BARRIE COURT FILE NO.: FC-17-1352-00 DATE: 20190403 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Gordon Freedman, Applicant -and- Rashell Freedman, Respondent

BEFORE: The Honourable Madam Justice R.S. Jain

COUNSEL: Michael Stangarone, for the Applicant Jesse Rosenberg, for the Respondent

HEARD: March 7, 2019

Endorsement

Background

[1] This matter came before me for two long motions, one brought by each party. Both parties’ motions are brought in the context of mutual allegations of lack of compliance with, or breaches of, existing orders and the Family Law Rules (the Rules). Both parties request the striking of the other’s pleadings and other remedies, and changes to an existing order.

[2] The parties separated in 2015 and the proceedings were commenced in October, 2017. The parties have 5 children, the youngest are twins (6 years old) and the eldest is 17 years old. The applicant father has two adult children from a prior marriage. The parties have been parenting pursuant to a nesting agreement in their matrimonial home in Collingwood. A section 30 assessment report was completed by Dr. Daniel Fitzgerald, dated July 31, 2018. The parties have various temporary orders, (including detailed orders for financial disclosure and payment of spousal support and expenses for the house and children). Nothing has been finalized.

[3] The parties are highly conflicted on some basic facts of the case. The applicant is educated as a lawyer and engineer. His practice focus is intellectual property law and he is a licensed patent and trademark agent. Numerous companies were commenced and built during the parties’ marriage. The companies and matrimonial home were registered in the respondent mother’s name. The parties are conflicted about whether this was a traditional marriage and how much involvement and/or control the respondent had in the companies. The respondent says she has been unemployed since 1998, as she focussed on the children and family while the applicant focussed on his career. She says that the companies are very specialized and although the applicant placed them in her name, he was the one that was in control (he was the mastermind behind them). The applicant disputes this and says he was a highly involved parent, and that the respondent had significant involvement and control of the companies.

[4] The respondent brought a motion pursuant to r. 1(8), requesting a dismissal of the applicant’s motion. In general, she seeks the following relief in her motion, with costs:

(a) An order striking the applicant’s pleadings on the grounds that he is in breach of the court Orders of Eberhard J., dated January 8, 2018 and February 16, 2018; Eberhard J.’s Endorsement of April 4, 2018 and the Order of Wildman J., dated June 5, 2018;

(b) In the alternative, an order finding the applicant in breach of the above orders and imposing such sanctions/conditions this court considers appropriate pursuant to r. 1(8);

(c) In the further alternative, an order that the applicant remedy his breaches of court orders within 7 days, failing which the respondent may move without notice for the striking of his pleadings; and,

(d) An order varying paragraph 20 of the Order of Eberhard J., dated February 16, 2018, to provide that the respondent be permitted to obtain loan financing in the amount of $100,000 CAD secured against the insurance policies held offshore with Temple Financial Group.

[5] The applicant brought a motion requesting changes to the Order of Eberhard J., dated February 16, 2018. In general, he seeks an order for the following relief, with costs:

(a) Terminating spousal support;

(b) Dismissing the nanny, Camille Harper;

(c) The outstanding expenses for the home, including but not limited to, mortgage, utilities, tax, internet, routine upkeep and the nanny salary be paid from the proceeds of sale of the matrimonial home and/or from obtaining loan financing secured against the offshore accounts with Temple Financial Group. The respondent to cooperate with the applicant and any other professional to facilitate the release of funds;

(d) The applicant further requests that the respondent’s motion be dismissed and requests a finding that the respondent is in breach of the Orders of Eberhard J., dated January 8, 2018, February 16, 2018 and April 4, 2018, pursuant to r. 1(8) and imposing such sanctions as this court considers necessary for a just determination of this matter, on any conditions that the court considers appropriate pursuant to r. 1(8) including but not limited to:

(i) an order prohibiting the respondent from taking any steps in this proceeding without written leave of this court and until after she provides documentary proof to this court that she has remedied her breach of the order;

(ii) an order staying the respondent’s motion, returnable February 7, 2019;

(iii) an order requiring the respondent to pay the applicant’s costs of this motion on a full recovery basis as a sanction for her ongoing breach of the court order; and,

(iv) an order for disclosure from the respondent (as detailed in his motion) and an order for costs on a full recovery basis, (and costs thrown away from the respondent’s motion that was to be returnable on December 20, 2018).

Decision

[6] For the reasons set out below, the applicant’s motion is dismissed and the respondent’s motion is granted, in part.

Discussion

[7] In requesting an order striking pleadings, both counsel relied upon r. 1(8) of the Rules; which states:

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for the just determination of the matter, including,

(a) An order for costs;

(b) An order dismissing a claim;

(c) An order striking out any application, answer, notice of motion, notion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) An order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) If the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) An order postponing the trial or any other step in the case; and

(g) On motion, a contempt order.

[8] In addition, pursuant to r. 2,

…the primary objective of the court is to decide cases justly; that includes the court enforcing its own orders, and ensuring that the parties receive adequate disclosure according to the complexity of the case and the issues relevant to the ultimate disposition of the matter.

[9] This helps ensure the procedure is fair for all parties. It should be noted, and the parties and counsel reminded, that r. 2(4) also requires the parties and their lawyers to help the court promote the primary objective.

[10] One of the most basic obligations in family law is to disclose financial information. Compliance with the Rules and with the court’s disclosure orders is extremely important to the disposition of cases. Financial disclosure should be automatic. It should not require court orders, let alone multiple orders, to obtain the necessary production. As the Court of Appeal stated in Roberts v. Roberts,

The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.

[11] The Court of Appeal has repeatedly confirmed that dismissing or striking out a party’s pleadings is a drastic remedy of last resort that should only be applied in exceptional circumstances and where no other remedy would suffice. The court must also be cautious in striking pleadings where children’s issues are unresolved as the input of both parents may be required for the court to determine the best interests of the children. In Manchanda v. Thethi, Myers J. provided a comprehensive review of the case law respecting the striking of pleadings, and cited Grenier v. Grenier, a decision of Rogers J. where she set out the issues to be considered in a motion to strike pleadings:

1. What was the overall effort to complete disclosure relative to the undisclosed items and what ratio does the completed disclosure bear to the undisclosed items?

2. Are the missing pieces of disclosure relevant to significant issues in the file or are they about issues that were or have become minor? Does the mover need this disclosure to proceed and would a court be hampered in adjudicating without it?

3. Was there and is there a realistic possibility of obtaining this disclosure?

4. What is the cost of the disclosure relative to the overall quantum of money at risk?

5. Is the disclosure available to the seeker?

6. Given the advances in the information in the case, has the request for missing disclosure become over-reaching?

7. Were the orders (or order) concerning the disclosure sufficiently clear that the party ordered to provide the information would understand what was being sought?

8. Were the time frames for obtaining the disclosure reasonable?

9. Did the seeker of the disclosure continue to pursue the disclosure and enforce the order(s)?

10. Were the disclosure orders (or order) so onerous that a party could not reasonably located and disclose the volume of material requested?

11. Is there a lesser remedy that would suffice? Would it be reasonable to provide that information not disclosed could not be used at trial?

12. Has the seeker of disclosure discharged the onus of the burden of proof in the motion?

[12] As stated by McDermot J. in Balliu v. Balliu, the above criteria,

make[s] it clear that the principle of proportionality, which is at the heart of rule 2 is applicable to a motion to strike pleadings. It is essential that the failure to disclose go to documents which are relevant to the matters at issue and reasonably obtainable under the circumstances and considering the importance of the issues and the amounts being claimed.

[13] As stated earlier, in this case the parties have not settled any of the issues on a final basis. They are still highly conflicted about many the facts and issues, including the parenting and the financial issues. There are also significant amounts of outstanding disclosure and payments at issue.

[14] At this time, the court is not prepared to strike either of the party’s pleadings. Nor is it going to terminate the Order of Eberhard J., dated February 16, 2018, with respect to the applicant paying the expenses of the home, or the nanny or paying the respondent $1,000 per month for support. It is clear to the court that in order for this matter to move forward, it requires case management, financial disclosure, payments pursuant to the existing court orders and access to funds.

[15] The parties relied on numerous lengthy affidavits, all of which were filed in the Continuing Record (Vols. 3, 4, 5, and 6). They further participated in questioning that took place on February 21, 2019. The transcript of the questioning was made available for the hearing of this motion. Additionally, the transcript of the motion heard before Eberhard J. on February 16, 2018 was also made available for this motion.

Re: Case Management

[16] This matter is both complicated and high conflict (regarding both the parenting and the financial issues). The parties have attended before numerous judges at conferences and motions on various issues since October, 2017. It was suggested by counsel if I am not prepared to strike either parties pleadings, that I case manage this matter. I agree that the best way to promote the primary objective is for this matter to be case managed. Therefore, an order should go that this matter shall now be case managed by me.

Re: Financial Disclosure

[17] Full financial disclosure and payments pursuant to the existing court orders (and/or access to funds) are required in this matter not only in accordance with the Rules and the existing orders, but for this family’s survival. Multiple orders for the applicant and respondent to provide specific financial disclosure or to complete financial disclosure have already been made by Eberhard J., on January 8, 2018 and February 16, 2018; as well as the Endorsement of Eberhard J. dated April 4, 2018. The respondent alleges that by not complying, the applicant has breached the above financial disclosure orders. The applicant does not deny that he has not fulfilled the financial disclosure provisions of the orders, however, he denies he is in breach. The applicant has submitted that the respondent has frustrated his ability to comply with the orders for financial disclosure by failing to provide disclosure and/or not providing him with access to financial records. The respondent denies that she has not complied with the disclosure orders.

[18] The applicant acknowledges that he has not provided the personal and corporate tax returns for the years 2012 through to 2017. These tax returns were already acknowledged to be incomplete at the time of the Orders of January 8, 2018 and February 16, 2018. The applicant advised Eberhard J. during the motion on February 16, 2018 that he had everything to complete them and would be getting them done. He acknowledged and specifically said, “I’m going to get them done.” He also confirmed and acknowledged that “there’s significant amounts owing.” Despite this, the applicant has never completed or provided the personal or corporate tax returns.

[19] The applicant now submits that in or around March, 2018, the respondent removed the applicant as a signatory from the business and certain accounts, thereby thwarting the applicant’s efforts to comply with the consent order of Eberhard J. dated January 8, 2018. He further says that the respondent controls most of the outstanding documents and that he has no access to the records he does not have control over, or authorization to access information of the corporations and their accounts. The applicant says that the respondent has not complied with the financial disclosure orders and that she did not provide him with access to outstanding corporate documents from TD Canada Trust until January 22, 2019. The applicant alleges this situation was created by the respondent and it is her strategy to frustrate him in complying with the order.

[20] The respondent says she has provided the court-ordered and requested disclosure. This is confirmed in her previous lawyer’s letter in April, 2018. Additionally, as will be discussed below, the applicant has removed significant funds from accounts since separation, (the respondent says this was without her consent). Therefore, she felt she could not trust him to continue to have access and removed him as a signatory. Lastly, the respondent says that she is unsure whether the applicant truly needed access to those accounts and files to complete the taxes because he already had all the information he needed. The applicant acknowledges that he “removed two accounting computers from the home” as he required them to access “the files stored on these computers to attempt to complete the corporate income tax returns.”

[21] The court does not accept the allegation that the respondent has an ulterior motive to frustrate or sabotage the applicant. The respondent is not benefitting by the applicant’s breaches or delays. The respondent has minimal funds to pay for her living expenses, and those of the children. She says her only source of funds at this time is her monthly child benefits from the government, or money she borrows from family. The court finds the applicant’s allegations against the respondent are unreasonable and do not support his allegation that she has frustrated his ability to comply.

[22] The court also notes that the applicant’s allegation does not fully satisfy or explain the delays. The applicant had access to these accounts for years prior to and months after the orders were made. The applicant stated that he became aware that he had been removed as signatory when he contacted the Royal Bank of Canada seeking corporate bank account statements on April 17, 2018, (long after the disclosure orders were made). The applicant provided no explanation why he waited until April 17th to request these documents (i.e. months after he had advised Eberhard J. that he had everything he needed).

[23] Considering the history of this matter and the fact that both the applicant and respondent’s past and present income (both personal and corporate) continue to be relevant and important to the resolution of the issues, the court finds that all the existing disclosure orders against the applicant are reasonable. The court also finds that the information and disclosure has been and is obtainable by the applicant. If however, the accountant or Chartered Business Valuator (CBV) requests something from an account that the applicant is no longer authorized to access, an order should go requiring the respondent to provide any further authorizations and directions as required by the accountant or CBV to obtain any outstanding corporate documents (that are not in her control or possession) in order to complete their work.

[24] Based on the above, the court does not find that the respondent has frustrated the applicant’s efforts to comply with the disclosure orders. Instead, it finds that the applicant has breached the orders for disclosure. Additionally, the court finds that the applicant’s motion and request to strike the respondent’s pleadings is retaliatory and designed to avoid his obligations according to the existing orders. As such, an order should go requiring the applicant’s compliance with the orders, failing which the respondent may apply summarily to strike the applicant’s pleadings.

[25] Regarding the applicant’s requests for more disclosure from the respondent, the court again finds his requests are retaliatory. His requests are also disproportional, unreasonable and over-reaching. The applicant’s allegations and his additional requests for more disclosure in his motion are related to his position that he, “was not the bread winner.” As outlined above, the applicant alleges that he and the respondent “ran a company together” and that it was the respondent that controlled all the family assets. He alleges that he “operated completely under Rashell’s instructions” and that “Rashell ran the business.” He further alleges that the respondent has “returned to school and has become a family law mediator and arbitrator, parenting coordinator and is becoming a therapist.”

[26] The respondent however, has stated that she has been unemployed since 1998. She says that she dropped out of university to help care for the applicant’s two children from a previous marriage, and subsequently raise the party’s five biological children. The respondent admitted to having some involvement in the companies from the perspective of performing various administrative tasks for the applicant. The respondent admits to, “decorating the office spaces,” and she,

bought food at Costco and filled the fridge at his different office locations. I have also helped design the logo, the business card and his website, and had the sign made when you first walked into his foyer. I have thrown parties for the businesses, like, dinner parties, Christmas parties for staff and his clients.

[27] The respondent further acknowledges that she has taken some mediation classes in 2015 and that she is trying to complete a psychotherapy program that she started in 2016. No evidence has been provided that the respondent is an accredited family law mediator or that she has completed a psychotherapy program making her qualified to be a therapist.

[28] Except for the applicant’s allegations, the undisputed evidence so far is that the applicant is highly educated and he continues to work. He has further acknowledged that he is “driven” and has achieved significant financial success building and running companies as a practicing lawyer, engineer and patent and trade mark agent. It will take a trial to make final findings of fact and credibility on these issues. At this time, based on the affidavit evidence and transcripts from questioning and the February 16, 2018 motion, the court finds it difficult to accept the applicant’s allegations. The applicant has not provided sufficient evidence for the court to make a finding that the respondent was significantly involved in or controlled the companies, and/or that the respondent earns any significant income from providing mediation or therapy services.

[29] The court finds however, that some additional reasonable disclosure is required from the respondent with respect to the issue of determining her income and ability to earn income. As such, an order should go that the respondent shall provide her tax returns and notices of assessment and confirmation of her education level including copies of all degrees, diplomas, certificates etc. along with documentary proof, (by way of affidavit) of her employment history and all efforts made by her to secure employment since separation.

Re: Payments Pursuant to the Existing Court Orders

[30] The Orders of Eberhard J., dated February 16, 2018, and Wildman J., dated June 5, 2018, require the applicant to make certain payments.

(a) Eberhard J.’s Order of February 16, 2018 requires the following payments:

(i) Paragraph 15 says: The applicant father shall pay expenses for the home including but not limited to mortgage, utilities, tax, cable, internet, routine upkeep. He shall also pay the nanny salary.

(ii) Paragraph 16 says: On a temporary and without prejudice basis, Gordon Freedman shall pay to Rashell Freedman spousal support in the amount of $1,000.00 per month on the first day of each month commencing on February 1, 2019.

(b) Wildman J.’s Order dated June 5, 2018 requires the following payments:

(i) Paragraph 1 says: The applicant shall pay for the following special and extraordinary expenses for the children:

(1) No more than four sessions per calendar month for Zevan’s counselling from March 2018 and ongoing;

(2) Liam’s and Tahlia’s dental expense In the amount of $1,280.00 by September 1, 2018;

(3) Zevan’s ongoing orthodontic expenses, subject to the applicant giving his consent in writing in advance and a written treatment plan from the orthodontist; and,

(4) Tahlia’s ongoing cheerleading expense in the annual amount of $2,250.00 plus H.S.T.

[31] The respondent submits that there is a vast income disparity and there is no real knowledge of what the applicant’s income is. She has no other income except for government child and tax benefits. She says that the applicant has not paid her any child support nor his share of section 7 expenses. The respondent says that when the parties were married, they lived a luxurious lifestyle relying primarily on the applicant’s income (as she has been unemployed since 1998). Now, she is in dire financial circumstances due to the applicant’s deliberate breaches of the court orders and rules. According to the respondent, all of the applicant’s delays and breaches are flagrant and by the insidious design in his efforts to destroy her. She says he never brought a motion to vary until after (and in response to) the applicant’s motion.

[32] The applicant denies the respondent’s allegations and alleges that the respondent had significant involvement and control of the family property, companies and finances. He submits that he has not breached the orders and that it is the respondent that has frustrated his ability to comply. He says he is unable to comply with the payment provisions of the orders because the respondent has refused to permit him to borrow against the foreign assets. Lastly, he submits that he has suffered a material change in circumstances because his income is limited and has been decreasing and he owes significant sums of money to the Canada Revenue Agency (CRA).

[33] I have already addressed the applicant’s allegation that the respondent had significant control of or involvement in the companies.

[34] Regarding the applicant’s allegation that the respondent frustrated his ability to borrow against foreign assets, he stated that the Order of Eberhard J., dated February 16, 2018, was “premised on my being able to borrow money against assets.” The endorsement of Eberhard J., dated February 16, 2018 says:

…on financial issues, the evidence of current income is unreliable. There are foreign assets and the respondent father is able to borrow against those assets. It may be preferable not to bring the assets into Canada at this time. Today the parties agreed to a non-dissipation order…

[35] Further, the February 16, 2018 Order of Eberhard J. contains the non-dissipation clause at paragraph 20:

Neither party, Gordon Freedman or Rashell Freeman, or their agents, shall dissipate, or interfere with or dispose of, any funds in any offshore bank account, and in particular any accounts held with Temple Financial Group, pending further order of this court or written agreement of the parties.

[36] It is clear to this court that in her Endorsement, Eberhard J. was acknowledging that the applicant was borrowing against these assets up until the time her order was made; however, after February 16, 2018, there would be no further ability to do so because of the non-dissipation order. The court finds that the Order of Eberhard J., dated February 16, 2018, did not provide that the applicant could use the foreign assets to satisfy his court ordered financial obligations. This is acknowledged by the applicant. Therefore, it is clear the respondent has not frustrated the applicant’s ability to make payments in accordance with the order by refusing to permit him to borrow against assets.

[37] The court finds that the applicant’s misinterpretation of Eberhard J.’s Order and Endorsement of February 16, 2018 is unreasonable and unbelievable considering his level of intelligence and education. It is simply an attempt to avoid responsibility for his breaches. He did this again during the questioning that took place on February 21, 2019 when he stated that he was “unsure” whether there was a court order in place requiring him to pay the nanny and he would not agree that he was in breach of the order by having missed mortgage payments. The court finds there is nothing ambiguous or unclear about Eberhard J.’s Order. The positions the applicant is taking are causing delay. He is not doing his part to promote the primary objective.

[38] The court further finds there has been no change in circumstances (material or otherwise) that should permit the applicant to continue to avoid his responsibilities under the orders or to change the orders. The uncertainty of the applicant’s income was already acknowledged and understood at the time of the February 16, 2018 Order. Eberhard J. made the order that the applicant continue to pay the household expenses and nanny etc., instead of child support and further ordered spousal support on a “without prejudice” basis because of the uncertainty of the applicant’s income.

[39] Both the respondent and the children will suffer prejudice and harm if the spousal support, house expenses and children’s expenses are not brought up to date or paid pursuant to the Order. The applicant has shown by his unreasonable behaviour that he has no qualms with breaching the orders and allowing the mortgage or taxes to go into arrears and jeopardizing the family. This is shown by some of the applicant’s responses to the respondent in email and text. I agree with Mr. Rosenberg’s characterization of the applicant’s communications as “cavalier and sarcastic” and show a lack of respect for his obligations and his former spouse. For example, as outlined in the respondent’s affidavit of November 13, 2018, there was an email exchange found at Exhibit “I”, where on August 22, 2018 she tells him about the letter from CRA dated August 20, 2018 regarding the state of the companies back taxes. The applicant responds, “Wow, that sucks. What are you going to do? G.” This same attitude is shown in text messages between the parties found in Exhibits “J”, “O” and “S” of the same affidavit. More than once he alleges that she is “mentally ill,” attacking her, instead of the actual problem.

[40] In addition to earning income from working, the applicant acknowledges he has received tens of thousands of dollars from his parents/family and friends. It is unclear to the court whether the cash received by the applicant from his parents/family and friends was in the form of gifts or loans. The applicant has also borrowed hundreds of thousands of dollars from life insurance policies since separation. The respondent denies she had any knowledge of this or that she consented to same, thus it is understandable that the respondent is very hesitant to provide the applicant with any further access to accounts or information. The respondent believes that the applicant’s litigation strategy is to blame her, cripple her financially, and cloud the issues by making allegations that it is she that has significant involvement or control of the numerous companies.

[41] Despite all of his income from employment, gifts and/or loans, the applicant has not paid the expenses for the home in accordance with the Order of Eberhard J., dated February 16, 2018. The last mortgage payment he made was in May, 2018. He has not reimbursed the respondent for the payments she made to hold off the mortgage company from foreclosing. The applicant has allowed other home expenses to go into arrears and has not paid the nanny for many months. He further has not paid spousal support for the months of October, November, December 2018 and January 2019. On top of all this, the court finds it especially problematic that the applicant has not paid for some of the children’s expenses as specified in the Order of Wildman J., dated June 5, 2018. Zevan has been diagnosed with an Anxiety Disorder and Post-Traumatic Stress Disorder (PTSD) associated with his experience of sexual interference by a peer and dealing with the disruption and turmoil associated with his parents’ divorce. The court found it very disturbing that the applicant did not pay for Zevan’s much needed counselling. It also shows that the applicant seems to pick and choose which orders he will obey. Based on the above, the court finds that the applicant has breached the payment Orders of Eberhard Order, dated February 16, 2018 and Wildman J., dated June 5, 2018.

[42] As noted above, many courts have confirmed that dismissing or striking out a party’s pleadings is a drastic remedy of last resort that should be applied only in exceptional circumstances where there is no other remedy. In this case, since the court finds that there are alternative remedies available, the court is not prepared to strike pleadings at this time. The court is giving the applicant 60 days to remedy all the payment and disclosure breaches, failing which, the respondent can then apply to me by way of 14B motion (without notice) to strike pleadings with respect to the issues of child support, spousal support and property division/equalization.

Re: Access to Funds

[43] As noted above, the Order of Eberhard J., dated February 16, 2018, contains a “non-dissipation” clause. Both parties have requested this term be varied. The applicant requests that instead of him paying for the expenses of the home, (including but not limited to mortgage, utilities, tax, internet, routine upkeep and the nanny salary) they should be paid either from the proceeds of sale of the matrimonial home and/or the loan financing secured against the offshore accounts with Temple Financial Group. The respondent specifically requests she be permitted to obtain loan financing in the amount of $100,000 CAD secured against the insurance policies held offshore with Temple Financial Group.

[44] As noted below, the applicant has been ordered to remedy the payment and disclosure breaches within 60 days and to continue to make payments in accordance with the Order of Eberhard J., dated February 16, 2018. However, as outlined above, the applicant has shown that he has been and is capable of disregarding court orders to the detriment of the family. The court is taking a leap of faith that the applicant will actually follow through and remedy the breaches as ordered. In the meantime, there is significant distrust between the parties and the respondent is in need of funds for her and the family. The court finds that the only certain way to ensure she receives them is by way of obtaining loan financing secured against the offshore accounts and/or life insurance policies held offshore with Temple Financial Group.

[45] The February 16, 2018 Order does not permit further dissipation unless by written agreement of the parties or further order of this court. As both parties are in agreement that loan financing is required and they are both requesting that it be secured against the offshore accounts and/or life insurance policies held offshore with Temple Financial Group, this court finds that an order should go that the respondent is permitted to obtain loan financing in the amount of $100,000 CAD secured against the insurance policies held offshore with Temple Financial Group. The court further orders that the applicant shall cooperate with the respondent and any other professional to facilitate the release of funds to the respondent.

[46] Time will tell. The applicant’s remedy of the breaches as outlined below will direct how this matter will proceed and move forward. If the respondent has not filed a 14B motion as outlined below, and/or the applicant has remedied the breaches in accordance with this order, the parties shall schedule a combined settlement conference/trial scheduling conference through the trial coordinator on a mutually convenient date.

Order

[47] For the reasons set out above, order to go as follows:

(a) The applicant’s motion is dismissed.

(b) The respondent’s motion is granted in part. The applicant is found to be in breach of the Orders of Eberhard J., dated January 8, 2018 and February 16, 2018; Eberhard J.’s Endorsement of April 4, 2018 and the Order of Wildman J., dated June 5, 2018.

(c) The applicant shall remedy all the payment breaches within 60 days from the date of this order, failing which, the respondent may move WITHOUT NOTICE to the applicant for the striking of his pleadings with respect to the issues of child support, spousal support and property division/equalization. The applicant shall:

(i) bring the matrimonial home expenses into good standing, including but not limited to the mortgage payment arrears, arrears of utilities and home insurance and property taxes and routine upkeep, pursuant to the February 16, 2018 Order;

(ii) continue paying the matrimonial home expenses pursuant to the February 15, 2018 Order;

(iii) pay temporary spousal support to the respondent of $4,000 for October 2018, November 2018, December 2018 and January 2019 and ongoing spousal support of $1,000 per month each month in accordance with the February 16, 2018 Order;

(iv) pay the nanny, Camille Harper, $14,352, for twelve missed payments, pursuant to the February 16, 2018 Order;

(v) reimburse the respondent in the amount of $6,160 for the child, Zevan’s, therapy expenses for the period of March 21, 2018 to December 6, 2018, pursuant to the June 5, 2018 Order; and,

(vi) reimburse the respondent $10,187.04 for mortgage payments paid by her on the matrimonial home since the Order of February 16, 2018.

(d) The applicant shall remedy all the disclosure breaches within 60 days, failing which the respondent may move WITHOUT NOTICE to the applicant for the striking of his pleadings with respect to the issues of child support, spousal support and property division/equalization. To remedy the disclosure breaches, the applicant shall:

(i) retain and cooperate with a Chartered Business Valuator (CBV) to complete an Income Report for the years 2013, 2014, 2015, 2016, and 2017. The costs of the Income Report shall be paid for by the applicant;

(ii) provide all the disclosure requested in the January 8, 2018 Order, or a detailed explanation as to the efforts made to provide the disclosure, along with an estimated date of completion, by affidavit;

(iii) retain and cooperate with the family accountant, Graham Wheatley, and complete the 2014, 2015, 2016, 2017 and 2018 tax filings for the following corporations, including but not limited to:

• Cimarron Research Inc.
• Freedman & Associates Inc.
• Freedom 25 Investments Inc.
• Freedom 25 Research Inc.
• Freedman Inc. US
• Freedman Inc. Canadian

The cost of these tax filings and any previous amounts or accounts owing to the accountant Graham Wheatley shall be paid for by the applicant.

(e) The applicant shall cooperate with the respondent and her tax lawyers and both parties shall make best efforts to remove the lien registered on the matrimonial home. The applicant and respondent shall equally share the responsibility for paying the tax lawyer’s fees.

(f) Within 7 days of receiving a written request from the accountant or CBV, the respondent shall provide signed authorizations and directions as required by the accountant or CBV to obtain any outstanding corporate documents that are not in her control or possession.

(g) The respondent shall serve and file the following disclosure within 60 days of this order:

(i) a copy of her 2017 Income Tax Return;

(ii) a copy of her 2018 Income Tax Return and Notice of Assessment (within 7 days of it becoming available).

(iii) confirmation of her education level including copies of all degrees, diplomas, certificates etc. along with documentary proof (by way of affidavit) of employment history and efforts made by the respondent to secure employment since separation.

(h) Paragraph 20 of the Order of Eberhard J., dated February 16, 2018, is varied to provide that the respondent shall be permitted to obtain loan financing in the amount of $100,000 CAD secured against the insurance policies held offshore with Temple Financial Group. The applicant shall immediately cooperate with the respondent and any other professional to facilitate this release of funds to the respondent forthwith. Except as varied herein, the February 16, 2018 Order shall remain in full force and effect. The respondent shall maintain an accounting of how the $100,000 is spent.

(i) The applicant shall pay the nanny, Camille Harper, her ongoing salary until August 31, 2019. After that time, the issue of the reasonableness of the expense and continuing to maintain the nanny shall be reviewed.

(j) Jain J. shall case manage this matter on an ongoing basis.

[48] The issue of costs of these motions is hereby reserved. In the event the parties are unable to resolve the issue of costs between them, then written submissions shall be provided no later than 21 days from the earlier of (a) the expiry of the 60 day period as noted in paragraph 47 above; or, (b) the 14B motion to strike the applicant’s pleadings has been dealt with. Costs submissions shall be on a seven-day turnaround beginning with the respondent, followed by the applicant. Costs submissions shall be no more than three pages in length exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email to: barriejudsec@ontario.ca.

Jain J.

Released: April 3, 2019