ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GALIT ALTMAN Applicant
– and –
YOEL ALTMAN Respondent
Counsel: Julie K. Hannaford & Harold Niman, for the Applicant Gary S. Joseph & Stephanie Timerman, for the Respondent
HEARD: June 28, 2021
M.D. Faieta J.
REASONS FOR DECISION
1The Applicant mother brings this motion for the following temporary orders:
(a) an order the children of the marriage reside with her.
(b) an order that she have final decision-making responsibility for the children with input from the Respondent father.
(c) an order that the Respondent pay $2 million to the Applicant which shall be credited against his support obligations once determined.
(d) an order that the Respondent be restrained from incurring any personal charges on certain credit cards used by the Applicant to fund family expenses.
(e) an order that the Respondent continue to pay in full each month the balance on certain credit cards used to fund family expenses.
(f) an order that the Respondent and any other person acting on his behalf be restrained and enjoined from dissipating, depleting or in any way dealing with any and all assets belonging to the Respondent and that he be directed to preserve all of his assets.
(g) an order that the Respondent father forthwith deliver to the Applicant’s counsel any documents that have been produced to Steve Ranot.
(h) an order that the Respondent serve the income and valuation reports being prepared by Steve Ranot within 60 days.
(i) an order that Robert Centa be appointed as an independent supervising solicitor in this matter for the purpose of receiving and reviewing the contents of boxes that are in the matrimonial home and are likely to contain information relevant to the Applicant’s claims and the family’s finances.
BACKGROUND
2The parties began cohabiting in about August 2001 and were married in June 2003. There are three children of the marriage: Shelly, age 15; Liam, age 12 and Maya, age 9.
3The Respondent is an entrepreneur who states that he has financed high growth companies in biotechnology, technology, e-sports and real estate. Most of the Respondent’s business is conducted outside of Canada and, as a result, throughout their marriage, the Respondent had a demanding work schedule and travelled frequently for business. He does not dispute that the Applicant was the primary caregiver of the children during the marriage. However, the Respondent states that he is in “constant communication” by text message and email with his children and speaks to them nearly every day.
4During their marriage, the parties enjoyed an affluent lifestyle which included a matrimonial home in Forest Hill, a nanny, private schools for the children, exclusive club memberships, private air travel, high-end clothing and shopping experiences, and deluxe spa and beauty treatments.
5In March 2016, the Quebec securities regulator, Autorité des marchés financiers, laid charges against the CEO of Amaya Inc., David Baazov, the Respondent and others, in relation to Amaya’s $4.9 billion takeover of the parent company of online gambling website, PokerStars. The Respondent was alleged to be an adviser to Amaya and faced six charges of insider trading and attempting to influence the market price of the securities of Amaya. In June 2018, the Quebec Superior Court ordered a stay of proceedings. The Respondent states that he incurred $6 million in legal fees to defend against these charges and suffered significant harm to his reputation.
6As a result of the insider trading charges, it was, and continues to be, difficult for the Respondent to own or operate a bank account. Financial institutions such as RBC, HSBC and UBS Group AG would no longer deal with the Respondent. The Respondent devised a solution. In April 2016, the parties set up an account in the Applicant’s name with Mandeville Private Client Inc., an investment dealer. In turn, the Applicant signed a lengthy Continuing Power of Attorney (“POA”) that appointed the Respondent as her “attorney for property and all investments, including but not limited to my investments with Mandeville Asset Management …” which gave the Respondent sweeping authority of her finances and personal information.
ISSUE #1: FINANCIAL DISCLOSURE
7The Applicant seeks the following Orders:
The Respondent shall forthwith deliver to the Applicant’s counsel any and all documents that have been produced to Steve Ranot/Marmer Penner and shall provide to the Applicant’s counsel on a concurrent and ongoing basis any further documents produced to Steve Ranot;
The Respondent shall serve the income and valuation reports that Steve Ranot/Marmer Penner is said to be preparing within 60 days of making this Order;
8On July 19, 2019, Ms. Hannaford sent a letter to the Respondent notifying him that the POA had been revoked and that his marriage was at an end. Her letter also states that the Applicant’s main concern is the children and that she wished to have the divorce application proceed with “discretion, privacy and expedition” and asked that the Respondent retain counsel immediately. The Respondent accepts July 19, 2019, as the date of separation although he believes that the parties had led separate lives well before that date.
9Over the next several months the parties discussed the financial aspects of their separation. The Applicant asked for financial disclosure. The Respondent promised to make a settlement proposal but did not do so.
10When he was in Toronto, the Respondent lived in the basement of the matrimonial home.
11On November 11, 2019, Ms. Hannaford sent a further letter to the Respondent:
I am writing to ask that you retain counsel immediately. I am instructed by Ms. Altman that she wishes, if at all possible, to resolve all matters related to your separation in a way that is sensitive to the children, private and expeditious. It is necessary to arrange for a counsellor to help you work out the parenting arrangements for the children. As well, it is necessary to begin the disclosure process so as to provide a foundation for reaching a financial resolution.
12On January 6, 2020, the Respondent sent several text messages to the Applicant which suggested that he was in dire financial circumstances:
Respondent: Yes I have basically lost everything. Of it is completely illiquid. I have hid nothing everything I did over the last year has blown and getting worse. I made many foolish mistakes I just want to find away to fix things I will do anything I can’t live like this.
Applicant: If you have an ounce of respect for me hire a lawyer ASAP, send my lawyer your financial information ASAP, and move out ASAP
Respondent: I can’t afford to move out u don’t get it. I really screwed up I have over extended myself. I have been paying people back which I owe money too cause nobody pays me back. It is ok. I will leave not to worry.
Applicant: Why would I know what’s going on? You don’t speak. You have no problem telling me how bad things are for you, but you don’t have the respect to sit down with me like an adult look me in the eye and tell me what’s happening.
Respondent: Sure let’s talk about it tomorrow then. Happy to lay out everything so you know. I will try to get you everything so you know the financial picture as well. [Emphasis added]
13The Respondent did not “lay out everything” for the Applicant but rather merely provided her with a few brokerage statements.
14On March 6, 2020, Ms. Hannaford sent out a further letter to the Respondent:
Since receiving our letters, you have taken absolutely no steps to move this matter forward. I have not been contacted by you personally. I have not been contacted by your counsel, nor do I even know if you have retained same. The only financial disclosure that has been provided has come to me via Ms. Altman, and clearly forms a minor piece of your overall financial picture. If we do not hear from your counsel by Wednesday, March 11, 2020, we will assume that you will not be retaining a lawyer, and we will proceed to serve you personally. For clarity, we are preparing our Application materials now.
15Despite claiming to financially over-extended, credit card records show that the Respondent spent lavishly in February/March 2020:
(a) $12,000 in a single night at a Miami restaurant;
(b) $10,000 in a single night at a strip club in Miami;
(c) $20,000 on private chartered flights;
16The Respondent states that he attended a nightclub rather than a strip club.
17In March 2020, the Respondent retained George Karahotzitis. At about that time the Respondent moved to Barbados. The funds available to the Applicant became more limited. Their previously well-funded joint account went into overdraft when mortgage and car payments were withdrawn as the Respondent had not made any further transfers into that account. The Respondent told the Applicant to use the funds in the Mandeville investment account to fund family expenses and she did so.
18Mr. Karahotzitis’ letter dated April 15, 2020, indicates that he was in the process of preparing the Respondent’s financial statement. By letter dated July 1, 2020, Mr. Karahotzitis advised that the Respondent would be providing financial disclosure once he had returned to Toronto and gathered documents in his office.
19In preparing her financial statement for this proceeding, the Applicant learned from her accountant that she had not filed a tax return for 2017, 2018 and 2019. . Because the Respondent had taken care of all financial and tax related matters for her, she contacted the Respondent. In March 2020 he told the Applicant that this tax liability was her problem and that she should pay the taxes that she owed. The Applicant pursued the matter with the Respondent and sought supporting documentation which the Respondent alleged would reduce her tax liability. In October 2020 he recommended that she file her tax returns without the supporting documentation.
20A letter from their accounts dated November 6, 2020, advised the Applicant that she had sold shares in Stars Group and other entities in 2017, 2018 and 2019. Amongst other things, the accountants stated that they did not have any documentation to support the adjusted cost basis for the shares sold that was asserted by the Respondent nor did they have any details or supporting documentation to support the Respondent’s claim of a capital loss in respect of an investment in Panton Equity Partners Fund. Without this supporting documentation the accountants estimated that the Applicant has a total tax liability of about $4.2 million for the years 2017-2019.
21On November 23, 2020, Mr. Karahotzitis advised that the Respondent would be obtaining new counsel.
22This Application was commenced on December 14, 2020. Amongst other things, the Applicant claims an equalization of net family property, spousal support and child support, custody of the children, exclusive possession of the matrimonial home and a freezing of assets.
23On January 8, 2021, Mr. Joseph’s associate advised Ms. Hannaford that:
Please advise if you will consent to an extension for the service and filing of our client's Answer and corresponding documents. Mr. Altman's finances are complex and we are working diligently with him to get his documentation in order. We are also in the process of retaining Steve Ranot of Marmer Penner to value our client's income and business interests.
24On February 12, 2021, the Respondent served his Answer and a Financial Statement. The Financial Statement states that the Respondent “does not know what his monthly or annual income is given the nature of his business” and that “he is not sure of his exact expenses”. He marked TBD or N/A for every business interest listed.
25A case conference was held on May 3, 2021. In awarding costs of the case conference to the Applicant, Justice Pinto stated:
I note that the parties separated almost 22 months ago. The financial statement filed by the respondent dated February 22, 2021, states “TBD” under the respondent’s self-employment income. Many of the entries are similarly marked “TBD”.
The reasons provided by the respondent for the paucity of meaningful information on his financial statement are that he travels frequently, his financial interests are extremely complex, his financial holdings at any given time are dynamic, and that CBV Ranot has not completed his report. In his Case Conference brief, the respondent claimed that he “does not know what his income is, as he does not earn an income in a traditional sense.”
I am not satisfied with the respondent’s explanation regarding his lack of financial disclosure. In particular the respondent knew or ought reasonably to have known that, given the nature of his self-employment and business interests, a business valuation and full accounting of his assets would need to be disclosed to the applicant: Blaney v. Blaney, 2012 ONSC 1777, at para. 5.
I find that the respondent did not make the required disclosure, or otherwise contributed to the conference being unproductive. Costs against the respondent in respect of the Case Conference are justified: Rule 17(18) of the Family Law Rules. Had proper financial disclosure been made by the respondent, the Case Conference could have meaningfully canvassed many of the items of importance to the parties.
26On May 12, 2021, Ms. Hannaford sent the following letter to Mr. Joseph:
We wrote to you in January to request that we be provided with all the documents that have been and will be provided to Steve Ranot in connection with his valuation reports. As of the date of this letter, we have yet to receive anything beyond - to use the words of Justice Pinto - “the paucity of meaningful information” contained in your client’s financial statement.
We write to you again today enclosing the preliminary request for information that was included in our case conference materials, and to request that you immediately produce any and all documents that have been provided to Mr. Ranot as part of his valuation exercise.
27Her letter requested the following disclosure:
Mr. Altman's 2019 and 2020 personal income tax returns and notices of assessments.
Statements for all bank and investment accounts held personally, and within any corporation in which Mr. Altman holds an interest, for a period of at least 3 years prior to separation to current.
A complete corporate organization chart detailing the structure of Mr. Altman's interests in all entities at the date of separation and currently. The chart provided at tab 21 to Mr. Altman's disclosure brief and his sworn financial statement indicates that Mr. Altman holds direct interests in various companies, including 2579035 Ontario Inc. and 2374879 Ontario Inc.; however, the financial statements for those companies indicate that (1) both companies have corporate shareholders, and (2) 2579035 Ontario Inc. holds investments in corporations and joint ventures. Complete, accurate details are required in order to fully comprehend the extent of Mr. Altman's assets at separation and currently.
The following information for all entities in which Mr. Altman holds an interest (whether directly, indirectly, or beneficially through a trust). If any such documents have not been prepared, confirmation of that fact will be required: Financial statements for the years prior to the date of separation to date; Corporate tax returns for the years prior to the date of separation to date; Shareholders' registers; Articles of Incorporation, Amendment and Amalgamation (as applicable); Shareholders' or other such ownership agreements.
The income/valuation report(s) that Mr. Altman's expert, Steve Ranot is said to be preparing.
28On May 21, 2021, Mr. Joseph shared the following documents with Ms. Hannaford:
Financial Statement of Yoel Altman sworn February 11, 2021;
Yoel Altman’s NOA/Reassessment for 2017, and 2018 (2019 and 2020 not filed)
Income tax return for 2016, 2017, and 2018
Financial statements of 2390113 Ontario Inc. (“2390113”) for the fiscal years from 2018 to date
Financial statements of 9649280 Canada Inc. (“9649280”) for the fiscal years from 2018 to date
Financial statements of Grandhill Properties Limited (“Properties”) for the fiscal years from 2018 to date
Financial statements of 2579035 Ontario Inc. (“2579035”) for year 2018 –2020 and T2 from 2017 – 2019
Financial statements of Grandhill Capital Inc. (“Capital”) for the fiscal years from 2018 to date
2374879 Ontario Inc.’s (“2374879”) three most recent corporate income tax returns from 2018 – 2020 T2 from 2016 – 2019
Broker statements from January to December 2019 for marketable securities held by all of the above-mentioned companies.
Canaccord Statements for 2019 for Grandhill Capital, 9649280, 2390113
Summary of investments for 9649280 Canada Inc. (2018, 2019, 2020)
Summary of investments for 239113 Ontario Inc. (2018, 2019, 2020) Summary of investments for Grandhill Capital Inc. (2018, 2019, 2020)
Resolution re Amalgamation of 2579035 Ontario Inc. with 2374789 Ontario Inc.
Director’s Statement for 2374879 Ontario Inc.
29Tim Martin, a Chartered Business Valutor, retained by the Applicant delivered an affidavit sworn May 28, 2021. He reviewed the financial documents delivered by the Respondent and concluded that the information provided is “largely incomplete and as a result, I am not able to determine the values of his business interests at the date of separation or calculate his income for support purposes”.
30The Respondent does not dispute Mr. Martin’s opinion. Instead, he states that it has been “exceedingly difficult” for him to “get my disclosure together for this proceeding”. He states that he retained Mr. Ranot in January 2021. He anticipates that his tax returns for 2019 and 2020 will be filed in 60 days and that Mr. Ranot’s reports will be completed in about 120 days.
Analysis
31In Manchanda v. Thethi, 2016 ONCA 909, 84 R.F.L. (7th) 374 (Ont. C.A.), at para. 13, the Ontario Court of Appeal stated:
This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11.) In 2015, Family Law Rule 13 was amended to emphasize a party's financial disclosure obligations. A party's non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.
32The Respondent has failed to comply with his obligation to disclose his financial affairs to the Applicant. Such disclosure was requested, and promised, long before this Application was commenced however it was not delivered. Mr. Ranot was only retained after this Application was commenced and more than six months have passed without a report being produced for reasons which are not explained with any detail. I find that it is just to make the disclosure orders requested by the Applicant subject to reducing the 60-day delivery requirement for the reports to 20 days given the time that has passed since the hearing of this motion. In addition, I find that it is just to require the Respondent to deliver the affidavit evidence sought by the Applicant as well as provide financial and corporate records, as described below.
33I order that:
The Respondent shall forthwith deliver to the Applicant’s counsel any and all documents that have been produced to Steve Ranot/Marmer Penner and shall provide to the Applicant’s counsel on a concurrent and ongoing basis any further documents produced to Steve Ranot.
The Respondent shall serve the income and valuation reports that Steve Ranot/Marmer Penner is said to be preparing within 20 days of making this Order;
The Respondent shall deliver a sworn affidavit to the Applicant’s lawyer within 30 days of this Order that sets out: (a) a complete corporate organization chart detailing the structure of the Respondent’s interests in all entities as at the date of separation and currently, including a comprehensive list of any officer/directorships he held at the date of separation or currently holds; (b) a comprehensive accounting of any and all transactions/activity the Respondent engaged in while using the Continuing Power of Attorney he exercised over the Applicant’s finances and personal information; (c) any records/agreements for any transactions, including pending transactions of any kind for the period from July 1, 2018 to the date of this order and on a continuing basis, every 30 days (“the reporting period”) involving any assets, whether held directly, indirectly, legally, beneficially, or through a corporation, LLC, partnership, trust or otherwise that the Respondent has an interest in (the “Transactions”); (d) any records/agreements for any pending or recent past transactions in the reporting period involving any business in which the Respondent has an interest, whether held directly, indirectly, legally, beneficially or otherwise (also, the “Transactions”); and (e ) the contact information for any agents acting on the Transactions;
The Respondent shall provide the Applicant with full access to, and make available to her, all financial and corporate records pertaining to any corporation, LLC, partnership, trust or any property in any jurisdiction in which the Respondent may have an interest, directly or indirectly, legally or beneficially as at the date of separation and subsequently.
ISSUE #2: APPOINTMENT OF INDEPENDENT SUPERVISING SOLICITOR
34On May 4, 2021, counsel for the Applicant advised the Respondent’s lawyer that several boxes of document had been left in various locations around the matrimonial home. She believes that the boxes may contain information that is highly relevant to this case. Ms. Hannaford states that her client placed many documents that she found on the floor and on the Respondent’s desk into boxes. The Respondent would not permit any form of mutual review of these documents. These boxes have now been quarantined. The Applicant asks that Robert Centa be retained to review and parse the documents.
35The Applicant seeks the following Orders:
Robert Centa of Palaire Roland shall be appointed as an independent supervising solicitor (“ISS”) in this matter for the purposes of: (1) receiving and review the content of boxes from the matrimonial home that are currently being quarantined in storage and which are likely to contain information relevant to the family’s finances/Galit’s claims; (2) making determinations with respect to any assertions of privilege; (3) releasing to the parties all documents that are not privileged and may be relevant to the case.
The Respondent shall bear any and all costs initial costs in connection with the ISS appointment and review provided that such payment be without prejudice to any future claims for reapportionment by the Applicant or the Respondent.
36The Respondent submits that the Applicant is on a “fishing expedition” and that she should not be permitted unfettered access. He submits that the documents are irrelevant.
37There was no case law provided by either party in respect of the use of an independent supervising solicitor in this context or any other. Such orders are sometimes made when an Anton Piller Order: See Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, para. 40.
38I find that it is just to make the Order sought with certain modifications:
Robert Centa of Palaire Roland shall be appointed as an independent supervising solicitor (“ISS”) in this matter for the purposes of: (1) receiving and review the content of boxes from the matrimonial home that are currently being quarantined in storage and which are likely to contain information relevant to this case; (2) making determinations with respect to any assertions of privilege;
Mr. Centa shall provide to the parties a detailed list of all documents found in the quarantined boxes and he shall indicate on that list which documents he believes are privileged or irrelevant to the case.
The documents found by Mr. Centa to be relevant to this case and not privileged shall not be released to the parties unless this court so orders or the parties agree.
The parties shall equally share all of Mr. Centa’s costs in connection with the ISS appointment and review provided that such payment is without prejudice to any future claim by either party for reapportionment.
ISSUE#3: PRESERVATION /NON-DEPLETION ORDER
39The Applicant seeks the following Order:
(1) Pending any further court order, and save and except for any transactions that occur the ordinary course of business – and subject to a strict accounting of same to be provided to the Applicant as and when requested – the Respondent and any other persons acting on his behalf shall be restrained and enjoined from dissipating, depleting or in any way dealing with any and all assets belonging directly or indirectly to the Respondent, and be directed to preserve all of his assets pursuant to sections 12 and 40 of the Family Law Act and section 45.01(1) of the Rules of Civil Procedure, as follows:
a. Pending court order or the Applicant’s written consent, and save and except for any transactions that occur in the ordinary course of business, the Respondent shall preserve all of his assets, bank accounts, interest in any corporation, LLC, partnership, trust or any property in any jurisdiction in which the Respondent may have an interest, directly or indirectly, legally or beneficially;
b. Pending further court order or the Applicant’s written consent, and subject to the provisions of any order for payment by the Respondent of temporary support in either a lump sum or periodic payments, the Respondent and/or any person acting or purporting to act on the Respondent’s behalf or authority, legally or otherwise, are restrained from directly or indirectly, through a corporation or trust or any other entity or by any means, disposing of, depleting or removing, transferring, alienating, assigning, mortgaging, encumbering, or otherwise dealing with, any assets, bank accounts, interest in any corporation, LLC, partnership, trust or any property in any jurisdiction in which the Respondent may have an interest, directly or indirectly, legally or beneficially, save and except any transactions which are in the ordinary course of business;
c. The Respondent shall deliver a sworn affidavit to the Applicant’s lawyer within 30 days of this order that sets out: (a) a complete corporate organization chart detailing the structure of the Respondent’s interests in all entities as at the date of separation and currently, including a comprehensive list of any officer/directorships he held at the date of separation or currently holds (b) a comprehensive accounting of any and all transactions/activity the Respondent engaged in while using the Continuing Power of Attorney he exercised over the Applicant’s finances and personal information; (c) any records/agreements for any transactions, including pending transactions of any kind for the period from July 1, 2018 to the date of this order and on a continuing basis, every 30 days (“the reporting period”) involving any assets, whether held directly, indirectly, legally, beneficially, or through a corporation, LLC, partnership, trust or otherwise that the Respondent has an interest in (the “Transactions”); (d) any records/agreements for any pending or recent past transactions in the reporting period involving any business in which the Respondent has an interest, whether held directly, indirectly, legally, beneficially or otherwise (also, the “Transactions”); and (e ) the contact information for any agents acting on the Transactions;
d. The Respondent shall authorize the financial institution(s) holding every bank account held by or on behalf of the Respondent to provide the Applicant with access, including online access and passwords and all authentication codes required for all of the bank accounts pertaining to any corporation, LLC, partnership, trust or any property in any jurisdiction in which the Respondent may have an interest, directly or indirectly, legally or beneficially, and any records (historical or otherwise) related to such account(s); the Respondent shall take whatever steps are required by the financial institution(s) to provide such access to the Applicant forthwith;
e. The Respondent shall provide the Applicant with full access to, and make available to her, all financial and corporate records pertaining to any corporation, LLC, partnership, trust or any property in any jurisdiction in which the Respondent may have an interest, directly or indirectly, legally or beneficially.
(2) The Respondent shall be restrained from incurring any personal charges on the American Express Account used by the Applicant to fund family expenses (#*3008, *1002, *1028) until further Order of this Court.
40The Respondent submits that the Applicant has not met the onus required for a preservation order.
Analysis
41Under s. 12 of the Family Law Act, R.S.O. 1990, c. F.3, a party may obtain a preservation order in proceedings for an equalization payment (s. 7) or in proceedings for a declaration as to ownership or possession (s. 10). Similarly, under s. 40 of the Family Law Act a party may obtain a preservation order in proceedings for support.
42Sections 12 and 40 of the Family Law Act state:
- In an application under section 7 or 10, if the court considers it necessary for the protection of the other spouse’s interests under this Part, the court may make an interim or final order,
(a) restraining the depletion of a spouse’s property; and
(b) for the possession, delivering up, safekeeping and preservation of the property.
- The court may, on application, make an interim or final order restraining the depletion of a spouse’s property that would impair or defeat a claim under this Part.
43The applicable principles were described by Broad J. in Popat v. Popat, 2021 ONSC 5194, at paras. 74, 75 and 81:
74 The principles governing the making of non-dissipation orders pursuant to section 12 of the Family Law Act were usefully reviewed by Sachs J. in the case of Bronfman v. Bronfman, 2000 22710 (ON SC), [2000] O.J. No. 4591 at paras. 19–31. These principles include the following:
(a) the purpose of section 12 is to ensure that if the court does determine that an equalization payment is owing, there are sufficient assets available to satisfy that payment;
(b) a section 12 preservation order is not a Mareva injunction and accordingly, the very high legal threshold necessary to obtain such an injunction is not the standard to apply under section 12;
(c) the court does not issue orders restraining parties from dealing with property without some evidence, as opposed to bare allegations;
(d) any restraining order under section 12 should properly be restricted to specific assets, and there should be an onus on the party seeking the restraining order to show prima facie that he or she is likely to receive an equalization payment equal to the value of the specific assets;
(e) the Court will want to consider how likely it is that the moving party will receive an equalization payment. It will also want to consider the effect that granting, or not granting, such an order will have on the parties. The objective is to protect the spouse's interests under the Family Law Act so that if a spouse is successful in obtaining relief under the Act there are assets available to satisfy that relief. Relevant to this exercise is an assessment of the risk of dissipation of the assets in existence prior to trial;
(f) there are certain cases where the factual record and the applicable legal principles make it very clear that a spouse will be entitled to an equalization payment in a particular amount. In such cases, considerable weight will be given by the court to this factor and perhaps less weight to the other factors.
(g) There are other cases where the facts and the law are disputed and complicated and in addition the record may not be fully developed as both sides may not yet have been in a position to obtain their experts' reports on some of the more difficult valuation issues. Even if the reports have been obtained, it may be impossible for a court on an interim motion to assess with any degree of certainty which expert's report will prevail at trial. In such cases the Court will want to go on and give serious consideration to the other factors, being the balance of convenience and the risk of dissipation prior to trial
75 In the recent case of Fraser v Fraser, 2021 ONSC 1900 Desormeau, J. at para. 68 quoted from the decision of Price v. Price, 2016 ONSC 728 as follows:
The onus lies on the party asserting that a preservation order is necessary to protect his or her interests under Part I of the FLA, or that his or her claim for support under Part III of the Act would be impaired or defeated unless a preservation order was made, to demonstrate that on the balance of probabilities.
81 In addition to the foregoing, a final issue relates to the breadth of the preservation order sought by the applicant. Kristjanson, J. made specific reference to this issue in Laliberte v. Monteith, 2018 ONSC 7032 stating as follows at paras. 41-42:
The final concern is the breadth of the Order sought. The Court of Appeal in Chitel cautioned that a party on a Mareva injunction must seek to establish the assets to be subject to the injunction with as much precision as possible. In Lasch v. Lasch, Justice Granger held that a preservation order under s. 12 of the FLA should be restricted to specific assets. This is because these orders represent execution before judgment, and run the risk of significantly interfering with the operation of businesses. In this case, the applicant sought an overbroad order as follows:
An Order restraining the Respondent, Scott Monteith, from directly or indirectly, personally, through a corporation or trust or other entity, by any means whatsoever, transferring, alienating assigning, mortgaging, encumbering, disposing of, depleting, or removing, or otherwise dealing with, any property in any jurisdiction in which he may have an interest, directly or indirectly, legally or beneficially as a trustee, pursuant to Sections 12 and 40 of the Family Law Act, save and except with the consent of the Applicant or further Court Order.
While the applicant's counsel indicated his willingness to seek a more targeted order, he has sought an order far beyond the breadth of the FLA, and fails to identify specific assets to be preserved. A preservation order should be targeted to protect the interests claimed, not all assets controlled by the party.
44The Respondent submits that there is no “tangible proof” that the Respondent is “mismanaging” his assets and that the risk of irreparable harm to the Applicant is “low”. There is no basis for these assertions given the lack of evidence regarding the Respondent’s financial affairs.
45Given the complexity and lack of clarity regarding the Respondent’s financial affairs and his failure to make timely financial disclosure to the Applicant, the Court is not able to estimate the value of the equalization payment. Accordingly, as Sachs J. noted in Bronfman, at para. 31, in such circumstances greater weight must be placed on the balance of convenience and risk of dissipation prior to trial.
46I find that there is a risk of dissipation of the Respondent’s assets prior to trial that would jeopardize the Applicant’s claim for equalization and support for the following reasons. First, the Respondent has acted unilaterally with respect to financial matters involving the Applicant including in relation to the payment of support. Second, the Respondent has a web of financial entities and relationships for which has failed to make timely disclosure even though he promised to “lay out everything” in January 2020.
47With respect to the balance of convenience and the impact of granting or not granting the order sought on the parties, the Respondent submits that the proposed restraining order is overly broad and should be restricted to specific assets whose value is equal to the anticipated equalization payment. Given the lack of disclosure, there is no way to determine the anticipated equalization payment. The Respondent further submits that he would be prevented from conducting business of any sort or managing his investment portfolios with the result that he would effectively lose the ability to earn an income. This case is distinguishable from Plese v. Herjavec, 2016 ONSC 4138 as the Respondent’s position does not appear to consider the proviso in the Applicant’s draft Order that the preservation order excludes “any transactions that occur in the ordinary course of business”.
48Further, unlike the case in Plese, I am unable to find that the Respondent is not motivated to deprive the Applicant of her entitlement to an equalization payment, spousal support and child support in amount that accords with the law when he has afforded support to the Applicant on an arbitrary basis since the time of their separation more than two years ago. The Respondent’s own actions (late and inadequate financial disclosure, his claims of impecuniosity when his financial statements show significant liquid assets and his failure to make arrangements to pay support on a periodic basis even though the parties have been separated for two years) suggest that he is seeking to deprive the Applicant of her entitlement under the FLA.
49I find that it is just to grant the following temporary preservation order:
Unless the parties otherwise agree, or this Court otherwise orders, the Respondent and any other persons acting on his behalf shall be restrained from depleting, dissipating or in any way dealing with any and all assets belonging directly or indirectly to the Respondent, and the Respondent is directed to preserve all of his assets pursuant to sections 12 and 40 of the Family Law Act except for: (1) any transactions that occur the ordinary course of business: (2) any payments that this Court orders the Respondent to make in this proceeding, including any order for the payment of spousal support and child support whether in lump sum form or otherwise, however the Respondent shall provide a strict accounting of same to the Applicant as and when requested.
ISSUE #4: INTERIM PARENTING ORDER
50The Applicant seeks the following interim parenting order:
The children … shall reside primarily with the Applicant, and the Applicant shall have final decision-making responsibility related to the children, with input from the Respondent. The Applicant shall arrange parenting time for the children with the Respondent directly.
51The Respondent opposes the Applicant’s request and submits that it is unnecessary. Alternatively, he seeks an order that the Applicant “… jointly consult with him on all major decisions impacting the children”.
Analysis
52A court may make an interim parenting order that governs decision-making responsibility and parenting time in respect of a child of the marriage: Divorce Act, R.S.C. 1985, c. 3 (2d. Supp.), s. 16.1;
53The “best interests of the child” is the sole consideration governing the making of a parenting order. In assessing what is in the best interests of the child, the court must consider all the circumstances of the child including:
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child,
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child: Divorce Act, s. 16(3).
54In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order: Divorce Act, s. 16(5).
55When determining the best interests of a child considering all the circumstances of the child, the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: Divorce Act, s. 16(2).
56Further, in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child: Divorce Act, s. 16(6).
57Finally, it has been long established that the status quo will be maintained on an interim motion for custody and access unless cogent evidence that the best interests of the child dictate otherwise. In Papp v. Papp, 1969 219 (ON CA), [1970] 1 O.R. 331, at para. 34, Laskin, J.A. stated:
It may be taken as a working rule that evidence to warrant an order for interim custody must more cogently support disturbance of the de facto situation than evidence to support an order for custody after trial on the merits. But, as in custody after trial so in respect of interim custody, the welfare of the children is the paramount consideration; and any difference in the required weight of evidence is a matter of degree and not of kind.
58Although the nomenclature has changed, the principle in Papp equally applies to a motion for an interim parenting order.
59There are three children of the marriage: Shelly, age 15; Liam, age 12 and Maya, age 9. Liam was diagnosed with ADHD in February 2020 by a psychologist.
60The parties had a traditional marriage. The Applicant took care of their children, and the Respondent supported the family financially. The Respondent states:
I have been very candid about my work and travel schedule and have admitted to missing events from time to time. However, I have always been present for my children, have worked hard to provide for them with the best life possible, and continue to remain engaged with them, whether while physically present or otherwise.
61The children reside with the Applicant in the matrimonial home. There is no dispute that the Applicant has always been their primary caregiver and that she has attended to their day-to-day needs. The Respondent travelled frequently for business during their marriage and continues to do so. He now resides in a four-bedroom luxury condominium at The Setai in Miami Beach, Florida.
62The Respondent disputes that he has only seen the children “sporadically” since the date of separation. He states that his ability to have parenting time with his children has been made harder by COVID-19 protocols and having nowhere to exercise his parenting time in Toronto. However, the Respondent goes on to state that he has rented premises in Toronto since September 2020.
63The Applicant states:
… Yoel is an absent father. He does not see the kids on a daily basis and does not deal with anything when it comes to raising them. Speaking to your kids daily by phone or text does not make you an involved parent. Why should I have to consult with him about any decisions that need to be made about the kids when he does not even know what goes on in their lives on an intimate basis? He does not have to deal with teachers when Liam is experiencing difficulties at school, he does not deal any health issues that arise. Even when he was informed that the kids will be vaccinated, he did not respond, claiming that he didn’t respond because he had no issues with it. How am I supposed to consult and make decisions with a man who is not responsive? The only time he responds is when it has any personal effect on his own agenda.
64The Applicant claims that the Respondent has shown serious lapses in judgment that have exposed them to potential harm. In support of this claim, the Applicant refers to two incidents:
The Respondent organized a birthday celebration for Liam’s 12th birthday on March 29, 2021 in Miami on a 100 foot yacht that he rented for Liam and his friends and a dinner that cost $4,000.00 USD. After dinner, a chauffeur rented the children to the yacht however the Respondent did not accompany the children. The children stayed on the yacht overnight under the supervision of the chauffeur. After the chauffeur fell asleep that evening, the children explored the yacht and became locked in a room. The chauffeur was subsequently awaken by a telephone call and rescued the children. The Respondent acknowledges that his chauffeur heard the children banging on the locked door but did not open it as he thought that it was loud music. He subsequently opened the door five minutes later. He states that the children had fun and made no mention of the incident when they met for breakfast the next morning. In fact, he did not hear about this incident from the Applicant until one month later;
The Respondent had the children in his care at a cottage that he rented during the summer. The Applicant claims that their nanny told her that the Respondent drank up to a bottle of alcohol each day. The Respondent denies drinking excessively around the children. He states that the Applicant’s nanny is not credible.
65The Respondent states that he is not in agreement with Liam being put on medication for ADHD. While he is aware that the Applicant has had difficulty in getting Liam to focus on his schoolwork, the Respondent states that the proposed treatment requires a conversation between the parties. It is unclear from the affidavit evidence whether, and what form of treatment, Liam is receiving for ADHD.
66There is no evidence of family violence or an order related to the safety, security and well-being of the children contemplated by s. 7.8 of the DA.
Conclusions
67Considering all the evidence and legal principles described above, I find that it is in the best interests of the children to make the following temporary parenting order:
The children shall primarily reside with the Applicant.
The Respondent has reasonable parenting time with the children. The parties shall make all reasonable efforts to make specific arrangements for the Respondent’s parenting time with the children.
The Applicant shall have the authority to make decisions about the children’s education, health care, extracurricular activities, language, spirituality, and any other major decisions after consulting with the Respondent.
Neither party shall disparage or speak ill of the other or discuss any issues regarding parenting arrangements, spousal support, child support or other financial issues between them with the children or in their presence.
The parties shall not communicate with each other through the children.
The parties shall each purchase a subscription to the Our Family Wizard (“OFW”) application and shall communicate through the OFW platform for all child-related communication. The parties shall share information in a timely manner regarding the children.
The parties shall equally share the cost of a parenting coordinator to assist them in implementing this interim parenting order and to resolve any disagreements in relation to this interim parenting order through a mediation/arbitration process. The parenting coordinator shall not have jurisdiction to make any changes to this interim parenting order in terms of decision-making and/or the parenting schedule. If, by October 19, 2021, the parties cannot agree on a parenting coordinator then they shall submit the name of their preferred parenting coordinator along with a copy of their CV to my attention along with up to three pages of written submissions of why their preferred candidate should be selected.
ISSUE #5: TEMPORARY CHILD AND SPOUSAL SUPPORT
68The Applicant seeks the following order:
(a) The Respondent shall pay the amount of $2,000,000.00 to the Applicant, which amount shall be credited against the Respondent’s support obligations to Applicant once the Court is in a position to accurately determine same.
(b) The Respondent shall continue to pay down in full each month the balance of the American Express Account (#*3008, #*1002 and #*1028) used by the Applicant to fund family expenses, and where necessary, make a mid-month payment to ensure that there are no interruptions in the Applicant’s ability to use the card.
69The Respondent proposes that he pay the Applicant a lump sum of $400,000 plus he continues to pay for the expenses that are automatically charged to his American Express, which are $4,738 in school tuition and $1,500 for the Rogers bill (total $6,238 per month). This lump sum is to be credited against his support obligations in this matter.
70Before their separation, the Respondent would transfer funds into their well-funded joint account from their Mandeville account. In April 2020, their joint account fell into overdraft when the mortgage and car payments came out. The Applicant began using their Mandeville account to pay for family expenses. The Applicant stopped using the Mandeville funds on the advice of her tax advisor told her that she should no longer use those funds until their true ownership and tax liability for such funds was determined. The Applicant states that the Respondent’s only financial contribution to the family’s day to day expenses is his monthly payment to the American Express card that he also uses. The Applicant states that since January 2020 she has been relying almost exclusively on her Canaccord funds to cover her family’s day to day expenses but also the cost of this litigation which she projects to be $400,000 in 2021. The Applicant estimates that she has spent $350,000 from January to June 2021 to cover the cost of household bills, family expenses and legal professional fees much of which has been financed using the funds in her Canaccord account. The Applicant’s financial statement shows that her Canaccord margin account has about $552,000 and her Canaccord TFSA has about $225,000.
Analysis
71The Court may make an interim order for the payment of child support and spousal support for any period and on any terms, conditions or restrictions that are fit and just: Divorce Act, ss. 15.1, 15.2
72Section 15.1 of the Divorce Act governs interim child support. It states:
15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
Interim order
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).
Guidelines apply
(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.
Terms and conditions
(4) 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 or interim order as it thinks fit and just.
Court may take agreement, etc., into account
(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied
(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and
(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.
Reasons
(6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.
Consent orders
(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.
Reasonable arrangements
(8) For the purposes of subsection (7), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.
73As noted above, s. 15.1(3) of the Divorce Act provides that interim child support must be paid in accordance with the Child Support Guidelines. Paragraph 11 of the Child Support Guidelines state child support may be paid in a lump sum:
The court may require in a child support order that the amount payable under the order be paid in periodic payments, in a lump sum or in a lump sum and periodic payments. [Emphasis added]
74Lump sum payments for child support are the exception, not the rule. They are typically awarded when a payor has a history of failing to pay support: Duhnych v. Duhnych [2004] O.J. No. 2655, para. 60.
75Given the language of paragraph 11 of the Guidelines, I adopt the view expressed by Timms J. in Chamanlall v. Chamanlall, [2006] O.J. No. 251, at para. 12:
There is no jurisdiction to order a lump sum under the Guidelines, without first determining the "amount payable" pursuant to the Guidelines. If, due to a lack of evidence or otherwise, one cannot do the former, then one cannot do the latter.
76Both parties in their most recent financial statements state that they earn no income. The Applicant states that her yearly expenses are $794,991.96. The Respondent states that his yearly expenses amount to $373,810.44. On the other hand, his Notices of Assessment for 2018 shows a net loss of about $885,000.00 and a net loss of about $534,000.00. The Respondent has not provided the Court with his Notices of Assessment, or his income tax returns for 2019 or 2020.
77The income of a spouse for the purposes of calculating child support under the Divorce Act is outlined in sections 15-19 of the Child Support Guidelines. In my view, it appears that the Respondent is understating his expenses given his lavish lifestyle which does not appear to be reflected in his statement. I find that it is appropriate to impute $1,200,000.00 per year in income to the Respondent pursuant to section 19 of the Child Support Guidelines on a without prejudice basis to both parties. I also find that it is appropriate to determine the amount of child support using the table formula found in the Guidelines even though the Respondent’s imputed income is greater than $150,000.00. Accordingly, on a without prejudice basis the Respondent’s obligation for child support is $18,028 per month.
78Section 15.2 of the Divorce Act governs interim spousal support. It states:
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
Interim order
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).
Terms and conditions
(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.
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Spousal misconduct
(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
79As outlined by Monahan J. in Albaum v. Albaum, 2021 ONSC 3106, the following principles govern the award of interim spousal support:
The principles applicable to motions for interim spousal support are not in dispute. In addition to the factors and objectives set out in s. 15.2 of the Divorce Act, the following principles established by the relevant jurisprudence2 are relied up by both the parties in support of their respective positions on this motion:
a. on applications for interim support the Court does not engage in a comprehensive review and analysis of the parties' circumstances, which is better left for trial. The court achieves "rough justice" at best;
b. the purpose of interim relief is to provide the parties with reasonable arrangements to meet the needs and means of the parties until trial. Therefore, on applications for interim support, the Applicant's needs and the Respondent's ability to pay assume greater significance; and
c. an interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability warrants it.
80The following principles inform the payment of spousal support in the form of a lump sum payment:
A lump sum support typically be ordered only when there is a real risk that periodic payments will not be made: Duhnych v. Duhnych, [2004] O.J. No. 2655, para. 61
A lump sum award should not be made in the guise of support for the purpose of redistributing assets however a lump sum order can be awarded to relieve against financial hardship: Davis v Crawford, 2011 ONCA 294, para. 61;
An important consideration in determining whether to make a lump sum spousal support award is whether the payor can make a lump sum payment without undermining the payor's future self-sufficiency: Davis v Crawford, 2011 ONCA 294, para. 63;
The advantages of a lump sum spousal support award must be weighed against its disadvantages Davis v Crawford, 2011 ONCA 294, para. 66.
81There is no dispute that the Applicant is entitled to interim spousal support. Her needs are significant and perhaps overstated. It appears that the Respondent has led a lavish lifestyle and afforded his family the same benefits. The Respondent has the ability to pay a significant amount of spousal support. His financial statement shows that, amongst other things, he has about $3.7 million CAD in a Canaccord margin account, about $1.7 million CAD in a Canaccord TFSA account and about $7.5 million CAD in a Canaccord RRSP account. There are no obvious disadvantages to a lump sum award in this case particularly given that the Respondent has consented to this approach. The advantage to a lump sum award is that the Applicant will avoid the real risk of non-payment of a periodic support order.
82I find that it is appropriate to order that the Respondent shall pay the amount of $1,700,000.00 to the Applicant by October 19, 2021, which amount shall be credited against the Respondent’s child support and spousal support obligations to Applicant once the Court is able to accurately determine same. The Respondent shall continue to pay the children’s cost of tuition.
ORDER
83Pursuant to the Divorce Act, I make the following temporary parenting order:
(1) The children shall primarily reside with the Applicant.
(2) The Respondent has reasonable parenting time with the children. The parties shall make all reasonable efforts to make specific arrangements for the Respondent’s parenting time with the children.
(3) The Applicant shall have the authority to make decisions about the children’s education, health care, extracurricular activities, language, spirituality, and any other major decisions after consulting with the Respondent.
(4) Neither party shall disparage or speak ill of the other or discuss any issues regarding parenting arrangements, spousal support, child support or other financial issues between them with the children or in their presence.
(5) The parties shall not communicate with each other through the children.
(6) The parties shall each purchase a subscription to the Our Family Wizard (“OFW”) application and shall communicate through the OFW platform for all child-related communication. The parties shall share information in a timely manner regarding the children.
(7) The parties shall equally share the cost of a parenting coordinator to assist them in implementing this interim parenting order and to resolve any disagreements in relation to this interim parenting order through a mediation/arbitration process. The parenting coordinator shall not have jurisdiction to make any changes to this interim parenting order in terms of decision-making and/or the parenting schedule. If, by October 19, 2021, then the parties cannot agree on a parenting coordinator then they shall submit the name of their preferred parenting coordinator along with a copy of their CV to my attention along with up to three pages of written submissions of why their preferred candidate should be selected.
84Pursuant to the Divorce Act, I make the following temporary support order:
(1) By October 19, 2021, the Respondent shall pay the amount of $1,700,000.00 to the Applicant, which amount shall be credited against the Respondent’s child support and spousal support obligations to Applicant once the Court is able to accurately determine same.
(2) The Respondent shall continue to pay the children’s cost of tuition.
85Pursuant to the Family Law Act and Family Law Rules, I make the following temporary orders:
(1) The Respondent shall forthwith deliver to the Applicant’s counsel any and all documents that have been produced to Steve Ranot/Marmer Penner and shall provide to the Applicant’s counsel on a concurrent and ongoing basis any further documents produced to Steve Ranot.
(2) The Respondent shall serve the income and valuation reports that Steve Ranot/Marmer Penner is said to be preparing within 20 days of making this Order;
(3) The Respondent shall deliver a sworn affidavit to the Applicant’s lawyer within 30 days of this Order that sets out: (a) a complete corporate organization chart detailing the structure of the Respondent’s interests in all entities as at the date of separation and currently, including a comprehensive list of any officer/directorships he held at the date of separation or currently holds; (b) a comprehensive accounting of any and all transactions/activity the Respondent engaged in while using the Continuing Power of Attorney he exercised over the Applicant’s finances and personal information; (c) any records/agreements for any transactions, including pending transactions of any kind for the period from July 1, 2018 to the date of this order and on a continuing basis, every 30 days (“the reporting period”) involving any assets, whether held directly, indirectly, legally, beneficially, or through a corporation, LLC, partnership, trust or otherwise that the Respondent has an interest in (the “Transactions”); (d) any records/agreements for any pending or recent past transactions in the reporting period involving any business in which the Respondent has an interest, whether held directly, indirectly, legally, beneficially or otherwise (also, the “Transactions”); and (e ) the contact information for any agents acting on the Transactions;
(4) The Respondent shall provide the Applicant with full access to, and make available to her, all financial and corporate records pertaining to any corporation, LLC, partnership, trust or any property in any jurisdiction in which the Respondent may have an interest, directly or indirectly, legally or beneficially as at the date of separation and subsequently.
(5) Robert Centa of Paliare Roland Rosenberg Rothstein LLP shall be appointed as an independent supervising solicitor (“ISS”) in this matter for the purposes of: (1) receiving and review the content of boxes from the matrimonial home that are currently being quarantined in storage and which are likely to contain information relevant to this case; (2) making determinations with respect to any assertions of privilege.
(6) Mr. Centa shall provide to the parties a detailed list of all documents found in the quarantined boxes and he shall indicate on that list which documents he determines are privileged or irrelevant to the case.
(7) The documents found by Mr. Centa to be relevant to this case and not privileged shall not be released to the parties unless this court so orders or the parties agree.
(8) The parties shall equally share all of Mr. Centa’s costs in connection with the ISS appointment and review provided that such payment is without prejudice to any future claim by either party for reapportionment.
(9) Unless the parties otherwise agree, or this Court otherwise orders, the Respondent and any other persons acting on his behalf shall be restrained from depleting, dissipating or in any way dealing with any and all assets belonging directly or indirectly to the Respondent, and the Respondent is directed to preserve all of his assets pursuant to sections 12 and 40 of the Family Law Act except for: (1) any transactions that occur the ordinary course of business: (2) any payments that this Court orders the Respondent to make in this proceeding, including any order for the payment of spousal support and child support whether in lump sum form or otherwise, however the Respondent shall provide a strict accounting of same to the Applicant as and when requested.
86Should the parties be unable to resolve their claims for costs of this motion, then they shall deliver their costs submissions by October 18, 2021, their responding submissions by October 25, 2021, and their reply submissions by November 1, 2021. Each costs submission shall be no more than three pages exclusive of their offers to settle and outlines of costs.
Mr. Justice M.D. Faieta
Released: October 5, 2021