Court File and Parties
Court File No.: 129/20 Date: 2021-03-30 Superior Court of Justice - Ontario
Re: Karen Ann Tonogai, Applicant And: Blake Edward Tonogai, Respondent
Before: The Honourable Madam Justice L. Bale
Counsel: Catherine Haber, Counsel, for the Applicant Fareen Jamal, Counsel, for the Respondent
Heard: March 10, 2021
Endorsement
OVERVIEW
[1] The Applicant wife seeks the following relief on this motion:
- An Order for the production of expert reports, specifically:
A. An Order that the Respondent provide to the Applicant, within 60 days, an Expert Business Valuation Report with respect to his interest in Betco Inc. and 2178354 Ontario Inc. as at the valuation date of January 15, 2019;
B. An Order that the Respondent provide to the Applicant, within 60 days, an expert Income Report with respect to his income in 2018, 2019, and 2020; and
- An Order that the Respondent maintain the Applicant as the irrevocable beneficiary of a life insurance policy upon the Respondent’s life in the amount of at least $500,000.00 and an Order that the Respondent provide to the Applicant a copy of the life insurance policy and proof from the life insurer that she has been designated as irrevocable beneficiary of the policy as to at least $500,000.00.
[2] The Respondent husband is opposed to the relief sought.
[3] The parties resolved all other issues on this motion by way of negotiated consent, which was incorporated into a Temporary Without Prejudice Order of the court. Of particular note, the consent order includes the payment of temporary spousal support by the Respondent husband to the Applicant wife in the sum of $4,064.00 per month, and agreement that this without prejudice spousal support obligation is binding a first charge against the Respondent’s Estate.
BACKGROUND FACTS
[4] The relevant background facts for purposes of this motion are largely undisputed.
[5] The parties were married on June 15, 1991 and separated on January 15, 2019, after approximately 27 ½ years of marriage.
[6] They began cohabiting in Ontario one week before their marriage and signed a Marriage Contract on June 10, 1991, five days before the wedding.
[7] Both parties had independent legal advice on the marriage contract from legal counsel in Ontario. The contract was negotiated with their assistance over the course of the approximately 5-6 month period preceding their marriage. Sworn financial statements, executed by both parties, were attached to the Marriage Contract. A summary of the structure and value of the Respondent’s corporate holdings, corporate financial statements, and copies of the parties’ personal income tax returns were also attached.
[8] The Applicant wife’s legal counsel was referred to her through the husband’s counsel. The husband paid for the wife’s legal fees.
[9] At the time of their marriage, the Applicant had two young children from a previous relationship. Shortly after their marriage the parties had two more children. The Applicant and Respondent raised all four children together and the children are now independent adults.
[10] The Applicant wife is 60 years of age. The Respondent husband is 66 years of age.
[11] The Applicant is an American citizen. She was residing in the United States when the parties became engaged to be married. She moved to Canada with her two children to reside with the Respondent. The marriage was a traditional one. The Applicant was a homemaker, and the Respondent owned his own business. The Applicant has not been employed in the workforce for many years.
[12] The Respondent husband is a professional engineering consultant. At the time of the parties’ separation he had interests in two holding companies, the structure of which is summarized as follows:
217835 Ontario Inc.: The Respondent husband held a 50% interest in this corporation, which in turn holds a 100% interest in Envirocan Wastewater Treatment Ltd; and,
Betco Inc.: The Respondent husband held a 100% interest in Betco Inc., which in turn held a 40% interest in ACG Technology Ltd. and a 25% interest in Castle Village Developments Inc.
[13] Following separation, a corporate reorganization of the husband’s business interests occurred. Calculation Valuation Reports for two of the subsidiary companies (Envirocan Wastewater Treatment Equipment Co. Ltd. and ACG Technology Inc.) were prepared for purposes of that restructuring. The values of those two companies were calculated as at September 20, 2018 – not the family law valuation date. The reports and the underlying scope of review documents have been shared with the Applicant. The reports were not prepared for purposes of the matrimonial litigation and were paid for by the Respondent’s business.
[14] The parties attempted to resolve their issues by way of Alternative Dispute Resolution. They were not successful. During that process they jointly retained a financial professional to provide guidance on the value of the Respondent’s businesses and income for support. The financial professional shared her views with both parties but did not prepare a formal report. The Respondent funded the cost of this professional assistance at a cost of approximately $28,000.00.
POSITION OF THE PARTIES
Position of the Applicant
[15] The Applicant has commenced an Application in which she seeks to set aside the parties Marriage Contract dated June 10, 1991, allowing her to proceed with claims for spousal support and equalization of net family property.
[16] In support of her request to set aside the marriage contract she asserts that at the time of execution of the marriage contract she was unfamiliar with Ontario family law, the legal advice provided to her was inadequate, the lawyer who provided legal advice to her on the marriage contract was referred to her by and paid for by the Respondent (through his legal counsel), she was residing with and completely dependent upon the Respondent at the time of signing, parties were “not on a level playing field”, the Respondent failed to provide fulsome financial disclosure including a valuation of his corporate interests at the time of signing, and the marriage contract is grossly inequitable and one-sided.
[17] In the alterative, the Applicant argues that even if the marriage contract is not set aside:
a. The wording of the marriage contract does not specifically preclude her from claiming an equalization of net family property (i.e. the marriage contract does not reference this terminology and was entered into after the coming into force of the Family Law Act which made this significant change in the property division scheme between married spouses); and
b. The waiver of spousal support included within the marriage contract will not withstand a Miglin challenge, as it does not comply with the objectives of spousal support under the Divorce Act, and will be overridden.
[18] The Applicant asserts that expert reports are required in order for her to effectively advance her equalization and spousal support claims.
Position of the Respondent
[19] The Respondent argues that the Applicant will not be successful in setting aside the marriage contract and as a result she will not be entitled to share in the value of his business interests, nor will she be entitled to spousal support. He argues that the contract was unimpeachably drafted and negotiated between the parties over time, with an exchange of fulsome financial disclosure and independent legal advice for both parties.
[20] The Respondent argues that the Applicant’s alternative position regarding the interpretation of the marriage contract is unlikely to be met with success. While the marriage contract does not specifically reference the term equalization it is the clear intent of the contract that the Applicant is not entitled to acquire or otherwise share in the value of his business holdings on separation. In such circumstances, if would be unfair to put the Respondent to the significant expense of preparation of complicated and costly expert reports.
[21] The Respondent husband also argues that he has produced significant financial disclosure to the Applicant, including but not limited to (a) corporate tax returns and financial statements for all of his corporate holdings, (b) valuation reports for two of the five corporations, prepared in close proximity to the valuation date for purposes of corporate restructuring, and all scope of review documentation referenced therein, and (c) during the collaborative process he funded the retainer of a financial expert who guided the parties through the intricacies of his corporate holdings and income at a substantial expense. Although this professional did not prepare formal reports, her opinion as to values and income were made known to both parties throughout the process.
LAW AND ANALYSIS
A. ISSUE #1: Production of Expert Reports
[22] It is not disputed on this motion that in family court proceedings the owner of an asset bears the burden of establishing the applicable value of the asset, and the earner of an income bears the burden of establishing his or her level of income. In some cases, this obligation extends to the creation and production of formal written expert reports, including formal business valuations and income analysis reports: see for example Michi v. Michi, 2008 ONSC 728, Meeser v. Meeser, 2011 ONSC 6517, and Casdie v. Caskie, 2020 ONSC 7010 as referenced by the Applicant.
A. Relevance
[23] In family court proceedings which involve financial claims specific financial disclosure is automatically imposed as an obligation on the parties: Rule 13 of the Family Law Rules, O. Reg. 114/99, as. am. The opposing party need not request this information, it has been recognized by legislation as being relevant to such claims.
[24] A party seeking to have the other party produce information not automatically required by the Rules must, as a preliminary issue, establish that there is a probative connection between the information requested and the issues to be determined at trial. There is no automatic obligation to produce expert reports under the Rules. As such, a party that requests an opposing party to requisition and produce an expert report must, as a preliminary issue, establish the relevance or probative nature of the requested information.
B. Proportionality
[25] In addition to relevance, in assessing requests for additional financial disclosure, the court must also consider the concept of proportionality. That is, the burden of the disclosure request upon the disclosing party, including the time and expense involved in producing the information, must be assessed in the context of the relevance and importance of the content. This involves a balancing of fairness to the parties on the specific facts of each case: Kovachis v. Kovachis, 2013 ONCA 663 at para. 34, Boyd v. Fields, [2006] O.J. No. 5762 at para. 12, Chernyakhovsky v. Chernyakovsky, 2005 ONSC 6048 at para. 8, Morton v. Morton, 2015 ONSC 4633 at para. 75. These considerations of fair process, expense and time, importance and complexity, and allocation of resources are all fundamental components of the court’s positive obligation to promote the primary objective of the Family Law Rules, to deal with cases justly: Rule 2(2), 2(3), and 2(4).
C. The Marriage Contract
[26] In this case, the Applicant has made both property and support claims. On preliminary review, the value of the Respondent’s business holdings and the income derived from those business would appear obviously relevant. The Respondent husband’s corporate holdings are complex, as is the availability of income derived therefrom. As the asset holder, in normal circumstances, in addition to the basic financial disclosure required under the Rules it would seem reasonable to expect that this Respondent would be obligated to produce expert reports pertaining to both the value of these corporate assets on valuation date, and an income analysis report relating to his income available for payment of spousal support to the Applicant. However, in this case there is one complicating feature: the parties entered into a marriage contract in 1991 which purports to limit the Applicant’s right to (a) acquire any interest in the Respondent’s corporate holdings, and (b) receive spousal support from the Respondent. The question to be determined by this court is therefore the impact of the parties’ marriage contract on the Respondent’s obligation to produce what would otherwise be relevant and proportional financial information in the form of expert reports.
[27] Unfortunately, neither counsel were able to direct this court to en pointe jurisprudence which establishes the requisite test or considerations regarding production of expert reports in the face of a marriage contract which purports to limit the parties’ financial rights and obligations. Instead, it appears that where this issue has arisen in past, the parties frequently opt to bifurcate the proceedings – to hold a focused hearing on the threshold issue of whether or not the domestic contract in question will be set aside: see for example Dillon v. Dillon, 2013 ONSC 6769, Baudanza v. Nicoletti, 2011 ONSC 352. Neither of these parties has requested that process and this court is left to grapple with the disclosure question in the absence of a judicial determination on that fundamentally important issue.
[28] The Applicant did draw the court’s attention the case of Dove v. Dove which is most similar in circumstance to the issues raised on this motion: 2016 ONSC 4091. In Dove the court declined to bifurcate the proceedings for determination of whether the parties’ Separation Agreement would be set aside, and ordered a business valuation and income analysis report with respect to the husband’s dental practice. In Dove, the court opined that it would be very difficult to determine whether the subject separation agreement was signed under unimpeachable circumstances without understanding the parties’ full financial positions at the time of separation. I agree. However, in my view there is a critical distinction – in this case the circumstances relevant to the signing of the contract occurred almost thirty years ago: the value of the Respondent’s valuation date assets do not affect the critical review of the circumstances surrounding the negotiation and execution of the marriage contract. While I am alert to the need to consider the Respondent’s full financial position at the time of separation for determination of whether the spousal support provision of the parties’ marriage contract meet the objectives of section 15.2 of the Divorce Act, in my view this is a separate analysis. A more fulsome review of this topic follows under the Miglin section below.
D. Threshold Test
[29] Having considered the jurisprudence submitted and the legal submissions of counsel, I am of the view that, in the absence of agreement or judicial determination that a marriage contract must be set aside, the party seeking production of cost-prohibitive financial disclosure (in this case in the form of multiple expert reports) must satisfy the court that it is more likely than not that he or she will be successful in his or her position. Without meeting this threshold level, the court cannot be satisfied that the expert reports requested are both relevant and proportional to the issues to be determined by the court.
[30] For purposes of this case the court must therefore decide, on a balance of probabilities:
Is it more likely than not that the Applicant will be successful in setting aside the marriage contract in its entirety? If so, expert reports as to both the value of the Respondent’s businesses and his income would be relevant and proportional to both the issues of equalization and spousal support and should be ordered.
If the Applicant does not convince the court that it is more likely than not that the marriage contract will be set aside:
a. Is it more likely than not that the Applicant will be successful in her interpretation of the Marriage Contract (i.e. that the content of the contract does not specifically bar her from making a claim for equalization)? If so, an expert report as to the value of the Respondent’s businesses should be ordered; and
b. Is it more likely than not that the Applicant will be successful in overriding the spousal support waiver contained within the Marriage Contract on the basis of a Miglin analysis? If so, an expert report as to the Respondent’s income available for support purposes should be ordered.
[31] In my view this threshold approach is in keeping with the court’s positive obligation to promote the primary objective of the Family Law Rules: ensuring fair procedure to the parties while considering the involved expense, time, and the importance and complexities of expert reports in the context of the specific case. It would be unjust to the responding party to oblige him to expend significant funds to produce expert disclosure simply on the basis that triable issues have been raised: if the Applicant cannot establish that the requested materials are more likely than not to be relevant and probative to the issues before the court, the court should not be satisfied that the request is proportional and appropriate to the litigation.
E. Setting Aside the Marriage Contract
[32] On this motion the court must consider whether the Applicant has met the burden of satisfying the court that it is more likely than not that the parties’ marriage contract will be set aside, without actually determining the issue of whether or not to set aside the contract. It is therefore more appropriate at this stage to conduct a broad overview of the issue rather than to attempt to make detailed factual findings – that will be left to a trial or focused hearing on this central issue.
[33] A marriage contract is a “domestic contract” as confirmed in s. 51 and s. 52 of the Family Law Act. The court’s discretion to set aside a domestic contract is found in s. 56(4):
56 (4) A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract.
[34] The court is advised that the Applicant has not specifically pleaded which section of 56(4) she relies upon in this action, although it appears that she generally relies upon all three grounds. I note that subsection (c), “Otherwise in accordance with the law of contract”, typically refers to common-law grounds for challenging a contract in situations involving allegations of fraud, duress, undue influence, material misrepresentation, unconscionability, etc.
[35] The determination of whether a domestic contract should be set aside is not a simple task. It involves the competing but two fundamentally important concepts of individual autonomy (giving appropriate freedom and deference to parties to structure their own affairs with certainty and finality) and protection of the vulnerable through judicial oversight: see Miglin v. Miglin, [2003] S.C.R. 303 at paras 55-56, and Harshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550. The fundamental importance of each of these concepts necessitates that actual determination of the marriage contract issue on the facts of this case, should properly be determined on fuller evidentiary record, preferably with viva voce evidence and the benefit of cross-examination in the presence of the trier of fact.
[36] The burden is upon the party challenging the domestic contract to satisfy the court that one of the criteria under s. 56(4) applies and that as a result of the breach or deficiency, the court should exercise its discretion to set aside the contract. A finding that a provision of s. 56(4) has been violated does not automatically render a contract a nullity: see Levan v. Levan, at 2006 ONSC 63733, [2006] O.J. No. 4599 at para. 177, aff’d 2008 ONCA 388, [2008] O.J. No. 1905 at para. 33.
[37] I have carefully reviewed the detailed Affidavits of both parties, including the attached notes and records of counsel prepared during the 1991 negotiation of the marriage contract. I have considered the arguments of each party as applied to the legislation and legal principles outlined above. On the strength of the Affidavit materials before me, I am not convinced that it is more likely than not that the Applicant will be successful in setting aside the marriage contract. To be clear, this is not a determination that the Applicant will be unsuccessful, but rather a preliminary view that it is at least equally possible on the facts of this case that the marriage contract, including specifically the property provisions of the contract, will be upheld.
F. Contract Interpretation Issue: “Equalization”
[38] Although not referred to by counsel, it is helpful to consider a basic overview of the principles of contract interpretation in considering the Applicant’s alternate position:
a. The interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction.
b. The overriding concern is to determine the intent of the parties and the scope of their understanding.
c. To do so, a decision maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract: Sattva Capital Corp. v Creston Moly Corp., [2014] 2. S.C.R. 633 at para. 47, Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, [2006] 1 S.C.R. 744 at para. 27, Tercon Contractors Ltd. v. British Contractors (Transportion and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69 at paras. 64-65.
[39] These principles of contract interpretation are appliable to domestic contracts. In this context, I struggle to accept that it is more likely than not that the Applicant will be successful at trial in her position that she is not barred from advancing a claim for equalization the basis that basic terminology such as ‘equalization’ and ‘net family property’ are not specifically referenced in the marriage contract. Notwithstanding that the contract was formed in the year subsequent to the enactment of the Family Law Act, R.S.O. 1990, c. F.3, as am., with the introduction of the terms ‘equalization’ and ‘net family property’ into the field of family law, the contract itself appears to contain multiple references to the parties agreement that certain classes of property ‘remain separate’, and ‘sole and exclusive’, with no right to ‘division’ or to obtain or acquire an interest. On preliminary review I am not satisfied that it is more likely than not that the Applicant’s interpretation of the marriage contract will prevail over the Respondent’s. Again, to be clear, this is not a determination that the Applicant will be unsuccessful in her position, but rather a preliminary view that it is at least equally possible on the facts of this case that the Respondent’s position on this issue will be accepted by the court.
G. Miglin Analysis
[40] The Supreme Court of Canada outlined the two-stage approach necessary in considering applications for spousal support that are inconsistent with the terms of a domestic contract in Miglin v. Miglin:
First, the court must look to the circumstances of the negotiation and execution of the agreement to determine if one party took advantage of the other’s vulnerability, or if the substance of the agreement at formation failed to comply substantially with the general objectives of the Divorce Act; and
Second, viewed from the time the court application is made, the court must inquire as to whether the agreement:
a. still reflects the original intentions of the parties; and
b. is still in substantial compliance with the objectives of the Divorce Act: Miglin v Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303 at paras 79-91.
[41] The objectives of a spousal support Order are enumerated under s. 15.2 of the Divorce Act and need not be reproduced. I am persuaded by counsel for the Applicant that this is a case in which the spousal support waiver contained within the parties’ marriage contract is more likely than not to be overridden at trial pursuant to the Miglin analysis above. It is not disputed that this was a long-term marriage of a traditional nature, which involved the raising of four children. The Applicant relocated to Canada to marry the Respondent. The Respondent husband worked throughout the marriage, successfully advancing his career. The Applicant wife did not. It is more likely than not that a court will conclude that a complete waiver of spousal support in the circumstances of this case is no longer in substantial compliance with the objectives of the Divorce Act.
[42] I cannot accept the Respondent’s argument that the information communicated between the parties in the ADR process, with the assistance of a financial consultant is sufficient disclosure in the circumstances. The court is unaware of the form or quality of the opinion provided or the qualifications of the ‘expert’. The information is not contained within a formal expert report and is not admissible in evidence under Rules 20.2 of the Family Law Rules. The parties’ efforts to negotiate the matter in an ADR forum were not successful. At this stage, the purpose of the opinion is not simply to inform the Applicant, but also to inform the court at trial, if necessary, in the form of admissible opinion evidence.
[43] Further, I do not accept the Respondent’s submission that his stated intention to retire (i.e. to sell his business) excuses him from producing this material evidence. The Respondent’s ability to generate an income in the years surrounding separation are relevant. For example, there may be retroactive support owing, and/or it may be open to the court to impute a level of income to the Respondent consistent with previous earnings if his proposed retirement is not found to be reasonable. The Respondent counters that the Applicant will benefit from his intended sale of his business as he sells off portions of the properties owned by Castle Village Developments Inc. (a land development joint venture project) and has proposed an ‘if and when’ sharing of profits. The Applicant is not obligated to accept this methodology and is entitled to a clear opinion on the Respondent’s projected income from the sale of such properties if this possible to ascertain. I am not satisfied that the Respondent’s circumstances excuse him from providing a formal expert report relating to his income for support purposes.
[44] Given the complexity of the Respondent’s corporate holdings, it is appropriate to allow 90 days for the preparation of such a report by an independent expert. The Respondent should not utilize the services of his current accounting firm for preparation of this report.
H. Conclusion
[45] On the basis of the above, with respect to the Applicant’s request for business valuation reports I conclude that it would be unfair to the Respondent to require him to expend significant funds to produce complex expert reports that, at this stage, may or may not be necessary. This conclusion certainly does not preclude the Applicant from pursuing expert reports as to the Respondent’s business interests at her own expense if she wishes to assume that financial risk. The Respondent has produced significant financial disclosure, including two calculation valuation reports from a proximate time period and supporting financial records for each corporation and subsidiary; it is open to her to seek expert opinion on the basis of those materials. This is not a case where the Applicant has no knowledge of the Respondent financial circumstances. To the contrary, there is ample information available to her upon which to advance her argument that the marriage contract results in unconscionable circumstances: she is able to advance this position in the absence of expert valuation reports.
[46] With respect to the Applicant’s request for an expert report pertaining to the Respondent’s income available for support in the years 2018, 2019, and 2020, I am satisfied on a balance of probabilities that this information will be relevant to the issues at trial, and that the request is proportionate to the circumstances of the case. The Respondent will have 90 days to produce such a report. It is suggested that the Respondent contemplate requisitioning a report that provides some measure of guidance as to his future anticipated income stream (including the characterization of income derived therefrom) in the event that he does intend to pursue the sale of his businesses in the near future.
[47] There shall be an order to this effect.
B. ISSUE #2: LIFE INSURANCE AS SECURITY FOR SPOUSAL SUPPORT
[48] The parties have agreed to a Temporary Without Prejudice Order for spousal support in the amount of $4,064.00 per month, payable by the Respondent to the Applicant. The Applicant seeks an Order that the Respondent maintain a policy of life insurance with a minimum face value of $500,000.00, and that he designate the Applicant as the irrevocable beneficiary of the policy as security for his (without prejudice) spousal support obligation.
[49] Section 34(4) of the Family Law Act provides that an Order for spousal support under the provincial legislation is automatically binding upon the payor’s estate unless the order expressly provides to the contrary. There is no similar provision within the Divorce Act. However, in this case the parties have consented to a temporary without prejudice order that the interim support arrangements are binding as a first charge upon the payor’s estate.
[50] The court’s jurisdiction to require security for spousal support (including security for interim support) is found in s. 15.2(3) of the Divorce Act:
(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms conditions or restrictions in connection with the order as it thinks fit and just.
[51] The benefits of ordering security in the form of a policy of life insurance are obvious: the policy protects a pool of money for the support recipient from which to pay any outstanding support obligation – the funds cannot be depleted and will not be subject to competing claims from creditors in the event of the payor’s death. Further, the policy proceeds flow directly to the recipient and dependent’s relief litigation may be avoided. However, situations do arise wherein life insurance is unavailable to the payor or unduly cost-prohibitive. In those circumstances, other forms of security should be considered.
[52] In this case the Respondent payor advises the court that he does not have an existing policy of life insurance (save and except ‘key-man’ insurance for his business which cannot name the Applicant as beneficiary), and that at his age life insurance is cost-prohibitive. There is no other information with respect to life insurance before the court.[^1]
[53] In 2014 the Ontario Court of Appeal confirmed that the court does have jurisdiction to order a payor to obtain a new policy of life insurance to secure a support obligation: Katz v. Katz, 2014 ONCA 606. However, in doing so, the court should proceed carefully. Amongst other things:
The court must have sufficient evidence of (a) the payor’s insurability, and (b) the cost of the available insurance; and
The face value of the insurance ordered should not exceed the total amount of support likely to be payable over the duration of the support award (i.e. it should not result in a windfall). The amount may be less than the total anticipated support quantum in consideration of the ability to invest the proceeds, and should decline over time as the duration of the award diminishes: Katz at para. 74.
[54] The information before the court with respect to the Respondent’s insurability is extremely limited. The court is unable to assess the Applicant’s request in accordance with the criteria outlined in Katz at this time. More fulsome evidence will be needed to assess the reasonableness of this request at trial and there will be an order requiring the production of same. However, in the interim, this court is satisfied that the Respondent’s net worth is sufficient to secure his potential spousal support obligation and the parties have agreed that that any support obligation deemed owing will be binding as a first charge on his estate. In addition, the Respondent has advised that the Applicant remains the sole beneficiary of his RRSP portfolio (approximate value $140,000.00) and that he is content to maintain this designation pending final determination of this issue. I am satisfied that this arrangement and the agreement to bind his estate is sufficient security for the Applicant’s spousal support claim on a temporary basis.
ORDER TO ISSUE
[55] On the basis of the above, there shall be a Temporary Order to go as follows:
The Applicant’s motion for the Respondent to produce Expert Business Valuation Reports with respect to his interest in Betco Inc. and 2178354 Ontario Inc. is dismissed on a without prejudice basis to renew this request if the parties’ marriage contract dated June 10, 1991 is formally set aside.
The Respondent shall, within 90 days provide to the Applicant, a formal Income Analysis Report with respect to income available for support in 2018, 2019, and 2020.
The Applicant’s motion for security for spousal support in the form of a life insurance designation is dismissed.
The Respondent shall, within 60 days obtain and produce two quotes for a term-life policy of life insurance on his life with a face value of $500,000.00.
The Respondent shall designate and maintain the Applicant wife as the sole beneficiary of his RRSP portfolio (RBC Account with an approximate face value of $140,000.00) as further security for his without prejudice spousal support obligation and shall not withdraw or transfer funds from this account. He shall produce proof of compliance with this provision upon reasonable request of the Applicant.
In the event that either party seeks costs of this motion he or she shall arrange a ½ hour oral costs hearing before me through the Office of the Trial Coordinator. If no such hearing is arranged before June 28, 2021, there shall be no costs payable.
Bale J.
Date: March 30, 2021
[^1]: The Applicant objected to the filing of sur-reply evidence of the Respondent which the court is advised attempts to expand upon the cost of obtaining life insurance. As such, there is no evidence before the court as to the Respondent’s eligibility for life insurance or the cost thereof.