COURT FILE NO.: 435/17
DATE: 2019 03 01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Stacey Lynn Kraemer, Applicant
AND:
Lawrence Francis Kraemer, Respondent
BEFORE: Justice G.D. Lemon
COUNSEL: Ms. Diana M. Piccoli, Counsel for the Applicant
Mr. Patrick Kraemer, Counsel for the Respondent
HEARD: February 4, 2019
ENDORSEMENT
The Issue
[1] Ms. Kraemer seeks an order that:
- Mr. Kraemer shall provide answers to all Undertakings given at his questioning held on September 20, 2018, within 15 days as follows:
(a) Best efforts to produce a copy of the balance sheet, including detailed Quickbooks summaries for all the business bank accounts, business balance sheet accounts and revenue accounts for Made You Look Designs for fiscal years 2015, 2016, 2017 and ongoing;
(b) Advise if Made You Look Designs invoices 1760, 1761 and 1762 exist, and if so, to produce same. If the invoices do not exist to disclose what record exists within Quickbooks summaries for all accounts for 2017 onwards;
(c) Provide an up to date financial statement for 2017 and 2018 with respect to Made You Look Designs, including balance sheet and statement of earnings with detailed Quickbooks summaries for all counts for 2017 onwards;
(d) To review Tabs 30 to 35 of the applicant’s affidavit of documents, sworn July 5, 2018, and advise if Mr. Kraemer agrees with the list of expenses paid.
- Mr. Kraemer shall answer those matters taken under advisement at his questioning, held on September 20, 2018, within 15 days unless otherwise stated;
(a) Advise where the children were sleeping during the period of time from January 22, 2016, until Mr. Kraemer moved in October 2017;
(b) Advise how often Mr. Kraemer was at the matrimonial home in the evenings from January 22, 2016, to October 1, 2017;
(c) Advise of the amount Mr. Kraemer is seeking by way of occupation rent and provide documentary evidence to support the amount;
(d) Produce an accounting and reconciliation of all expenses Mr. Kraemer paid for in respect of the matrimonial home from the date of separation to current and ongoing until the date of trial;
(e) Produce an appraisal for the matrimonial home;
(f) Produce a copy of the opinion of value for the matrimonial home that was prepared by Paul Martin;
(g) Advise what evidence Mr. Kraemer is relying on in support of his position that the contents of the matrimonial home have a value of $30,000.00;
(h) Produce a list of what items/contents Mr. Kraemer has taken from the matrimonial home together with an estimated value;
(i) Advise the estimated value Mr. Kraemer states the items/contents left at the matrimonial home have;
(j) Produce a list of assets of Mr. Kraemer’s company, Made You Look Designs, as at the date of separation being September 29, 2015;
(k) Produce the invoice for the purchase of the printer that Mr. Kraemer’s company, Made You Look Designs, owns;
(l) Produce the invoice for the purchase of the laminator that Mr. Kraemer’s company, Made You Look Designs, owns;
(m) Produce any documentation showing the assets owned by Mr. Kraemer’s business, Made You Look Designs, at the date of separation and any documentary evidence setting out the value of those assets;
(n) Advise the average number of hours that Mr. Kraemer works in one week or in one month;
(o) Advise if Mr. Kraemer agrees that the applicant made the payments in respect of section 7 expenses listed at paragraph 39 of her application, being section 7 expense from September 29, 2015, to October 11, 2017, (signing of the application), and that Mr. Kraemer did not contribute to those expenses;
(p) Advise if Mr. Kraemer agrees that the items listed at Tab 33 of the applicant’s Amended Certificate of Financial Disclosure were gifted solely to the applicant;
(q) Provide evidence supporting Mr. Kraemer’s entry on his Financial Statement that he pays $120.00 per month for the purchase of clothing for the children;
(r) Advise how much Mr. Kraemer is spending on hockey for himself.
- Mr. Kraemer shall answer those matters refused at his questioning, held September 20, 2018, within 15 days:
(a) Advise how much Mr. Kraemer spent on groceries when the children were in his care in 2016, 2017 and from January to June, 2018;
(b) Advise whether Mr. Kraemer indicated to his accounting firm in 2017 that the parties had shared care of the children;
(c) Produce a copy of the calendar Mr. Kraemer uses for his business purposes from the date of separation, being September 29, 2015, to current;
(d) To provide an authorization that the applicant’s counsel may speak with and obtain information from Mr. Kraemer’s bookkeeper;
(e) To ask Mr. Kraemer’s accountant to provide an explanation as to what the “sales and other revenue” line represents on each of the Made You Look Designs HST tax summary reports.
Mr. Kraemer shall obtain, at his sole expense, an income report setting out his income for support purposes for the years 2015, 2016, 2017, 2018 and that same be provided to Ms. Kraemer within 60 days.
Mr. Kraemer shall obtain, at his sole expense, a valuation of his business interests from a certified business valuator, and that same be provided to Ms. Kraemer within 60 days.
Background
[2] The parties married June 9, 2001 and separated September 29, 2015. They have three children, ages 15, 13, and 8.
[3] Ms. Kraemer’s Application was issued October 19, 2017. Mr. Kraemer filed his Answer November 24, 2017.
[4] In her Application, Ms. Kraemer seeks a divorce, child support, custody and access to the children, equalization of the net family property, exclusive possession of the home and its contents and a variety of other lesser claims.
[5] In his Answer, Mr. Kraemer seeks a divorce, spousal support, child support, custody and access to the children, equalization of the net family property, exclusive possession of the contents of the matrimonial home and the sale of the property. He seeks an accounting and reconciliation of expenses and carrying costs for the matrimonial home along with occupation rent. He also asks that the applicant pay him rent with respect to the matrimonial home.
[6] Both parties claim s. 7 expenses with respect to the children.
[7] Of particular concern is the value of Mr. Kraemer’s business and his income. He submits that he earned, on average, approximately $48,000 for the relevant years while Ms. Kraemer submits that, taking into consideration his cash and bartered income, along with expenses improperly deducted, he earns in excess of $100,000. Ms. Kraemer earns approximately $140,000. The calculation of Mr. Kraemer’s income will therefore affect all of the various support claims of both parties.
[8] An added issue between the parties is a dispute as to who had custody of the children for a period of more than a year after separation. That will affect the calculation of retroactive support arrears.
[9] Mr. Kraemer was questioned on his pleadings on September 20, 2018. Mr. Kraemer gave a number of undertakings; however, the answers were not forthcoming.
[10] This motion was then brought returnable December 4, 2018, and adjourned to February 4, 2019, before me. At the time that the motion was served and filed, Mr. Kraemer had not provided any of his undertakings. It appears from submissions that he provided some of the answers on December 17, 2018.
Undertakings
[11] Mr. Kraemer did not file an affidavit in response to Ms. Kraemer’s affidavit. She sets out that he has failed to comply with his undertakings and, without an affidavit in response, I find that he has not complied. The list of outstanding undertakings set out in the draft order is shorter than as set out in the notice of motion. Ms. Kraemer’s factum acknowledges that Mr. Kraemer has complied with some of the undertakings; the remaining ones are set out in the draft order and are as above.
[12] It entirely escapes me why undertakings motions clutter up the courts. An undertaking is an undertaking. The process to obtain that undertaking should start the day after the questioning completes. It should not wait until transcripts are prepared, letters are sent and motions filed.
[13] Mr. Kraemer shall complete these undertakings within 30 days of this endorsement. The documents and answers shall be provided in a bound, indexed and tabbed format so that there can be no doubt what has, or has not, been provided.
Questions Taken Under Advisement
[14] Although Mr. Kraemer did not file an affidavit, in his factum he submits that a number of the answers being requested are “more properly characterized as a request to admit.” He says that he “may admit the facts if served with a request to admit. Alternatively, some of the issues may be subject to determination at trial.” Finally, he submits that a number of answers sought relate to information that has not been documented and therefore there is no document to be disclosed. He submits that these issues are likely to involve a weighing of the evidence and testimony of the parties at trial.
[15] Fortunately, he set forth better arguments in his submissions before me. None of the above factors are relevant or provide a defence to the information requested. Questioning, like Requests to Admit, is for the purpose of narrowing the issues in dispute and understanding what issues need to be litigated. Without proper answers to these entirely proper questions, the matter cannot be narrowed to proceed forward in an expeditious and efficient fashion.
[16] I have set out the list of requests and the issues between the parties. I need not repeat them here. In my view, all of the requested information, except items (e) and (f) relating to the value of the matrimonial home, is relevant and producible. The questions are relevant to the issues of retroactive child support, division of property, s. 7 expenses and Mr. Kraemer’s own claims for occupation rent and carrying costs. I will deal with the valuation of the matrimonial home below.
[17] Accordingly, these questions will be answered within 30 days of this endorsement. As with the undertakings, the documents and answers shall be provided in a bound, indexed and tabbed format so that there can be no doubt what has, or has not, been provided.
Refusals
[18] Other than item (d), the authorization to interview Mr. Kraemer’s bookkeeper, all of these are relevant and producible with respect to the issues of shared custody, child support and income. These questions will be answered within 30 days of this endorsement. As with the undertakings and under advisements, the documents and answers shall be provided in a bound, indexed and tabbed format so that there can be no doubt what has, or has not, been provided
[19] With respect to (d), r. 20(5) of the Family Law Rules states that a court may order a person (whether a party or not) be questioned by a party or disclose information if:
(a) it would be unfair to the party who wants the questioning or disclosure to carry on with the case without it;
(b) the information is not easily available by any other method; and,
(c) the questioning or disclosure will not cause unacceptable delay or undue expense.
[20] Pursuant to r. 20(9), I may only make such an order if the non-party has been served with a notice of motion, a summons to witness and the witness fee required.
[21] I appreciate that Ms. Kraemer is not asking for formal questioning of the bookkeeper and this rule is not in play, but it is instructive. In view of Mr. Kraemer’s refusal, such a motion may be necessary. However, I anticipate that, with the various productions already provided and now ordered, such questioning may not be necessary. I am hesitant to put the bookkeeper in a position of conflict without any notice of this request. If it becomes necessary, the appropriate motion can be brought.
House Appraisal
[22] In her affidavit, Ms. Kraemer sets out:
Lawrence and I jointly owned the matrimonial home located at 7577 Sixth Line R.R. #2., Elora, Ontario. I had the home appraised at $735,000.00 as of August 27, 2016 by S.W. Irvine & Associates. Lawrence crashed into the garage door in the spring of 2017 and the roof was leaking into the house, causing damage to the interior of the home. Given the damage that was being caused, I was forced to pay $17,515.00 to repair the roof; Lawrence made no contribution to the roof repair.
A copy of the appraisal dated August 27, 2016, is attached hereto and marked as “Exhibit I” to this affidavit.
On April 5, 2017, Lawrence’s lawyer provided a draft Separation Agreement, in which he stated that the value of the matrimonial home is $850,000.00.
On May 9, 2017, my lawyer responded, advising that I was not prepared to agree that the value of the matrimonial home is $850,000.00 since I had already obtained an appraisal, completed by an expert, stating that the value is $735,000.00 (and arguably less after the interior water damage and the fact that the roof needed to be replaced). . .
Notwithstanding the appraisal, in his Financial Statements, dated November 24, 2017 and March 12, 2018, Lawrence takes the position that the matrimonial home has a value of $800,000.00. He has provided no evidence supporting this position.
[23] Mr. Kraemer takes the position that he cannot be required to value the home and, essentially, the value will be decided when the house is sold. In my view, he is wrong in that position.
[24] The obligation of a party in a family law proceeding to provide meaningful disclosure of asset values was reviewed by Whalen J. in Colquhoun v. Colquhoun, 2007 CanLII 30 (ON SC):
The Law on Valuation of Net Family Property
[17] Subsections (1) and (6) of Rule 13 of the Family Law Rules requires that parties with property claims file sworn Statements of Financial Information in which each party makes “full and frank disclosure of the party’s financial situation”. By the same Rule, the parties are required to update financial statements in the course of the proceedings, and in any event at least 7 days before a case conference, a settlement conference or trial. The parties must complete all parts of the Financial Statement in the prescribed form. They must also file a Net Family Property Statement in the prescribed form at least 7 days before a settlement conference or trial, or an affidavit confirming changes or stating that there are no changes where a Net Family Property Statement has already been filed.
[18] The clear tenor of the Family Law Rules is to require disclosure. The necessity for accuracy is evident from the requirement that all parts of the prescribed form be completed and that it be sworn. Parties must take disclosure very seriously.
[19] It is also generally accepted that the party having ownership or control of an asset bears a primary onus to establish (on a civil balance of probabilities) the accurate value of the properties listed in his or her Statement of Financial Information. The classic statement of this principle was articulated in Menage v. Hedges:
The Act does not state on whose shoulders lies the burden of establishing the value of the net family property. The only reference to onus of proof can be found in s. 4(3) dealing with excluded property. The entire scheme of the Act and the new Rules of Civil Procedure (and by analogy of the amended Unified Family Court Rules) is to ensure full and fair disclosure so as to foster an early settlement of all the issues raised in the proceedings. Section 8 clearly imposes an obligation on each party to serve and file a sworn statement disclosing particulars of a party’s property, debts and other liabilities. In many cases, the filing of a statement in compliance with this section may constitute the first notice to the other party of the existence of certain assets or debts. Because the property or debts being described are that of the deponent and presumably may have been or may still be under his control, the primary onus of establishing the values referred to in the statement should reside on the deponent. In the absence of any contest by the opposing party, it may not be necessary for the deponent to call further evidence to justify the valuations arrived at, but where a real issue is raised as to the figures used the onus is on the deponent to establish on a balance of probabilities the accuracy of his sworn statement. Because of the nature of the claims made in proceedings of this type, it is only reasonable to consider each party as having to discharge the civil burden of proof concerning the value of his or her respective assets and debts.
[20] Whitten J. of this court accepted Menage v. Hedges as authority and explained its logic in Boisvert v. Boisvert, at paragraph 43:
- Accurate valuation of assets or property "owned" by a spouse is crucial to effective equalization. Justice Fleury in Menage v. Menage, found that the primary onus of establishing the value of property should reside with the deponent of the sworn statement in which it is referenced. This finding was a matter of logic based on the fact that it is that party that has control over the particular property. That burden or onus is achieved on the balance of probabilities. Obviously, an espoused value may not be accepted by the other party or as is the case from time to time, no value is put forth by a deponent who either does not disclose the existence of the property or construes it as a liability. Therefore, although Justice Fleury spoke of a "primary onus" to value, that does not preclude the other party from producing a valuation of their own.
[21] In Sheikh v. Sheikh, Gordon J. of this court adopted the same principle, emphasizing also the obligation to provide realistic values, including independent valuations, and noting the risks of failing to do so:
- The onus is on the party asserting a value to provide credible evidence in support: see, for example, Menage v. Menage (This, in my view, obliges a party to provide a realistic value for each asset, not a guess or fictional amount. When a value cannot be readily ascertained, or there is serious dispute, an independent valuation may be required, such as for a pension or a business: see, for example, Pennock v. Pennock; Dearing v. Dearing and Katz v. Katz. It necessarily follows, failure to provide credible evidence to support a value may result in a value being assigned which is less advantageous to the party claiming the asset.
[22] In Di Luca v. Di Luca, Stewart J. of this court also adopted the rule, explaining it in terms of the Family Law Act’s general policy of providing early and full disclosure. In her view, the obligation was so strong as to require the owner of an asset to obtain expert appraisal:
- The Family Law Act contains provisions designed to ensure full and fair disclosure of assets and income so as to foster early settlement of all of the issues. Section 8 of the Act imposes an obligation on each party to deliver a sworn statement disclosing particulars of that party’s property, debts and other liabilities. Each spouse has the burden of establishing the value of the property that she or he owned on the valuation date (see: Menage v. Hedges). The obligation on the owner of an asset can extend so far as to require the owner to obtain an expert evaluation (see: Greenwood v. Greenwood). [Citations removed.]
[25] In my view, Mr. Kraemer has an obligation to provide an accurate valuation of the home in issue.
[26] In his questioning, Mr. Kraemer was asked and answered the following questions:
Q. Okay. So, if you look at page five, you – and it – particularly, under the land and matrimonial home, you inserted a value of $800,000.
A. Yes, I did.
Q. Where does that value come from?
A. It’s an estimated value that came from my knowledge of the real estate market and an opinion from a reputable real estate agent and talking to friends and family.
Q. Okay. And who is the reputable real estate agent?
A. Paul Martin.
Q. Sorry. I didn’t hear you.
A. Mr. Paul Martin
Q. All right. And did he produce anything for you in writing?
A. Yes.
Q. Have you provided that to me?
A. I’m unsure if it’s in the file. There’s a lot of papers here.
Q. Do you know, Patrick, if it’s in the file?
A. I don’t know.
Q. Okay. If it’s not in the file, can I have your undertaking to produce this written – it’s an opinion of value?
A. It’s an opinion of value.
Q. Okay. I’d like your undertaking to produce that.
Mr. Kraemer: I’ll take it under advisement.
[27] Mr. Kraemer has therefore relied on a document from Mr. Martin. He used it to support the value that he sets out in his financial statement. That is a relevant document and must be produced.
[28] Mr. Kraemer submits that the valuation should be a shared expense. The case law does not support that. Further, Ms. Kraemer has already paid for one appraisal; she will effectively have shared that cost once Mr. Kraemer provides his.
[29] In argument, Mr. Kraemer’s counsel was not certain of the cost of such an appraisal. It is beyond me how such a motion could be argued without first determining whether the expense was more or less than litigating the issue in the first place.
[30] Accordingly, Mr. Kraemer shall provide the opinion of value of Paul Martin within 30 days. If Mr. Kraemer is not relying on that value, he shall provide the evidence upon which he relies for his valuation of the home in his financial statement within 30 days. If he intends to have the house appraised, Ms. Kraemer shall co-operate with any requests made by the appraiser.
Business Valuation
[31] Mr. Kraemer submits that he “may obtain his own expert report if he determines there is a basis to challenge the applicant’s expert opinion.” He says that he may be able to obtain a critique, or alternatively, confirmation that Ms. Kraemer’s expert opinion is persuasive without the need for a full, additional expert report.
[32] He goes on to submit that he “may obtain his own expert opinion, may not be satisfied with it, and decide not to rely on it at trial.” He submits that he has the right, and his lawyer has the obligation, to make that decision without it imposed on him by an order. He says that he will be prejudiced by removing these litigation strategies and opportunities from him.
[33] As set out above, his position is wrong in law. Simply put: his asset; his obligation.
[34] In his financial statement, Mr. Kraemer values his business at $0, but sets out that he has business equipment of $5,000. In his examination, he agreed that he had failed to list a variety of assets and their values in that figure. As set out above, he is now ordered to provide that information.
[35] Further, in his examination, Mr. Kraemer was questioned and answered as follows:
Q. Well – so I think you refused to produce a valuation of the business. Right?
Counsel: That’s right
Q. But you agree with me that the inventory on hand is an asset of the business?
A. Yeah. On hand, yeah.
Q. Okay.
A. But like I said, it’s fluid.
Q. Right.
A. It comes and goes.
Q. You agree with me that all of these assets, like the router, the laminator, the computers, et cetera, you agree with me that that’s all part of the value of the business?
A. If there is any value there. Yeah.
Q. Yes. You agree.
A. Yes.
Q. You agree that your accounts receivable are value – you know, play into the value of your business?
A. Yes. And that’s a fluid thing as well.
Q. And you agree with me that your customer contracts have input on the value of your business?
A. It depends on if you’re talking sole proprietorship part of the business or the actual, just business – business. In other words, just the name of the business. I don’t know if my clients or – or my client list is beneficial for just the name of my business. I believe all my clients come to me because it’s me.
Q. Okay. But you don’t know?
A. So, I don’t know. Yes.
Q. Okay.
A. All right.
Q. And your future earnings, you agree are – is relevant to the value of your business?
A. Well, any earnings or income that the business acquires is part of the business. Yeah.
Q. Okay. And you agree with me that your bank account has to be reconciled to deal with – I mean, I know you’ve listed what was in your bank account but you have to reconcile it to deal with accounts payable and accounts receivable at the date of separation?
A. Yes.
Q. Okay. So, you’ve agreed with me that all that’s relevant but you haven’t produced any value for any of it. Do you agree with me?
A. I haven’t produced anything solid, no.
Q. Right. So then, on what basis do you expect the court to determine a value of your business?
A. I don’t know.
Q. Right. So, do you agree with me that you need to produce a business valuation?
Mr. Kraemer: We’ve already refused.
[36] Mr. Kraemer has an obligation to provide the support for his valuation of the business. His suggested value of nil or $5,000 is incorrect on his own evidence.
[37] In 1988, the early days of financial statements and pension valuations, Master Cork in Greenwood v. Greenwood, [1989] O.J. No. 37 (S.C.), ordered Mr. Greenwood to have his pension appraised since he had failed to enter any value for the pension in his financial statement. So too has Mr. Kraemer.
[38] In Kozicki v. Kozicki, 2013 ONSC 8005 at para. 61, Kiteley J. did not order the husband to provide an income report but clearly would have had such a motion been brought. Instead, she granted the wife an order requiring the husband to pay for the wife’s report.
[39] In Cohen v. Cohen, 2016 ONSC 3014, Jarvis J. had a similar situation. He wrote:
[7] The genesis of the wife’s motion is the undetermined value of the husband’s business interests. In his June 29, 2015 Financial Statement, for which he was granted leave to file, the husband recorded “TBD” (i.e. to be determined). In argument before me, his counsel advised that no one had been yet retained by the husband to value the husband’s business interests. That, in my view, is not compliant with the husband’s clear duty to value that interest. As noted by Clarke J. in Demchuk v. Demchuk, over 30 years ago,
The new Act imposes a positive duty on both parties to disclose. If the purpose of disclosure is not to be frustrated, disclosure must perforce embrace not merely the existence of significant assets but also their extent or value. The speedy and equitable resolution of domestic disputes mandates that this information be completely and accurately disclosed (bolding added).
[8] No satisfactory explanation has been given by the husband why ever since the wife commenced this case over three years ago no steps have been taken by him to comply with this obligation. I am especially perplexed about this in light of my July 30, 2015 costs Ruling in which I noted that in earlier domestic proceedings with a former spouse, the court had made adverse findings about the husband’s financial probity which are now echoed by the wife in this case.
[9] In his very eloquent argument Mr. McNeely maintained that if the husband’s pleadings were struck the wife had sufficient evidence based on the disclosure already made, or otherwise in her possession, with which to persuade the court about the value of the husband’s business interests but this assertion is belied by not only the wife’s record, as disclosed by her chart, of missing or inadequately explained information but also why she has felt it so necessary to press forward with this motion rather than proceed to questioning or, better, to trial. The obligation to disclose and value is the husband’s, not hers, and the Order I intend to make will in my view balance the parties’ competing interests and obligations as well as (it is hoped) more easily facilitate the court’s disposition of the parties’ equalization claims. [Citations removed.]
[40] In Greenwood, Master Cork said “I do not believe that I can resolve the issue on economic grounds”. That may apply here as well, however, as can be seen above, Mr. Kraemer does not know how to value his business and his lawyer refuses to do so. It may be expensive for Mr. Kraemer to obtain an appraisal but, in any event, he will have to do so.
[41] Accordingly, within 30 days of the date of this endorsement, Mr. Kraemer shall retain at his own expense a Chartered Business Valuator to undertake a valuation of his business interests. Within 40 days of the date of this Order, Mr. Kraemer shall confirm to Ms. Kraemer the identity of the valuator and shall provide written confirmation from the valuator to the wife as to the date by which the valuator’s report will be concluded, such date to be no later than five months from the date of this order. Mr. Kraemer shall provide forthwith to the valuator any and all such information as the valuator may require. The valuator’s report must be delivered no later than five months from the date of this Order.
Income Report
[42] Mr. Kraemer’s factum refers to a great deal of evidence that is not in the record. However, in my view, he can fairly submit that this is not a case of a complex corporation entity; it would be surprising that an expert report would be necessary or likely to support increasing his income to the extent suggested by Ms. Kraemer.
[43] From the record, I can see that Mr. Kraemer has produced his accounting for cash and barter transactions. Ms. Kraemer does not agree with it but it has been produced. He has also produced all of the bank and credit card statements as requested. There are more documents to be produced as set out above.
[44] At this stage, I cannot tell whether it would be proportional to order him to provide an income report. On Ms. Kraemer’s evidence, this is not a substantial business. It is a sole proprietorship with one employee. Substantial records have been provided. I have no knowledge of what such a report would cost. If Mr. Kraemer is ordered to obtain such a report, it may well require Ms. Kraemer to obtain her own. From what I have at present, I do not see that as proportional.
[45] In Meade v. Meade, 2002 CanLII 2806 (ON SC), [2002] O.J. No. 3155 (Sup. Ct.), Kiteley J. wrote:
[81] … It is inherent in the circumstances of those who are self-employed or who have irregular income and expenses, that they have a positive obligation to put forward not only adequate, but comprehensive records of income and expenses. That does not mean audited statements. But it does mean a package from which the recipient spouse can draw conclusions and the amount of child support can be established. Where disclosure is inadequate and inferences are to be drawn, they should be favourable to the spouse who is confronted with the challenge of making sense out of financial disclosure, and against the spouse whose records are so inadequate or whose response to the obligation to produce is so unhelpful that cumbersome calculations and intensive and costly investigations or examinations are necessary. [Citations removed.]
[46] I presume that Mr. Kraemer will be educated and guided by such comments. From what Ms. Kraemer has and will have, I am not persuaded that she needs an income report. Once she has the materials as ordered, she may still require one from Mr. Kraemer but, for now, this request is dismissed.
Result
[47] I therefore order:
(a) Mr. Kraemer shall complete his undertakings within 30 days of this endorsement. The documents and answers shall be provided in a bound, indexed and tabbed format so that there can be no doubt what has, or has not, been provided.
(b) Mr. Kramer shall answer the questions that he took under advisement as set out in the notice of motion within 30 days of this endorsement. The documents and answers shall be provided in a bound, indexed and tabbed format so that there can be no doubt what has, or has not, been provided.
(c) Mr. Kraemer shall answer the questions that he refused at his examination as set out in the notice of motion with the exception of providing an authorization to allow Ms. Kraemer’s counsel to speak with his bookkeeper. The documents and answers shall be provided in a bound, indexed and tabbed format so that there can be no doubt what has, or has not, been provided.
(d) Mr. Kraemer shall provide the opinion of value of Paul Martin within 30 days. If Mr. Kraemer is not relying on that value, he shall provide the evidence upon which he relies for his valuation of the home in his financial statement within 30 days. If he intends to have the house appraised, Ms. Kraemer shall co-operate with any requests made by the appraiser.
(e) Within 30 days of the date of this endorsement, Mr. Kraemer shall retain at his own expense a Chartered Business Valuator to undertake a valuation of his business interests. Within 40 days of the date of this Order, Mr. Kraemer shall confirm to Ms. Kraemer the identity of the valuator and shall provide written confirmation from the valuator to the wife as to the date by which the valuator’s report will be concluded, such date to be no later than five months from the date of this order. Mr. Kraemer shall forthwith provide to the valuator any and all such information as the valuator may require. The valuator’s report must be delivered no later than five months from the date of this Order.
(f) Ms. Kraemer’s request for an income report from Mr. Kraemer is dismissed.
Costs
[48] If the parties cannot agree on costs, Ms. Kraemer shall provide her costs submissions within the next 15 days. Mr. Kraemer shall provide his reply within 15 days thereafter. No reply submissions shall be filed unless I request them.
[49] Each submission shall be no more than three pages, not including any Bills of Costs or Offers to Settle.
[50] Written submissions shall be forwarded to me at my office at the Superior Court Office, 74 Woolwich Street, Guelph, Ontario, N1H 3T9.
Lemon J.
Date: March 1, 2019
COURT FILE NO.: 435/17
DATE: 2019 03 01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stacey Lynn Kraemer
Applicant
– and –
Lawrence Francis Kraemer
Respondent
ENDORSEMENT
Lemon, J
Released: March 1, 2019