CITATION: Kim v. Kim, 2019 ONSC 5018

COURT FILE NO.: FS-06-0058306-00

DATE: 2019 08 26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HANG SOON KIM v. DU-WON KIM and NEW SEOUL INSURANCE CORPORATION

BEFORE: Kumaranayake J.

COUNSEL: Tara Kim as agent for Applicant

Respondent, Self-represented

HEARD: May 22, 2019

E N D O R S E M E N T

OVERVIEW

[1] Almost nine years ago, the parties’ family law trial was held. It was contentious, and the litigation was (and continues to be) acrimonious. The parties represented themselves in their family law trial. The trial judge provided a comprehensive judgment and determined the following issues: child support, spousal support, equalization, and contempt by the Respondent. Snowie J. ordered that ongoing child support, the arrears of child support, spousal support and section 7 expenses by collected by the Family Responsibility Office (FRO). She also ordered a lump sum of $741,495, representing future spousal support and equalization payment that the Respondent had to pay to the Applicant, be collected by the Clerk of the Superior Court of Justice in Brampton by way of Notices of Garnishment. Sadly, the Applicant and the Respondent are still in a dispute about some of these issues.

[2] The Applicant, Hang Soon Kim who is now 71 years old, states that the Respondent, Du-Won Kim, who is now 72 years old, has not paid $15,500 in costs that have been ordered over several years. She seeks an Order that the Respondent be required to pay all outstanding costs Orders prior to proceeding with any further motions or proceedings with respect to this matter.

[3] The Applicant also requests that the collection and enforcement of the outstanding spousal support portion of the lump sum be transferred from the Clerk of the Superior Court of Justice to the Director of the Family Responsibility Office.

[4] The Applicant also requests that ownership of New Seoul Insurance Corporation (NSIC) be transferred from the Respondent to the Applicant in satisfaction of the outstanding equalization payment. In the alternative, the Applicant requests that NSIC be sold and that the proceeds be applied to the outstanding equalization payment. The Respondent is the sole shareholder of NSIC. During the trial, Snowie J. found that NSIC was a family business at which both the Applicant and the Respondent worked. NSIC was an insurance agency that catered to the Korean community in Ontario.

[5] The Respondent opposes all of the Applicant’s requests.

BRIEF BACKGROUND

[6] This family law litigation started in 2006. The Applicant and the Respondent married on September 23, 1985 and they separated on January 1, 2005. They lived separate and apart in the same residence until July 2006. They have one child, Tara, who was 20 years old at the time of the trial. Tara is now 29 years old and appears as agent for the Applicant in this motion. The Applicant was 62 years old and the Respondent was 63 years old at the time of the trial held before Snowie J.

Final Order of Snowie J., dated September 3, 2010

[7] After a lengthy trial (25 days) in which the parties represented themselves, Snowie J. made the following order with respect to child support, section 7 expenses, spousal support, equalization, and contempt by the Respondent:

[130] This Court orders that:

1. The Respondent shall pay to the Applicant child support in the amount of $719.00 per month commencing on September 1, 2010, and payable on the first day of each and every month pending further order of this court. This quantum is based upon the Respondent’s current annual income of $80,000.00.

2. The Respondent shall pay to the Applicant the amount of $89,881.00 being the arrears of spousal support owed to August 30, 2010 and the amount of $24,160.00 being the arrears of child support owed to August 30, 2010. The total arrears of child support and spousal support are $114,041.00.

3. The Respondent shall pay to the Applicant arrears of section 7 expenses in the amount of $35,002.64.

4. SDO to issue.

5. FRO is to immediately enforce this order.

6. The Applicant and Respondent shall continue to pay the child’s section 7 expenses in proportion to their respective incomes.

Respondent – $40,000.00 plus, renewal commissions per year

$30,000.00 disability (no tax) = $40,000.00 (gross)

= $80,000.00.

Applicant – no income.

As such at the present time the Respondent shall continue to pay 100% of the child’s section 7 expenses.

7. The Respondent shall pay to the Applicant the amount of $192,000.00 due and owing to her as her interest in the New Seoul Insurance Corporation forthwith. This is a portion of the equalization payment owed to the Applicant.

8. The Respondent shall pay to the Applicant the sum of $50,000.00 as the remaining outstanding balance of her interest in the matrimonial home forthwith. This represents her half interest in the $100,000.00 worth of mortgaging secured against the matrimonial home for Tara’s section 7 expenses that were to be taken from the Respondent’s share of the equity only.

9. The Respondent shall pay to Appleby College the outstanding balance of $16,278.96 forthwith.

10. The Respondent shall pay to the Applicant future spousal support in a lump sum amount (not taxable in the Applicant’s hands) of $480,000.00 forthwith ($24,000.00 x 20 years).

11. The Respondent shall pay to the Applicant $51,500.00 as her 50% interest in the Respondent’s RRSPs, which he depleted after separation. This is part of the equalization payment owed to her.

The Respondent shall pay to the Applicant sums of $3,000.00, $3,000.00, $4,500.00 for a total of $10,500.00. These are the cash values contained in three insurance policies that the Respondent unilaterally depleted.

12. The Respondent shall remove the Applicant’s name from any and all joint lines of credit loans and credit cards immediately and shall hold the wife harmless with respect to the same.

13. The Respondent shall not molest, harass or annoy the Applicant or the child.

14. Industrial Alliance Insurance and Financial Services Inc., The Manufactures Life Insurance Company (Manulife Financial), The Equitable Life Company of Canada, Oakville Financial Marketing Centre and Global Education Marketing Corporation shall immediately provide to Hang Soon Kim the details of any and all pension funds and/or RRSPs/RSPs held in the name of the Respondent personally or the name of New Seoul Insurance Corporation including but not limited to 1) identifying account numbers, 2) the quantum held, 3) the terms of the plan, and 4) the commencement of the plan and all such RRSPs/RSP accounts shall be frozen pending further order of this court.

15. The following Notices of Garnishment shall issue immediately:

Garnishees

1. Industrial Alliance Insurance and Financial Services Inc.

522 University Avenue,

Toronto, Ontario,

M5G 1Y7

2. The Manufactures Life Insurance Company (Manulife Financial)

500 King Street North

P.O. Box 1669

Waterloo, Ontario,

N2J 4Z6

3. The Equitable Life Company of Canada

One Westmount Road North,

P.O. Box 1603, Stn. Waterloo,

Waterloo, Ontario,

N2J 4C7

4. Oakville Financial Marketing Centre

2870 Portland Drive,

Oakville, Ontario,

L6H 5W8

5. Global Education Marketing Corporation

100 Mural Street,

Suite 201,

Richmond Hill, Ontario,

L4B 1J3

The Payor is:

Du Won Kim and/or New Seoul Insurance Corporation.

These notices shall be issued individually. All deductions made under these notices must be paid to the Clerk of the Superior Court, Attention: FS-06-0058306-00 Superior Court, 7755 Hurontario Street, Brampton, Ontario, L6W 4T6.

$ 51,500.00 – Applicant’s 50% interest in Respondent’s RRSP’s

$192,000.00 – interest in Corporation. (back pay)

$ 50,000.00 – remaining interest in the matrimonial home

$480,000.00 – spousal support lump sum. (future)

$ 7,000.00 – loan owed by the Respondent on Tara’s insurance policy (Equitable Life – 0272073)

$ 10,500.00 – 50% of the cash value contained in three insurance policies

Total: $791,495.00

Payments not to exceed: $791,495.00

16. This quantum of $791,495.00 or the remaining balance outstanding shall be first charge against the estate of the Respondent, and the Applicant shall have to account for all proceeds already paid to her and the balance still owed to her shall be first charge upon the Respondent’s Estate.

17. Ownership of the Manulife Financial Life Insurance Policy ULS22684 (effective date May 16, 1994) shall be transferred immediately to Hang Soon Kim, including any and all fund value. Hang Soon Kim shall be at liberty to change the beneficiaries at her discretion. The signature and/or the consent of the Respondent, Du Won Kim, is dispensed with.

18. Ownership of the Manulife Financial Life Insurance Policy ULS28624 a jointly owned policy (effective date February 11, 2006) shall be transferred immediately to Hang Soon Kim, absolutely, including any and all fund value. Hang Soon Kim shall be at liberty to change the beneficiaries at her discretion. The signature and/or the consent of the Respondent, Du Won Kim, is dispensed with.

19. Ownership of Manulife Financial Life Insurance Policy RB4107242 shall be transferred to Tara Young Kim including any and all fund value. Tara Young Kim shall be at liberty to change the beneficiaries at her discretion. The signature and/or the consent of the Respondent, Du Won Kim, is dispensed with.

20. Ownership of the Equitable Life Insurance Company of Canada Insurance Policy #0272073 shall be transferred to Tara Young Kim including any and all fund value. Tara Young Kim shall be at liberty to change the beneficiaries at her discretion. The signature and/or the consent of the Respondent, Du Won Kim, is dispensed with.

21. The approval of the Respondent as to form and content is dispensed with.

22. The Superior Court Office in Brampton shall expedite the issuing and entering of this order and the issuing of the five separate Notices of Garnishments.

With respect to the Contempt Application

1. I find that the Respondent’s contemptuous behaviour has been wilful in violating the aforesaid court orders. I find that this is a case where both a fine and a period of incarceration are appropriate.

2. The Respondent shall pay to the Applicant the sum of $30,000.00. These are the damages I have assessed to the Applicant flowing from the Respondent’s misconduct. There is jurisprudence in support of awarding a penalty for contempt to a party where the other parties’ actions were directed to prejudice and wear down the party as is the case here. The $30,000.00 is for the stress, anxiety, trouble and frustration that the Respondent’s contempt has caused to the Applicant.

[131] The Respondent shall be imprisoned continuously for a period until 60 days has expired or until the $30,000.00 is paid in full to the Applicant. If the Respondent has not paid to the Applicant $30,000.00 by September 8, 2010, a warrant for his arrest shall be issued and he shall be incarcerated for the aforesaid 60 day period of time.

[132] Post Judgment interest shall accrue on this order pursuant to the Courts of Justice Act.

[133] The parties may submit no more than five (5) type written pages no later than September 30, 2010 on the issues of costs.

Previous court appearances relating to this motion

[8] Prior to the matter to coming before me, there were several appearances which I will review as this provides context for the motion before me.

[9] The Applicant initiated this motion by serving a Notice of Motion, dated July 12, 2018, originally returnable on August 10, 2018. Some aspects of the Applicant’s motion were dealt with on consent on August 10, 2018 when the matter was before Petersen J. A non-party, John Glinka, was to be examined out of court. The motion was adjourned to August 31, 2018 with the parties giving an undertaking that argument of the motion would not exceed 55 minutes in total. Any further material for the motion was to be served and filed by August 20, 2018. The Applicant withdrew paragraphs 3, 6, and 9 of the Notice of Motion:

3. An order enforcing the outstanding costs by requiring the Respondent to provided a Financial Statement, disclosure from all of his income sources, and submitting to an examination on financial matters;

4. An order requiring Manulife to answer the Applicant’s questions regarding the garnishment history;

5. An order that all proceedings in this matter or between the parties, including any motions to change, be heard in Brampton, or alternatively, in Toronto.

[10] The above three paragraphs were withdrawn without prejudice to the Applicant being able to seek the relief set out in para. 9 in the Motion to Change (which was before the Family Court in Hamilton at that time) and without prejudice to the Applicant being able to renew her request for the relief set out in para. 3 and 6 in either the Hamilton Court or Brampton Court after October 1, 2018. Costs of the August 10, 2018 appearance before Petersen J. were reserved to the judge hearing the substantive issues.

[11] On August 27, 2018, Van Melle J. made an Order which permitted Tara Kim, daughter of the Applicant and the Respondent, to interpret and translate for the Applicant at the motion which had been adjourned to August 31, 2018.

[12] The matter came before Lemon J. on August 31, 2018. A review of his endorsement indicates that there was some uncertainty with respect to the meaning of the Order of Van Melle J. and an issue as to whether that motion was served. Lemon J. adjourned those issues to September 20, 2018 and the balance of the motion to May 22, 2019 as a long motion scheduled for three hours. Lemon J. also directed that on September 20, 2018, a timetable should be set to confirm all necessary steps so that the motion would proceed on May 22, 2019. Costs of August 31, 2018 were reserved to the motions judge hearing the motion on May 22, 2019.

[13] On September 20, 2018, Bielby J. made an Order that the Order of Van Melle J., dated August 27, 2018, permitted Tara Kim to appear as agent and interpreter for the Applicant. He also ordered a timeline: the Applicant to complete her filings by November 30, 2018; the Respondent to complete his filings by December 15, 2018; questioning to be completed by January 31, 2019; the motion to be completed February 15, 2019; factum, casebook, and transcripts to be served and filed by April 30, 2019; the parties were to advise by April 30, 2019 if they will have counsel for the long motion; confirmations to be exchanged by May 3, 2019; the parties could communicate by email; and costs of that day reserved to the judge hearing the long motion on May 22, 2019. He also recommended that a Case Management Judge be assigned.

[14] Although he did not order him to do so, Bielby J. also indicated that the Respondent may bring a motion for leave to set aside the Van Melle J. Order. Bielby J. noted that there was an order made in the Hamilton Family Court that Tara Kim was not permitted to be agent or interpreter for the Applicant in the Hamilton proceedings and that the parties were waiting for a decision from Brown J. as to whether the Respondent’s Motion to Change would be transferred from Hamilton to Brampton. If it was transferred to Brampton, there would be conflicting orders with respect to Tara Kim acting as agent and interpreter for the Applicant. Bielby J. noted that any motion to set aside the Van Melle J. Order ought to proceed after the ruling for the change of venue.

[15] On October 2, 2018, Brown J. made a ruling recommending to the Regional Senior Justice in Brampton that the proceedings in Hamilton be transferred to Brampton and if accepted, that the parties arrange for a date for a settlement conference in Brampton. The Hamilton proceedings were transferred to Brampton.

[16] On April 18, 2019, Bielby J. heard the Respondent’s motion for leave to bring motion to set aside the Order of Van Melle J. The motion for leave was dismissed. In his reasons, Bielby J. noted that the parties’ long motion was to be heard on May 22, 2019 and it would be too prejudicial to the Applicant if the Order was set aside at that time. He did not see any merit to the motion for which leave was being sought. Further, he noted that the motion should have been brought and completed by February 15, 2019 pursuant to his Order of September 20, 2018. Costs of $500 were awarded to the Applicant.

[17] Petersen J. was assigned as the case management judge in Brampton. On May 14, 2019, in relation to the motion that ultimately came before me, Petersen J. granted permission for the Applicant to file one additional brief affidavit that had an exhibit that the Applicant had not been able to include in her previous affidavits filed for this motion. Petersen J. accepted the explanation for why it had not been filed in accordance to the timelines set out in her previous Order of August 10, 2018 and Bielby J.’s Order of September 20, 2018. The exhibit was an email from the law office of the Applicant’s previous lawyer, Mr. Aujla. The Respondent indicated that he did not intend to reply to it as he had already filed material to address this email. The Applicant was therefore permitted to file an additional affidavit, sworn on May 8, 2019.

[18] Petersen J. also confirmed with the parties that the only issues to be argued on May 22, 2019 were the issues raised in the Applicant’s Amended Notice of Motion (at Tab 7) and confirmed what materials would be relied upon.

[19] At the outset of the motion before me, Tara Kim, the Applicant’s agent, confirmed that the Applicant was only seeking the relief set out in the Amended Notice of Motion, dated August 20, 2018 (originally returnable on August 31, 2018).

ISSUES:

[20] In my view, the following issues are to be determined:

(1) Are there outstanding costs orders and if so, what amount remains outstanding?

(2) If the Respondent has not paid any outstanding costs orders, should he be prohibited from taking any further steps in this proceeding?

(3) Should ownership of NSIC be transferred to the Applicant or in the alternative, should it be sold?

(4) Should the collection of the outstanding amount of lump sum spousal support be transferred to FRO for enforcement?

(5) What is the amount of post-judgment interest on uncollected lump sum spousal support and equalization payment?

(6) Should there be costs for this motion?

(1) Are there outstanding costs orders, and if so, what amount remains outstanding?

[21] Given the acrimonious history of this matter, it should come as no surprise that the parties do not agree on which cost orders the Respondent has paid. After reviewing the evidence before me, I do not agree with the Applicant that $15,500 is outstanding. For the reasons below, I find that only $2,250 is outstanding.

[22] The Applicant claims that the Respondent has not paid 10 different costs orders totalling $15,500. The Applicant claims that the following costs orders have not been paid:

1. Order of Sproat J., dated November 1, 2007, in the amount of $4,500;

2. Order of Baltman J., dated July 25, 2008, in the amount of $5,000;

3. Order of Ricchetti J., dated September 11, 2008, in the amount of $1,500;

4. Order of Quigley J., dated March 17, 2009, in the amount of $1,000;

5. Order of Snowie J., dated May 19, 2009, in the amount of $2,000;

6. Order of Hourigan, J., dated January 8, 2010, in the amount of $500;

7. Order of Daley J., dated March 19, 2010, in the amount of $250;

8. Order of Dunn J., dated May 18, 2010, in the amount of $800;

9. Order of Lang, J.A., dated August 1, 2012, in the amount of $750; and

10. Order of Tzimas, J., dated April 2, 2013, in the amount of $1,500.

It should be noted however, that the total of these ten costs orders is $17,800. The Applicant’s evidence is that there has been a recent payment and there for this amount is really $15,500. Unfortunately, the Applicant has not indicated when this payment was made or which costs order(s) it relates to. Therefore, I shall review each order to determine what amount, if any, remains outstanding.

Orders of Sproat J., dated November 1, 2007 ($4,500) and Baltman J., dated July 25, 2008 ($5,000)

[23] In the Applicant’s evidence in support of this motion, she maintains that the Respondent has not provided proof that he has paid these two costs orders. However, in the Respondent’s affidavit of August 20, 2018, he has provided proof that these two cost orders have been paid. In that Affidavit, he has attached as an exhibit his Affidavit of March 9, 2009 and in that Affidavit, the Respondent provides copies of cheques made payable to the Applicant’s then lawyer, Harry J. Hong. These cheques are in the amount of $1,000; $3,500; and $5,000. The Respondent has also provided a copy of the letters he sent with these cheques. The cheques are dated November 28, 2007; December 21, 2007; and August 21, 2008, respectively. The last cheque is a bank draft from the Toronto-Dominion Bank.

[24] The Respondent provided these cheques to the Applicant’s then lawyer in payment of these two costs orders. The endorsements of Sproat J. and Baltman J. clearly indicate that Mr. Hong appeared as counsel for the Applicant on November 1, 2007 and July 25, 2008. There is no evidence from Mr. Hong that he did not receive these cheques. If Mr. Hong did not provide these funds to the Applicant, as the Applicant seems to be inferring, the Respondent cannot be held accountable for that. Therefore, I am satisfied that the Respondent has paid the costs ordered by Sproat J. and Baltman J. on November 1, 2007 and July 25, 2008, respectively.

Order of Ricchetti J., dated September 11, 2008 ($1,500)

[25] The Respondent has also provided a copy of a cheque, dated October 4, 2008, payable to Harry J. Hong in the amount of $1,500 (this is found as Exhibit C to his March 12, 2009 affidavit). Ricchetti J.’s Order clearly indicates that Mr. Hong was the Applicant’s counsel at that time. For the same reasons as outlined above in paragraph 24, I am satisfied that the Respondent has paid the costs order by Ricchetti J. on September 11, 2008.

Order of Quigley J., dated March 17, 2009 ($1,000)

[26] The Respondent has also provided a copy of a cheque, dated March 27, 2009, in the amount of $2,000 as proof that he paid this cost order. This cheque is payable to Daman S. Aujla, who was counsel for the Applicant at the time of the appearance before Quigley J. The Respondent also provided a copy of his bank statement as proof that the cheque was cashed.

[27] The Applicant asserts that this is not sufficient proof of payment of this costs order. The Applicant argues that there is a discrepancy between the cheque number and the bank statement. On the face of the cheque, the pre-printed number is ‘028’. Beside that, appears the number ‘27’ that has been written by hand. The bank statement shows that cheque number 27 was in the amount of $1,000 and cheque number 28 was in the amount of $1,400.

[28] The Respondent’s evidence is that on August 11, 2018, he attended at a Scotiabank branch in Hamilton to try to obtain clarification as to this discrepancy and his evidence is that he could not obtain clarification other than being told by the bank manager that records are only kept for 7 years and “nothing is perfect and errors or discrepancy can occur in bank transactions.” The Respondent’s evidence is that he cannot recall whether the handwritten 27 was on the original cheque or whether or not he subsequently wrote that number on a copy of the cheque which he retained.

[29] The Applicant, in an effort to refute this as proof of payment of this cost award, made inquiries the law office of Mr. Aujla. In her Affidavit of May 9, 2019, she attaches as an exhibit an email from Mr. Aujla’s law clerk and asserts that this is proof that the cheque was not received by Mr. Aujla. However, that is not what the email indicates. The law clerk indicates “[a]fter checking our software, it appears that the above-noted cheques were not received by our office. However, we are unable to confirm this as this is a very old file that goes back more than 7 years” [emphasis added].

[30] Given the passage of time, I am satisfied that each party has presented the best evidence it could on this point. I am satisfied that the Respondent has provided adequate proof that he has paid the costs as ordered by Quigley J. on March 17, 2009.

Order of Snowie J., dated May 19, 2009 ($2,000)

[31] As proof that he has paid this cost order, the Respondent has provided a copy of a cheque number 047, dated June 16, 2006, payable to Daman S. Aujla in the amount of $2,000 and a copy of his bank statement which shows that cheque number 047 was cashed and the money withdrawn from the Respondent’s account.

[32] The Applicant, however, disputes that this is adequate proof. She relies on her the inquiry she made to Mr. Aujla’s office with respect to this cheque and the subsequent email which was provided to by his law clerk which I have already referred to above in paragraph 29.

[33] As indicated above, the email from the law clerk cannot confirm that the cheque was not received given that this “is a very old file that goes back more than 7 years.”

[34] I am satisfied that the Respondent has paid the costs ordered by Snowie J. on May 9, 2009.

Orders of Hourigan, J., dated January 8, 2010, ($500); Daley J., dated March 19, 2010, ($250); and Dunn J., dated May 18, 2010, ($800)

[35] The Applicant sets out in paragraph 19 of her July 12, 2018 Affidavit the basis upon which she asserts that these three costs orders remain outstanding:

In his Affidavit of March 9, 2018, the Respondent provided copies of cheques and bank statements indicating that the amounts of $500.00 (January 8, 2010 Order), $250.00 (March 19, 2010 Order), and $800 (May 18, 2010 Order), had been paid to me. I have rechecked my bank records and I have found no record of receiving those amounts and I am sure that I did not receive them. I challenge the Respondent to provide copies of the reverse side of cheques which I would believe would not show any endorsement or deposit by me. [emphasis added]

[36] The Applicant has not provided a copy of the Respondent’s Affidavit of March 9, 2018 for consideration in the motion before me.

[37] However, the Respondent has included in the materials before me a copy of the cheques he says he used to pay these three costs awards: cheque 038, dated March 26, 2010, in the amount of $500; cheque 041, dated April 8, 2010, in the amount of $250; and cheque 012, dated June 14, 2010, in the amount of $800. He has also provided a copy of his bank statements for accounts from which each cheque was written. The account numbers indicated on the bank statements are consistent with the account numbers on each cheque. The bank statements are generated from the bank directly, they are not generated by the Respondent.

[38] In my view, it is not necessary for the Respondent to provide a copy of the back of each cheque. Further, given that these cheques were written over nine years ago, I accept the Respondent’s evidence that he could not obtain a copy of these cheques to show how it was endorsed. Therefore, I am satisfied that the Respondent has paid the costs ordered by Hourigan J. on January 8, 2010; by Daley J. on March 19, 2010; and by Dunn J. on May 18, 2010.

Orders of Lang, J.A., dated August 1, 2012, ($750); and Tzimas, J., dated April 2, 2013, ($1,500)

[39] As referred to above, the Applicant does indicate in her Affidavit of July 12, 2018 that a recent payment had been made which reduced the total she says the Respondent owes in costs from $17,800 to $15,500 – that is, a payment of $2,300. However, the Applicant has not provided any details as to when that payment was made, if it was in satisfaction of a costs order and if so, which order. I do not know therefore if this payment relates to any of the ten outstanding costs orders as alleged by the Applicant; or, if it relates to a costs order made in the Hamilton Family Court.

[40] The Respondent has not provided proof that either of these two costs orders have been paid. Therefore, I find that the costs ordered by Lang J.A. on August 1, 2012 ($750) and by Tzimas J. on April 2, 2013 ($1,500), have not been paid and that the outstanding costs to be paid by the Respondent total the amount of $2,250. I have determined this based on evidence provided by the parties in relation the specific ten costs orders that the Applicant claimed the Respondent had not paid.

(2) Applicant’s request that the Respondent be prohibited from taking any further steps in this proceeding until he has paid the outstanding costs orders

[41] The Applicant relies on Rules 1(8) of the Family Law Rules for her request that the Respondent not be permitted to proceed with any further motions or proceedings with respect to this matter. Although she has not been that expressly stated it, I understand the Applicant to rely primarily on clause 1(8)(e):

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

(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;

[42] As set out above, I have determined that there are two costs orders that remain outstanding: $750 as ordered by Lang J.A. on August 1, 2012 and $1,500 as ordered by Tzimas J. on April 2, 2013. The Respondent has had more than sufficient time to pay these costs.

[43] The Respondent is currently not permitted to bring any motions without leave or further Court order (pursuant to the Order of Bielby J., dated October 12, 2012). In the circumstances of this matter, I find it is appropriate to also require the Respondent to file proof that he has paid both the costs as ordered by Lang J.A. and Tzimas J. with any motion for leave that the Respondent brings.

(3) Should ownership of NSIC be transferred to the Applicant or in the alternative, should it be sold?

[44] The Applicant asserts that if NSIC is transferred to her or alternatively sold, then the proceeds could be offset against the outstanding lump sum for spousal support and equalization payment. In my view, this is not appropriate and I declined to make this order.

[45] The Applicant relies on sections 9 and 11 of the Family Law Act:

The Powers of court

9 (1) In an application under section 7, the court may order,

(a) that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled under this Part;

(b) that security, including a charge on property, be given for the performance of an obligation imposed by the order;

(c) that, if necessary to avoid hardship, an amount referred to in clause (a) be paid in instalments during a period not exceeding ten years or that payment of all or part of the amount be delayed for a period not exceeding ten years; and

(d) that, if appropriate to satisfy an obligation imposed by the order,

(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or

(ii) any property be partitioned or sold. R.S.O. 1990, c. F.3, s. 9 (1); 2009, c. 11, s. 25.

Financial information, inspections

(2) The court may, at the time of making an order for instalment or delayed payments or on motion at a later time, order that the spouse who has the obligation to make payments shall,

(a) furnish the other spouse with specified financial information, which may include periodic financial statements; and

(b) permit inspections of specified property of the spouse by or on behalf of the other spouse, as the court directs. R.S.O. 1990, c. F.3, s. 9 (2).

Variation

(3) If the court is satisfied that there has been a material change in the circumstances of the spouse who has the obligation to make instalment or delayed payments, the court may, on motion, vary the order, but shall not vary the amount to which the court found the spouse to be entitled under this Part. R.S.O. 1990, c. F.3, s. 9 (3).

Ten-year period

(4) Subsections (3) and 2 (8) (extension of times) do not permit the postponement of payment beyond the ten-year period mentioned in clause (1) (c). R.S.O. 1990, c. F.3, s. 9 (4).

Applicant relies on section 9 and 11 of the Family Law Act.

Operating business or farm

11 (1) An order made under section 9 or 10 shall not be made so as to require or result in the sale of an operating business or farm or so as to seriously impair its operation, unless there is no reasonable alternative method of satisfying the award. R.S.O. 1990, c. F.3, s. 11 (1).

Idem

(2) To comply with subsection (1), the court may,

(a) order that one spouse pay to the other a share of the profits from the business or farm; and

(b) if the business or farm is incorporated, order that one spouse transfer or have the corporation issue to the other shares in the corporation. R.S.O. 1990, c. F.3, s. 11 (2).

[46] The Applicant asserts that transferring or selling NSIC to her would be a means of satisfying the outstanding lump sum amount ordered by Snowie J. for future spousal support and the equalization payment. Of the original $791,495, the Applicant states that $599,934.57 remains outstanding (that is, $191,560.43 has been collected by the Clerk of the Superior Court of Justice in Brampton through the notices of garnishment that were issued).

[47] The Applicant also asserts that the Respondent attempted to dissolve the NSIC in 2015 and relies on a letter, dated October 15, 2015 from Canada Revenue Agency to the Respondent. She asserts that this is proof that the Respondent has sought to dissolve NSIC. However, a review of the letter from Canada Revenue Agency does not prove this. The letter, addressed to NSIC care of the Respondent, reads:

We have received your notice indicating that the corporation mentioned above is no longer in business.

We verified the status of your corporation with the responsible incorporating authority and found that its charter was still active.

If you intend to dissolve the corporation, please contact one of the incorporating authorities mentioned below to arrange to have your charter surrendered and stricken for its records. Otherwise, we will consider that your corporation still exists and as a result, it will have to file T2 returns up to the date of the dissolution, even if there is no tax payable.

[48] The Applicant submits that if NSIC was transferred or sold, it would protect NSIC as well.

[49] The Respondent asserts that NSIC has not carried on any new business since 2008 and that it does not have any assets or a bank account. Further, he asserts that NSIC has not filed a corporate tax return since 2012 as the Respondent did not have the fund to pay an accountant to do so.

[50] Transferring ownership of NSIC to the Applicant or ordering it be sold is a last resort – see McLean v. Mclean, 2014 ONSC 2837. The Applicant has not provided any evidence of the current value of the business or even if it is carrying on business at this time. There is no evidence before me that a sale of NSIC is even viable. There is no evidence before me that there is anyone willing to buy NSIC. There is no evidence as to whether there are other creditors or other non-parties who would be affected by the transfer or sale of NSIC.

[51] It seems to me that this was an option available to Snowie J. at trial, but not ordered. I do not know this reason for this. It may be as simple as the request for this order was not made at trial. However, it is evident from her detailed reasons that Snowie J. took into consideration the Respondent’s history of noncompliance when she made the final order that she granted.

[52] I also note that Snowie J.’s Final Order of September 3, 2010 also included a term that the amount of $791,495 or the remaining balance outstanding shall be the first charge on the estate of the Respondent. This provides some protection to the Applicant.

[53] Further, Brown J., in the proceedings in Hamilton, made an order on April 27, 2018, which included a term that that

the Respondent is restrained from dissolving, disposing of, encumbering or otherwise dissipating or depleting the business owned by him, namely New Seoul Insurance Corporation, pending further Order of the Court

[54] A review of Brown J.’s endorsement of April 27, 2018 indicates that this specific order was made on consent. The Applicant has not provided any evidence that the Respondent has breached this term of Brown J.’s order.

[55] In my view, the Applicant’s request to transfer ownership of NSIC to her or selling it as a means to satisfy the outstanding lump sum amount is highly speculative. I am not satisfied, based on the evidence before me and the circumstances of this case, that it is an appropriate order and therefore, I dismiss the Applicant’s request.

(4) Should the collection of the outstanding amount of lump sum spousal support be transferred to FRO for enforcement?

[56] In her Final Order dated September 3, 2010, Snowie J. determined that future spousal support for the Applicant should be $480,000. She also determined various specific amounts for the equalization payment owed to the Applicant by the Respondent. The global amount for the future spousal support and equalization was determined to be $791,495. As outlined above in paragraph 7, Snowie J. ordered that this amount be collected by the Clerk of the Superior Court of Justice in Brampton by way of Notices of Garnishment which were to be issued.

[57] The Applicant states that $191,562.43 has been collected by the Clerk of the Superior Court of Justice in Brampton. This is the figure set out in the Applicant’s Affidavit of July 12, 2018.

[58] The Applicant proposes that the amount to be transferred to FRO is the difference between the amount determined by Snowie J. for future spousal support ($480,000) and the amount collected ($191,562.43). The amount proposed to be transferred to FRO, according to these calculations, then is: $288,437.57. This would be the amount as of July 12, 2018 if the Applicant’s position is accepted.

[59] The Respondent opposes the transfer of enforcement of spousal support to FRO. He asserts that mistakes have been made by Manulife in the amount it remitted under the garnishment. However, he did not provide evidence of these mistakes. From the evidence of the Respondent, it appears that he is suggesting that Manulife Financial was served with two notices of garnishment: the first one issued pursuant to the Order of Snowie J., dated September 3, 2010 and the second by FRO in its enforcement of the collection of ongoing child support and arrears of child support, spousal support and section 7 expenses.

[60] The Director of FRO is not a party in a proceeding to determine a person’s entitlement to support under a support order or a motion to decide whether a support obligation has terminated (subsection 8(9) of the Family Responsibility and Support Arrears Enforcement Act, 1996). However, the request before me is not to determine the Applicant’s entitlement to a support obligation as this has already been determined by Snowie J. Nor, is the request before me to determine whether the Respondent’s support obligation has terminated.

[61] If the Applicant’s request to transfer the outstanding portion of the lump sum spousal amount to FRO for collection and enforcement is granted, then the Director is a person who is affected by the motion. Therefore, the Director is a party to this motion and requires notice as set out in Rule 7(2) of the Family Law Rules.

[62] The Applicant has not served the Director of FRO with notice of her request and before I can determine this issue, the Director of FRO must, in my view, be served and given an opportunity to make submissions. Therefore, as outlined below, the Applicant will have to serve the Director of FRO and then the parties and the Director of FRO (or delegate) will have to attend before me at a future date so that I may receive additional submissions.

[63] The Applicant has also requested a determination of post-judgment interest on the uncollected lump sum spousal support and equalization payment. This issue will be addressed once I have determined the issue of the Applicant’s request to transfer collection and enforcement to FRO.

ORDER

[64] For the reasons outlined above, I make the following Final Order:

a) The outstanding costs owed by the Respondent to the Applicant is $2,250.

b) The Respondent may not bring any motions for leave to bring further motions unless the he files proof that he has paid costs as ordered by Lang J.A. on August 1, 2012 ($750) and Tzimas J. on April 2, 2013 ($1,500).

c) The Applicant’s request to transfer NSIC to her is dismissed.

d) The Applicant’s alternative request for the sale of NSIC is dismissed.

[65] I also make the following Temporary Order:

e) The Applicant shall serve the Director of the Family Responsibility Office by special service with a copy of this decision and the materials which were before me for this motion, specifically the following documents:

i) The Applicant’s Amended Notice of Motion, dated August 20, 2018 (originally returnable on August 31, 2018) (Tab 7);

ii) The Applicant’s Affidavit, dated July 12, 2018 (Tab 3);

iii) The Applicant’s Affidavit, dated August 20, 2018 (Tab 8);

iv) The Applicant’s Affidavit, dated May 8, 2019 (not yet filed in the Continuing Record);

v) The Respondent’s Affidavit, dated August 20, 2018 (Tab 9);

vi) The Respondent’s Affidavit, dated December 12, 2018 (Tab 13);

vii) The Applicant’s Factum, dated April 26, 2019;

viii) The Applicant’s Casebook, dated April 26, 2019; and

ix) The Respondent’s Factum, dated April 29, 2019.

f) The Applicant shall serve the Director of the Family Responsibility Office with these documents no later than September 6, 2019.

g) The Applicant, in consultation with the Respondent and the Director of the Family Responsibility Office (or a designate identified by the Director) shall make arrangements through the trial coordinator’s office to appear before me at 9:00 a.m. on any day that I am sitting so that I may hear submissions on behalf of the Director of the Family Responsibility with respect to the Applicant’s request to transfer collection and enforcement of the outstanding lump sum spousal support from the Clerk of the Superior Court of Justice in Brampton to the Director. The next appearance must be prior to October 25, 2019. The Applicant shall contact the trial co-ordinator no later than September 6, 2019 to make these arrangements.

h) Costs of the Applicant’s motion shall be addressed on the same date as the matter returns before me. Anyone seeking costs shall serve a Bill of Costs to be filed on the return date and provide copies of any Offers to Settle that were served.

Kumaranayake J.

DATE: August 26, 2019

COURT FILE NO.: FS-06-0058306-00

DATE: 2019 08 26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HANG SOON KIM

v.

DU-WON KIM & NEW SEOUL INSURANCE CORPORATION

COUNSEL: Tara Kim, as agent for Applicant

Self-represented, for the Respondent

ENDORSEMENT

Kumaranayake J.

DATE: August 26, 2019