COURT FILE NO.: FS-18-6867
DATE: 20210510
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KAREN ELIZABETH MCCORMICK
Applicant
– and –
JOSEPH RANDAL FISHBAYN
Respondent
Rick Peticca, for the Applicant
HEARD: In Writing
REASONS FOR JUDGMENT
P.J. Monahan J.
[1] The Applicant, who is 73 years old, and the Respondent, who is 66 years old, were married in 1984 and separated on December 15, 2012. There are two children of the marriage who are both independent adults and are not part of this litigation.
[2] Following their separation, the parties attempted to engage in a collaborative law process. That process was unsuccessful mainly because the Respondent refused to negotiate in good faith. He would not commit to a financial position and refused to provide even the most basic disclosure. In 2017 the Applicant opted out of the collaborative law process, and in December 2018 she commenced this litigation.
[3] Two case conferences were held before Stevenson J. in 2019. Following both conferences, Stevenson J. ordered the Respondent to provide financial disclosure and set out a detailed list of what the Respondent was required to produce. Apart from signing authorizations permitting the Applicant to obtain information from various financial institutions, the Respondent largely ignored Stevenson J.’s disclosure orders.
[4] In January 2020, the Applicant brought a motion for interim spousal support, as well as for an order striking the Respondent’s Answer and permitting the Applicant to proceed to an uncontested trial with affidavit evidence.
[5] In her Endorsement, Horkins J. noted that the Applicant’s entitlement to spousal support was not contested. She further found that the Respondent had the ability to pay spousal support and was simply refusing to do so. Based on the Respondent’s income of $379,418 and the Applicant’s income of $63,003, Horkins J. ordered the Respondent to commence paying interim spousal support in the amount of $12,314.50 per month effective January 1, 2019.
[6] Horkins J. further found that the Respondent was in breach of Stevenson J.’s disclosure orders. In Horkins J.’s view, the Respondent’s overall approach had been to stall the final adjudication of issues. He had demonstrated wilful noncompliance with his disclosure obligations, in an egregious and exceptional manner. Horkins J. found that there was no point in issuing yet another order for compliance, with the only appropriate remedy being to strike the Respondent’s pleadings. Accordingly, the Respondent’s Answer was struck and the Applicant was given leave to proceed by way of affidavit evidence to an uncontested trial.
[7] Pursuant to the order of Horkins J., the uncontested trial has been heard by me in writing. These reasons set out my findings and disposition of the matters at issue.
Relief Sought
[8] The Applicant seeks the following relief:
a. spousal support on a prospective and retroactive basis;
b. the release of funds held in trust representing the net proceeds of the sale the matrimonial home;
c. a divorce;
d. various forms of corollary relief; and
e. costs.
[9] I note that although the Applicant originally advanced a claim for equalization of net family properties, she is no longer seeking that relief. In her affidavit, she states that as a result of the Respondent’s failure to provide fulsome disclosure, her counsel has been unable to properly calculate an equalization of net family properties as at the time of the parties’ separation. The Applicant indicates that she does not have the energy to continue with the litigation on the equalization issue and wishes to move on with her life; on this basis, she has abandoned her claim for equalization.
[10] A spouse’s right to equalization upon separation and divorce is one of the key underpinnings of the Family Law Act. While the Applicant’s desire to move on with her life is entirely understandable, it is regrettable to say the least that she has found that she has no option but to abandon her lawful entitlement in that regard as a result of the Respondent’s intransigence.
[11] That said, the manner in which the Respondent has participated in this litigation is a relevant consideration to be taken into account in considering the relief that is being sought by the Applicant, for reasons described below.
Spousal Support
a. Entitlement
[12] In his submissions before Horkins J., the Respondent had conceded the Applicant’s entitlement to spousal support. In any event, her entitlement in that regard is obvious. After the parties’ second child was born in April 1987, the Applicant was a full-time homemaker until the parties’ separation in 2012. The Applicant was never able to enhance her skills or further her career. On the other hand, her assumption of responsibilities as the full-time homemaker allowed the Respondent to further his career as a dentist.
[13] Throughout the marriage, the Respondent operated a successful dental practice in Toronto. The Respondent was able to grow his dental practice and earn a significant income while the Applicant was home with the parties’ two children. The parties led a comfortable lifestyle, purchasing a home in Toronto as well as a cottage. They were members of private clubs and frequently travelled.
[14] The Applicant is now 73 years old and has been out of the paid workforce since 1987. She has significant financial need, since her only sources of income are her Old Age Pension, her CPP Pension and some investment income that she has been forced to draw upon to support herself. The Applicant has been unable to purchase accommodation for herself since the parties’ separation.
[15] Taking into account all these circumstances, I find that the Applicant has an entitlement to spousal support on both a compensatory and non-compensatory basis for an indefinite duration.
b. The Parties’ Incomes
[16] Although the Respondent has been operating a successful dental practice for over three decades, he has failed to provide any meaningful disclosure of his professional income.
[17] As Horkins J. noted, the best evidence available with regard to the Respondent’s income is his 2015 Income Tax Return.[^1] That tax return reports gross professional income of $659,327, expenses of $468,041, and net professional income of $191,361. The Respondent’s line 150 income for 2015 was $379,41.71, including a taxable capital gain of $176,863 from the sale of the family cottage.
[18] In his submissions to Horkins J., the Respondent argued that the inclusion of the one-time capital gain in 2015 from the sale of the cottage was unfair since it did not accurately represent his ongoing income. However, Horkins J. noted that the expenses he deducted were significant, had not been proven, and would likely not have all been allowed for the purpose of determining his income for spousal support. If 50% of the claimed expenses were allowed and the capital gains issue ignored, his line 150 income would be $425,327. In Horkins J.’s view, it was therefore entirely reasonable to find the Respondent’s income to be $379,418, which was his 2015 line 150 income.
[19] I agree with Horkins J.’s analysis on this issue. It would be manifestly unfair and contrary to the primary objective of the Family Law Rules to permit the Respondent to avoid or reduce his spousal support obligations through his wilful noncompliance with court orders. The Respondent had ample opportunity to provide documentation to support his claims with respect to his income, but refused to do so. Nor did he appeal Horkins J.’s interim order for spousal support.
[20] I therefore accept Horkins J’s determination that the Respondent’s income for spousal support purposes should be found to be $379,418.
[21] As for the Applicant’s income, she has conceded that her annual income is $63,003. There is no evidence to the contrary. I accept her evidence on this issue and find this to be her income for support purposes.
c. Spousal Support Payable
[22] Based on these income levels, I find that the Applicant is entitled to monthly spousal support in the amount of $12,314.50, payable for an indefinite period of time. This reflects an amount between the mid to high points in the Spousal Support Advisory Guidelines. I agree with Horkins J. that this is appropriate given the long-term marriage, the standard of living the parties enjoyed, and the Applicant’s needs.
d. Entitlement to Retroactive Support
[23] Horkins J. ordered interim spousal support commencing January 1, 2019, the first month after the Applicant issued her application seeking support. It is well established that the date of ‘effective notice’, generally the date of the commencement of proceedings, is the general rule or the ‘default option’ in determining the date for the commencement of spousal support.[^2] I thus have little difficulty in confirming Horkins J.’s finding that the Applicant is entitled to support commencing no later than January 1, 2019.
[24] However, the Applicant also now seeks an order for support commencing January 1, 2013, the month after the parties separated. In Kerr v Baranow, the Supreme Court of Canada identified the following considerations as relevant to the determination of whether to order support on a retroactive basis, that is, prior to the date of the issuance of the application:
i. the date upon which the payor spouse had effective notice of the claim for spousal support;
ii. the diligence of the claimant spouse in pursuing the claim;
iii. the conduct of the payor spouse relevant to the support obligation;
iv. the needs of the claimant spouse at the relevant time;
v. any hardship to the payor spouse occasioned by the retroactive award.
[25] I consider each of these factors in turn:
i. The date of effective notice of the claim
[26] In this case, there can be little doubt but that the Respondent was aware of the Applicant’s entitlement to spousal support immediately upon their separation. In his Answer the Respondent agreed that the Applicant was entitled to support. Moreover, he began making monthly payments of $1600 to the Applicant immediately after their separation. Although these monthly advances were not expressly characterized as support, it is reasonable to conclude that they reflected the Respondent’s understanding that he was obligated to pay support once the parties separated. (I note at the time the parties separated, their children were already adults in their mid-20’s, thereby negating any suggestion that the payments were intended as child support.)
[27] The Respondent continued to make these uncharacterized payments for approximately the next six years, increasing the monthly amount to $4000 in 2016. In 2018, he also advanced approximately $33,000 from his share of funds being held in trust from the sale of the parties’ matrimonial home. The Respondent’s payments ceased when the Applicant commenced this proceeding in December 2018.
[28] I therefore find that the Respondent had effective notice of the Respondent’s entitlement to support immediately upon the parties’ separation.
ii. The Diligence of the Applicant in Pursuing Support
[29] As noted above, following their separation, the parties’ attempted to engage in a collaborative law process, with a view to resolving their respective claims without the necessity of litigation. As the Applicant describes in her affidavit, she participated in this process in good faith for approximately four years.
[30] Unfortunately, the Respondent did not respond in kind. As Horkins J. found in her Endorsement, the Respondent failed to provide even the most basic disclosure to substantiate his income for support purposes or to document the values of his assets subject to equalization, including the value of his dental practice. The Respondent’s outright failure to participate in good faith ultimately doomed the process to failure.
[31] It is obviously desirable that spouses experiencing marriage breakdown attempt to resolve the resulting legal issues in a collaborative fashion. Indeed, the vast majority of separating spouses do in fact come to a voluntary resolution without the necessity of litigation. It would be inappropriate to penalize parties such as the Applicant who participate in such collaborative processes in good faith, only to be met with the argument that they should have commenced litigation earlier in order to protect their claim for support as of the parties’ separation. As Bastarache J. noted in D.B.S. v S.R.G., “courts must ensure that parents are not penalized for treating judicial recourse as a last resort”, thereby creating a “perverse incentive…for recipient spouses to avoid the informal resolution of their disputes.”[^3]
[32] In this case, there was never any doubt that the Applicant was entitled to support. Her participation in the collaborative law process did not reflect any lack of diligence on her part in advancing her claims but was, instead, a good faith effort on her part to resolve the issues by mutual agreement. After concluding in 2017 that the collaborative process was futile, the Applicant commenced this proceeding in December 2018.
[33] Given these circumstances, I find that the Applicant diligently advanced her claim for support throughout the time of the parties’ separation.
iii. Conduct of the payor spouse
[34] It is now well established that the conduct of the payor spouse is an important consideration in determining the appropriateness of making a retroactive award of support. Retroactive awards can upset the delicate balance between certainty and flexibility in this area of law. But the payor spouse’s interest in certainty becomes attenuated when that spouse has engaged in blameworthy conduct such as concealing assets or refusing to make proper disclosure, since “a payor parent should not be permitted to profit from his/her wrongdoing.”[^4]
[35] As Horkins J. outlined in some detail in her Endorsement, that is precisely what has occurred here. I will not repeat Horkins J.’s detailed account of the Respondent’s willful failure to provide proper disclosure, but merely quote her overall summary of his behavior:[^5]
The respondent’s conduct rises to the level of bad faith. It cannot be explained as bad judgement or negligence. The respondent’s prolonged pattern of conduct had one purpose and that was to conceal his financial circumstances and delay resolution of this dispute, to the detriment of the applicant.
[36] I accept and adopt these findings of Horkins J. I would further highlight the fact that the assets and/or income that the Respondent was attempting to shield from independent scrutiny appears to have been substantial. For example, although not providing a credible or independent valuation of his dental practice, the Respondent did disclose that in 2018 he had offered to sell the practice to a third party for $1.375 million. I would also point out that the Respondent’s banking records that were obtained from RBC indicated that in 2018, the Respondent was depositing at times an average of $100,000 per month into his business account. The RBC records further disclose that in a June 20, 2016 application for a business loan, the Respondent affirmed that he had cash and marketable securities on hand of $1,025,000.
[37] In short, the Applicant’s efforts to obtain disclosure of the Respondent’s business and personal assets was not a merely academic or idle exercise. I find that the Respondent’s attempt to conceal the extent and value of his assets is precisely the kind of conduct identified in the relevant jurisprudence as supporting a retroactive order for support.
iv. Needs of the Applicant
[38] Horkins J. found that the Applicant has been in need of support following the parties’ separation, and this finding is confirmed by the Applicant’s affidavit evidence filed at this trial. The Applicant has limited sources of income, namely, her Old Age Pension, her CPP Pension and investment income. The Respondent did make voluntary payments to the Applicant following their separation. However these payments were modest (ranging from $1600 per month to $4000 per month), were certainly not sufficient to provide the Applicant with a standard of living approaching that she would have enjoyed during the parties’ marriage, and were far less than he would have been required to pay pursuant to the SSAGs.
[39] It is therefore clear that the Applicant has been in need of support dating back to the time of the parties’ separation.
v. Hardship to the Respondent
[40] The possibility that a retroactive award of spousal support could cause financial hardship to the payor spouse is obviously a relevant consideration when determining whether to make such an award. Retroactive awards have the potential to disrupt a payor spouse’s reasonable expectations with respect to how they have managed their financial affairs, and courts should be attentive to this reality. It is precisely for this reason that courts are generally reluctant to delve too far in the past and will typically not make a support award retroactive to a date more than three years before the commencement of an application.[^6]
[41] That said, concerns over possible hardship depend on the extent to which the expectations of the payor spouse are reasonable. Where a payor spouse has engaged in blameworthy conduct, such as by attempting to use his/her informational advantage to justify deficient support payments, the payor spouse’s interest in certainty becomes unreasonable and no longer deserving of protection.[^7] In these circumstances, it may be appropriate to make a retroactive award effective as of the date when the support obligation arose.
[42] These are precisely the circumstances of this case, where the Respondent’s refusal to disclose his assets or income rises to the level of bad faith. A further consideration relevant to any claims of hardship on the part of the Respondent is the fact that, through his wilful refusal to comply with his disclosure obligations, he has caused the Applicant to abandon her claim for equalization. As described earlier, there is reason to believe that the Respondent had significant business and personal assets which should have been equalized. Through his misconduct he has been permitted to retain those assets for his sole personal benefit. Given this result, little weight can be accorded to any claim that a retroactive award of spousal support would cause the Respondent hardship.
[43] I would also observe that any concerns over potential hardship to the Respondent are substantially mitigated by the manner in which the Applicant seeks to structure the payment of the retroactive award. Rather than seek payment of retroactive support in a lump sum, the Applicant proposes that the Respondent be required to satisfy any retroactive payment obligation by paying monthly instalments of $5000 until such time as the retroactive support obligation has been repaid in its entirety. Structuring the obligation in this manner reduces the potential for a retroactive award to cause hardship to the Respondent.
i. Conclusion
[44] Taking all these considerations into account, I find that there would be no prejudice to the Respondent in ordering that his obligation to pay support commenced immediately following the parties’ separation. In fact, to fix a later commencement date would have the perverse result of permitting the Respondent to benefit from his willful refusal to provide meaningful disclosure. I therefore find that the Applicant is entitled an award of spousal support effective January 1, 2013.
[45] I have earlier found that the best evidence of the Respondent’s income continues to be that shown on his 2015 tax return. I find that the spousal support payable as of January 2013 should be based on the Respondent’s income of $379,418 and the Applicant’s income of $63,003. This results in an obligation to pay spousal support of $12,314.50 for each of the 72 months commencing January 1, 2013 and ending December 31, 2018, for a total amount payable for this six-year period of $886,644 ($12,314.50 multiplied by 72.)
Set off of Amounts Paid by the Respondent
[46] The Applicant acknowledges that, between January 2013 in November 2018, the Respondent made a number of uncharacterized payments to her. She agrees that these payments should be characterized as spousal support and set off against the Respondent’s retroactive spousal support obligation for this period.
[47] In her affidavit, the Applicant sets out in some detail the various payments that she received from the Respondent between 2013 and 2018. The amounts she acknowledges receiving are as follows:
i. between January 2013 and December 2015, the Respondent made monthly payments of $1600, with the payments over this three year period totaling $57,600 ($1600 per month x 36 months);
ii. from January 2016 to December 2016, the Respondent made monthly payments of $4000, for a total of $48,000;
iii. from January 2017 to December 2017, the Respondent made payments of $4000 per month, with the exception of the months of March, April and May 2017 when he paid $2000 per month. The total amount paid in 2017 was $42,000;
iv. from January 2018 to November 2018, the Respondent made monthly payments of $4000 per month. In addition, the Respondent agreed to a partial release of funds from his 50% share of the net proceeds of the sale of the matrimonial home. There were two disbursements to the Applicant from the matrimonial home proceeds, totaling $33,626.51. Therefore, the total amount advanced to the Applicant in 2018 was $77,626.51.
[48] I accept the evidence of the Applicant with respect to these uncharacterized advances and find that the Respondent paid the Applicant a total of $225,226.51 between 2013 and 2018. This amount should be characterized as lump-sum spousal support and set off against his retroactive spousal support arrears owing for this period of time.
Proceeds from Sale of Matrimonial Home
[49] Although the Applicant is not seeking an order for equalization, she is seeking to have all of the net proceeds from the sale of the matrimonial home which remain in trust released to her.
[50] The Applicant has filed a trust ledger statement prepared by the real estate solicitor, confirming that a total of $264,772.18 from the sale proceeds of the matrimonial home continues to be held in trust for the parties. The Applicant’s share of those net proceeds (after deducting her share of legal fees, disbursements and taxes) is $149,179.65, while the Respondent’s share is $115,572.83. (The difference in the parties' respective entitlement results from the 2018 payment of $33,626.51 from the Respondent's share, as described above.)
[51] It is clear that the Applicant is entitled to her share of these net proceeds. But she further argues that the Respondent’s share of the net proceeds, namely $115,572.83, should be paid to her and set off against the Respondent’s retroactive spousal support obligation.
[52] The Respondent has not made any support payments to the Applicant in well over two years, notwithstanding the fact that Horkins J. ordered him to make monthly payments of $12,314.50 commencing January 1, 2019. Moreover, the payments that the Respondent did make between 2013 and 2018 were far less than his support obligations for that period of time. The result is the accumulation of very substantial arrears that will likely be exceedingly difficult to collect and may never be paid.
[53] I therefore agree that the Respondent’s share of net proceeds from the sale of the matrimonial home currently held in trust should be released to the Applicant. That amount should be characterized as lump-sum spousal support and set off against the Respondent’s retroactive spousal support obligations for the period of January 1, 2013 to December 31, 2018.
[54] I further order that the Applicant’s share of the net proceeds from the sale the matrimonial home, namely, $149,179.65, be immediately released to her.
Retroactive Spousal Support Remaining After Set off
[55] After setting off the amounts previously paid by the Respondent between 2013 and 2018 ($225,226.51), and the Respondent’s share of the net proceeds from the sale of the matrimonial home ($115,572.83), the Respondent’s retroactive spousal support owing for the period January 1, 2013 to December 31, 2018 is reduced from a gross amount of $886,644 to a remaining amount of $545,844.66.
[56] The Applicant does not seek the immediate payment of this remaining retroactive support in a lump sum. Instead, she seeks to have the remaining retroactive spousal support owing by the Respondent paid to her at the rate of $5000 per month.
[57] For reasons outlined earlier, structuring the payment obligation in this manner reduces the risk of hardship to the Respondent from his substantial retroactive spousal support obligation. I order that the remaining retroactive support arrears outstanding of $545,844.66 be paid at the rate of $5,000 per month, commencing June 1, 2021, and on the first of each month thereafter until paid in full.
Order for Divorce
[58] The Applicant seeks an order severing the divorce from the corollary issues, dispensing with the Respondent’s approval of the Divorce Order, and ordering that the parties be divorced effective immediately.
[59] I would so order.
Life Insurance and Benefit Plans
[60] The Applicant seeks an order that the Respondent designate her as the irrevocable beneficiary of his existing life insurance policy or policies. Given the fact that the Respondent is in his late 60’s and the ongoing and retroactive support owing to the Applicant is substantial, I believe that this order is appropriate.
[61] The Applicant also seeks an order that the Respondent designate and maintain her as a dependent of any existing medical, dental and extended health plan coverage he may currently have in place, for so long as he is permitted to do so under the terms of the relevant plan. If permitted under the terms of any of the Respondent’s existing plans, I regard it appropriate that such coverage be extended to her. Given her advanced age, the Applicant clearly has a strong need for such insurance coverage. In addition, such coverage is appropriate not only because of the substantial support arrears owing, which may never be collected, but also because the Applicant has been deprived of her right to equalization and the assets which she might have utilized to fund her own private insurance.
Costs
[62] There are two outstanding costs orders that the Respondent has not paid. The first is the September 23, 2019 costs order of Stevenson J. in the amount of $3500, while the second is the May 14, 2020 costs order of Horkins J. in the amount of $23,662.73. These two costs orders total $27,162.73.
[63] In addition, the Applicant seeks an order for the payment of all other legal fees, disbursements and applicable taxes that she has paid in these court proceedings and which were not included in the above two court orders. She has submitted a Bill of Costs for the period October 28, 2018 to September 14, 2020 which indicates that, apart from these two earlier costs orders, she has incurred a total of $49,452.23 in legal fees and disbursements. She seeks recovery of this amount on a full indemnity basis.
[64] The difficulty with the Applicant’s position is that she seeks to recover costs that have already been the subject of prior costs awards.
[65] The September 23, 2019 costs order of Stevenson J. dealt not only with the costs incurred in relation to that case conference, but also costs attributable to the June 21, 2019 case conference, which Stevenson J. had expressly reserved. In my view, to now reach back and make a second costs awards in relation to work done leading up to those case conferences would be inconsistent with Rule 17(18) & (18.1), since costs for those matters have already been awarded.
[66] Similarly, the costs incurred following the September 2019 case conference leading up to the January 2020 motion before Horkins J. were the subject of her costs award of May 2020. To now make a second award of costs for this period of time would in my view be contrary to Rule 24(10) and (11), since those costs have already been considered and awarded.
[67] This leaves for consideration only the costs incurred subsequent to the January 2020 motion before Horkins J. The Applicant has submitted a Bill of Costs for this time period, indicating fees, disbursements and HST of $12,087.35. She seeks recovery of those costs on a full indemnity basis.
[68] The successful party in family law litigation has no automatic right to full recovery of their costs.[^8] However the Rules do provide for an entitlement to full recovery of costs in specific circumstances, including bad faith.[^9]
[69] As described earlier, the Respondent’s refusal to comply with his disclosure obligations rises to the level of bad faith. I therefore find that the Applicant is entitled to recovery of her costs incurred in relation to this trial, namely, those incurred following the motion before Horkins J. in January 2020, on a full indemnity basis.
[70] I have reviewed the hourly rates of the lawyers and law clerks involved in this matter, as well as their docketed time for the relevant period, and find all of it to be reasonable. I therefore award the Applicant her costs on a full-recovery basis for the period February 26, 2020 to September 22, 2020 in the amount of $12,087.35, inclusive of fees, disbursement and HST.
Disposition
[71] Order to go as follows:
a. the Respondent shall pay ongoing spousal support to the Applicant in the amount of $12,314.50 per month commencing January 1, 2019 for an indefinite period;
b. subject to paragraphs (c), (d) and (e) below, the Respondent shall pay retroactive spousal support to the Applicant of $12,314.50 per month for the period commencing January 1, 2013 to December 31, 2018, for a total retroactive support obligation in respect of these 72 months of $886,644 (the “Gross Retroactive Spousal Support Amount”);
c. the Gross Retroactive Spousal Support Amount shall be set off or reduced by the following two amounts:
i. the sum of $225,226.51, which has previously been paid by the Respondent to the Applicant between January 2013 and November 2018; and
ii. the sum of $115,572.83, which is the Respondent’s share of the net proceeds of the sale of the matrimonial home currently being held in trust, and which shall be released to the Applicant in accordance with paragraph (g) below;
d. after set-off of the amounts as provided for in paragraph (c) above, the remaining retroactive support remaining to be paid is $545,844.56 (the “Remaining Retroactive Spousal Support Amount”);
e. the Remaining Retroactive Spousal Support Amount shall be paid at a rate of $5,000 per month commencing June 1, 2021, and on the first day of each month thereafter until the total Remaining Retroactive Spousal Support Amount has been paid;
f. the Applicant’s share of the net proceeds from the sale of the matrimonial home that continue to be held in trust, namely, $149,179.65, shall immediately be released to the Applicant by the real estate solicitor;
g. the Respondent’s share of the net proceeds from the sale of the matrimonial home that continue to be held in trust, namely, $115,572.83, shall immediately be released to the Applicant by the real estate solicitor, with such payment being characterized as lump sum spousal support and set off against the Gross Retroactive Spousal Support Amount as provided in paragraph (c) above;
h. the Respondent shall designate the Applicant as an irrevocable beneficiary of his life insurance policy or policies, within 30 days of the making of this order;
i. the Respondent shall designate and maintain the Applicant as dependent of any existing medical, dental and extended health plan coverage he may currently have in place, for so long as he is permitted to do so under the terms of the insurance plan(s);
j. the parties shall be divorced effective immediately; and
k. the Respondent shall pay the costs of this trial in the amount of $12,087.35 (inclusive of HST and disbursements), and the said costs shall be enforceable as spousal support by the Director, Family Responsibility Office (Ontario).
P. J. Monahan J.
Released: May 10, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KAREN ELIZABETH MCCORMICK
Applicant
– and –
JOSEPH RANDAL FISHBAYN
Respondent
REASONS FOR JUDGMENT
P. J. Monahan J.
Released: May 10, 2021
[^1]: The Respondent did not provide his 2015 Income Tax Return directly. Rather, it was provided to the Applicant by RBC, which had obtained it from the Respondent when he had applied for a business loan in 2016. [^2]: See Kerr v Baranow, 2011 SCC 10 at para. 212; MacKinnon v MacKinnon, 2005 CanLII 13191 (ON CA), [2005] O.J. No. 1552 (Ont. C.A.), at para. 24. [^3]: D.B.S. v. S.R.G., 2006 SCC 37 (“D.B.S.”), at para. 120. [^4]: D.B.S., at para 125. [^5]: See the costs order of Horkins J., reported at McCormick v. Fishbayn, 2020 ONSC 3005, at para 21. [^6]: D. B. S., at paras 115 & 123. [^7]: D. B. S., at para 125. [^8]: Beaver v Hill, 2018 ONCA 840, at para. 13. [^9]: See Rule 24(18).