Court File and Parties
COURT FILE NO.: 35/38/014254/15 DATE: 20210326 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Karen Ann Zantingh, Applicant AND: Peter Michael Zantingh, Respondent
BEFORE: Justice R. Raikes
COUNSEL: D. John Kirby - Counsel, for the Applicant Peter D. Eberlie - Counsel, for the Respondent
HEARD: January 25, 2021
ENDORSEMENT
[1] The respondent husband moves for an order severing the divorce from the corollary relief. The applicant wife opposes that motion and brings a motion seeking an order directing that the respondent pay for an updated income report from Mr. Hoare, a joint expert, who prepared an earlier draft income report.
[2] This litigation is high conflict. Neither party trusts the other. Neither counsel trusts the other. Both counsel accused the other party and his or her counsel of obfuscating and complicating this litigation. The lack of trust and accusations fuel a fire that is burning bright but helping no one.
[3] I will deal first with the motion to sever the divorce, then deal with the cost of the updated income report.
Motion to Sever Divorce
[4] The parties married August 10, 1996. They disagree on the date of separation. He says they separated November 30, 2011. She says they separated May 6, 2015.
[5] They have two children who are 21 and 19 years old, respectively. The children reside with the respondent and have since separated. The applicant has never paid child support. The respondent has provided for the children financially throughout with no contribution by the applicant.
[6] The applicant continues to reside in the matrimonial home. She has two sources of income: a Canada Disability Pension and spousal support.
[7] A case conference was held December 9, 2015. On consent, Justice Hebner ordered, inter alia, that:
- Commencing May 6, 2015 the Respondent, Peter Michael Zantingh, shall pay to the Applicant, Karen Ann Zantingh:
a) Spousal support in the amount of $2,000 per month; and
b) An additional $80.00 per month in spousal support by way of payment of car insurance.
The parties shall each pay half of the municipal taxes and insurance on the matrimonial home located at … commencing May 6, 2015.
The Applicant, Karen Ann Zantingh, while resident in the home, shall pay for utilities commencing May 6, 2015.
The parties shall retain a Chartered Business Valuator (James Hoare) to value the Respondent, Peter Michael Zantingh’s interest in the family business as at both dates of separation ….The Respondent shall pay the cost up front with the Applicant's half share to be paid by way of an adjustment to the Net Family Property equalization.
The parties shall retain a Chartered Business Valuator (James Hoare) to determine the Respondent’s income for support purposes. The Respondent shall pay the cost up front with the Applicant's half share to be paid by way of an adjustment to the Net Family Property equalization.
[8] The applicant opposes the motion to sever for the following reasons:
The respondent has failed to make full financial disclosure since the start of these proceedings 5.5 years ago;
The respondent’s delay in providing required information to Mr. Hoare has significantly prejudiced the applicant;
The respondent is in arrears of spousal support of at least $25,886;
The respondent has not paid his one-half share of the property tax and insurance on the matrimonial home;
The respondent has not complied with my order dated December 11, 2020 in that he has not provided Mr. Hoare with the information and documentation requested by him;
The respondent has no specific plans to remarry; and
The respondent has not met his onus to establish on a balance of probabilities that the applicant will not be prejudiced by the severance of the divorce.
[9] The respondent disputes any arrears of spousal support. He admits that he has not paid his half of the municipal taxes on the matrimonial home in 2020 but notes that he paid the full cost of the property insurance. He also asserts that he has already provided a great deal of documentation to Mr. Hoare but admits that he did not forward additional documents ordered pending that order being taken out. He points to some questionable communication by the applicant’s counsel with his employees to justify the delay. Some of the documentation is not in his possession.
[10] I pause at this point to note that I directed the parties to file “Statements of Law” by January 15, 2021 for this motion. I anticipated receiving concise, short summaries of the applicable legal principles as discussed.
[11] Counsel for the respondent did so. His Statement of Law is a succinct 3.5 pages. By contrast, counsel for the applicant filed a 22 page “Factum” replete with detailed reference to evidence and argument. He did so after the deadline. The 22 pages plus appendices exceeds the page limit for factums in the Consolidated Provincial Practice Direction, Part III, s. 45(c).
[12] I thought my direction to counsel made at a case conference was clear and understandable. Apparently, I was mistaken or, more likely, applicant’s counsel chose to take the path that he did without regard to the direction provided. Respondent’s counsel asks that I completely ignore the factum filed. I prefer to deal with this by way of costs.
[13] Family Law Rule 12(6) states:
(6) The court may, on motion, make an order splitting a divorce from the other issues in a case if,
(a) neither spouse will be disadvantaged by the order; and
(b) reasonable arrangements have been made for the support of any children of the marriage.
[14] The word “disadvantaged” as used in r. 12(6)(a) means a legal disadvantage that the responding party may suffer if severance is granted. It must mean more than simply withholding or delaying the divorce as a form of leverage for other issues that can be pursued separately: Al-Saati v. Fahmi, [2015] O.J. No. 774, at para. 27.
[15] The onus of establishing that the responding party (the applicant in this case) will not be prejudiced by the severance rests on the moving party (the respondent): Bakmazian v. Iskedjian, 2015 ONSC 7493, at para. 10.
[16] Severance of a divorce claim from corollary issues may be denied for prejudice to the other spouse where the order would or could deprive that other spouse of medical benefits: Shawyer v. Shawyer, 2016 ONSC 830, at para. 58 (and the cases cited therein).
[17] Even if there is no direct prejudice from the granting of such an order, the court has a residual discretion to refuse to sever where doing so would not be efficient or where the moving party has failed to comply with court orders or the rules including financial disclosure. The rule provides that the court “may”, not “shall”, make the order if the conditions in (a) and (b) are met.
[18] In her Application, the applicant seeks to be maintained as a beneficiary of any extended health or medical benefits available to the respondent. She alleges that she has significant health issues as evidenced by her disability pension.
[19] In his Answer, the respondent pleads that he opted out of his company health benefit plan in 2012 because his income that year was so low that he could not afford same. He further indicates that he tried to get back on the company health plan but was declined. He maintains that he has not had any family medical coverage since 2012. The applicant will not be deprived of health benefits by the order requested because she does not have them now and has not for years.
[20] The financial documents provided to Mr. Hoare show wages and benefits as a line item for the respondent’s companies. What those benefits comprise is not disclosed.
[21] The applicant deposes that since separation she has had to forgo many treatments and medications that she had access to while on his plan. She has had to stop taking one medication because it was too expensive. She is on the Ontario Trillium Benefit plan but it provides only partial coverage and some treatments are not covered at all. Significantly, she deposes that she used his health benefits up to the date of separation on May 6, 2015; viz. she used his benefit coverage after 2012 when he deposes all coverage stopped.
[22] The parties have been separated almost 6 years using her separation date and longer using his date. If benefits were a significant issue, it was not addressed in Justice Hebner’s order and no motion has been brought by her seeking to be added to his coverage or to increase spousal support to allow her to acquire coverage privately. Is this really an issue where she will be prejudiced if the order is granted? I cannot say with any certainty that she will be prejudiced, nor can I say that she will not.
[23] The evidence provided by the respondent is that he has had no family coverage since 2012. In my view, his bald assertion that he has not had coverage is insufficient. He could have provided independent proof that he is not on the company benefit plan – a statement from the group benefits provider or a letter from the plan Administrator for example. He did not.
[24] Simply put, I am not satisfied on the evidence filed that no prejudice will result by granting the order to sever.
[25] In any event, I would decline to exercise my discretion to sever the divorce in this case for the following reasons:
The respondent has not provided all documents requested by Mr. Hoare or done so in a timely manner. His approach has delayed what should have been a relatively efficient and prompt process;
He did not provide documents ordered produced because my order had not yet been processed by court staff. The order was effective immediately upon my endorsement being made, not when issued. His rationale for not complying immediately is specious;
The respondent has not fully paid the support ordered. For example, his half of the municipal taxes on the matrimonial home has not been paid. He may have over-contributed to the insurance cost for the home, but the excess paid is less than his half of the taxes due; and
Although he disputes any spousal support owing, he has not responded to counsel’s invitation to provide proof of his payments so as to put that issue to bed.
[26] In these circumstances, severing the divorce from the corollary relief signals that his conduct to this point is of no consequence. That cannot be. Accordingly, the motion to sever the divorce from the corollary relief is dismissed without prejudice to the respondent renewing that motion after Mr. Hoare’s reports are complete and a settlement conference held.
Cost of Updated Income Report
[27] I see no reason to deviate from the approach taken by Hebner J. in December 2015 with respect to funding the up front cost of the updated income report. The parties’ financial positions have not materially changed.
[28] Accordingly, the respondent shall pay the cost of the report up front with the applicant’s half share to be paid by way of an adjustment to the Net Family Property equalization. Both sides are at liberty to seek recovery of their respective share of that expense as part of their costs in the litigation at the end of the day.
Costs of the Motions
[29] The applicant is the successful party on the motions; however, in view of counsel’s failure to abide by my direction regarding the Statement of Law, there will be no costs for the motions.
Justice R. Raikes
Date: March 26, 2021