) must be interpreted in light of the primary objective in Rule 2(2) and (3) because “justly” in this case includes both procedural and substantive fairness.

[19] In Gray v. Gray, 2017 ONSC 4413, OSCJ, the father moved to set aside a final order made in his absence. He did not attend the first day of trial because it was his first day of work after a long period of unemployment. He sent a paralegal to request an adjournment on his behalf. The adjournment was denied and the trial judge proceeded by way of a default hearing. The trial judge imputed income to the father and awarded both retroactive and ongoing child support.

[20] The court adverted to the Court of Appeal’s comments in a ruling made in relation to the mother’s motion to quash the father’s appeal (see Gray v. Gray, 2017 ONCA 100). The court dismissed the mother’s appeal and de-listed the father’s appeal until the father’s motion to set aside was heard. Fryer, J. noted that Rule 25(19)(e) must be interpreted in the context of the primary objective. The Family Law Rules must be interpreted in a manner that is fair to both parties (para 34) in consideration of a balancing of court resources and the importance and complexity of the case (para 53).

[21] The Court of Appeal in Gray interpreted the word “change” in Rule 25(19) to include setting aside where setting aside the order “promotes the efficient and just resolution of family law matters” (para 31).

[22] Bradley argues that the test to set aside the order should also include the considerations set out in Mountainview Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561 (OCA) in which the court held that in civil cases where a party seeks to set aside a default judgment, the court should also consider whether there is an arguable defence on the merits, and whether the interests of justice favoured setting aside the judgment.

[23] With respect to mental health issues being an adequate reason to set aside an order, the PGT relies on Kowalsky v. Asselin-Kowalsky, 2018 ONCA 539. In that rather unusual case, the wife appealed a 10 year old trial judgment. She had not appeared at trial, although her brother told the court she was not able to attend for health reasons. The court proceeded in default. Only days later, the wife was found to be incapable. The wife brought a motion to set aside the final order. That motion was dismissed. The husband did not dispute that the wife had suffered from mental disabilities over the years.

[24] The wife appealed and, with the assistance of fresh evidence on appeal, established that she was incapable of attending or dealing with the trial or her set aside motion due to mental health issues. The court found that the trial and motion orders had disastrous financial consequences for the wife and the outcomes would likely have been dramatically different in relation to both property and support had she had an opportunity to present her case.

[25] The husband disputed that his former wife lacked the capacity to attend either the trial or the set aside motion. He argued that there was no evidence that she was a “special party” at the relevant times.

[26] The court held as follows at paragraph 18:

The level of her inability to attend must obviously be serious to reasonably explain her absence. However, there is no requirement that she prove a certain level of incapacity including one that rises to the definition under the Substitute Decisions Act, S.O. 1992, C.30 or the Mental Health Act. We also note that incapacity for the purposes of the representation of a person under a disability under r. 7.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, speaks to a person who is “mentally incapable…in respect of an issue in the proceeding” [emphasis added], not necessarily for all purposes in all aspects of her life.

Ana’s Mental Health at the Relevant Time

[27] Bradley submits that Ana’s mental health status was fluid over time. For example, through most of 2014 and all of 2015 Ana was quite stable.

[28] In December 2016, the parties attended a mediation with Ms. Mary Joseph. The mediator had a two hour interview with Ana prior to the mediation. She did not raise any concerns in relation to Ana’s capacity to participate in the mediation at that time. In fact, a letter from Ms. Joseph, filed as an exhibit to Bradley’s March 6, 2019 affidavit and dated December 5, 2016, indicates that Ms. Joseph is satisfied after interviewing Ana that “mediation is a viable option for building a Separation Agreement.”

[29] After a six hour mediation on December 12, 2016 the parties came to some form of agreement and were told to retain their own lawyers to finalize a Separation Agreement. Bradley retained his current counsel shortly after the mediation. A letter to Bradley from Lerners LLP dated February 7, 2017 confirmed that Ana had retained that firm to assist her with her family law matters. A response was requested by February 14, 2017. It is not disputed that Ana had paid Lerners LLP a retainer of $7,500.

[30] Thereafter, Bradley’s counsel was in communication with Ana’s counsel Ms. Joanne Stewart until March 7, 2017. In Bradley’s affidavit, sworn March 6, 2019, he deposes that his counsel advised him that he had a telephone conference with Ms. Stewart on February 8, 2017. During that call his counsel advised Ms. Stewart of Ana’s mental health history. Ms. Stewart expressed surprised and apparently indicated that she had not seen any evidence of a mental capacity issue.

[31] On February 7, 2017, Bradley’s counsel advised Ms. Stewart in writing that he had instructions to issue an application. On February 10, 2017, Bradley’s counsel sent Ms. Stewart a history of Ana’s mental health history as prepared by Bradley. Bradley’s counsel asked Ms. Stewart if she would be retained to defend the application and whether she thought the PGT should be handling Ana’s finances. Ms. Stewart gave no definitive responses to these enquiries.

[32] The application was issued on February 21, 2017 and served on Ana personally. A courtesy copy was sent to Ms. Stewart.

[33] Given that neither the mediator nor Ms. Stewart had expressed any concerns regarding Ana’s mental health, Bradley fully expected that his application would be defended. He was surprised when the deadline to respond passed with nothing from Ms. Stewart or from Ana. Bradley’s counsel raises questions as to what advice Ana was given by Ms. Stewart with respect to the consequences of not filing an Answer. Bradley takes the position that Ana’s counsel at the time did not protect her interests. As Ms. Stewart’s file has not been produced, and she does not appear to be the subject of any negligence proceedings by Ana, Bradley assumed that Ana had capacity at the relevant time.

[34] Ms. Stewart was still communicating with Bradley’s counsel on March 7, 2017. She asked him to have Bradley pay some household bills. Bradley’s position is that it was not reasonable for him to bring a motion for Special Party status when he had every reason to believe that Ms. Stewart had matters in hand, and having been informed of Ana’s mental health history.

[35] Bradley proceeded to obtain his uncontested divorce order in November 2017. He took some time to do this as he had to obtain an expert to value both his business and his income. He was aware that Ana was once again involved with the PGT in October 2017. Once the divorce order was obtained, Bradley served a copy of it on Ana. Bradley did not serve the PGT with Application, the 23C materials or the Divorce Order.

[36] After receiving a copy of the Divorce Order, Ana retained counsel, namely Mr. Chris Mamo on December 9, 2017. Bradley’s counsel received communication from Mr. Mamo throughout January and February 2018 without any mention of a motion to set aside the Divorce Order. Throughout March 2018, Mr. Mamo assisted Ana with respect to the distribution of sale proceeds and some disputes about the accounting of same.

[37] In June 2018 Bradley brought a motion related to a dispute about the distribution of the house sale proceeds. His position was that the solicitor acting on the sale did not distribute the funds in accordance with instructions and certain amounts remained owing to him. Bradley has since withdrawn that motion.

[38] Bradley’s position is that he had no reason to believe that Ana did not have capacity at the relevant times. Shortly before he issued his Application, the parties were involved in a lengthy mediation in which the mediator was satisfied that Ana could reasonably participate. Thereafter, she retained counsel who had communication with Bradley’s lawyer for two months. He fully expected Ana to defend the Application and that Ms. Stewart would provide her with advice on it.

[39] After he heard nothing and the Divorce Order was issued, matters did not change. Ana retained Mr. Mamo who negotiated on her behalf to enforce the terms of the Divorce Order she is now seeking to set aside.

[40] The fact that Ana is now a Special Party does not impact on her capacity at the relevant time given that there were many times since separation that Ana was managing on her own without difficulty.

[41] The PGT’s position is that Ana need not prove that she was a Special Party or incapable at time she received the application or the 30 day window to respond thereafter. She need only show that she had mental health issues which may have prevented her from responding to the application or from retaining or instructing counsel.

[42] The PGT takes the position that Bradley was well aware of Ana’s mental health issues. It is not contested that she was hospitalized on at least 10 occasions prior to the issuance of the application. Bradley carefully documented the history of Ana’s mental health problems in his affidavit in support of the Uncontested Trial. Further, it is clear that both Bradley and Ana’s family objected to the termination of previous Community Treatment Orders.

[43] The PGT relies on Children’s Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (OSCJ) for the proposition that it was incumbent on Bradley to bring a motion to have Ana declared a special party if no other person was in a position to do so. Rule 4(2) of the Family Law Rules is not clear about the process of who should bring the motion in relation to Special Party status. Since Ana had had no involvement with the PGT since December 2017, their view (as per the affidavit of PGT in-house counsel Harjot Dosanjh) was that Bradley should have taken steps to bring the motion, given his knowledge of Ana’s mental health history.

[44] The PGT questions Bradley’s reliance on the mediation issue since the mediation agreement was not produced and Ms. Joseph was not called as a witness nor did she file an affidavit.

[45] The PGT submits that the fact that Ana had retained a lawyer at Lerners LLP in early January 2018 is of no relevance. That lawyer never went on record for her nor did Ana have the capacity to instruct her.

[46] Just because Ana participated in mediation and had retained Ms. Stewart for a period of two months does not impute capacity to her. Ana was not capable of entrusting her rights to a lawyer or mediator when she did not have capacity.

[47] Ana did retain Mr. Mamo after she received a copy of the Divorce Order, but Mr. Mamo became concerned about her mental health shortly thereafter. It was Mr. Mamo who convinced her to attend for a capacity assessment in early 2018. The capacity assessment, dated March 16, 2018, determined that there were significant questions about Ana’s ability to instruct counsel on the set aside motion and her understanding of the default issues, among other findings. This explains the delay in bringing the Rule 25 motion.

[48] Finally, Bradley was aware that Ana was hospitalized in October 2017 for several months and that the PGT took over management of her property at that time.

Analysis of the Delay Issue as it Relates to Ana’s Capacity

[49] I agree with Bradley that there were certainly times between December 2016 and March 2017 when it appeared that Ana had capacity. She participated in a mediation, she retained a lawyer and it appeared that the parties were going through the normal process of negotiating a separation agreement.

[50] However, the fact that Bradley fully expected his Application to be defended, and it was not, should have given him reason to pause. He, of all people, was intimately familiar with Ana’s mental health history and its pendulum-like swings. The fact that he had no response from Ms. Stewart about his Application should also have caused concern.

[51] As per the reasoning in Kowalsky, it is clear that, given Ana’s undisputed mental health history, any delay in bringing this motion can only be counted against her when it is clear she is fully recovered, or following the appointment of a Litigation Guardian.

[52] It is this court’s view that Ana’s capacity to instruct counsel has been an issue throughout and therefore any delay in bringing this motion should not be decided in Bradley’s favour. Indeed Mr. Mamo, while having been retained by Ana in early December 2017, had already arranged for a capacity assessment in early January 2018.

[53] Given that Kowalsky does not require that Ana’s level of incapacity rise to the level required in either the Substitute Decisions Act or the Mental Health Act, the “fluidity” of her level of incapacity should not interfere with the requirement that she receive procedural fairness and an opportunity to be heard.

[54] As such, I do not find that any delay in bringing this motion should mean that Ana does not meet the test in Rule 25(19).

Fairness Issues – Would the Result of Setting Aside the Order be Dramatically Different?

Equalization

[55] The PGT makes several arguments in this regard. First, on the equalization issues, there is the potential for a significant difference of opinion between the experts. The PGT retained Mr. Jeffrey Cling to provide initial input on the business valuation dated October 1, 2017 and prepared by Ms. Melanie Russell.

[56] Mr. Cling suggests that on an initial review of Ms. Russell’s report there appears to be a formula error in which the fair market value of Bradley’s commercial property may have been underestimated by $1.4 million. This suggests that Bradley could owe Ana an additional equalization payment of up to $250,000.

[57] Bradley’s expert admits there was an error in the report but it is limited to $40,000 or an additional $20,000 equalization payment owing to Ana. The PGT’s counsel have asked for a full copy of Ms. Russell’s Scope of Review documents which have only recently been received.

[58] Time is needed by the PGT to fully explore this issue and obtain the complete opinion of its own expert.

[59] Bradley’s position is that he made a number of significant compromises on equalization issues. The equalization payment was fair, reasonable and based on an expert opinion.

Valuation Date Issues and Dr. Cohen’s Notes

[60] The PGT asserts that December 26, 2012 is not the correct valuation date. While it is true that Bradley left on that date and the parties did not resume their relationship, they engaged in marriage counselling with Dr. Eliana Cohen through to the beginning of 2016. They still maintained a joint bank account and a jointly owned home. As such, it is not accurate to say that there was no prospect of reconciliation after December 26, 2012.

[61] Bradley deposed that even when Ana was well, she would constantly harass him. She refused to accept that the marriage was over. He engaged and paid for sessions with Dr. Cohen to try convince Ana that the marriage was over and she should stop harassing him. He attended for three joint sessions with Dr. Cohen and Ana attended for 17 sessions on her own.

[62] Bradley decided to engage Dr. Cohen because he had long moved on with his life and had a new partner. In fact, at the time the sessions commenced in 2015 Bradley and his partner were undergoing fertility treatments so they could start a family. Bradley and his partner now have a three year old child.

[63] The PGT seeks production of Dr. Cohen’s records in order to accurately determine the content of the parties’ discussions and whether reconciliation was indeed the subject matter of the discussions. Bradley does not consent to the production of those records. He is concerned about their production because during the joint sessions, he did not see Dr. Cohen taking any notes. Further, he has no control over what inaccuracies Ana may have been reporting to Dr. Cohen about the status of their relationship when she saw Dr. Cohen on her own.

[64] The PGT asserts that if the valuation date is in 2015 or 2016 this will have a significant effect on the value of Bradley’s assets including foreign exchange rates and market value.

Spousal Support

[65] According to the Divorce Order, Bradley was obliged to pay spousal support in the amount of $3,990 per month, commencing January 1, 2017. This is based on an income of $228,000 which is an average of Bradley’s income for the four year period between 2013 and 2016.

[66] The PGT submits that Bradley should be paying spousal support of $4,489 per month based on an income of $266,000 in 2016 and projected for 2017. The PGT refers to Ms. Russell’s report at paragraph 50 in which she states that, based on discussions with Bradley, his income in 2017 would be approximately the same as his income in 2016 which was $266,000. However, based on the averaging done between 2013 and 2016, Bradley was paying support on an income of $228,000.

[67] The PGT submits that Bradley erroneously submitted to the court that his current income was $228,000 per year and provided DivorceMate calculations to the court based on this amount.

[68] As well, the Divorce Order did not address any retroactive support back to the date of separation nor the issue of compensatory support.

[69] Bradley’s position is that this was a 12 year marriage. He has not asked for a termination or review of support. He recognizes that support would be indefinite. As there was no compensatory component to the support, his income was fairly based on his income at time of separation. He was being more than reasonable in suggesting that his income for support purposes should be $228,000, as his income on the date of separation was only $183,000 per month. As such, his support payment would have been $654 less per month. At mediation, the parties agreed that Bradley’s income for support purposes would be $207,971 per year.

[70] Bradley he paid for the expenses of the matrimonial home until sale and received no tax deduction for those amounts. He did not attempt to sell the home until he knew that Ana was no longer living there. Bradley arranged for the packing and storage of Ana’s belongings. He continues to pay for the storage fees as Ana has still not retrieved her personal property. However, he deducts this from his spousal support payments each month.

Other Fairness Issues

[71] The PGT argues that it was unreasonable for Bradley to have claimed costs against Ana in this case. His Bill of Costs totaled $54,527.87. He was awarded costs of $37,027. The bulk of the costs awarded to Bradley was made up of the cost to prepare the expert reports which was $35,000.

[72] The PGT submits that it was entirely unfair for Bradley to have received the costs to prepare his expert reports when it was his obligation to have his income and assets valued. The costs were paid by way of reduction of Ana’s share of house sale proceeds/equalization payment.

[73] Bradley argues that he was as fair as possible with his presentation to the court for the uncontested trial. He was also reasonable with respect to the value of asset’s assets on date of separation. Based on the only information her had (Ana never swore a financial statement) he attributed growth of 20% for her assets between 2011 and the date of separation. In fact, the value of her portfolio increased by 30.4%.

[74] Bradley provided a proper Net Family Property Statement with his court materials. Further, Ana received her equalization payment entirely in cash while Bradley’s assets are not liquid. Ana cannot complain when she received a total of $1.4 million by way of equalization and house sale proceeds.

[75] Bradley has been diagnosed with several medical conditions which affect his ability to fight infections. This litigation and Ana’s actions have caused him a great deal of stress. He is not able to deal with stress effectively, given his medical conditions. Bradley now has a new family to support. He should not be dragged back into this litigation only to find that he owes Ana nothing or that she in fact owes him a support or equalization credit.

Analysis of the Fairness Issues

[76] In Gray, the court determined that Rule 25(19) must be interpreted in light of Rule 2(2) and (3). Those rules mandate that the primary objective in the Family Law Rules is to enable the court to deal with cases justly. Gray requires that the court interpret “justly” to mean that the court must strive to achieve both procedural and substantive fairness (para 30).

[77] I do not see how this court can achieve the objectives of procedural and substantive fairness as interpreted in Gray without setting aside the Divorce Order.

[78] While I accept that Bradley did his best to be fair and present proper evidence on which the court could make its decision, there are several questions which remain. Those mostly relate to the quantum of support, the nature of support and equalization.

[79] The PGT should be given the opportunity to present Ana’s case with all of the known facts. In the event that the PGT’s position is incorrect, and Bradley is owed credits by Ana, she has assets from which she can pay any credits owed. Any remaining issues can be dealt with by way of costs.

[80] With respect to the counselling records, the court should not exercise its authority to order production of confidential records in accordance with Rule 20(5) lightly. However, in this case I am persuaded that their production is necessary for a fair determination of the valuation date. It is to be kept in mind, however, that those records should be reviewed in the context of Ana’s mental health issues and her position with respect to her own capacity at that time.

[81] I am not persuaded that a non-depletion order is required at this time. Bradley has attempted to be fair with Ana, notwithstanding her current position. I am of the view that he will continue to be fair. There is no evidence he has attempted to deplete his assets in the face of the set aside motion.

[82] I am also not persuaded that spousal support should be increased at this time. The spousal support payment shall remain in place until the respondent has had an opportunity to file her pleadings and provide her own expert reports. At that time, a Case Conference date is to be scheduled to discuss all outstanding issues.

Orders

[83] The following paragraphs of the Divorce Order of Justice Horkins, dated November 3, 2017, are set aside in their entirety with each party to receive credit for all payments made pursuant to the terms of the Divorce Order and to be accounted for in the final determination of this Application; paragraphs 3-14.

[84] Paragraph 2 of the Divorce Order shall remain in place and the applicant shall continue to pay spousal support in the amount of $3,990 per month until further agreement of the parties or court order.

[85] The restraining order dated November 3, 2017 shall remain in place.

[86] The request for a non-depletion order is dismissed.

[87] The relief sought in paragraph 2 of the respondent’s Second Supplementary Notice of Motion dated March 15, 2019 is granted. The respondent to pay any costs related to the productions.

[88] The respondent shall serve and file her Answer within 30 days of the date of release of this endorsement.

[89] Once pleadings are closed and the respondent has received her expert opinions and disclosure, a Case Conference shall be scheduled.

Costs

[90] If the parties cannot agree on costs, they may provide written submissions of no more than three pages exclusive of any Bill of Costs or Offers to Settle. Costs to be provided on a seven day turnaround, starting with the respondent. All written submissions are to be submitted electronically to my assistant at Patrizia.Generali@ontario.ca.

C. Gilmore, J.

Released: March 28, 2019