Court File and Parties
BARRIE COURT FILE NO.: FC-17-1352-00 DATE: 20200117
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
GORDON FREEDMAN Applicant – and – RASHELL FREEDMAN Respondent
Counsel: Self-represented (for the Applicant) J. Rosenberg, Counsel for the Respondent
HEARD: January 9, 2020
RULING ON MOTION
Jain J.
Introduction
1This matter came before me by way of the respondent’s motion dated January 2, 2020 and found at Vol. 11, Tab 1. The respondent’s supporting affidavit dated January 2, 2020 is found at Vol. 11, Tab 3, and the affidavit of M. Beloso (legal assistant at Teplitsky Colson LLP) dated January 2, 2020 is found at Vol. 11, Tab 2. The respondent is seeking orders for the following: ongoing child and spousal support; setting lump sum child and spousal support arrears; enforcement through the Family Responsibility Office (FRO); and financial relief and disclosure regarding certain assets (specifically accounts held off-shore with Temple Financial Group).
2As a preliminary matter, the court raised a concern that some of the relief requested by the respondent was too complicated for a motion. [1] The court suggested that those issues may require a trial where the judge could hear evidence and make findings of fact. After submissions were heard on the subject, the respondent consented that on a without prejudice basis, the relief requested at numbers 4, 5, 9, 10 and 12 of the respondent’s notice of motion dated January 2, 2020 shall be adjourned to the trial.
3Pursuant to my order of April 3, 2019, the applicant had been found to be in breach of the orders of Eberhard J., dated January 8, 2018 and February 16, 2018; Eberhard J.’s Endorsement of April 4, 2018, and the order of Wildman J., dated June 5, 2018. Pursuant to my order of June 24, 2019, I found the applicant failed to remedy and remained in breach of the above noted orders. I further found him in breach of my endorsement and order of April 3, 2019. As a result, on June 24, 2019, I ordered the applicant’s pleadings struck with respect to the issues of child support, spousal support and property division/equalization. I further ordered that the applicant was “no longer entitled to any further order from the court on the issues of financial disclosure, child support, spousal support or property division/equalization.” I ordered the applicant pay the respondent costs in my orders of October 22, 2019 and October 24, 2019. On November 13, 2019 I granted the respondent leave to bring a long motion for temporary child support, spousal support and other financial relief.
4This motion was without notice to the applicant pursuant to Family Law Rules (the Rules). [2] Rule 1(8.4) sets out that one of the consequences of striking out certain documents of a party includes that party not being “entitled to any further notice of steps in the case” [3] Although he had been advised that a motion on these issues was proceeding, the applicant did not attend court on January 9, 2020. [4]
Decision
5For the reasons set out below, the relief requested at numbers 1, 2, 3, 6, 7, 14, 15 and 16 of the respondent’s motion are granted. The relief requested at numbers 8, 11 and 13 are partially granted as set out below.
Analysis
Child and Spousal Support – Ongoing and Lump Sum Arrears and Costs
6The above noted orders included specific orders that the applicant make certain payments and disclosure. The payments were mainly for the matrimonial home which included the mortgage, taxes, insurance, utilities, nanny, maintenance of the home, etc. as well as a “without prejudice” spousal support amount of $1000.00 per month. [5] Additionally the above noted orders specified that the applicant pay certain expenses for the children. [6] Lastly, the above noted orders included significant directions regarding disclosure.
7Pursuant to my order of April 3, 2019 I found the applicant in breach of these orders and gave him time to remedy the breaches. On June 24, 2019 I found the applicant continued to be in breach of the above orders and struck his pleadings with respect to the financial issues. The immense difficulty with the above payment orders has been enforcement. The applicant continues to wilfully disobey court orders. He pays what he decides to pay and discloses what he decides to disclose.
8The FRO requires a clearly set out amount in a Support Deduction Order (SDO) to collect and enforce. The respondent and children have been financially dependant upon the applicant throughout the marriage. There is no question with respect to their need for support from the applicant. The applicant is highly educated as both a lawyer and an engineer. He specializes in intellectual property law and is a licensed patent and trademark agent. The applicant has earned substantial income in the past and continues to be capable of earning substantial income. The applicant has an obligation and ability to pay support. [7]
9This matter has been going on for over two years. The applicant’s continual breaches and non-payments have placed the family in jeopardy of losing their home, utilities being disconnected, and the respondent has been forced to borrow funds. [8] It is clear to this court that the respondent and children are in desperate need for support and the applicant will not pay it voluntarily. The applicant continues to benefit from the inability of the FRO to enforce the payment orders. In these types of situations where the applicant has basically abandoned his responsibilities, orders for ongoing and lump sum support are appropriate and necessary. [9]
10In order to give the FRO authority to commence collection and enforcement, an order (on a without prejudice basis) for ongoing support and for lump sum support arrears is required. The court has broad discretion to order ongoing and lump sum support as clearly set out in both the Family Law Act and the Divorce Act. [10] The question for this court is how to determine the amount.
11Due to the continued disclosure breaches of the applicant, the court has insufficient evidence at this time to impute income to the applicant on a motion for ongoing and lump sum arrears of child and spousal support. The issues of imputation of income and subsequent calculation of final arrears and ongoing support shall have to await trial.
12The respondent submitted that the ongoing support amount could be calculated on a without prejudice basis by adding together the monthly expenses and support payments that the applicant was already ordered to pay. In addition, the respondent submitted that this method could be used to calculate the without prejudice lump sum arrears of support (after giving the applicant credit for what he has actually paid). The court accepts that on a temporary without prejudice basis, this method provides the best evidence available to determine the appropriate temporary amounts.
13Using the above described method, based on the respondent’s affidavit, she requests an order (without prejudice) that the applicant be ordered to pay her $8,679.73 per month. [11] The respondent set out how the above amount was calculated in her affidavit. [12] Upon review of the applicant’s payment breaches claimed by the respondent, the court found that some of them were not appropriate to be included in this type of ongoing support or lump sum calculation. The court found some of these payments and adjustments were not clearly set out (not easily quantified) in the above payment orders. Further, at trial, some of these payments and adjustments may not be deemed as reasonable and necessary. To be clear, the court was not making any finding regarding the validity of these claims. The court was simply saying that the validity of those amounts and any adjustments to the arrears and/or ongoing support amount will need to be determined at trial based on properly tendered evidence. Specifically, for the purposes of calculating ongoing child and spousal support, the court deducted the claims for regular household maintenance, cell phone bills, internet, Netflix, and the nanny’s pay. Therefore, on a without prejudice basis, the court reduces the amount claimed by the respondent and orders that commencing January 1, 2020, the applicant shall pay the respondent ongoing generalized child and spousal support in the amount of $5,250.00 per month. This amount shall be collected and enforced against the applicant by the FRO and paid to the respondent.
14Additionally, the respondent requests an order (without prejudice) setting the applicant’s lump sum arrears of support and contributions to special and extra-ordinary expenses as of January 1, 2020 at $111,135.00. [13] Based on the same method and reasons as set out above, the court deducted some of the payment arrears and amounts claimed by the respondent in the lump sum support arrears calculation. [14] On a without prejudice basis, the court finds that the applicant’s arrears of the payments add up to a lump sum support amount of $64,889.16. This has been calculated by adding together: $49,324.16 (unpaid matrimonial home expenses and payments); $5,325.00 (unpaid spousal support); and $10,240.00 (unpaid special or extraordinary expenses as ordered by Wildman J. on June 5, 2018). [15] Therefore, on a without prejudice basis, the court reduces the amount claimed by the respondent and sets the lump sum of support arrears owing by the applicant to the respondent to $64,889.16. This amount shall be collected and enforced against the applicant by the FRO and paid to the respondent.
15Lastly, in addition to the above amounts, the court finds that the applicant is in breach of the cost orders dated October 22, 2019 ($25,862.81) and October 25, 2019 ($5,500.00). These two cost orders against the applicant totalling $31,362.81 related to the applicants ongoing and wilful breaches of his court ordered support and disclosure obligations. The costs were ordered to be paid immediately, however, the applicant remains in breach of payment of both orders. [16] The Court of Appeal has said that the court has considerable discretion over how to deal with a request that legal costs be designated as support for the purposes of enforcement by the FRO. [17] In addition, pursuant to s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, a support order may include “interest or the payment of legal fees or other expenses arising in relation to support or maintenance.” [18] As such, the court finds that since the applicant’s disclosure breaches are directly related to support issues, the entire cost of the motions were primarily the issue of support. The relief requested at number 14 and 15 of the respondent’s motion are granted. Both these amounts shall be added to the arrears of support and collected and enforced by the FRO. [19]
Life Insurance
16The respondent requests an order that the applicant obtain and maintain a life insurance policy in the amount of $3,000,000. [20] This amount is equivalent to the Manulife life insurance policy that the applicant had obtained during the marriage (and which has since lapsed in or around June, 2019). [21] On a without prejudice basis, and in accordance with s. 34(1) of the FLA and s. 15.2(2) of the Divorce Act, the court has authority to grant the relief requested. If the applicant were to pass away without any insurance to secure support, the respondent and children would be in economic hardship. On a without prejudice basis, the court has reduced the amount requested by the respondent. The final amount of life insurance required may be reviewed at the trial. There shall be an order that the applicant shall obtain and maintain a life insurance policy in the amount of $1,000,000 and shall name the respondent as the sole irrevocable beneficiary. If the applicant fails to comply, and the policy is not in force on the applicant’s death, there shall be a lien and first charge against the applicant’s estate for the full amount of the policy proceeds.
Temple Financial Group
17Some of the remaining assets of the family are an account/accounts held offshore with Temple Financial Group (Temple), including (but not limited to) account numbers 143-77AF-8 and 143-77MF-2. Due to the applicant’s continued breaches of the above court orders and his lack of cooperation in resolving the issues, the respondent requires an order granting her sole and absolute authority to deal with any and all the insurance policies and/or accounts, and access to any and all information, historical, current or prospective. [22] In addition, the respondent requires an order granting her with sole authority and absolute discretion to deal with the insurance policies and accounts held offshore with Temple, in any manner whatsoever that she deems necessary and appropriate, including, but not limited to, transferring, withdrawing, assigning, obtaining loan financing, redeeming, mortgaging, disposing of, dissipating and/or depleting the entire equity, or any part thereof, and dispensing with the need for the applicant’s consent.
18Even though the respondent is named as the sole and/or a joint owner of these accounts, the respondent has faced significant delays in dealing with these accounts and/or obtaining responses to her enquiries. She has also been denied any online access to view or deal with the accounts. [23] The respondent’s request for release of funds have been rejected. [24] Temple has recently advised that “accounts have been frozen pending resolution” and they requested “confirmation that the Ontario Court is content with the release of the historical information sought and that our client’s standard charges will be met for recreating the accounting information.” [25]
19It is very clear to this court that in order to move this matter forward towards a final and just resolution, the respondent requires full access and authority to deal with these accounts. The applicant has refused to cooperate and facilitate the respondent’s access to the funds and accounts held with Temple and continued to deny the respondent disclosure regarding same. [26] It is pointless to continue to make orders for the applicant to comply with previous orders. In answer to Temple’s request, this court is content with them releasing to the respondent ANY information sought by the respondent (and/or her counsel), (including historical, current or prospective information for any accounts including but not limited to account numbers 143-77AF-8 and 143-77MF-2). If Temple has not already done so, it would be expected that Temple would provide the respondent with full online access and reasonable information and/or an estimate regarding Temple’s “standard charges” for “recreating the accounting information.” This would be important so that the respondent has notice and can arrange payment for same.
20The applicant has shown by his repeated and numerous defaults that he has no intention to change his approach of wilful disobedience regarding his court ordered and legal obligations to the respondent and children. [27] The only solution is for the court to take whatever steps necessary under the Rules to enforce the orders and where possible, impose a sanction against the applicant that is restorative to the respondent. [28] The court has found the applicant to repeatedly fail to obey court orders. Therefore, in accordance with r. 1(8) it is open to the Court to make “any order that it considers necessary for a just determination of the matter.” [29] Accordingly, subject to providing a reasonable accounting to the court at trial for withdrawals, the court grants the respondent the relief she requested in numbers 6 and 7 of her Notice of Motion, specifically: the court grants the respondent with sole and absolute authority to deal with any and all the insurance policies and/or accounts held offshore with Temple, and access to any and all information, historical, current or prospective. In addition, the court grants the respondent with sole authority and absolute discretion to deal with the insurance policies and accounts held offshore with Temple, in any manner whatsoever that she deems necessary and appropriate, including, but not limited to, transferring, withdrawing, assigning, obtaining loan financing, redeeming, mortgaging, disposing of, dissipating and/or depleting the entire equity, or any part thereof, and dispensing with the need for the applicant’s consent.
Costs
21The respondent claims $7500.00 for the costs of bringing this motion. As she has been successful, she is entitled to costs. The court finds that the costs claimed are reasonable and fair considering the complexity of the issues, volume of materials, reasonableness of the respondent’s behavior and effectiveness of Mr. Rosenberg’s presentation. There will only be a minor deduction having regard for the issues that were adjourned to the trial. Costs of this motion are set at $7,000.00. Such costs shall be added to the arrears of support and collected and enforced by the FRO.
22Adding together the applicant’s: arrears of support $64,889.16; non-payment of previous cost awards $31,362.81; and the additional costs set by this court for this motion $7,000.00, the total arrears owed by the applicant to the respondent are set at $103,251.97 and shall be collected and enforced by the FRO.
Get/Ghet
23Pursuant to the respondent’s oral request during the motion, the court shall make an order that the applicant shall cooperate with the Rabbinical court and with the respondent with respect to obtaining a Get/Ghet.
Conclusion and Order:
24Based on the foregoing reasons, this court makes the following temporary order:
(1) The applicant remains in continue breach of the orders of Eberhard J., dated January 8, 2018 and February 16, 2018; Eberhard J.’s Endorsement of April 4, 2018, Wildman J., dated June 5, 2018 and Jain J., dated April 3, 2019. The applicant is further found to be in breach of the costs orders of Jain J. dated October 22, 2019 and October 25, 2019.
(2) On a without prejudice basis, commencing January 1, 2020 and on each 1st of the month thereafter until further order of this court or agreement of the parties, the applicant shall pay the respondent undifferentiated child and spousal support in the amount of $5,250.00 per month. This shall be collected and enforced by the FRO and paid to the respondent.
(3) On a without prejudice basis, the amount of lump sum arrears owed by the applicant to the respondent are set at $103,251.97. This is calculated by adding together the applicant lump sum support arrears as of January 9, 2020 being $64,889.16 + the applicant’s unpaid costs owed to applicant $31,362.81 + costs of this motion set at $7,000.00. The total amount of $103,251.97 shall be collected and enforced by the FRO and paid to the respondent.
(4) SDO shall issue
(5) On a without prejudice basis, the applicant shall obtain and maintain a life insurance policy in the amount of $1,000,000 and name the respondent as the sole irrevocable beneficiary. If the applicant fails to comply, and the policy is not in force on the applicant’s death, there shall be a lien and first charge against the applicant’s estate for the full amount of the policy proceeds.
(6) Paragraph 20 of the Order of Justice Eberhard dated February 16, 2018, and paragraph 8 of the Order of Justice Jain dated April 3, 2019 shall be varied as follows:
a. The respondent Rashell Freedman and/or Freedom 25 Investments Inc. and/or Freedom 25 Investments Inc. of Ontario shall have sole authority and absolute discretion to deal with the investment insurance policies and/or any other accounts (including but not limited to account numbers 143-77AF-8 and 143-77MF-2) held in the respondent’s name solely or jointly, directly or indirectly, personally or through a company held offshore with Temple Financial Group or held in trust with Temple Financial Group, in any manner whatsoever that she deems necessary and appropriate, including but not limited to, transferring, withdrawing, assigning, obtaining loan financing against, redeeming, disposing of, dissipating and/or depleting the entire equity, or any part thereof. The applicant Gordon Freedman’s consent is hereby dispensed with.
b. The respondent Rashell Freedman shall have sole signing authority over the investment insurance policies and/or any other accounts (including but not limited to account numbers 143-77AF-8 and 143-77MF-2) held in the respondent’s name solely or jointly, directly or indirectly, personally or through a company and/or held offshore with Temple Financial Group or held in trust with Temple Financial Group. The applicant Gordon Freedman’s consent is hereby dispensed with.
(7) The respondent Rashell Freedman shall have sole and absolute authority to access any and all information, whether historical, current or prospective, with respect to the insurance policies and/or accounts held in the respondent’s name solely or jointly, directly or indirectly, personally or through a company and/or held offshore with Temple Financial Group or held in trust with Temple Financial Group.
(8) The applicant shall cooperate with the Rabbinical court and with the respondent with respect to obtaining a Get/Ghet.
Jain J. Released: January 17, 2020
Footnotes:
[1] Family Law Rules, O. Reg. 114/99, r. 14(7) [2] Family Law Rules, O. Reg. 114/99 [3] Rule 1(8.4) [4] Endorsement of Jain J. dated November 13, 2019 was sent to both parties. [5] Order of Eberhard J. dated January 8, 2018 and February 16, 2018; Eberhard J.’s Endorsement of April 4, 2018 [6] Order of Wildman J. dated June 5, 2018 [7] Respondent’s affidavit dated January 2, 2020 paras. 67-73 [8] Respondent’s affidavit dated January 2, 2020 at para. 10. [9] Davis v. Crawford, 2011 ONCA 294 and Sanda v. Sanda, 2018 ONSC 4142 (Ont. S.C.J.) [10] Family Law Act, R.S.O. 1990, c.F.3 s. 34; and Divorce Act 1985, c.3 (2nd Supp.) s. 15.2 [11] Respondent’s affidavit dated January 2, 2020, paras. 29, 30, 31 [12] Respondent’s affidavit of January 2, 2020, paras 12, 13, 14, 24, 25, 29, 30, 31 [13] Respondent’s affidavit of January 2, 2020, para 12, 13, 14 - 25 [14] Respondent’s affidavit of January 2, 2020, paras 12, 13 & 14. The court specifically deducted the respondent’s claims for Internet, Netflix, routine upkeep for the matrimonial home, car lease and insurance, cell phones. [15] Respondent’s affidavit of January 2, 2020, paras 12 and 20 [16] Respondent’s affidavit of January 2, 2020, paras 8 & 9 [17] Sordi v. Sordi, 2011 ONCA 665 (Ont. C.A.) at paras. 23 and 25 [18] Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c.31 [19] Sordi v. Sordi, 2011 ONCA 665 (Ont. C.A.) at para. 25 [20] Respondent’s affidavit of January 2, 2020 at para 64 [21] Respondent’s affidavit of January 2, 2020, paras. 64-66 [22] Respondent’s affidavit of January 2, 2020, paras. 50-63 [23] Respondent’s affidavit of January 2, 2020, para. 50 – 61 and Exhibit RR. [24] Respondent’s affidavit of January 2, 2020, para. 50 - 61 [25] Respondent’s affidavit of January 2, 2020, para. 60 and Exhibit SS. [26] Respondent’s affidavit of January 2, 2020, paras. 48-50, 52-60 [27] Respondent’s affidavit of January 2, 2020, para. 3 [28] Varcoe v. Varcoe, 2014 ONSC 328 (Ont. S.C.J.) at para. 6; and Granofsky v. Lambersky, 2019 ONSC 3251 (Ont. S.C.J.) at paras. 25-28, and 33 [29] Sadlier v. Carey, 2015 ONSC 3537 (Ont. S.C.J.) at para. 65-66
