Court File and Parties
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SANDRA VO, Applicant
- and -
PETER KHIN VOONG et al., Respondents
BEFORE: F.L. Myers J.
COUNSEL: Sarah Young and Faria Marlatt, for the applicant
Guy Matteazzi, for the respondent Peter Voong
Scott Rosen, for Helen Voong, Michael Voong, and related corporations
HEARD: August 26, 2019
Endorsement
1Ms. Vo moves for leave to amend her application, for interim child support, interim spousal support, further disclosure, preservation of personal property, leave to issue certificates of pending litigation against several properties, payment of funds into court by Mr. Voong as security for payments claimed by Ms. Vo, payment of $100,000 by Mr. Voong to Ms. Vo on account of interim fees and disbursements, and orders related to the possession of household contents.
2Mr. Voong moves for overnight access to the parties’ three children, for a s.30 assessment, and further disclosure of documents from Ms. Vo.
Amending Application on Consent
3On consent, Ms. Vo is granted leave to amend her application to add parties and make further allegations in the form set out as Schedule “A to her Notice of Motion dated August 6, 2019.
4Although he has technically not appeared for the new corporate parties being added as respondents by Ms. Vo in her proposed amended application, Mr. Rosen agrees that he can be served with the amended application on behalf of Michael and Helen Voong (for whom he already acts) and any corporations associated with them that are being added as respondents. Service by email on Mr. Rosen is deemed effective the next day after the email is sent. No acknowledgement of receipt is required for service to be effective.
Consent s. 30 Assessment – resolving contested terms
5The parties also consent to the appointment of a s.30 assessor. Considering the extremes of behaviour alleged by each party against the other, it seems to me that the best interests of the children will be well served by an independent, professional assessment.
6Ms. Vo asks that Mr. Voong pay the full costs of the assessment as he has left her with little resources since the parties separated. She proposes that the order be without prejudice to a later accounting for her fair portion of the costs in the equalization process or from other funds that may flow to her from Mr. Voong down the road. Mr. Voong argues that if one party is required to pay the full fees, the other party may delay and run up the costs of the assessment in bad faith. This type of anticipatory argument brings to mind the truism recently noted by British journalist Nick Cohen who wrote:
Wicked men reveal themselves most starkly when they blurt out their assumption that everyone else possesses their vices.
7Rather than dealing with risks or incentives posited by Mr. Voong, in my view, it is fairer that each party bear one-half of the assessment costs. As Ms. Vo has no funds available, I will consider this liability (as requested by Mr. Voong) as a factor in dealing with Ms. Vo’s request for interim disbursements below.
8Ms. Vo proposes that the assessment be conducted by Allyson Gardner, MSW, RSW. Ms. Voong did not object or propose another assessor. The order is to contain the standard terms for the appointment of an assessor and for cooperation by the parties. The parties have ten days to discuss and agree on an assessor recognizing that the process will likely go more smoothly if both parties agree on the identity of the assessor. Perhaps Mr. Voong will consent to Ms. Gardner being the assessor absent good cause not to do so. In the absence of a written agreement between the protagonists by 4:30 p.m. EDT on August 30, 2019 appointing someone else, Ms. Gardner is appointed as the assessor.
Disclosure by Mr. Voong
9Ms. Vo alleges that the parties separated in the May 2017. Mr. Voong says that they reconciled and separated in November 2017. In between the two dates, Ms. Vo alleges that Mr. Voong reorganized his corporate structure to divest himself of most of his assets.
10Mr. Voong has disclosed a very substantial number of documents. Ms. Vo has reviewed them and a number of additional documents that Mr. Voong had at their home. As discussed below, while Mr. Voong has indeed made an impressive effort to produce voluminous material, his documentation and his oral evidence never really address his corporate reorganization except in the most conclusory way. He often states, for example, that company X or Y belongs to his sister or others. Yet, when confronted with documentary evidence that suggests that the corporation seemed to be solely his prior to separation, he never says how it was transferred to the third-party owner. Or, he offers bald and facile excuses that do not pass the giggle test for his possession of corporate documents or wads of cash. He has drawn an opaque curtain around the ownership of his assets that Ms. Vo quite reasonably seeks to peer behind.
11On a disclosure motion, I do not need to make detailed credibility findings. It is enough that a party raises prima facie or a sensible preliminary showing that there is suspicious movement or hiding of assets by another party. Absent voluntary disclosure or a comprehensive explanation, it is necessary to order transparent disclosure to cast light upon hidden transactions. The great American judge Louis Brandeis wrote the following words that remain as vibrant and applicable today as they were over 100 years ago:
If the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects.1
12Parties who move or try to hide assets in family law proceedings do not seem to realize the extra expense and stress that they cause themselves to bear as the party opposite methodically unravels each layer of façade to shed light upon the true beneficial ownership of the assets. I have no doubt that Mr. Voong has gone to extraordinary lengths to produce voluminous documentation. However, Ms. Vo has also gone to extraordinary lengths to scan the material and uncover suspicious movements of assets. Mr. Voong will now be required to redouble his efforts at much cost, time, and distress no doubt, to do the job that he has not yet been willing to do.
13Mr. Voong is a successful real estate developer. He used a corporate structure to separate projects from land holdings and corporate operations. Ms. Vo has produced a corporate chart from Mr. Voong’s files showing the “before” and “after” of a corporate reorganization that shows clearly that Mr. Voong owned 100% of his corporate entities before the reorganization.
14In his current disclosure, Mr. Voong claims to own only 4%, 5%, or 20% of corporations that he previously seemed to own fully. Moreover, there is at least a prima facie showing in the documents that Mr. Voong is the operating mind of his companies. For example, in exhibits “HHH” through “KKK” of Ms. Vo’s affidavit dated August 6, 2019, Mr. Voong can be seen instructing counsel to incorporate various of them.
15Mr. Voong now says that the majority interests in his companies are held by others including his brother and sister. But there is no indication as to how they received their interests, whether they paid anything for them, or what they do in the businesses (if anything).
16Mr. Matteazzi objected to the use by Ms. Vo of documents that flowed between Mr. Voong and his corporate counsel. At this stage, apart from one issue that I will deal with below, I am not prepared to find on this record that Mr. Voong has knowingly waived lawyer client privilege. Mr. Voong swears:
…I am advised by my corporate counsel…and verily believe that the Applicant has no right to his corporate files and that he is exercising solicitor client privilege.
17Privilege belongs to the client and not to the lawyer. The lawyer’s purported information to the client is of no consequence. What matters deeply however, is that Mr. Voong is asserting his right to confidentiality and privilege in his relationship with his lawyers. The law recognizes and enforces lawyer client privilege assiduously.
18Not every piece of paper that passes between a lawyer and client attracts privilege. Communications for the purposes of obtaining or receiving legal advice are privileged. But purely factual matters, such as who are the shareholders of a corporation, or what is in its minute book, or did it restructure and if so, when and how, are not legal advice. They are objective, verifiable corporate facts. I am ordering disclosure only of factual information and not communication for the purpose of seeking or receiving legal advice.
19Ms. Vo argues that privilege does not apply here because the lawyer and client were engaged in unlawful activity. There is insufficient evidence before me, yet, to conclude that any lawyers assisted Mr. Vo in unlawful activity.
20Despite corporate counsel’s seeming assertion of privilege over “his” file, the applicant has been given access to post-restructuring minute books of several corporations for two hours at Mr. Voong’s accountant’s office. After the applicant and her counsel were told to leave before being finished their review, corporate counsel agreed to provide Ms. Vo’s with copies of the documents that she was shown. The documents have yet to be delivered despite corporate counsel’s undertaking to do so in a subsequent email.
21Mr. Voong swears:
The applicant and her counsel were afforded an opportunity to review the Minute Books of my businesses at the office of my accountant on August 1, 2019. They could have taken photos or left a list of the documents that they desired from the Minute Books. They did not do so. I am advised by my counsel Gaetano Matteazzi that he received no subsequent requests for production from opposing counsel.
22In fact, on August 2, 2019, opposing counsel did make a subsequent request for production to Mr. Voong’s corporate counsel, with a copy to Mr. Matteazzi, as follows:
I am writing to confirm that you will be providing our office with full copies of the minute books we reviewed yesterday, as discussed. Please let us know when we can expect to receive same.
23Corporate counsel responded that afternoon (also copying Mr. Matteazzi):
I am leaving on a two week holiday and will see to it on my return.
24I was provided with no explanation as to the apparent inconsistency between the contemporaneous documentary record and the evidence sworn to by Mr. Voong on the information provided by his counsel.
25Ms. Vo also discovered and produced an email from Mr. Voong to his corporate counsel dated May 31, 2017 in which Mr. Voong instructed his lawyer to transfer 90% of the equity of one of his companies to his brother and 90% of the equity of another company to his sister. An email of the same date was sent by corporate counsel to Mr. Voong confirming a restructuring of several of Mr. Voong’s companies to move shares from his name to his siblings and others. Counsel was to produce a “steps memo” to demonstrate the outcome.2
26The timing of this memo is important. Recall that Ms. Vo asserts that the parties separated in May 2017. Mr. Voong argues that they reconciled and therefore they did not separate until November 2017. Mr. Voong repeatedly swears that there has been no corporate reorganization since the parties separated. Anything done prior to separation, he argues, is not relevant to the valuation for equalization purposes as at the date of separation. It is apparent however, that truth of Mr. Voong’s evidence turns on the acceptance of his argument that separation occurred in November 2017. If separation occurred in May 2017, then the reorganization efforts may indeed represent post-separation dissipation of value owned by him at the valuation date. Moreover, if the transactions were fraudulent conveyances or were subject to trust or other devices so that Mr. Voong continued to own beneficial interests in the shares or title held by the recipients of his transfers, then the full equity value of the properties transferred may well have remained with Mr. Voong even at the later date that he asserts for separation and valuation.
27Mr. Voong produced income tax returns for the relevant companies for 2016 and subsequent taxation years. The 2016 taxation year preceded the corporate reorganization. For each of the returns Mr. Voong produced the Schedule 50 showing the identities of the shareholders of the companies - except the 2016 returns. That is, he produced the schedules that show his brother or sister or others as shareholders after he completed his reorganization. Ms. Vo asks the perfectly obvious question of whether the Schedule 50 in the 2016 returns that preceded the reorganization showed Mr. Voong or any of his wholly-owned companies as the only shareholder of the companies. There has been no response by Mr. Voong.
28When confronted with evidence that shows that Mr. Voong had minute books and cheque books of companies at his home, that he instructed lawyers on behalf of companies, and that he had bundles of cash with copies of deposit slips from another cash-heavy spa business, Mr. Voong asserts that he had all of these other corporate documents and money because he was helping friends with their books and accounting. Yet, when he was shown to have signed cheques to himself as “salary” beyond his claimed line 150 income, his counsel asserts that these were just mistakes as Mr. Voong is not an accountant. So, for his own records, he is not a sophisticated record keeper, but he voluntarily performs accounting, banking, and cash management responsibilities for others. As noted above, I do not have to make a credibility finding to find that Ms. Vo has raised a sufficient prima facie case to show that her requests for better disclosure are relevant.
29Mr. Voong has previously been ordered to produce accountings to show where funds went when various properties developed by his corporations were sold. He has produced trust ledgers showing funds being paid by lawyers to various of companies or siblings but nothing more. He has provided no explanation of where the funds finally landed. That is, have they cycled through nominees/trustees/shell companies to end up with him? Ms. Vo has found a reference in an email in which Mr. Voong tells his lawyer that he will be delivering a trust agreement in respect of new corporation being set up by Mr. Voong in the name of a friend. She also produced a nominee agreement under which Mr. Voong’s sibling acknowledges being a nominee holding assets for Mr. Voong. So, trust and nominee structures were put in place by or for Mr. Voong in at least some cases.
30Mr. Matteazzi questions whether the nominee agreement was prepared by counsel because it is worded awkwardly. I am not sure why that is relevant unless Mr. Voong is going to deny its authenticity. But he did not do so in his evidence. Moreover, Mr. Voong’s email regarding the trust agreement for his friend suggests that these documents are delivered by Mr. Voong to his lawyer. There are many reasons why clients might conduct their title machinations in private and deliver a fait accompli to counsel and, by corollary, why counsel may wish to have plausible deniability for such efforts. Absent disclosure and proper examination no conclusions can be drawn at this time except that Ms. Vo has proven a relevant basis for further inquiry.
31There is no need to go through each company and each property involved. The issue is the same for each. Mr. Voong has produced documents that support only his post-restructuring assertions and has not produced documents that may disclose or disprove alternative outcomes that are fairly suggested by the contemporaneous record. He asserts that he has made disclosure of trust ledgers and corporate structure charts without disclosing the before or the after. Despite the sheer volume of material, he has not disclosed documents to show what assets he held at the valuation dates asserted by each of the parties and where assets that moved actually finally landed.
32I will give just two further examples of Mr. Voong’s failure to produce highly relevant material. First, Mr. Voong and Ms. Vo sold their prior matrimonial home to purchase a property at 87 Northdale on which they were going to have a very large house designed and built. Ms. Vo’s evidence is that title in the new house was to be jointly shared. Ms. Vo did agree however, with independent legal advice, to allow Mr. Voong to register a secured line of credit against the property to support his business.
33Mr. Voong purchased the property in his own name alone. He does not deny that the parties intended it to be owned jointly. Rather, his evidence is that he did this because “having the names of both parties would have complicated the purchase and/or financing as well as any construction loan”. Counsel was unable to explain how registering ownership of a piece of residential land in joint title would materially complicate anything.
34Mr. Voong has since disclosed that in October and November 2017 i.e. just before his asserted date of separation, he drew over $1.3 million on the line of credit and virtual eliminated any equity in the property. He says that he drew the money for his business. But he has not produced any documents such as corporate ledgers to show where the money went. Nor does he show a receivable from any of his businesses on his sworn financial statement. He apparently says that he just gave $1.3 million to businesses owned principally by his siblings or others and that should be enough to satisfy Ms. Vo that he has no funds available to meet his obligations to her and their children. He is wrong in that regard.
35The second example involves an antique sports car that Mr. Voong owns beneficially although legal title is registered in the name of his sister. His evidence is that his sister owns the car and that she has owned it since long before the parties were married. Ms. Vo has produced a draft of Mr. Voong’s will that contains the following provision:
I give my Primary Estate to me Trustees upon the following trusts, namely:
- To hold my 1960 Corvette motor vehicle currently registered in the name of my sister, the said HELEN VOONG, and maintain same until my son…attains the age of thirty (30) years at which time the said motor vehicle shall be transferred to my said son for his own use absolutely.
36Despite this evidence being in the record, Mr. Voong simply swore as a bald fact that the car belongs to his sister. Mr. Matteazzi argued the same before me. Mr. Voong gave no explanation of how he and his estates counsel thought he could bequeath the absolute use of his sister’s car to Mr. Voong’s son. I can think of a reason. (Hint: It is in the first sentence of the preceding paragraph.)
37In all, I agree with Ms. Young’s submission that disclosure by Mr. Voong is incomplete. There is ample reason to delve into and illuminate the apparent dissipation of assets by Mr. Voong after the valuation dates asserted by each of them.
Disclosure from Helen and Michael Voong
38Helen and Michael Voong are parties to this proceeding. They either own beneficially the equity of Mr. Voong’s businesses or they do not. If they own the equity, their taxes should show it. So too would their financial statements. Mr. Rosen argues that asking them for tax information and financial statements is a fishing expedition. To me, a fishing expedition is asking for documents that are not known to contain evidence but are one or more steps removed. Rather than containing evidence, documents sought on a fishing expedition are of a type that might contain evidence or might show the existence of other documents that might contain evidence. Here, Helen and Michael Voong’s tax returns will be direct evidence of whether they claim to own the equity in the various corporations, and whether they receive dividend or other income on equity that Mr. Voong claims they own. In sworn financial statements they will put their oaths to whether their interests are beneficial, legal, held as nominee, agent, or otherwise. All of this is directly relevant to the claims made against them.
Disclosure Order
39I attach to this endorsement a chart prepared by Ms. Young that I have revised with the disclosure orders that I make based on the foregoing findings. The italicized words reflect Ms. Young’s understanding of the current status of compliance by Mr. Voong with the particular heads of disclosure ordered.
The Parties’ Respective Incomes
40Mr. Voong’s line 150 income before and since separation has ranged between approximately $70,000 – $80,000. While Ms. Vo. earned less during her three maternity leaves, prior to separation her line 150 income was around $80,000 and was trending higher. For the following reasons I will be imputing incomes to them both.
41Ms. Vo stopped working and went on stress leave shortly after separation. There is nothing before me to explain Ms. Vo’s diagnosis or prognosis.She has delivered a copy of an unsworn, brief letter from a doctor that spends more time blaming Mr. Voong than explaining the nature of Ms. Vo’s maladies. It is not admissible as either information and belief or expert evidence. Ms. Vo has also delivered some notes of therapists associated with her efforts to obtain short-term and long-term disability benefits. Her disclosure is short on details however. It is not clear if she remains on leave or if she has quit or been let go from work. Her long-term disability insurer has denied her benefits and she says it is due to a misunderstanding about her willingness to undergo pharmacological therapy.
42While I readily accept that stress can be debilitating, this is not necessarily so in all cases. Mental health is too nuanced an issue to draw on stereotypes or assumptions. I understand that if Ms. Vo were to return to work, she would incur added expenses for child care. But her obligation is to work toward self-sufficiency if she can and, absent better medical proof, I am not prepared to accept that she cannot work at all. She is young and a trained professional who worked throughout her marriage. In my view, she must be treated as under-employed and it seems to me that an imputation of 50% or $40,000 gross annual revenue strikes a reasonable balance of her concerns and her obligations. I note that absent medical proof, I would expect the percentage to trend upwards toward 100% soon.
43For the purposes of interim child and spousal support, I impute $40,000 to Ms. Vo for her income for 2018 and 2019.
44As to Mr. Voong, his line 150 income is grossly underreported. I am not concerned with how he moves funds around his companies for tax purposes. It is apparent that he has far more funds available to him for personal use than represented by his line 150 income.
45Once again, Ms. Vo has made a substantial effort to present documents and pictures to show the lavish lifestyle that the parties led. And once again, Mr. Voong’s response is largely bald denials.
46The parties lived in a house that they sold for more than $3 million in order to buy a big lot in a posh neighbourhood on which they proposed to custom-build a luxurious home. The land is now for sale for over $2 million. The photos belie Mr. Voong’s evidence that the parties’ former multi-million-dollar house was furnished on the cheap. He disclosed no documents to show that they bought used furniture as he alleges.
47The parties wore expensive clothes. They took frequent holidays away. The children wore expensive clothes and lacked for nothing. They attended a Montessori school until Mr. Voong indicated (post-separation) that he could no longer afford to send them. He says that he has borrowed from a friend to pay for school and he claims nearly $100,000 in debt to his friend on his financial statement. But, he has produced no documentation concerning the loan or its status.
48The couple entertained with very large and opulent parties frequently. Mr. Voong says that they were often for business purposes and much of the cost was defrayed with cash gifts from party guests. No details are provided. Business expenses should be fully tracked for tax purposes and should be simple to verify for example. Ms. Vo says that they utilized cash that Mr. Voong brought in from the spa business that he co-owned. As noted above, Mr. Voong denied owning any of the cash.
49At a prior case conference, the parties discussed Mr. Voong’s obligation to provide a valuation for his businesses and his income. His obligation to provide these valuations under the Family Law Rules is clear and does not require an order. Shortly after the case conference however, his counsel backed away from providing the evaluations. In his material for this motion, Mr. Voong proposes once again to retain a valuator and asks that there be no imputation of income pending the valuation. I am not content that this is appropriate in this case. Had Mr. Voong followed through with the valuation months ago, the court might now be able to review an independent valuator’s report. Moreover, given the apparent movement of assets and Mr. Voong’s simple assertions or denials of owning businesses that are or were apparently his, I doubt that a valuation performed on his voluntary disclosure of material to his own valuator would be of much use. Mr. Voong is making Ms. Vo go through the motions of unraveling layers of disclosure. Until the truthful core is illuminated, there is nothing for a valuator to value.
50Mr. Voong has travelled abroad many times recently. Some trips he says were for business. It is not clear why a company that builds homes sporadically in Toronto needs to send an officer abroad. In any event, there has been no disclosure of financial documentation to establish the business expenses associated with his trips.
51As mentioned previously, Mr. Voong has an antique sports car. He had a professional photo shoot of himself with it. He owns luxurious watches (including one given to him by Ms. Vo). His bank statements show very large amounts of money moving in and out regularly. He has not yet explained the sources or uses of these movements except one movement of over $500,000 that he has partly explained with limited back-up. Otherwise, he just baldly asserts that funds moved for business without showing corresponding ledgers, shareholder loan accounts, or any reconciliation of personal expenses that flowed through the businesses etc.
52Ms. Vo has done a significant amount of work creating draft budgets reconciling expenses shown in Mr. Voong’s bank accounts and credit card statements. She was not cross-examined. Mr. Voong’s counsel dismissed the documents as self-serving but made no real effort to try to disprove the math on the merits. Ms. Vo concludes that she and Mr. Voong were spending upwards of $40,000 per month of post-tax dollars. Some of that was for Mr. Voong’s legal fees associated with prior criminal charges that may not be recurring items. But it impossible to see the parties’ expenditures as documented by Ms. Vo without concluding that they lived far beyond their aggregate line 150 incomes.
53I am satisfied under ss. 19(1)(d) through (f) of the Federal Child Support Guidelines, Can-Reg 97-175, that it appears that Mr. Voong’s income has been diverted which would affect the level of support under the CSG, Mr. Voong’s property is not being reasonably utilized to generate income for him (as opposed to his siblings or others whom he says own the bulk of his businesses), and that Mr. Voong has failed to provide income information when under a legal obligation to do so in these proceedings. Accordingly, I am to impute such income as appears appropriate in the circumstances.
54Absent full disclosure from which income can be fairly calculated, I am left to infer Mr. Voong’s income from other sources. Lifestyle is not income per se. Rather, it is evidence from which an inference of income may be drawn. One must have money to spend it unless it is borrowed. Mr. Voong’s bald claims of recent borrowing without particulars or documentary support do not deal with the parties’ lifestyle while they were together. Inquiries into the sources of funds used by any alleged lenders to lend to Mr. Voong would be instructive. In any event, looking at the totality of the business operated by Mr. Voong, the lifestyle evidence and pictures that are not rebutted with any particularity, and the budget calculated by Ms. Vo, in my view, it is properly conservative at this early stage to impute income of $25,000 per month or $300,000 per year to Mr. Voong after tax and, again conservatively, $33,333 per month or $400,000 annually on a rough-and-ready grossed-up basis for support purposes for the years 2017, 2018, and 2019.
Interim Child Support
55Counsel are to agree on the table support payments generated by the relative incomes that I have imputed to the parties and prepare a draft order including the names and birthdates of the children for my signature accordingly. Mr. Voong shall pay that amount to Ms. Vo as interim child support on the first day of each month pending further order of the court. Section 7 expenses are to be shared ratably. Mr. Voong is not responsible to pay for any s.7 expense for events that fall on his access days and limit his access to the children unless he consented to them in advance unless ordered to do so.
56The children have attended Montessori schools throughout their schooling to date. The parties were considering sending their eldest child to Upper Canada College before they separated. The parties can afford a private elementary school education for the children and it is very much in the children’s best interest to stay at an excellent school and with their friends. In my view, it is both necessary and reasonable for these children to continue to attend at Montessori schools and that this is a proper s. 7 expense to be shared going forward for the upcoming and future school years pending further order of the court.
Interim Spousal Support
57The parties were together for about ten years and have three children. There is a great disparity between their incomes and their income potentials. Ms. Vo is entitled to spousal support on an interim basis to keep the parties relatively at the same standard of living that they enjoyed while together and to enable Ms. Vo to live appropriately while making efforts to deal with her health issues to return to greater economic self-sufficiency as soon as she able. Mr. Voong shall pay spousal support on an interim basis at the mid-level generated by the Spousal Support Advisory Guidelines at the imputed incomes ordered above on the first day of each month pending further order of the court.
Retroactivity
58I am not aware of any basis for Mr. Voong not to have started paying child and spousal support at least at the date he claims to have separated i.e. late November 2017. Ms. Vo’s need is clear. She has the children. She was evicted from her premises because Mr. Voong stopped paying rent (that he says he was borrowing). She and the children now live with Ms. Vo’s mother. Apart from his unverified claims that he does not own assets or have the proceeds of sold assets, there is no hardship caused to Mr. Voong specifically by making the orders retroactive. It may be that to make large payments, Mr. Voong will need access to a preserved asset. He will likely first have to show that the proceeds from all the assets sold since separation are not at his disposal despite possible payment to his family or friends as nominees or in trust for him. But, if Mr. Voong needs access to assets that are being held, his counsel should discuss the issue with counsel for Ms. Vo and, if necessary, at a case conference.
59Therefore, Mr. Voong’s obligations to pay interim child and spousal support shall be deemed to have commenced on December 1, 2017 with instalments due on the first of each month thereafter. In calculating arrears, Mr. Voong shall be credited with the payments that he has recently commenced making towards child support based on his line 150 income. Mr. Voong shall pay all arrears of child support and spousal support within 60 days. This order is without prejudice to Ms. Vo asserting an earlier date for retroactive child and spousal support at trial. A Support Deduction Order shall issue.
Interim Disbursements
60Interim disbursements may be ordered under Rule 24(18) of the Family Law Rules, O Reg 114/99. The payment is meant to level the playing field in the litigation. It is often referred to as an extraordinary order. Here, in his most recent financial statement, Mr. Vo admits to owning property of almost $3 million even omitting whatever assets he might have conveyed previously. Ms. Vo has minimal assets. Mr. Voong continues in business and lives a lifestyle including frequent travel abroad. Ms. Vo lives with her mother and three children and has no current source of income apart from Employment Insurance benefits. I have ordered that the parties share the cost of a s. 30 assessment. In addition, Ms. Vo is going to need to retain a valuator who will likely be required to perform an intensive, detailed forensic analysis on any valuation evidence put forward by Mr. Voong. Moreover, considering the available evidence suggesting that Mr. Voong beneficially owned his companies regardless of the date of separation, Ms. Vo has a strong prima facie entitlement to spousal support, child support, and equalization that may well be in the millions of dollars.
61Considering all the foregoing factors, this is an extraordinary case requiring extraordinary measures. It is necessary and just for Mr. Voong to provide a payment to help defray interim disbursements and legal costs to ensure that Ms. Vo can participate fully and fairly in this litigation. The need for this payment is exacerbated by Mr. Voong’s efforts to avoid proper disclosure that will drive up costs for them both and by his hard line on sharing the s.30 assessment costs that he knows Ms. Vo has no funds to pay.
62Mr. Voong shall therefore pay $100,000 to Ms. Vo within 30 days on account of interim disbursements and legal fees. Recoupment of this payment is to be considered in subsequent equalization payments or costs orders.
Preservation Orders
63The parties consent to the continuation of the preservation orders made by Kristjanson J. Helen and Michael Voong consent to the continuation of preservation orders against them. Justice Horkins also made a preservation order on June 26, 2019. It is continued as well.
64Ms. Vo asks for an order in the nature of a Mareva injunction restraining Mr. Voong from disposing of assets or removing assets from the jurisdiction pending trial. As discussed above, I am satisfied on the evidence currently before me that Ms. Vo has a strong prima facie case on the merits of child support, spousal support, and equalization. She will be irreparably harmed if Mr. Voong dissipates his assets. Ms. Vo has provided documentary evidence showing that Mr. Voong investigated establishing offshore accounts in Panama and Switzerland. He has produced some very carefully tailored, recent emails to show that he did not proceed with the incorporation of a specific company that he had previously inquired about. In giving evidence on this issue, Mr. Voong voluntarily disclosed the content of advice that he had received from his corporate lawyer. Mr. Matteazzi agreed that on this limited issue (foreign accounts) Mr. Voong waived lawyer client privilege. In light of Mr. Voong’s apparent asset dissipation, corporate restructuring, lack of transparent disclosure, and bald denials in face of documentary evidence that supports each of these concerns, I find it quite likely that Ms. Vo will be left with a pyrrhic victory unless an order is made to prevent Mr. Voong and anyone acting on his instructions or with knowledge of the order from disposing of assets pending trial. That is, she will suffer irreparable harm obtaining an uncollectable judgment unless an order is made on an interim basis. An order will therefore go in the form requested in paragraphs 22 to 26 of Ms. Vo’s Notice of Motion dated August 6, 2019 amended to add after the words “Respondent/Husband” in para. 22 and after the list of others in para. 23, the phrase “and anyone acting on their instructions or with knowledge of the order”.
65I understand that it is functionally necessary for a real estate development company to sell its projects once finished. The trust ledgers disclosed by Mr. Voong however show that sales proceeds have been immediately disbursed to others on prior closings. If Mr. Voong or any of the corporate respondents wish to sell a property going forward, they will need to propose a mechanism to ensure that the proceeds (net of bona fide, third party commissions and bona fide, normal adjustments) are paid into court or otherwise held securely pending trial.
Certificates of Pending Litigation
66In her amended application, Ms. Vo seeks orders setting aside transfers of real property from Mr. Voong or corporate respondents to others or declaring that Mr. Voong has beneficial interests in the properties. But Ms. Vo does not herself claim interests in the title to the lands. This is directly analogous to the situation where a commercial plaintiff sues a defendant and before obtaining judgment, claims against the defendant and another for a fraudulent conveyance that may undermine the plaintiff’s ability to enforce her judgment. In such circumstances, the court will consider the merits of the existing claim as well as the statutory test of whether there is an interest in the land in issue. There is always a consideration of the equities or the balance of convenience as well.
67I have already found that at this stage I am satisfied that Ms. Vo has a meritorious claim for child support, spousal support, and equalization at the least. Moreover, she has commenced a proceeding in which an interest in land is claimed as required by s.103 of the Courts of Justice Act, RSO 1990 c c.43. In light of my conclusion previously that Mr. Voong has created a risk of Ms. Vo being left with an unenforceable judgment, this is a proper case in which to grant leave to her to issue the certificates requested in paras. 27 through 29 of her Notice of Motion. As noted above, if Mr. Voong proposes a bona fide sale, it is a simple enough to ensure a process is instituted to control the proceeds and to obtain an order on consent or otherwise to do so. To that end, Ms. Vo has proposed such a process for the Northdale property in para. 30 of her Notice of Motion. I agree that it is an appropriate way to proceed and make the order requested in that paragraph.
Payment into Court
68In my view, it is premature to order a payment into court to secure Ms. Vo’s claims. It may be that further disclosure may disclose that there are sufficient funds held or sufficient equity in the assets preserved to satisfy Ms. Vo’s claims equitably. If assets have been removed from the jurisdiction or Mr. Voong has otherwise limited Ms. Vo’s and his children’s opportunities to obtain compensation to which they are entitled, different considerations may apply. Mr. Voong may want to offer to pay funds into court to secure the release of one or more preserved properties. This request is dismissed without prejudice to Ms. Vo to bring a motion for the same relief on further or better evidence later if so advised.
Mr. Voong’s request for Disclosure
69Mr. Voong asks for production of Ms. Vo’s complete medical records for the past three years, copies of all her medical costs, and the curriculum vitae of all medical practitioners who are or have provided counselling or treatment for her in the past three years.
70Mr. Voong is entitled to disclosure of documents to support Ms. Vo’s claim that she cannot work. However, medical and counselling documents are also subject to a very strong privacy interest. In my view, Mr. Voong has over-reached in his requests. There is no basis in the pleadings of which I am aware to make all Ms. Vo’s medical records available to Mr. Voong. That is indeed a fishing expedition to see what evidence they might contain. However, Ms. Vo has not been complete in her disclosure of documents relevant to her inability to work. She should disclose all documents between her and her employer and its LTD insurer to give a complete picture of what her current employment status is; why she says she cannot work; and what her employer and its insurer say in response. To the extent that she had disclosed medical records to the insurer or her employer, those records are to be disclosed (if they have not already been disclosed) to Mr. Voong.
71Ms. Vo is also required to produce invoices and payment information concerning any medical treatments for herself or the children that she claims as expenses in her financial statement. I was not told and do not see the relevancy of requiring production of her health professionals’ resumes at this point. If Ms. Vo puts forward expert evidence of a health professional, the rules concerning production associated with the experts’ report, including production of her or his resume, will apply.
Household Goods
72The parties gave very general and contradictory evidence concerning who has their household goods. I invited counsel to devise a process to go through an itemized listing of goods. It may be that an independent third party will need to be retained to take a view and see where each of the goods is located. There is no way on the evidence before me to know who has any particular items. This issue is adjourned to a case conference if the parties are unable to resolve it themselves.
Access to the Children
73Mr. Voong wants to have overnight access with the children on alternating weekends. The children are 7, 5, and 3 years old. Mr. Voong says that he was a very engaged parent with his children. He spent time with them on daily tasks. He played sports with them and taught them manners for example. He acknowledges that since separation the children have resided primarily with their mother.
74As a rule, the law encourages maximum contacts between both parents and the children regardless of the litigation conflict between the parents (unless it impacts the best interests of the children). Mr. Voong was discussing overnight access with Ms. Vo as long ago as last October. Some consent access terms were agreed upon before Horkins J. last March. It is apparent that Horkins J. encouraged the parties to continue working on expanding Mr. Voong’s access in the best interests of the children.
75Although Ms. Vo had not made any allegations of abuse in this proceeding previously, Mr. Voong was arrested on May 10, 2019 concerning allegations of violence against Ms. Vo that is said to have occurred in 2015 and 2017. Ms. Vo now makes serious allegations against Mr. Voong of physical violence, alcohol and steroid abuse, possession of illegal weapons, and inflicting fits of rage and other emotional abuse upon her.
76The parties dispute the reason why Mr. Voong has missed many scheduled access visits. It seems from the correspondence that he is not always consistent in attending and that Ms. Vo feels free to withhold the children or to schedule activities for them during Mr. Voong’s access times. Horkins J. required Mr. Voong to take the children to their activities during his access. She was working on an assumption that the parties were working toward expanding access. The arrest and allegations now being made by Ms. Vo came two months later.
77I am not prepared to make a finding that the allegations advanced by Ms. Vo are strategic or brought late. I make no assumptions about how or when a victim of domestic assault ought to come forward. Nor do I make any finding that the allegations occurred or did not occur. Mr. Voong is vehement in his denial of the allegations.
78After setting out his concerns and responses to Ms. Vo’s allegations in the section of his factum dealing with his request for access, Mr. Voong argues for the appointment of the Office of the Children’s Lawyer so that the children’s voices might be heard in this proceeding. Instead of looking to the OCL, as discussed above, the parties have consented to submit themselves and the children to a full s.30 assessment. I agree that considering the serious nature of the allegations made an assessment is a very worthwhile, productive, and healthy procedure in the best interests of the children and the parents. In light of the upcoming assessment however, it seems to me that I should not be altering the status quo and destabilizing the children’s or the parents’ living arrangements right before they all undergo an intensive and intrusive family assessment. Nor do I wish to make an order on partial information only to see the possibility of it being changed again in several months. Changes to the children’s arrangements and routine should be minimized.
79In my view, it is not in the best interests of the children to change the current access schedule yet. The only exception is that Ms. Vo is not to enroll the children in any new activities that are scheduled to occur during Mr. Voong’s access time during the day time on weekends except with his prior consent (which shall not be unreasonably withheld). Otherwise, I adjourn Mr. Voong’s motion to alter his access to a case conference following the delivery of the s.30 assessment subject to any intervening urgency as always.
Costs
Ms. Vo may deliver no more than five pages of costs submissions by September 13, 2019. Mr. Voong may deliver no more than five pages of costs submissions by September 30, 2019. Both parties shall deliver costs outlines. Either may also deliver any offers to settle on which they rely. This material shall be served and delivered to the court as searchable PDF attachments to an email to the Family Division Court office. No case law or statutory materials are to be delivered. Rather, references to statutory materials or case law, if any, shall be embedded as hyperlinks in the parties’ submissions.
F.L. Myers J.
Date: August 29, 2019
Numbered references in the left column refer to Exhibit “X” to the affidavit of Ms. Vo sworn August 16, 2019.
Document/Information
Personal Documents
Confirmation of all companies in which Peter Voong has an interest.
All trust documents/agreements or Nominee documents/agreements in which Peter Voong is a party.
List of current real estate development projects that Peter Voong is involved in.
Note: No information has been provided regarding the project with Linh My Tran.
Castleform Homes Inc.
11.
Cheque stubs from January 1, 2016 to present
Note: Confirmation is required that the stubs received for 2018 and 2019 to date are complete. No cheque stubs have been provided for 2016 and 2017.
All purchase and sale documents for the properties and assets of Castleform Homes Inc. from January 1, 2016 to present.
Note: These documents have been provided for 99 27th Street.
File with Flanagan Beresford & Patterson architects
17.
*All business contracts from 2015 to present
Castleform Holdings Inc.
Cheque stubs from January 1, 2016 to April 26, 2018
Note: Provided from April 27, 2018 to June 6, 2019
Details of any corporate reorganizations and a complete copy of the corporate Minute Books
Details of loan to criminal lawyer Christopher Tarach
23.
List of all properties/assets owned from January 1, 2016 and all purchase and sale documents for these properties
List of current projects
25.
All business contracts from 2015 to present
26.
Details of all shares held in corporation from 2015 to present
Castleform Imports Inc.
27.
Articles of Incorporation
Business Financial Statement for 2018
32.
Business Financial Statement for 2015
Tax Return and Assessment for 2018
35.
Tax Assessment for 2016
Tax Assessment for 2015
38.
All bank statements from January 1, 2016 to present
RBC Bank account *2696 from December 2017 to date.
US RBC Bank account *1052 from December 2017 to date
Confirmation required that the corporation only has the following bank accounts:
a. RBC *2696; and
b. US RBC *1052
43.
List of all corporations controlled by Castleform Imports Inc.
44.
List of all properties/assets owned from January 1, 2016 and all purchase and sale documents for these properties
List of current projects
All business contracts from 2015 to present
Details of all shares held by the corporation from 2015 to present
Castleform Developments Inc.
Details as to Mr. Voong’s ownership interest from 2015 to present, including details of any corporate reorganizations
Tax Return and Assessment for 2018
Note: 2018 Tax Return provided, 2018 NOA is outstanding
All bank statements from January 1, 2016 to present
Note: The following has been provided:
-Deposit slips from January 16, 2016-November 11, 2016
-Account statements RBC *4026 from January 2016 to December 2016
-RBC Account *6846 From December 2015 to March 2019
-TD Account *7675 from December 2015 to December 2016 and Feb 28, 2018 to March 2019
The following is outstanding:
-Deposit slips from November 11, 2016 to date
-Account statements for RBC *4026 from December 2016 to date
-TD Account *7675 from January 2017 to February 2018
- Confirmation that there are no other business bank accounts
All debt statements from January 1, 2016 to present
Note: The following has been provided:
-RBC Visa Account *9532 from December 2015 to April 2019
-RBC Visa Account *9540 from December 2015 to April 2019
-RBC LOC *4001 from January 2016 to March 2019
The following is outstanding:
-Confirmation that there are no other debts owed by the company
All applications for credit from January 1, 2016 to present
62.
Cheque stubs from January 1, 2016 to present
Note: The following has been provided:
- Cheque stubs from:
a. January 1, 2016 to December 31, 2016; and
b. January 1, 2018 to present
The following is outstanding:
- Cheque stubs for 2016, 2018 and 2019.
List of all corporations controlled by Castleform Imports Inc.
66.
List of current projects
All business contracts from 2015 to present
Details of all shares held in corporation from 2015 to January 1, 2017
2219880 Ontario Inc.
Articles of Incorporation
Details as to Mr. Voong’s ownership interest
Business Financial Statement for 2018
Business Financial Statement for 2017
73.
Business Financial Statement for 2016
Business Financial Statement for 2015
Tax Return and Assessment for 2018
Tax Return and Assessment for 2017
Tax Return and Assessment for 2016
Tax Return and Assessment for 2015
Detailed General Ledgers for 2015-2018
All bank statements from January 1, 2016 to present
All debt statements from January 1, 2016 to present
All applications for credit from January 1, 2016 to present
List of all properties/assets owned from January 1, 2016 and all purchase and sale documents for these properties
Details of Peter Voong’s involvement with 2219880
All business contracts with which business has an interest
Cheque stubs from January 1, 2016 to present (cheque stubs from 2018 already provided)
2502644 Ontario Inc.
List of all properties/assets owned from January 1, 2016 and all purchase and sale documents for these properties
2502645 Ontario Inc.
105.
Detailed General Ledgers for 2015-present
Note: The following has been provided:
- Dec/16 to Dec/18
The following is outstanding:
-Feb/16-Dec/16 General Ledger
-2019 General Ledger
106.
All bank statements from January 1, 2016 to present
Note: The following has been provided:
- RBC Account *3453 Feb/16 to Dec/17
The following is outstanding:
-Confirmation and evidence that the RBC Account *3453 is the only corporate account;
- All bank statements from RBC Account *3453 from December 2017 to date
All debt statements from January 1, 2016 to present
Note: The following has been provided:
- Visa Avion Statements *6860 and *6878 from Jun/16 to Dec/17
The following is outstanding:
-Confirmation that Visa Avion *6860 and *6878 are the only corporate accounts.
-Visa Avion Statements *6860 and *6878 from December 2017 to date.
All applications for credit from January 1, 2016 to present
List of all properties/assets owned from January 1, 2016 and all purchase and sale documents for these properties
Business contracts with other corporations from 2015 to present
Cheque stubs from January 1, 2016 to present
Note: The following has been provided:
- March 2016 to December 2017
The following is outstanding:
-Cheque stubs from December 2017 to present
Details of all shares held by the corporation from 2015 to present
2627814 Ontario Inc
Details as to Mr. Voong’s ownership interest
Business Financial Statement for 2017
Business Financial Statement for 2016
Business Financial Statement for 2015
Tax Return and Assessment for 2018
Tax Return and Assessment for 2017
Tax Return and Assessment for 2016
Tax Return and Assessment for 2015
Detailed General Ledgers for 2015-2018
All bank statements from January 1, 2016 to present
All debt statements from January 1, 2016 to present
All applications for credit from January 1, 2016 to present
List of all properties/assets owned from January 1, 2016 and all purchase and sale documents for these properties
Details of Peter Voong’s involvement with 2627814
List of all corporations owned by 2627814
List of all properties owned by 2627814 from January 1, 2016 to present and purchase and sale for these properties
All business contracts with which business has an interest
Cheque stubs from January 1, 2016 to December 31, 2017
Note: two cheque stubs have been provided for 2018 and 2019
2145662 Ontario Inc.
Business Financial Statement for 2017
Business Financial Statement for 2016
Business Financial Statement for 2015
Tax Return and Assessment for 2018
Tax Return and Assessment for 2017
Tax Return and Assessment for 2016
Tax Return and Assessment for 2015
Detailed General Ledges for 2015-2018
All bank statements from January 1, 2016 to December 2017
Note: the following has been provided:
-TD Business Chequing Acct No. 5208825 – statements from December 29, 2017 to March 29, 2019
All debt statements from January 1, 2016 to present
All applications for credit from January 1, 2016 to present
List of all properties/assets owned from January 1, 2016 and all purchase and sale documents for these properties (to date only 1270 Finch Ave West #14 – Agreement of Purchase and Sale provided, funds summary and mortgage agreement have been provided)
*Details of Peter Voong’s involvement with 2145662
List of all corporations owned by 2145662
List of all properties owned by 2145662 from January 1, 2016 to present and purchase and sale for these properties
All business contracts with which the business has an interest
Cheque stubs from January 1, 2016 to present
Note: The following has been provided:
-Cheque stubs for 2018
The following is outstanding:
-Cheque stubs from January 1, 2016 to December 31, 2017 and
-Cheque stubs from January 1, 2019 to present
Helen Voong/Peter Voong/Michael Voong
Income Tax Returns for Helen Voong with all schedules and Notices of Assessment from 2016 to present
Income Tax Returns for Michael Voong with all schedules and Notices of Assessment from 2016 to present
Peter Voong Personal
Police records
Copies of any charges, bail provisions, and convictions from 2015 to date.
Criminal Record check.
AS PER THE ORDER OF JUSTICE KRISTJANSON DATED APRIL 11, 2019
An accounting of the proceeds of sale, including expenses and disposition costs for the following properties:
99B Ninth St., Etobicoke
Partially Provided. No information is provided of where the proceeds of sale are currently held and the status of the proceeds.
163
99A Ninth St., Etobicoke
Partially Provided. No information is provided of where the proceeds of sale are currently held and the status of the proceeds.
164
28B Twenty First St, Etobicoke
Partially Provided. The reporting letter on the sale and the statement of adjustments for 28B Twenty First Street was not provided. No information is provided of where the proceeds of sale are currently held and the status of the proceeds.
28A Twenty First St. Etobicoke
Partially Provided. No information is provided of where the proceeds of sale are currently held and the status of the proceeds.
AS PER THE ORDER OF JUSTICE HORKINS DATED JUNE 26, 2019
Provide an accounting for his withdrawals from the LOC registered against Northdale with supporting documents
Note: The following has been provided:
-Line of credit statements and chequing account statements for Castleform Developments
The following is outstanding:
-Information regarding how the withdrawals from the line of credit registered against Northdale were used and if any of the funds remain, with supporting documentation
AS REQUESTED IN THE APPLICANT’S NOTICE OF MOTION:
An authorization and direction from Peter Voong directing Mr. Robert Kligerman to provide Ms. Vo’s counsel with a letter listing and enclosing copies of all corporate organizations, reorganizations, and equity transactions, from 2015 to present including, without limitation, all share transfers, and all trust agreements, nominee agreements, or other agreements involving the interest of any party to each transaction, in the possession, power, or control of Mr. Kligerman or his firm with respect to any corporate entities in which Peter Voong has or had a direct or indirect interest, including the effective date of each transaction identified and the date that the documents implementing each such transaction was executed by the parties thereto.
The following information with respect to Castleform Developments Inc, Castleform Holdings Inc., Castleform Homes Inc., Castleform Imports Inc., 2502644 Ontario Inc., and 2502645 Ontario Inc.:
Copies of the shareholder’s register;
Copies of any articles of amendment or amalgamation;
Any share restructuring and “step plan” reorganization documents prepared by a lawyer or accountant which document the reorganization transactions;
Copies of share certificates;
All share transfer documents;
All gifting documents;
A copy of the Minute Books of the corporations; and
An authorization and direction signed by Peter Voong allowing the Applicant to confirm the completeness of the documents provided above with Peter Voong’s corporate counsel, Robert Kligerman, or any other counsel that acted with respect to any corporate organizations or reorganizations.
An authorization and direction from Peter Voong directing Jeffrey Block and any other accountants that acted with respect to Peter Voong or corporations in which Peter Voong has a direct or indirect interest from 2015 to present, to release his (or her) files to the Applicant for corporations in which any of the parties have an interest from 2015 to present excepting only documents in the files over which Mr. Voong asserts lawyer client privilege. Any documents over which privilege is asserted shall be identified specifically by date, parties, subject matter, and the basis upon which privilege is applicable.
Schedule 50 to all tax returns previously provided be Peter Voong and confirmation in writing from Peter Voong’s accountant that these are the scheduled that were filed with CAR and no other schedules were prepared. In the alternative, an authorization and direction from Peter Voong consistent with the same.
Any trust agreement or nominee agreements in the Respondents’ possession or control and to which Peter Voong is a party, principal, or a beneficiary.
An Order that the Respondents Helen Voong and Peter Voong shall provide to the Applicant a full and complete accounting of the proceeds of 1270 Finch Avenue West, Unit 13, including, without limitation, what each of them did with any proceeds that they or the corporate owner of the unit received.
An Order that the Respondent, Peter Voong, sign an authorization and direction within 48 hours directing SFM Corporate Services to produce his complete file to the Applicant, Sandra Vo, including all correspondence, notes, and records, and details of any transactions involving Peter Voong or his affiliated corporations;
195.
An order for that the Respondent, Peter Voong provide the Applicant, Sandra Vo, a full and complete accounting tracing of the funds distributed from the sale of 244 Brockport Avenue, Toronto, Ontario, within 30 days;
An order that the Respondent, Peter Voong, will provide within 30 days:
a. A copy of the pages of the Respondent, Peter Voong’s current passport and flight itineraries for all flights (both domestic and international) taken by Peter Voong from May 2017 to present;
b. A list of all of the hotels that the Respondent, Peter Voong, has stayed at or booked with from May 2017 to present with a copy of the hotel confirmation;
c. Bank statements for the RBC Savings account no. *5476 for March to April 2017 and January to February 2019.
197
An Order that the Respondents, Helen Voong and Michael Voong, complete, serve and file a sworn Financial Statement (Form 13.1) within 30 days. The Respondents, Helen Voong and Michael Voong will not be required to complete the “date of marriage” column of the form but are required to complete the date of separation column as of May 10, 2017 and November 30, 2017 and the present value columns.
Footnotes
- Brandeis and the History of Transparency, online: Sunlight Foundation https://sunlightfoundation.com/2009/05/26/brandeis-and-the-history-of-transparency/
- There is no advice sought or received in these materials. Any discussions as to the benefits or risks of the proposed restructuring would be privileged. But a memo that simply shows the steps to implementation of the final structure is a factual description of transactions that occurred or were proposed to occur and does not seem to me to be privileged.