COURT FILE NO.: FC-16-1484
DATE: 2019/10/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lawrence Allen
Applicant
– and –
Linda Allen
Respondent
Sarah Kennedy, counsel for the Applicant
Greg St. Marie, counsel for the Respondent
HEARD: October 22, 2019 (at Ottawa)
Endorsement
SHELSTON, J
Overview
[1] The parties started living together in 1991and married on July 16, 1992. The parties do not agree on the date of separation, but it is either May or June 2016. There are no children of the marriage.
[2] On July 8, 2016, the applicant commenced this proceeding seeking a divorce order and corollary relief, including interim exclusive possession of the matrimonial home and its contents, an order restraining the respondent from attending within 500 metres of the matrimonial home, an order for the equalization of the net family property and costs.
[3] On July 13, 2016, the respondent was served with the pleadings, including a motion returnable the next day on July 14, 2016 seeking inter alia, interim exclusive possession of the matrimonial home and an order restraining the respondent from attending at the home.
[4] On July 14, 2016, the respondent did not attend the motion. The motion proceeded before Justice MacLeod who granted the applicant exclusive possession of the matrimonial home, restrained the respondent from attending at the matrimonial home, ordered the applicant to pay to the respondent spousal support of $5,872 per month commencing July 18, 2016 and on the 18^th^ day of every month thereafter and that a copy of the order and the applicant’s supporting affidavit be sent to the Public Guardian and Trustee for possible investigation.
[5] The respondent was in the hospital on July 14, 2016. She did not vacate the matrimonial home. She was forcibly removed from the matrimonial home by the Ottawa Police Service on July 16, 2016. She suffers from mental health issues including depression. She did not retain a lawyer until October 14, 2016. She states that due to her mental health issues, she was not able to file her Answer until February 17, 2017.
[6] On June 21, 2017, the parties attended a case conference before Master Champagne (as she then was) where the Master addressed various issues, including pleadings, motions, disclosure, and reserved costs. In addition, on a without prejudice basis, Master Champagne ordered that the applicant not change the current health care benefits being provided to the respondent until a motion is heard.
[7] On July 22, 2019, the respondent served her notice of motion. The matter was adjourned from September 5, 2019 to October 22, 2019.
Consent matters
[8] At the motion, the parties consented to the following orders:
(a) leave is granted to the respondent to seek relief as set out in the Supplementary Notice of Motion, Continuing Record (C.R.) Vol. 4, Tab 1, returnable this day;
(b) leave is granted to the respondent to file her Amended Answer by November 1, 2019; and
(c) the applicant shall continue to designate the respondent as the irrevocable beneficiary of the life insurance coverage that he had in place up to the date of separation, namely:
(i) London Life Policy No. K079310t—owned by Lawrence Allen, beneficiary Linda Allen, face value $750,000; and
(ii) TD Term Life, policy No. 10014699—owned by Lawrence Allen, beneficiary Linda Allen, face value $150,000; and
and the applicant shall pay the premiums as they fall due and otherwise maintain the policy in good standing, pending further order of the court. The applicant shall provide to the respondent documentary proof of the beneficiary designation with regard to each policy, within 15 days of the order herein.
Contested issues
Disclosure
[9] On June 20, 2019, August 29, 2019 and October 1, 2019, counsel for the respondent wrote three letters to counsel for the applicant requesting specific financial disclosure. None of the disclosure was provided.
[10] In reply to the failure to provide the financial disclosure, the applicant submits that he has provided the disclosure required of him but that the respondent has refused to comply with the process and finalize the matter. In submissions, the applicant’s counsel stated that she had provided volumes of disclosure without any response from the respondent.
[11] In the notice of motion and supplemental notice of motion, there was no claim for the disclosure of the requested information set out in the three letters. However, in her affidavit dated October 16, 2019 and her factum dated October 17, 2019, the respondent raised the issue of the applicant’s noncompliance with the respondent’s disclosure request. The respondent did not amend her notice of motion but served a motion confirmation form identifying the disclosure as one of the contested issues for the motion.
[12] In his reply affidavit dated October 17, 2019, the applicant provided a copy of his 2018 income tax return and notice of assessment but did not address the request for disclosure set out in the three letters. Counsel for the applicant indicates that she is more than ready to answer any reasonable requests for disclosure.
[13] The applicant was on notice before the return date of the motion that the disclosure was an issue that needed to be addressed. Despite being on such notice, the applicant did not provide the remaining disclosure.
[14] The production of financial disclosure is a fundamental principle in family law. The disclosure requested by the respondent was reasonable, proportional and relevant. It should have been provided. If the applicant had concerns that the respondent was not fulfilling her obligations for disclosure, he could have brought his own motion. This issue should have been resolved before the motion date.
[15] I order the applicant to provide to the respondent the following disclosures by December 6, 2019:
(a) the full particulars of the transaction with regard to the disposition of shares and 417 Automotive Inc., as indicated on Schedule 3—capital gains of the applicant’s 2018 T1 General Income Tax return;
(b) his 2017 T1 General, as filed, with his 2017 Notice of Assessment;
(c) his 2016 T1 General, as filed;
(d) the 417 Automotive Imports Inc. Financial Statements for December 31, 2017 and 2018;
(e) Platinum Car Care Inc. Financial statements for December 31, 2017 and 2018;
(f) if the applicant has become a shareholder in any other companies or partner in business, since June 2016, then particulars and copies of the financial statements for those businesses for 2016, 2017 and 2018; and
(g) a valuation of his Ford Pension Benefits accumulated over the course of the marriage.
[16] At the motion, the respondent requested that the applicant provide a valuation of her interest in Lindaco. I order that such valuation to be provided by December 6, 2019.
Release of $231,450 held in trust by Mann Lawyers LLP
[17] In 2018, the respondent entered into an agreement to redeem her shares in Ottawa Automotive Wholesalers. The respondent received $115,725.31 on December 10, 2018 and a second payment of $115,725.31 received on January 7, 2019. These funds have been retained by Mann Lawyers in trust pending release.
[18] In 2018, the respondent’s income was $239,691.49 of which $134,240.49 was related to the payment of the respondent’s dividends received by the redemption of her shares, $70,464 regarding spousal support and $34,987 related to her cashing in an RRSP.
[19] On March 13, 2019, the respondent’s counsel wrote to counsel for the applicant requesting the release of $115,725.31 to pay specific disbursements totaling $116,547. By letter dated April 12, 2019, the applicant’s counsel proposed that the sum of $22,586 be released as that was the income tax payable on the non-eligible dividend income received by the respondent in 2018.
[20] The respondent states that she owes in excess of $227,047, including $64,854 to the Canada Revenue Agency for the year 2018, anticipated income tax in the amount of $49,196 based on receiving the second instalment of her dividend payout, $26,566.88 to Burke Robertson LLP for unbilled legal fees, disbursements and taxes, $38,769.32 to Mann Lawyers LLP for unbilled legal fees, disbursements and taxes as of June 15, 2019, unbilled amounts to her expert on financial issues, anticipated cost of $8000 for the valuation of the Lindaco, $15,000 to bring the financial statements of Lindaco into good standing and to bring the corporate filings with Canada Revenue Agency into good standings and credit card debt.
[21] During the argument, counsel for the respondent admitted that his client did not make any quarterly instalments on the spousal support received in 2018. There was no motion brought in 2018 to vary the spousal support.
[22] The applicant submits that as of October 17, 2018, the respondent received $229,008 as spousal support since July 2016, $50,000 from the applicant’s father’s estate and $22,586 to pay the income tax on the non-eligible dividend income. During the motion, counsel for the respondent advised that the sum of $22,586 was not released.
[23] In the respondent’s affidavit dated June 20, 2019, she indicated she was not able to access the $50,000 left to her in the applicant’s father’s will. However, the respondent received the $50,000 sometime after June 20, 2019. The respondent did not deny that once she received those funds, the litigation was resumed. In support of that finding, on June 26, 2019, counsel for the respondent sent an email to counsel for the applicant requesting a date for a long motion. On June 27, 2019, counsel for the applicant inquired about the purpose of the motion. On July 16, 2019, counsel for the respondent indicated that the motion was to change various aspects of the order of Justice MacLeod. No further information was given. The materials were served on July 22, 2019.
[24] The respondent has not brought a motion for interim disbursements. She has requested the release of all the funds being held in trust to pay her various expenses some actual and some deferred. I am troubled by the failure of the respondent to pay the quarterly instalments on the spousal support. By failing to do so, she effectively received $70,000 tax-free. If the respondent had insufficient income, she should have brought a motion before July 2019. While the respondent has received $50,000 from the estate, she has not provided any evidence as to what she has done with those funds.
[25] According to a comparison of the net family property statements filed by the respondent as of May 24, 2019, her position is that the applicant owes her $221,138.48 as an equalization payment, while the applicant’s position is, according to the respondent, that the respondent owes the applicant $37,431.11. There is no draft net family property statement provided by the applicant.
[26] Further, the parties differ on the value of the jointly owned matrimonial home. The applicant submits that the value is $690,000 while the respondent indicates the value is $750,000. The matrimonial home is indebted to a mortgage and secured line of credit of approximately $420,000 resulting in an equity of about $280,000 or $140,000 for each party.
[27] The applicant submits that there are significant difficulties with the respondent’s calculation of the equalization. He submits that the respondent fails to consider approximately $775,000 of real property owned on the date of marriage as well as the failure of the respondent to include various assets such as the value of horses, the value of an English bulldog and the value of jewelry.
[28] During submissions, counsel for the applicant conceded that the applicant has no documentary evidence to support the value of the real property alleged to be valued $775,000 on the date of marriage.
[29] The respondent states that she is being hounded by the Canada Revenue Agency to pay her income tax owed of $64,864 for 2018 and that the current balance is approximately $68,000.
[30] In arriving at my decision, I have balanced the positions of the parties and any potential prejudice to the applicant if some or all of the funds were released. At this stage of the litigation, I cannot make findings of fact regarding the value of the parties’ assets and liabilities that form the calculation of the net family property calculation. The applicant has not provided a draft net family property statement to indicate what potentially the equalization payment would be owed by the respondent to the applicant. Further, the applicant submits that he doubts that disbursing any funds to the respondent would serve her purpose of allowing her to proceed with her claim in bringing finality to this situation. He indicates he is quite confident that doing so will almost inevitably serve to ensure that he could not recover an equalization payment the respondent may be owing, or recover the amounts owing by the respondent towards the payment of the shared liabilities.
[31] Considering all these factors, I order that the sum of $68,000 be paid from the funds being held by Mann Lawyers LLP directly to the Canada Revenue Agency on account of the respondent’s income tax owing for the year 2018. The balance of the funds is to be held in trust to be released by the consent of the parties or further order of this Court.
Respondent’s request to set aside the order of Justice MacLeod dated July 14, 2016 which provided that a copy of the order and the applicant’s affidavit be served on the Public Guardian and Trustee
[32] Upon a review of the handwritten endorsement of Justice MacLeod and the notice of motion and affidavit material presented to him on July 14, 2016, I find that it was Justice MacLeod of his own initiative who requested a copy of the order and that the applicant’s affidavit be served to the Public Guardian and Trustee. I find that Ms. Kennedy complied with the request and submitted the information to the Public Guardian and Trustee and no further action was taken.
[33] The respondent’s request is denied.
Respondent’s request to set aside the order of Justice MacLeod dated July 14, 2016 granting the applicant exclusive possession of the matrimonial
[34] The order of July 14, 2016 was made on notice to the respondent, however, the respondent was in the hospital. Despite becoming aware of the existence of the order by Justice MacLeod, the respondent has not moved to set aside that order until she served her motion materials on July 22, 2019, three years later.
[35] In the intervening three years, the parties attended a case conference before the Master on June 21, 2017. One of the orders made at that conference is of particular relevance to the issue of setting aside the order of Justice MacLeod. On consent, the parties agreed at paragraph 4 that:
any of the parties shall be entitled to bring motions on the issues of severance, disputed items of disclosure, spousal support, preservation of assets or the disposition of Corporation A.
[36] There is no discussion of a motion to set aside the order granting the applicant exclusive possession of the matrimonial home. The respondent submits that the order for exclusive possession should be set aside because there has been a material change in circumstances by the passage of time and there is no longer an urgency for the applicant to be granted exclusive possession of the matrimonial home and it is fundamentally unfair to the respondent. Further, this is not a case where the possession of the matrimonial home is tied to the custody of the children. There are no children in this case.
[37] The applicant submits there has been no change in circumstance that requires the court to terminate the order for exclusive possession.
[38] Today, the respondent lives in a small apartment outside of Ottawa. She has her own accommodations. She pled guilty to one charge of disobeying a court order on March 13, 2017 and was granted a conditional discharge. On August 27, 2019, a recognizance of bail was issued for the respondent which included a provision that she was not to attend at the matrimonial home and not have contact or communicate in any way either directly or indirectly with the various individuals, including the applicant.
[39] There is evidence that the respondent has acted inappropriately since the separation with respect to the matrimonial home. The matrimonial home is a significant asset in the parties’ equalization calculation. Since separation the applicant has maintained the property and paid all expenses related thereto.
[40] I have also considered that since June 2017, the respondent has not advanced this litigation. Further, she has had over three years to bring a motion to challenge the exclusive possession of the matrimonial home. While I accept that the respondent has confronted significant mental health issues, she still is responsible for her conduct in this litigation.
[41] During submissions, I indicated to the parties that this litigation must conclude either by agreement or judgment of this court. I indicated that I would place this matter on the May 2020 trial sittings, approximately seven months from today.
[42] Considering that the applicant has been in exclusive possession of the matrimonial home since July 2016, that the respondent has her own residence, that the applicant has assumed all expenses with respect to the matrimonial home, that this matter will be tried in May 2020, that the respondent has not requested that she have exclusive possession of the matrimonial home, I dismiss the respondent’s request to terminate the applicant’s exclusive possession of the matrimonial home.
Respondent’s request to set aside the restraining order
[43] Since the order of Justice MacLeod on July 14, 2016, there have been two incidents that have required police intervention and have resulted in criminal charges against the respondent. In both instances, the respondent’s conduct leading to these criminal charges was directed towards the applicant.
[44] Currently, the respondent is subject to bail conditions which prevent her from going to the matrimonial home or to contact directly or indirectly with various individuals, including the applicant.
[45] In the circumstances, this request is denied.
Respondent’s request for the partition and sale of the matrimonial home
[46] The respondent seeks an order that the matrimonial home be listed for sale. The respondent submits that if the order is obtained, the parties will retain the services of a real estate agent to determine the listing price. The applicant opposes any such sale.
[47] A joint owner of property has a prima facie right to partition and sale pursuant to section 2 of the Partition Act.
[48] In Chaudry v. Chaudry 2012 ONSC 2149 Justice MacKinnon ordered the sale of the matrimonial home where the occupant wished to retain the home that she shared with her 33-year-old son diagnosed with schizophrenia. The occupant argued, inter alia, that with the equalization due to her and other adjustments for retroactive support and that she would be in a position to set off the respondent’s interest in the home against amounts due and owing to her. Justice MacKinnon adopted the dicta of Justice McGee in Goldman v. Kudeyla regarding the legal test to be met on a motion for partition and sale as follows:
21 In Goldman v. Kudeyla, 2011 ONSC 2718, 5 R.F.L. (7th) 149, McGee J. provides a helpful summary of the law with respect to judicial order for sale prior to trial. She states at paras. 17, 18 and 19:
17 A property owner, whether the holder of an exclusive interest or a joint interest has a prima facie right to sale. When the property consists of an interest in a matrimonial home, that prima facie right is subject to any competing interests under the Family Law Act that would otherwise be defeated.
18 To make a pre-trial order for the sale of a matrimonial home the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails. If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.
19 There have been a number of cases in which the Court has denied an interim motion for sale prior to trial such as Arlow v. Arlow (1990), 1991 CanLII 12940 (ON CA), 33 R.F.L. (3rd) 44 (OCA,) Walters v. Walters, 1992 CanLII 8599 (ON SCDC), [1992] O.J. No. 1564, 1992 CarswellOnt 811 and more recently, Kereluk v. Kereluk, 2004 CanLII 34595, Ontario S.C.J. In each case there were compelling circumstances in which one or both tests favoured the resisting party, such as the availability of trial within a short period, prejudice on the equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause.
[49] Further, Justice MacKinnon stated at paragraph 22
22 … There is judicial authority for the proposition that an order for sale of jointly owned property ought not to be made before trial when there is a substantial right in relation to property to be tried, and that determination of the equalization payment may be such an issue: Walters v Walters 1992 CanLII 8599 (ON SCDC), 1992 O.J. No 1564(Ont. Gen. Div.), 1992 CarswellOnt 811(Ont. Gen. Div.) and Kereluk v Kereluk 2004 CanLII 34595 (ON SC), 2004, 9 R.F.L. (6^th^) 385, 2004 CarswellOnt 4332 (Ont. S.C.J.).
[50] In McInnes v. McInnes, 2017, ONSC 3921, Justice Mitrow ordered the sale of a jointly-owned matrimonial home where the opposing party had exclusive possession of the property for three years and stated at paragraph 43:
43 The applicant, as joint owner, has a prima facie right to a sale of the matrimonial home. The evidentiary record discloses no genuine issue that requires a trial in relation to the applicant's motion for sale of the matrimonial home. The evidence does not establish that the respondent has a prima facie case entitling her to a competing interest under the Family Law Act. There is no basis at trial for an order of exclusive possession, especially considering the length of time that the respondent has already resided in the matrimonial home subsequent to separation. Further, this is not a case where the respondent can obtain an order under s. 9(1)(d) requiring a transfer of the applicant's interest in the matrimonial home to satisfy an equalization payment.
[51] In Crew v. Bradford, 2018 ONSC, Justice McDermott ordered the sale of the matrimonial home despite an issue regarding the ownership where the parties had been in litigation for three years and were residing in the home together. Justice McDermott made the following comments regarding the factors to consider on a motion under the Partition and Sale Act at paragraph 15:
15 The case law generally favours an order for partition and sale of a home by a cotenant unless the opposing party can demonstrate prejudice. The onus is generally on the party resisting the sale to show prejudice, and that has been defined as being malicious, vexatious or oppressive conduct by the moving party seeking the sale. That type of conduct is essentially bad faith conduct involving some sort of hidden agenda or purpose connected to the request for a sale of the property: see Akman v. Burshtein, [2009] O.J. No. 1499 (Ont. S.C.J.) at para. 38. The standard of malicious, vexatious or oppressive conduct has been confirmed by the Court of Appeal in Latcham v. Latcham (2002), 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont. C.A.) where the court confirmed the high threshold required to resist the sale of a home as follows [at para. 2]:
That standard, as the Divisional Court noted, was reaffirmed by this court in Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (Ont. C.A.) and requires malicious, vexatious or oppressive conduct. This narrow standard for the exercise of discretion flows from a joint owner's prima facie right to partition.
[52] The applicant opposes the partition and sale of the matrimonial home based on the following:
(a) the partition and sale is not warranted or even appropriate because the applicant has had exclusive possession for three years;
(b) since separation, he has paid for the repairs to the matrimonial home based on damages caused by the respondent and has paid the mortgage, insurance, property taxes and utilities without contribution by the respondent;
(c) only he should remain in the matrimonial home until it is sold because the respondent cannot act in a manner that maximizes profit from the home for both parties;
(d) until the equalization process has been concluded, he cannot decide whether he wishes to purchase the respondent’s interest in the home or not;
(e) even if the home was sold, the proceeds of sale would likely represent a further accumulation of funds held in trust following a final determined as to equalization; and
(f) selling the matrimonial home would prejudice his position.
[53] I find as follows:
(a) the applicant has not established that he has a prima facie case entitling him to a competing interest under the Family Law Act;
(b) in the applicant’s application, he sought interim exclusive possession of the matrimonial home. There is no basis at trial for an order granting the applicant permanent exclusive possession. The basis for the order of Justice MacLeod of July 14, 2016 was based on very serious allegations raised against the respondent. Today the respondent’s bail conditions prevent her from going to the matrimonial home;
(c) the applicant has not provided evidence that he will be entitled to an equalization payment from the respondent beyond the respondent’s share of the net equity of the matrimonial home; and
(d) the applicant has not met his onus that the sale will prejudice him and has not provided evidence that the respondent’s request is malicious, vexatious or oppressive by seeking the sale.
[54] Consequently, I order that the matrimonial home located at 3098 Barlow Crescent, Dunn Robin Ontario, K0A 1T0, be listed forthwith and sold under the following conditions:
(a) the parties shall jointly select a real estate agent as the listing agent by October 31, 2019;
(b) the listing agent shall have access to the matrimonial home upon 24 hours notice to the applicant or such other length of notice as agreed to by the applicant and the listing agent for the purpose of inspecting the matrimonial home to determine the listing price, to conduct an open house, or to allow prospective purchasers to view the matrimonial home;
(c) the applicant shall maintain payments for all of the expenses related to the matrimonial home until it sold and shall maintain the matrimonial home in a reasonable state necessary for its sale as requested by the listing agent;
(d) the parties shall promptly sign the listing agreement and any other documents reasonably required by the listing agent or the lawyer acting on the sale;
(e) the applicant shall have exclusive possession of the matrimonial home and contents until its sale;
(f) the proceeds of sale of the matrimonial home shall be dispersed as follows:
(i) to the payment of the reasonable real estate commission;
(ii) to the payment of the reasonable legal fees related to the sale; and
(iii) to the payment of the outstanding mortgage and two secured lines of credit; and
(g) the balance to be held in trust pending further order of this court or pending further written direction signed by the parties. The balance of funds shall be held in trust by the lawyer on the sale of the matrimonial home, but the parties may direct another lawyer, or lawyers, the retain the net proceeds of sale in trust.
[55] If the parties cannot agree on the listing agent, listing price or any issue regarding listing the matrimonial home for sale, the parties may schedule a hearing before me through the trial coordinator’s office.
The respondent’s request to increase the spousal support from $5,078 per month to $8,039 per month commencing September 18, 2019
[56] When Justice MacLeod made his order for spousal support on July 14, 2016, he did so based on the submission that the applicant earned $167,777 a year and that that the midrange of the spousal support of $5,078 per month was appropriate.
[57] Today, the respondent seeks an increase in the spousal support to $8,039 per month being the midrange of support based on the applicant’s annual income of $220,491.
[58] The respondent argues that based on the material change in circumstances whereby the respondent’s income has increased from $167,777 to $220,491, the monthly spousal support should be increased is $8,039 per month.
[59] The applicant concedes that the respondent has a prima facie entitlement to spousal support and that the support should be increased as of October 2019 to $6,800 per month being the amount set out in the respondent’s notice of motion.
[60] The respondent did not file an amended notice of motion revising the quantum of spousal support yet in her factum sought spousal support in the amount of $8,039. The applicant argues that the court should be restricted to the amount set out in the notice of motion of $6,800.
[61] The proper procedure was for the respondent to file an amended notice of motion to marry the request of the spousal support in the factum to the amount claimed in the notice of motion. However, I do not find that the failure of the respondent to do so has caused any prejudice to the applicant. After receiving the respondent’s factum, the applicant was on the notice that the respondent was seeking $8,039 per month.
[62] Both parties agree that the spousal support should be increased. They disagree on the amount.
[63] I find there has been a material change in circumstances in that the applicant’s income has increased from $167,777 to $220,491. The applicant did not provide any DivorceMate calculations. I have reviewed the DivorceMate calculation provided by the respondent and have considered the net disposable income of the parties based on the low end and the mid-range of the Spousal Support Advisory Guidelines (SSAG). Utilizing the low range of the SSAG of $6,890 per month would allow the applicant to have 59.4% of the net disposable income (“NDI”) and the respondent with 40.6%. Using the mid-range amount in the SSAG would allow the applicant to retain 54.1% and the respondent 45.9% of the NDI.
[64] I have considered that this is an order for temporary support and that the trial will take place in May 2020. Further, the trial judge will be able to have a more fulsome financial record to determine the amount and commencement date of spousal support. I note that in the respondent’s Answer, she seeks the commencement of spousal support as of July 18, 2016.
[65] Considering all factors, I order the applicant to pay the respondent the sum of $6,890 per month starting on the 18^th^ day of September 2019 and on the 18^th^ day of each subsequent month pending further order of the court.
Respondent’s requests that the applicant maintain the health care benefits set out in the order of Master Champagne dated June 21, 2017
[66] The applicant, at the date of the case conference on June 21, 2017, agreed to maintain the above-noted health care benefits for the respondent. During submissions, the respondent indicated that the four plans remain in place except the Cost Plus Plan with Equitable Life.
[67] The applicant indicated that he and his business partner agreed that the respondent will no longer be entitled to such coverage as he considered her to be no longer his spouse. The applicant is in error as to his marital status. He still is married and under the law the respondent is still his spouse.
[68] As such, I order the applicant to maintain the respondent as the beneficiary of the four plans that were set out in the order of Master Champagne dated June 21, 2017.
Procedural matters
[69] This matter is placed on the May 2020 trial sittings. By November 1, 2019, the parties are to set a date for a settlement conference to be conducted no later than February 28, 2020 and a trial management conference to be conducted no later than March 31, 2020.
Costs
[70] I direct the parties to attempt to resolve the issue of costs by November 1, 2019. If they cannot resolve the issue, the respondent may provide her cost submissions not to exceed three pages plus a detailed bill of costs and any offers to settle by November 8, 2019. The applicant is to provide his cost submissions not to exceed three pages plus a detailed bill of costs and any offers to settle by November 15, 2019. The respondent may file a reply submission not to exceed two pages by November 22, 2019.
Shelston J.
Released: October 25, 2019
COURT FILE NO.: FC-16-1484
DATE: 2019/10/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lawrence Allen
Applicant
– and –
Linda Allen
Respondent
ENDORSEMENT
Shelston J.
Released: October 25, 2019