Court File and Parties

Court File No.: FS-18-000543 Date: 20190723 Superior Court of Justice - Ontario

Re: Marie Fiorellino-Di Poce, Applicant And: John Di Poce, Respondent

Before: Kiteley J.

Counsel: Meysa Maleki, for the Applicant Heather Hansen and Jason Goodman, for the Respondent

Heard: In writing and telephone conference call July 18, 2019

Endorsement

[1] In an endorsement dated April 6, 2018 [1], I directed the Respondent to pay temporary spousal support in the amount of $54,000 gross per month, and pay temporary spousal support for the services of a personal care assistant for as much as 24 hours 7 days a week, at a cost not to exceed $28,000 per month. At paragraph 36 of that endorsement, I referred to the income tax consequences of the payments ordered. In paragraph 54 of the endorsement and paragraph 6 of the order I prohibited both parties from bringing any motion for any relief except with leave by me or by Team Leader Justice Stevenson or by whomever she may delegate for that purpose.

[2] Counsel were unable to agree with respect to the income tax consequences. In an endorsement dated May 9, 2019 [2], I made orders in connection with the 2018 income tax return. At paragraphs 23 to 26 of that endorsement I outlined the circumstances with respect to the PCA and at paragraph 37 I directed the Applicant to serve and file an affidavit by May 30, 2019 “as to the reasonableness of the 24/7 PCA”. I also made an order that the Applicant provide “evidence from a physician currently involved in her medical care that the services reflected in the revised invoice for the month of April 2019 are medically necessary”. I directed the Respondent to provide a responding affidavit by June 20, 2019 “with evidence as to the extent to which the invoices [for the PCA] have been covered by medical insurance from March 1, 2018 to April 30, 2019”. As indicated in paragraph 38 of that endorsement, I expected to issue a supplementary endorsement as to the extent, if any, that the Respondent is required to pay temporary spousal support for a personal care assistant.

[3] The Applicant did serve and file an affidavit dated May 30, 2019 in which she addressed the specified content I had directed. That included a letter dated May 29, 2019 from one of the physician members of her ongoing transplant team referred to below.

[4] The Respondent’s counsel served and filed a Form 14B motion in which he asked the court:

(a) for leave to bring the attached motion for production of the Applicant’s medical files described as “a complete copy of the Applicant’s medical history and records (i.e. her entire file) with all doctors, hospitals and any other treating professionals and/or centres that she has attended and/or received treatment from, including but not limited to the Toronto Clinic and the University Health Network, in the period of January 1, 2017 to present” and costs on a full recovery basis; (b) to postpone ruling on the issue of his obligation to pay temporary spousal support for a personal care assistant until his motion for production of her medical file was heard and if ordered, until the Respondent had an opportunity to review and make submissions about the disclosure.

[5] In support of that Form 14B motion, his counsel served the Respondent’s affidavit sworn June 18, 2019 and the affidavit of Aaron Gopnik-Ramshaw (private investigator) sworn June 17, 2019.

[6] In response to the affidavit of the Applicant sworn May 30, 2019, his counsel served and filed the same two affidavits. In other words, those affidavits were filed for three purposes: in opposition to her affidavit with respect to whether the existing interim order for services for a PCA not exceeding $28,000 per month should continue; in support of his Form 14B motion for leave to bring the production motion; and in support of the production motion if leave is granted.

[7] In the endorsement dated May 9, 2019, I had not allowed the Applicant to file evidence in reply to the Respondent’s affidavit.

[8] On June 26, 2019, the Respondent served and filed her own Form 14B motion in which she asked the court:

(a) for leave to bring her motion on the regular list; (b) if a long motion date is required to address all of the relief sought in her draft Notice of Motion, then an order carving out the relief sought at paragraphs 6 and 7 of the Applicant’s Notice of Motion and permitting her to bring her motion in relation to interim disbursements and equal right of possession of the parties’ former matrimonial home, as a motion on the regular list; (c) to postpone making any further orders with respect to the PCA until the relief sought at paragraphs 1 to 5 of the draft Notice of Motion had been heard.

[9] In her draft Notice of Motion the Applicant asked for the following orders:

1. an order striking paragraphs 19, 20, 21, 22 and Exhibit “F” [executive summary of the report of the private investigator] to the affidavit dated June 18, 2019;
2. an order that the document attached as Exhibit “F” to paragraph 19 of the affidavit of the Respondent shall be removed from the court file and placed in a sealed envelope;
3. an order that the affidavit of Aaron Gopnik-Ramshaw (private investigator) dated June 17, 2019 and Exhibit “A” to the affidavit (his report) be removed from the court file and placed in a sealed envelope;
4. in the alternative to paragraphs 1 to 4 [sic 3] an order that the entire file of Investigative Solutions Network Inc. be immediately produced to the Applicant and her counsel;
5. a restraining order (pursuant to s. 46(1) of the Family Law Act) against the Respondent and anyone acting on his behalf including investigators or other agents, preventing them from molesting, annoying or harassing the Applicant and her adult children Sabrina Fiorellino and Joseph Fiorellino;
6. an order that the Respondent pay interim fees and disbursements to the Applicant in the sum of $350,000 within 15 days of the date of the order to be secured against any financial obligation found to be owing by the Respondent to the Applicant;
7. an order for equal right of possession of one of the parties’ former matrimonial home (referred to as “the ranch property”) with each party having exclusive use of the property on alternating weekends;
8. such other and further order as counsel may advise and this Honourable court deems just;
9. an order for costs on a full recovery basis plus HST.

[10] In support of her Form 14B motion for leave, the Applicant filed an affidavit sworn June 26, 2019. In support of her draft Notice of Motion, her counsel indicated that an affidavit would be delivered.

[11] As indicated above, the Respondent’s June 18, 2019 affidavit served three purposes. In her June 26, 2019 the Applicant indicated that she was making the affidavit in response to the Respondent’s Form 14B motion for leave and in support of her own Form 14B motion for leave. Because his affidavit included a response to her May 30 affidavit, in effect she used her June 26 affidavit to reply to his June 18 affidavit although I did not give her leave to reply. In dealing with the issue of the PCA, I have referred below to only one issue in that June 26 affidavit.

[12] In his affidavit sworn June 18, the Respondent disputed the medical necessity of the 24/7 personal care assistant costing $28,000 per month and advised that he had instructed his counsel to review the documentation produced and he reported his counsel’s “observations”, namely that:

(a) The invoices and appendices from the Toronto Clinic that were attached are internally inconsistent, including differing hourly rates for the same service providers from month to month, and they are also inconsistent with past invoices produced for the same time period; (b) The information provided by the Toronto Clinic and also by Marie about the nature of her around the clock care is extremely vague and appears to reference assistance with day to day chores; (c) Marie’s alleged level of care is also entirely inconsistent with her own evidence about her activities, such as extensive dining out, entertaining and vacations, and the independent observations of a private investigator that I retained in this matter; and (d) The letter that Marie produced from her psychiatrist contains no explanation of the basis for her stated, blanket, opinion, that the services of the Toronto Clinic are medically necessary for Marie.

Interim order dated April 6, 2018 for temporary spousal support not to exceed $28,000 per month for the expense of a personal care assistant

[13] The Applicant had had a double lung transplant on December 11, 2017 and had left hospital in late February or early March 2018. At the hearing of the motion for interim support on March 22, 2018, the Respondent conceded that it was reasonable for the Applicant to have a PCA. On April 6, 2018 I made an order continuing that status quo.

[14] At paragraph 26 of the May 9, 2019 endorsement I summarized the three assumptions I had made: the PCA services would diminish over time; approximately 1/3 was covered by health insurance; and some part of it would be considered a deduction or a credit that would reduce her income and reduce the amount of income tax she would be required to pay. On the record before me at the time of that endorsement, none of those had transpired.

[15] In response to the first of those assumptions, the issue of diminishment of the PCA, in paragraphs 5 to 9 of her affidavit sworn May 30, 2019, the Applicant gave evidence as to why she feels the PCA is needed on an ongoing basis. She did not indicate whether she expected the level of services to be reduced.

[16] In paragraph 37(b) of the endorsement dated May 9, 2019, I directed the Applicant to provide evidence from a physician currently involved in her medical care that the services reflected in the revised invoice for the month of April 2019 are “medically necessary”. The letter by the physician dated May 29, 2019 attached as Exhibit B to the affidavit indicates that the physician had “reviewed the [most recent] nursing services invoice” and the physician confirmed that the Applicant “has required care because of her clinical condition and these services continue to be medically necessary”. She added that “the Applicant has had a very challenging and psychologically traumatizing medical course. She has required significant support and has benefitted from it. Her need for ongoing care will be regularly evaluated.”

[17] The invoices indicate that Applicant does receive some nursing services on an ongoing basis. The Applicant also receives services described as IADL’s (Instrumental Activities of Daily Living), and ADL’s (Activities of Daily Living). For purposes of this motion, I accept the definitions provided by the Respondent that IADL includes household management, financial management, driving and community mobility, shopping and meal preparation and clean-up, and that ADL includes personal hygiene and functional mobility. As his counsel’s analysis demonstrates, a significant portion of the services provided are not “nursing services”. Based on the letter from the physician, her medical opinion is that the “nursing services” are required. The physician did not make reference to any of the other services such as those covered by the definitions of IADL and ADL.

[18] Based on the letter from the physician, I conclude that the nursing services are medically necessary. Counsel for the Respondent has prepared detailed analyses of some of the invoices. I am unable to ascertain the total amount of the charges that relate to nursing services. I note that they are largely incurred in the day shift from 8:00 a.m. to 5:00 p.m. The rates charged for nursing services are higher than for IADL and ADL services. I am satisfied that $10,000 should be allocated to “nursing services” on an annualized basis in the context of the temporary order.

[19] I assume therefore that the remaining amount or $18,000 is related to IADL’s and ADL’s. Having ordered the Applicant to provide evidence of “medical necessity” does not end the analysis. In paragraphs 5 to 9 of her affidavit, the Applicant gave evidence as to why she feels the PCA is needed on an ongoing basis. That evidence, in the context of the physician’s letter is compelling. I am satisfied that the remaining amount of $18,000 is reasonably incurred.

[20] In the endorsement dated April 6, 2018, I noted at paragraph 18 the different descriptions that the Applicant and Respondent had provided with respect to the standard of living before separation. The Respondent described it as an “extremely comfortable standard of living”. In the budget contained in paragraph 34 of the April 6 endorsement, I did not include a housekeeper. I expect that parties with an extremely comfortable standard of living would have a housekeeper. To the extent that the services described as IADL’s and ADL’s are not “nursing services”, they would likely fall under the category of housekeeping services. I will continue the order for a PCA for not more than 24/7 on the basis that the total amounts charged for nursing and non-nursing services are reasonable items in her budget.

[21] As indicated above, I had assumed in the April 6, 2018 order that the PCA services would diminish. In her affidavit sworn May 30, 2019, the Applicant made no reference to reduction. When she prepares her next form 13.1, I expect the Applicant to pay particular attention to the issue of services covered by the Clinic and allocate an expense for those that are “nursing services” and those that should be otherwise described.

[22] The second of the three assumptions I had made in the order dated April 9, 2018 was that approximately 1/3 of the cost of the PCA was covered by health insurance that the Respondent had provided at or after the separation and at the time of the hearing in March, 2018. In paragraph 37(b) of the endorsement dated May 9, 2019, I directed the Respondent to provide evidence as to the extent to which the invoices had been covered by medical insurance from March 1, 2018 to April 30, 2019. In anticipation of his evidence, the Applicant said at paragraph 10 of her May 30, 2019 affidavit that the Respondent had “unilaterally decided to remove me as a beneficiary”. She deposed that because she has no health insurance plan, she incurs many other health related expenses, for which she pays out of pocket. For instance, every time she is hospitalized (5 times since her transplant) she pays additional costs of a private or semi-private room. And without drug coverage, she says she pays the cost of medication, which amounts to approximately $583 per month.

[23] At paragraph 27 of his affidavit sworn June 18, 2019, the Respondent said the following:

I have not obtained any insurance reimbursement for my payments to the Toronto Clinic from the period of March 1, 2018 to present. I am eligible for reimbursement of approved health expenses for Marie, including pharmaceuticals, nursing, etc., up to a maximum of $10,000 per year through my insurer, Great-West Life. In 2018, the cap of $10,000 per year was reached through Marie’s pharmaceutical expenses and I could not claim any of Marie’s expense for the Toronto Clinic. I have not yet claimed any of Marie’s health expenses for the 2019 calendar year, and I do not know what amount, if any will be available for the Toronto Clinic expense, but at most it will be $10,000 for the year. I have had my office call Great-West Life and confirm all of this information over the phone in advance of swearing this affidavit.

[24] I leave aside the hearsay evidence he relied on. Based on paragraph 27, it appears that the health insurance was available to cover approximately 1/3 of the Toronto Clinic expenses which is what he had said in his affidavit in support of the interim motion. He does not indicate that he had cancelled her health insurance.

[25] In paragraph 24 of her affidavit sworn June 26, 2019 she said the following:

Finally, with respect to paragraph 27, John cancelled my insurance policy. John had previously specifically said in these court proceedings that 1/3 of the $28,000 was covered by health insurance. With respect to the $10,000 amount he says he paid, this is false and John has not provided any documentation to support this. I have been paying for any additional medical expenses out of pocket as set out in my prior affidavit.

[26] As indicated above at paragraph 7, I did not give the Applicant a right of reply. I refer to her evidence in this regard to demonstrate that there is a conflict in the evidence as to whether the Respondent has cancelled her health insurance. The burden was on him to provide evidence as to the extent to which the invoices have been covered by medical insurance in the period starting March 1, 2018 to April 30, 2019. He has failed to meet that burden. Yet he has implicitly confirmed his evidence in March 2018 that the assumption I made that 1/3 of the cost would be covered by health insurance was accurate.

[27] The third assumption I had made related to the tax consequences of the PCA services. Based on the evidence in April, May and June 2019, I conclude that the Applicant did not experience a material deduction or credit. [See paragraph 25(b) of the endorsement dated May 9, 2019.]

Respondent’s Form 14B motion for leave to bring a motion for production of the Applicant’s “entire medical file”

[28] As is apparent by the summary of his position quoted at paragraph 12 above, the Respondent feels very strongly that he should not be ordered to continue to pay for the PCA and he has gone to extraordinary lengths to substantiate his opposition, no doubt at significant cost of legal and investigation services.

[29] Having reviewed his affidavit and attachments, I agree that there are anomalies in the invoices but they need not be resolved in the context of the order for temporary support.

[30] He takes issue with the fact that the physician gave her opinion about medical necessity but did not say why. I am satisfied with the explanation in her letter. I did not require her to provide a detailed review of the Applicant’s medical condition.

[31] The Applicant has had serious health issues for several years, including most of 2017. Her “entire medical file” will be enormous. The request to bring a motion for production of her “entire medical file” is denied for these reasons:

(a) the request for the Applicant’s “entire medical file” is not proportionate to the extent to which she needs a PCA; (b) even assuming that all of her records are in digital form, the task of production would be enormous. It would require some oversight by administrative, nursing and possibly medical staff, all of whom have more important responsibilities than responding to a court order to produce such documentation; (c) on an interim basis, the Applicant has provided sufficient documents and information.

The Applicant’s Form 14B motion for leave to bring a motion

[32] I dismiss the request to bring a motion for the relief in paragraphs 1 – 3 because those are procedural orders that are not necessary, such a motion will only create further conflict and cost, and the motion will likely not be successful. I recognize the distress that the private investigator has caused. However, in the circumstances of this case, I will not grant leave to bring that motion.

[33] Insofar as paragraph 4 is concerned, there are procedures within the Family Law Rules to make that request. I dismiss the request to bring a motion for that relief.

[34] I dismiss the request to bring a motion for a restraining order pursuant to s. 46(1) of the Family Law Act for two reasons. First, s. 46(1) does not apply to adult children. Second, while distressful, I consider it unlikely that a court would make the order requested on the basis of the activity of the private investigator as described in his report.

[35] I dismiss the request to bring a motion for equal right of possession to the “ranch property”. I accept that the Applicant has not delivered an affidavit in support of that motion. However, there is no basis in the form 14B motion or the proposed Notice of Motion upon which a court can make such an order. Section 24 of the Family Law Act provides for exclusive possession of a matrimonial home but does not provide for an order “for equal right of possession”. I see no jurisdiction for that request.

[36] I do grant leave to the Applicant to bring a motion for an order pursuant to rule 24(12) for payment of “the expenses of carrying on the case including a lawyer’s fees.”

[37] In paragraph 27 of the April 6, 2018 endorsement I referred to the evidence of the Respondent that he expected it would take 12 to 18 months and cost more than $500,000 for the business valuator to prepare a report of the value of his corporate interests as of the date of marriage and as of the separation because his financial affairs are “extremely complex”. At paragraph 45 of that endorsement, I referred to Mr. Niman’s observation that his client would likely want to bring a motion for interim costs. In paragraph 28 of the May 9, 2019 endorsement I referred again to that evidence.

[38] At the end of April, 2019, the Applicant produced reports that are not before me but which his counsel confirmed in the telephone conference call on July 18, 2019 were substantial. He did produce reports within the 12 to 18 month time frame. At this point, I have no information as to whether the cost estimate was accurate.

[39] It is reasonable that the Applicant be given an opportunity to bring that motion to “level the playing field” given his admitted complexity of his financial situation. Undoubtedly a long motion will be required.

Ongoing case management

[40] In paragraph 54 of the endorsement dated April 6, 2018 and paragraph 6 of that order, I made an order that neither party could bring any motion for any relief except with leave by me or by Team Leader Justice Stevenson or whomever she may delegate for that purpose.

[41] On September 5, 2018, the parties attended the first meaningful case conference. The parties did not reach a settlement on any of the issues. At paragraph 6 of the endorsement dated September 7, 2018, I indicated that I would address the tax consequences of the interim order. At paragraph 7 I indicated that, having participated in settlement discussions, I would not hear further motions nor participate in any conferences and I made the following orders:

8. Case conference held. Motions may be brought provided that any of the motions contemplated will be more than one hour and will require a long motion date with counsel agreeing to a timetable for delivery of materials to ensure readiness for that date.
9. If counsel agree to request a case management judge, they should make that request to the Family Law Team Leader in writing through the Trial Co-ordinator. If counsel do not agree to request a case management judge, they should arrange a case conference with Justice Stevenson to explore that possibility.

[42] Justice Stevenson made an endorsement dated September 21, 2018 in which she indicated that she will case manage the case and hear all conferences with the exception of a settlement conference that could be arranged before the end of October. It appears that that settlement conference was not arranged.

[43] It appears that no steps were taken before the matter returned to me in April, 2019 and that led to the endorsement dated May 9, 2019. At paragraph 39 of that endorsement I ordered as follows:

As soon as the Respondent’s business valuation report has been served on the Applicant, the parties shall arrange a case conference with Team Leader Justice Stevenson or with whomever she directs, to establish a timetable leading up to the trial, including what motions, if any, will be permitted before trial. The order at paragraph 54 of the endorsement [dated April 6, 2018] and paragraph 6 of the order [of the same date] terminates at that case conference.

[44] In the context of the PCA issue, both parties launched Form 14B motions which counsel have described as a “14B war”. I agree with that description and it is unfortunate. I dealt with those 14B procedural motions as indicated below.

[45] I want to clarify my involvement in this case. My only role is to address the income tax issues referred to in paragraph 36 of the endorsement dated May 9, 2019. The next step is for counsel to arrange a case conference with Justice Stevenson as indicated in paragraph 42 above. Counsel are not permitted to re-visit before her the requests made in their respective Form 14B motions.

[46] As indicated at paragraph 27 of the May 9 endorsement, the Respondent raised the prospect of re-opening the issue of temporary spousal support. If I allowed him to challenge the interim spousal support order, then the Applicant would ask leave to increase the amount of the budget beyond what I established as a recovery budget. An interim order is meant to create a temporary status quo. In this case, the interim order is continuing longer than might be desirable because of the length of time it has taken the Respondent to produce an expert report as to the value of his net family property, specifically the value at the date of marriage and at his valuation date in December 2017. At this point, she is not responsible for the time elapsed since the interim order was made.

[47] In paragraph 29 of the May 9, 2019 endorsement, I indicated my concerns as to the level of antagonism that persisted and the priority of maintaining a focus on readiness for trial. I indicated then that I would not permit either party to seek a variation of the temporary support order where the Applicant’s entitlement and the Respondent’s ability to pay are not in issue. I carved out the PCA because of the assumptions I had made. Nothing has changed except that the antagonism has escalated with the Respondent hiring a private investigator and instructing lawyers to write letters demanding payment of millions of dollars that he asserts were loans and she asserts were not loans.

[48] As indicated in paragraph 17 of the endorsement dated April 6, 2018, the Respondent conceded that the Applicant is entitled to temporary spousal support. In his evidence on the motion for the temporary order, the Respondent confirmed that he had “sufficient income to pay the Applicant a level of support that is consistent with the financial support” that he had been providing to her during the marriage. They differ on what that level of support is. But he does not take the position that he cannot afford to pay her whatever amount is ordered. He prepared a form 13.1 in the context of the motion for temporary support, which was superficial as to his income and expenses so it is not possible to do an analysis of what their standard of living was.

[49] As I said in paragraph 29 of the endorsement dated May 9, 2019, one would have thought that with their ages of 83 and 61, they would have found a way to avoid a trial but that has not transpired to date. The court is required to respect the primary objective in Family Law Rule 2(2), (3), (4) and (5) and issue directions designed to control the progress of the case so that the parties focus on the resolution of the net family property issues and not become distracted by issues raised in their Form 14B motions.

Costs

[50] There were two discrete issues before me. The first was an issue I had raised as to whether the temporary spousal support order for $28,000 per month for a PCA should continue. The second was the form 14B motions that each brought.

[51] With respect to the first issue, the parties were responding to my order to provide evidence with respect to the assumptions I had made in ordering the PCA. In that context, neither had brought a motion. However, the evidence produced by the Applicant was sufficient that I will continue it. In that sense, she was successful. Her affidavit in support was 2.5 pages. I assume that the assembly of the many pages of exhibits was time consuming for a legal assistant.

[52] In respect of the form 14B “war,” I find as follows:

(a) the Applicant was successful in resisting the Respondent’s request for leave to bring a motion for production of her “entire medical file”; (b) the Applicant was successful in obtaining leave to bring a motion with respect to only one of 7 requests she made. That was important success. The affidavit in support of her form 14B motion was 4.5 pages.

[53] Overall, the Applicant has achieved more success than the Respondent. She is presumed entitled to costs. I do not intend to call for written submissions as to costs because I am in a position to fairly assess them and written submissions will simply be another opportunity for conflict.

Order

ORDER TO GO AS FOLLOWS:

[54] Paragraph 2 of the temporary order dated April 6, 2018 shall continue until disposition at trial.

[55] The motion by the Respondent for leave to bring a motion for an order that the Applicant produce her “entire medical file” is dismissed.

[56] The motion by the Applicant for leave to bring a motion for orders other than interim costs is dismissed.

[57] The motion by the Applicant for leave to bring a motion for an order for interim costs is granted on these conditions:

(a) the parties shall take steps to arrange a case conference with the Family Law Team Leader to establish a timetable leading up to the trial, including setting a date for the Applicant’s long motion for interim costs; and including what motions, if any, will be permitted before trial; (b) the parties are not permitted to renew their Form 14B motions to the extent that I have dismissed them; (c) The order at paragraph 54 of the endorsement dated April 6, 2018 and paragraph 6 of that order terminates at that case conference.

[58] By August 23, 2019, the Respondent shall pay to the Applicant costs in the amount of $3000 with respect to the PCA issue and costs in the amount of $500 with respect to the granting of leave to bring a motion for interim costs.

Kiteley J. Date: July 23, 2019

[1] 2018 ONSC 2194 [2] 2019 ONSC 2875