COURT FILE NO.: FC-05-380
DATE: 2022/09/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NICOLE VAN WESTEROP
Applicant
– and –
MINISTRY OF COMMUNITY AND SOCIAL SERVICES
Assignee
– and –
WILLIAM G. VAN WESTEROP
Respondent
– and –
WILLEM VAN WESTEROP, STEPHANE VAN WESTEROP, and MELISSA VAN WESTEROP
Added Interested Parties
(for this motion only)
Annemarie Roodal, for Ms. Van Westerop
Graeme B. Fraser, for the Ministry of Community and Social Services
Self-represented, for Mr. Van Westerop
Angela Livingstone, for Willem and Stephane Van Westerop
Self-represented, for Melissa Van Westerop
HEARD: Motion heard on June 14, 2022.
Reasons for decision
Audet J.
Nature of this motion
[1] In this motion the Applicant, Ms. Van Westerop, is seeking various procedural orders precluding the Respondent, Mr. Van Westerop, to proceed with his motion to vary spousal support until such time as he has complied with previous court orders, paid all costs awarded to her and submits to questioning. Additionally, Ms. Westerop seeks orders which will allow her to access the cash surrender value of five whole life insurance policies, two of which are currently owned by Mr. Van Westerop, and three of which he has since transferred to the parties’ three adult children (one to each). To execute on the three life insurance policies that Mr. Van Westerop has since transferred to his children, Ms. Van Westerop seeks a declaration that the transfers were fraudulent conveyances which are void as against her.
Litigation history
[2] Mr. Van Westerop is 74 years old and Ms. Van Westerop is 70 years old. This matter has been in the court system since 2000 when the initial family law proceeding was commenced. A final order was granted by Lissaman J. on October 16, 2001 requiring Mr. Van Westerop to pay to Ms. Van Westerop spousal support in the amount of $5,500.00 per month, as well as $112,700 in support arrears, a sizeable equalization payment, general damages in the amount of $25,000 for the assaults he perpetrated on Ms. Van Westerop, and costs in the amount of $17,681 (the “2001 Final Order”).
[3] The extensive litigation that ensued has been focused primarily on Mr. Van Westerop’s attempts to vary the 2001 Final Order, and Ms. Van Westerop’s efforts to enforce the monetary terms of that order. This has resulted in countless court appearances and orders being made, and more cost awards against Mr. Van Westerop.
[4] Since 2001, Mr. Van Westerop has not made one voluntary spousal support payment. The small amounts of money collected by the Family Responsibility Office have been through garnishments of tax monies and other government benefits payable to Mr. Van Westerop or paid by him as a pre-condition to his ability to proceed with his motions to change. Despite the significant income earned by Mr. Van Westerop during the parties’ marriage, Ms. Van Westerop has been living on Ontario disability benefits and other government assistance since the parties’ separation more than twenty years ago. As of April 4, 2022, Mr. Van Westerop owes $1,668,005.30 in spousal support arrears as well as $9,858.06 in costs. Mr. Van Westerop has also never paid any of the $25,000.00 ordered by Justice Lissaman as damages for his assaults of Ms. Van Westerop, and there is an outstanding amount owing on the equalization payment she ordered.
[5] The litigation that resulted in the 2001 Final Order was protracted and difficult. Throughout the proceeding, Mr. Van Westerop was obstructive and untruthful. He failed to provide proper financial disclosure and was consistently deceitful using any means possible to defeat Ms. Van Westerop’s claims including selling and transferring assets so that they could not be used to satisfy court orders. After the first interim support order was made in 2000, Mr. Van Westerop chose to stop working. He has not been gainfully employed thereafter, despite the fact that during his marriage to Ms. Van Westerop, he ran a very successful floor installation business.
[6] At the time of the initial family law proceeding, Mr. Van Westerop was in a relationship with Ms. Nicole Hanson, to whom he transferred his property without consideration, once again to defeat Ms. Van Westerop’s claims. Mr. Van Westerop’s attitude and disregard for court orders has been noted by various judges during the course of that family law proceeding and the various proceedings that followed. It is well documented.
[7] Providing a detailed account of the many steps and court hearings that have taken place in this matter since 2001, or the many court orders made following the initial family law litigation, would require many pages. What follows is a succinct summary of the key events relevant to the issues that I am required to decide.
[8] In 2004, Mr. Van Westerop commenced a motion to terminate ongoing spousal support and expunge all support arrears owing. This motion to change was dismissed on August 5, 2005. At the time of that motion, spousal support arrears amounted to $275,413.38.
[9] On March 2, 2011, Mr. Van Westerop commenced another motion to change seeking to terminate ongoing spousal support and to rescind all support arrears owing pursuant to the 2001 Final Order. Mr. Van Westerop’s motion to change was stayed by McLean J. on March 27, 2013, until he pays off all outstanding cost awards owing pursuant to prior court orders of various other judges.
[10] From 2013 to 2016, Mr. Van Westerop brought various motions to lift the stay or to establish a payment plan to pay off the costs and proceed with his motion. On March 14, 2016, Mackinnon J. ultimately permitted Mr. Van Westerop to pay off the outstanding costs by monthly payments of $250.00 (he had previously paid a lump sum payment from cashing out one of his RRSPs). However, the requirement that he had to pay off all outstanding cost orders before he could proceed with the motion to change remained in place.
[11] To date, six years later, Mr. Van Westerop has not paid off any of the remaining costs and has not been permitted to proceed with his motion to change.
Requirement to maintain life insurance coverage
[12] The 2001 Final Order also required Mr. Van Westerop to maintain Ms. Van Westerop as the beneficiary of his life insurance policy in the amount of $500,000.00. The obligation for Mr. Van Westerop to maintain life insurance coverage for the benefit of Ms. Van Westerop had been in place since at least June 2000 (by virtue of Wallace J.’s Temporary Order of June 12, 2000). In the event that he permitted his life insurance policies to lapse, he was ordered to obtain replacement life insurance coverage. According to the Temporary Order of June 12, 2000, Mr. Van Westerop had three life insurance policies at that time: two policies with London Life (presumably the same he has today) and one with NN Financial. The face value of the policy with NN Financial was $1,000,000.00.
[13] Ms. Van Westerop made many efforts to force Mr. Van Westerop to provide disclosure of his life insurance coverage and to comply with the terms of the 2001 Final Order requiring him to maintain her as beneficiary of a life insurance policy in the amount of $500,000. Mr. Van Westerop refused to comply with court orders requiring him to disclose. We now know that he did not maintain Ms. Van Westerop as the beneficiary of $500,000 under any policy, in breach of the 2001 Final Order.
[14] In 2018, Ms. Van Westerop brought her own motion against the life insurance companies to obtain disclosure of Mr. Van Westerop’s life insurance coverage. An order was made to that effect and Ms. Van Westerop received some disclosure from London Life. London Life acquired most of the Canadian operations of The Prudential Insurance Company of America in 1996. On January 16, 2016, Mr. Van Westerop’s life insurance policies in good standing showed the following:
i) Prudential (now London Life) Policy No 30 453 302 - This policy was owned by Mr. Van Westerop. The life insured was Mr. Van Westerop’s. In 1974, Ms. Van Westerop was the designated beneficiary of this policy with the Prudential Insurance Company of America. On June 8, 2001, Mr. Van Westerop revoked this beneficiary designation, and designated his common law spouse Nicole Marie Hanson as the beneficiary of the policy. On October 21, 2015, he changed this designation, and designated his son Willem H. Van Westerop, as the beneficiary of the policy. The cash surrender value of the policy on January 16, 2020 was $8,929.25 (“Policy no. 302”);
ii) Prudential (now London Life) Policy No. 49143811 - This policy was owned by Mr. Van Westerop. The life insured was Mr. Van Westerop’s. On February 20, 1974, Mr. Van Westerop designated Ms. Van Westerop as the beneficiary of this life insurance policy. On June 8, 2001, he revoked this designation, and designated his common law spouse, Nicole Marie Hanson as the beneficiary of the policy. On October 21, 2015, he changed this designation, and designated his son, Stephane Van Westerop, as the beneficiary of the policy. The cash surrender value of the policy on January 16, 2020 was $2,889.15 (“Policy no. 811”);
iii) London Life Policy No 7055159-7 - On June 8, 2001, Mr. Van Westerop was the owner of this life insurance policy on the life of the parties’ daughter, Melissa Van Westerop. On June 12, 2001, he revoked the prior designation (which I understand was Mr. Van Westerop himself at the time it was contracted) and designated Ms. Hanson as the beneficiary of the policy. On March 25, 2010, he changed this designation, and designated himself as the beneficiary of the policy. On October 21, 2015, Mr. Van Westerop confirmed himself as the beneficiary policy. The cash surrender value of the policy on January 16, 2020 was $7,662.02 (“Policy no. 159-7”);
iv) London Life Policy No 4104670-3 - On June 8, 2001, Mr. Van Westerop was the owner of this life insurance policy on the life of the parties’ son, Willem Van Westerop. On June 12, 2001, he revoked the prior designation (which I understand was Mr. Van Westerop himself at the time it was contracted), and designated Ms. Hanson as the beneficiary of the policy. On March 25, 2010, he changed this designation and designated himself as the beneficiary of the policy. This was re-confirmed on October 21, 2015. The cash surrender value of the policy on January 16, 2020 was $10,663.62 (“Policy no. 670-3”); and,
v) London Life Policy No 4437579-5 - On June 8, 2001, Mr. Van Westerop was the owner of this life insurance policy on the life of the parties’ son, Stephane Van Westerop. On June 12, 2001, he revoked the existing designation (which I understand was Mr. Van Westerop himself at the time it was contracted), and designated Ms. Hanson as the beneficiary of this policy. On March 25, 2010, he changed this designation, and designated himself as the beneficiary of the policy. On October 21, 2015, he continued to remain the beneficiary of the policy. The cash surrender value of this policy on January 16, 2020 was $8,701.00 (“Policy no. 579-5”).
[15] Mr. Van Westerop also owned one policy with Ivari Insurance Company in the amount of $1,000,000.00 that lapsed effective May 17, 2000, because he stopped the pre-authorized payment for the policy. At that time, both he and Ms. Van Westerop were designated beneficiaries of this policy.
[16] Although I am not aware of the current cash surrender value of the five life insurance policies listed above, as of January 16, 2020, the combined total value amounted to $38,845.04.
[17] On or about December 2019, Ms. Van Westerop, scheduled this motion seeking among other things to have Mr. Van Westerop cash out the cash surrender value of the five life insurance policies that he owned, including the policies that he owned insuring the lives of the adult children, with these funds to be paid towards spousal support arrears owing. The motion was scheduled to be heard on February 25, 2020.
[18] On that day, the parties’ three adult children, Stephane Van Westerop born on October 2, 1975 (aged 46, hereinafter “Stephane”) , Willem Van Westerop born November 8, 1972 (aged 49, hereinafter “Willem”), and Melissa Van Westerop born May 4, 1980 (aged 40, hereinafter “Melissa”), attended at the motion seeking an adjournment, and leave to be added as interested parties, in relation to the life insurance policies that Mr. Van Westerop had purchased in his name, insuring their lives. The adult children were added as interested parties to respond to Ms. Van Westerop’s motion.
[19] Following the adjournment, the adult children provided information that Mr. Van Westerop, six weeks before the motion was originally scheduled to be heard but after he had been served with the motion materials, had transferred ownership of the three life insurance policies he owned on the children’s lives to them. Essentially, Mr. Van Westerop transferred to the children ownership of these three policies, as well as their respective cash surrender values, without any consideration. In doing so, Mr. Van Westerop pre-emptively attempted to defeat Ms. Van Westerop’s claim to access the cash surrender value of these policies.
[20] It is important to note that to ensure that Mr. Van Westerop would not dispose of these policies before the motion was to be heard on February 25, 2020, Ms. Van Westerop had attempted to have an urgent ex-parte motion heard in November 2019 to preclude Mr. Van Westerop from disposing of his interest in his life insurance policies. The motion for a determination of urgency was heard on December 10, 2019, on notice to Mr. Van Westerop who attended the hearing with the parties’ three adult children. Therefore, as of December 10, 2019, Mr. Van Westerop and the parties’ three adult children were well aware of the dispute between the parties, of Ms. Van Westerop’s attempts to access the cash surrender value of Mr. Van Westerop’s policies, and of her request that those policies be maintained until the hearing of her motion. The three children were present again on December 19, 2019, when the matter returned before the court.
[21] On December 19, 2019, Justice Shelston granted an order requiring that Mr. Van Westerop designate Ms. Van Westerop the irrevocable beneficiary of all existing life insurance policies where he was the named insured. On that date, Mr. Van Westerop was the named insured under two life insurance policies (policies 302 and 811). He did not comply with Justice Shelston’s court order.
[22] On January 13 and 14, 2020, Mr. Van Westerop transferred ownership of three of his policies to each of his children (ownership of the 159-7 policy was transferred to Melissa, whose life was insured thereunder; ownership of the 670-3 policy was transferred to Willem, whose life was insured thereunder; and ownership of the 579-5 policy was transferred to Stephane, whose life was insured thereunder).
[23] Counsel Marc Quinn attended court as the agent for Stephane and Willem on February 25, 2020, claiming that they were uninsurable for medical reasons such that redemption of the policies would negatively impact them, as they would be left with no life insurance coverage. Having been added as interested parties to their mother’s motion, Stephane and Willem opposed the motion and sought to maintain ownership of the policy transferred to them by their father. Melissa was also added as interested party, but she is not opposing her mother’s motion.
[24] When the February 25, 2020, motion was adjourned to allow the three adult children to file motion materials, an order was made precluding Mr. Van Westerop and the three children to change, alter, modify, or dispose of any of the five insurance policies. It appears they have complied with that order.
[25] When Ms. Van Westerop sought disclosure from her two sons to support their assertion that they were uninsurable for medical reasons and had no life insurance coverage, they refused to provide the disclosure. After a motion heard before me where I ordered the disclosure to be provided, it was discovered that both Willem and Stephane have access to their own group coverage and they both own private life insurance policies. In the context of the motion hearing before me, Willem and Stephane alleged that Mr. Quinn’s representation in the February 2020 hearing that they did not have access to life insurance coverage was incorrect and an inadvertent false representation made without consulting them first. I note for the record that neither Stephane nor Willem, who were present that day, stepped up to correct Mr. Quinn’s alleged false representation.
The Within Motion
[26] In this motion before me, Ms. Van Westerop seeks the following:
- An order that Mr. Van Westerop’s Motion to Change (commenced on March 2, 2011) continue to be stayed until he completes the following:
a. He pays all outstanding costs of this motion and all previously ordered costs, including interests thereon;
b. He pays the full cash surrender value of the five life insurance policies listed above (including the three subsequently transferred to the parties’ adult children);
c. Prior to scheduling his motion to change, Mr. Van Westerop shall provide proof to the Court that he has paid all of his outstanding costs and that he has paid the cash surrender value of all five life insurance policies to Ms. Van Westerop; and,
d. He attends questioning, if requested by Ms. Van Westerop or her assignee, the Ministry of Community and Social Services (to whom the support order was assigned in part);
A declaration that Mr. Van Westerop’s transfer of ownership of the three life insurance policies that he previously owned, insuring the lives of the parties’ adult children, be set aside and declared null and void as fraudulent conveyances;
An Order that within five (5) days of this court order, Mr. Van Westerop shall cash in the five life insurance policies, and shall direct and authorize London Life to pay the cash surrender value of the policies directly to Ms. Van Westerop, such that no funds are paid directly to him:
An order directing Stephane, Willem and Melissa to cooperate with any required steps that may involve themselves to have the policies redeemed and paid out directly to Ms. Van Westerop as ordered by the Court; and,
In the alternative to the above, an order that the three life insurance policies held in the names of Stephane, Willem and Melissa are held by them in trust for Mr. Van Westerop.
Fraudulent Conveyances
Legal framework
[27] Provincial fraud provisions are remedial in nature and their purpose is to ensure that creditors may set aside a broad range of transactions involving a broad range of property interests, where such transactions were effected for the purposes of defeating the legitimate claims of creditors (Ramgotra (Trustee of) v. North American Life Assurance Co., 1996 CanLII 219 (SCC), [1996] 1 S.C.R. 325, at para. 59).
[28] The relevant legislative provisions applicable to Ms. Van Westerop’s motion for relief are found in the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, and more specifically in sections 1 to 4:
Definitions
- In this Act,
“conveyance” includes gift, grant, alienation, bargain, charge, encumbrance, limitation of use or uses of, in, to or out of real property or personal property by writing or otherwise;
“personal property” includes goods, chattels, effects, bills, bonds, notes and securities, and shares, dividends, premiums and bonuses in a bank, company or corporation, and any interest therein;
“real property” includes lands, tenements, hereditaments and any estate or interest therein.
Where conveyances void as against creditors
- Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns.
Where s. 2 does not apply
- Section 2 does not apply to an estate or interest in real property or personal property conveyed upon good consideration and in good faith to a person not having at the time of the conveyance to the person notice or knowledge of the intent set forth in that section.
Where s. 2 applies
- Section 2 applies to every conveyance executed with the intent set forth in that section despite the fact that it was executed upon a valuable consideration and with the intention, as between the parties to it, of actually transferring to and for the benefit of the transferee the interest expressed to be thereby transferred, unless it is protected under section 3 by reason of good faith and want of notice or knowledge on the part of the purchaser.
Were the transfers of Mr. Van Westerop’s ownership interests in Policies no. 159-7, 670-3 and 579-5 fraudulent conveyances?
[29] The cash surrender value in each of the three policies owned by Mr. Van Westerop on the lives of his children (“the children’s policies”) is personal property as defined by s. 1 of the Act. The transfer of each of these policies by Mr. Van Westerop to each of his children was a conveyance as defined in s. 1 of the Act. No consideration was paid by any of the children, who were fully aware, at the time they received ownership of these policies, that their mother was seeking to enforce her judgements against them.
[30] Stephane and Willem, in particular, cannot possibly claim that they were proceeding in good faith. There can be absolutely no doubt that the transfer by Mr. Van Westerop of his three life insurance policies to his adult children was made with the intent to defeat Ms. Van Westerop’s claim in this motion, and that all three children were fully aware of their mother’s claim when they received ownership of the policies.
[31] To support their position that the policies were rightfully transferred to them in good faith, Willem and Stephane argue that these policies were subscribed by their father months after they were born, and that it was always understood by them and by their parents that these policies belonged to them, and that they would one day be transferred into their names.
[32] Even if this were true, it would not change my decision in any way. Adult children have no entitlement to gifts from their parents. The cash surrender value in each of the children’s policies accumulated over the years as a result of Mr. Van Westerop’s payment of the premiums (both parents’ payments while they were still married), and when he transferred them to the children in December 2019, they belonged to him. As the rightful owner of these policies, Mr. Van Westerop could have chosen to cash them and use the funds as he pleased. The children would not have been able to preclude him from doing so, as these policies were never “their policies” (as they claim). Mr. Van Westerop’s ownership interest in these policies, which includes the right to the cash surrender values accumulated thereunder, is property within the meaning of the Act. Mr. Van Westerop could have used the value accumulated in these policies to pay his creditors, including Ms. Van Westerop. Instead, he chose to defeat Ms. Van Westerop’s rightful claim to these assets by transferring them to the children without consideration.
[33] The Supreme Court of Canada in Ramgotra (Trustee of) v. North American Life Assurance Co., supra, confirmed that a settlor’s intention is highly relevant where a settlement is being challenged under provincial (or territorial) fraud legislation. There is absolutely no question whatsoever in my mind that when he transferred ownership of the three policies – and, therefore, ownership of the cash surrender values accumulated thereunder – to the children, Mr. Van Westerop’s sole intention was to defeat Ms. Van Westerop’s claim to these monies.
[34] As a result, I find as a fact that Mr. Van Westerop’s gratuitous transfers of his ownership interest in these three policies to the children were fraudulent conveyances under the Act, and they are therefore null and void as against Ms. Van Westerop.
Execution of Ms. Van Westerop’s monetary claims against Mr. Van Westerop’s life insurance policies (i.e. their cash surrender value)
[35] The next step in my analysis is to determine whether the cash surrender value in each of Mr. Van Westerop’s life insurance policies is an asset that is subject to seizure by Ms. Van Westerop, as a creditor.
[36] The rights and interests of the insured in the insurance money, and in the contract itself, are exempt from execution or seizure while a designation in favour of a spouse, child, grandchild or parent is in place. In other words, proceeds from life insurance policies and any interest therein (such as a cash surrender values) cannot be seized by the insured’s creditors as long as there is a beneficiary in place in favour of a family member. This is clearly set out in section 196 of the Insurance Act, R.S.O. 1990, c. I.8, which states:
- Claims by creditors
(1) Where a beneficiary is designated, the insurance money, from the time of the happening of the event upon which the insurance money becomes payable, is not part of the estate of the insured and is not subject to the claims of the creditors of the insured.
(2) Contract exempt from seizure. While a designation in favour of a spouse, child, grandchild or parent of a person whose life is insured, or any of them, is in effect, the rights and interests of the insured in the insurance money and in the contract are exempt from execution or seizure.
[37] In Tennant v. Tennant, 2002 CanLII 7586 (ON CA), 2002 CarswellOnt 3865, [2002] O.J. No. 4333 (Ont. C.A.), the Ontario Court of Appeal considered this section:
As a matter of common law, life insurance proceeds payable on the death of a life insured passed through the life insured’s estate. In the context of traditional life insurance, the obvious purpose of s. 196(1) is to protect the beneficiary’s interest from creditors’ claims by changing the common law rule. Although there is no language in s. 196(1) specifically limiting the scope of the exemption from creditors’ claims, because the insurance money is payable to the designated beneficiary when the life insured dies as a matter of contract, the precondition contained in the opening words of s. 196(1) that a beneficiary be designated not only triggers the exemption from creditors’ claims, it also restricts the scope of the exemption to insurance money payable to a designated beneficiary.
[38] As stated above, at the time of the motion hearing before me, Mr. Van Westerop was the owner of only two policies: Policy no. 302, which named his son Willem as beneficiary, and Policy no. 811, which named his other son Stephane as beneficiary. Before Willem and Stephane were made beneficiaries, Mr. Van Westerop’s former partner (Nicole Hanson) had been the policies’ beneficiary since October 2001. Before that, and at the time of Wallace J.’s Order of June 12, 2000 requiring Mr. Van Westerop to designate Ms. Van Westerop as irrevocable beneficiary of fifty percent of his life insurance policies (which included the two referred above and another one that Mr. Van Westerop allowed to lapse), Ms. Van Westerop was the named beneficiary.
[39] Since both policies had, at all relevant times, a designated beneficiary who was a spouse, child, grandchild or parent of Mr. Van Westerop’s, his interest in these policies (including in any cash surrender value held thereunder) are presumably exempt from seizure pursuant to s. 196 of the Insurance Act.
[40] However, it is important to note that when Mr. Van Westerop changed the beneficiary designation from Ms. Van Westerop to his new spouse, Nicole Hanson, in October 2001, he did so in breach of a clear court order requiring him to maintain Ms. Van Westerop as beneficiary of his life insurance policies. In my view, Ms. Hanson and, thereafter, Stephane and Willem, are not entitled to the benefit and protection of s. 196 of the Insurance Act in circumstances where that benefit was acquired through the breach by Mr. Van Westerop of a clear court order.
[41] For that reason, I come to the conclusion that Mr. Van Westerop’s rights and interests in the insurance money of Policies no. 302 and 811 are subject to seizure by Ms. Van Westerop as a creditor, since she was to be maintained as the sole beneficiary of these policies by order of Wallace J.’s Order.
[42] Immediately before Mr. Van Westerop transferred his ownership interest in the other three life insurance policies (Policies no. 159-7, 670-3 and 579-5) to each of his three children, Mr. Van Westerop was the beneficiary of all three policies. As a result, Mr. Van Westerop’s rights and interests in these life insurance policies, including his entitlement to their cash surrender values, were not exempt from seizure by virtue of s. 196 of the Insurance Act (as there was no beneficiary designation in favour of his spouse, child, grandchild or parent).
[43] Based on all of the above, all orders sought by Ms. Van Westerop in relation to these five life insurance policies are granted.
Other orders sought
[44] Ms. Van Westerop seeks an order pursuant to rule 1(8) of the Family Law Rules requiring Mr. Van Westerop to take various steps before he is permitted to schedule his Motion to Change.
[45] In Bouchard v. Sgovio, 2021 ONCA 709, the Ontario Court of Appeal confirmed that courts are given a broad discretion to make orders they consider necessary to fully address a party’s failure to comply with court orders. The type of orders that the court may make under r. 1(8) are not limited to procedural orders or to those orders enumerated in that rule. At para. 51, the court states:
Such broad and purposeful applications of r. 1(8) are sensible. The relevant substantive right is created by the order that is being enforced, while r. 1(8) serves to provide the means of enforcement so that those substantive rights may be realized. The rule therefore provides broad discretion to courts to make orders it considers necessary to fully address a party's failure to comply, a flexibility that is of particular importance when the orders address the well-being of children: Children's Aid Society of Haldimand and Norfolk v. J.H. and M.H., at para. 127. Stated simply, if the remedy ordered addresses or "[deals] with the failure" to comply with the substantive order and the remedy ordered is found to be necessary to achieve the enforcement of the order being breached, that remedy is prima facie authorized by r. 1(8).
[46] Mr. Van Westerop’s failure to comply with any order made by this court over the past twenty years is so egregious that it amply justifies making the orders that Ms. Van Westerop seeks, precluding him from seeking any relief from this court until he complies with the order I am making today, pays all costs ordered to be paid by him to date, and attends questioning as may be requested by Ms. Van Westerop or her assignee.
[47] In addition to the above, and in light of Mr. Van Westerop’s long-standing history of non-compliance with court orders, and demonstrated ongoing efforts to defeat Ms. Van Westerop’s claims, I order that this decision be released to Ms. Van Westerop 48 hours before it is released to Mr. Van Westerop and any of the added interested parties (the parties’ children). This is to allow Ms. Van Westerop to provide me with a draft order to be signed and issued, so that she can then put the London Life Insurance Company on notice of my order before Mr. Van Westerop or any of the added interested parties have an opportunity to take steps to further defeat Ms. Van Westerop’s claims against the five life insurance policies.
ORDERS
- It is hereby declared that the transfer by the Respondent, William Van Westerop, of his ownership interest in the following life insurance policies are set aside and declared null and void as a fraudulent conveyance pursuant to the Fraudulent Conveyances Act, RSO 1990, c F.29:
a. The Respondent’s transfer of his ownership interest in the life insurance policy issued by the London Life Insurance Company, Policy No. 4437579-5, to Stephane Van Westerop;
b. The Respondent’s transfer of his ownership interest in the life insurance policy issued by the London Life Insurance Company, Policy No. 4104670-3, to Willem Van Westerop; and,
c. The Respondent’s transfer of his ownership interest in the life insurance policy issued by the London Life Insurance Company, Policy No. 7055159-7, to Melissa Van Westerop.
- Within seven (7) days of this Order, the Respondent William Van Westerop shall take all necessary steps to cash in the following life insurance policies:
a. London Life Insurance Company, Policy No. 4437579-5 (cash surrender value as of January 14, 2020, when it was transferred to Stephane Van Westerop);
b. London Life Insurance Company, Policy No. 4104670-3 (cash surrender value as of January 14, 2020, when it was transferred to Willem Van Westerop);
c. London Life Insurance Company, Policy No. 7055159-7 (cash surrender value as of January 14, 2020, when it was transferred to Melissa Van Westerop);
d. Prudential Insurance Company of America with London Life Insurance Company, Policy No. 49143811 (current cash surrender value); and,
e. Prudential Insurance Company of America with London Life Insurance Company, Policy No. 30453302 (current cash surrender value);
and shall direct and authorize London Life Insurance Company to pay the cash surrender value of the policies directly to the Applicant, Nicole Van Westerop, such that no funds should be paid directly to him.
In the alternative to para. 2 above, Mr. Van Westerop may pay to Ms. Van Westerop an amount equivalent to the total cash surrender value held in all five life insurance policies as per para. 2 above.
Stephane Van Westerop, Willem Van Westerop and Melissa Van Westerop shall cooperate with any required steps that may involve themselves to have the policies redeemed and paid out directly to the Applicant, Nicole Van Westerop as ordered herein. Until they have done so, or the cash surrender values of all five policies, as set out in para. 2 above, has been paid to Ms. Van Westerop, Stephane Van Westerop, Willem Van Westerop and Melissa Van Westerop shall hold the life insurance policy currently held in their respective names in trust for the Applicant, Ms. Nicole Van Westerop.
The London Life Insurance Company is hereby ordered to pay the cash surrender value of the above policies directly to the Applicant, Nicole Van Westerop, such that no funds is paid directly to the Respondent, William Van Westerop, or the added interested parties Willem Van Westerop, Stephane Van Westerop and Melissa Van Westerop.
As there is no evidence before me confirming whether the London Life Insurance Company was served with Ms. Van Westerop’s motion, should the London Life Insurance Company have any objections to the above provision of my order, it shall be permitted to bring such objections to my attention by way of motion on notice to all parties. Until such time as a further order is thereby made, the London Life Insurance Company shall not disburse the cash surrender value of the above listed life insurance policies to anyone who might be entitled to claim them pursuant to each policy, other than to Ms. Van Westerop.
The Respondent William Van Westerop shall not dispose, transfer or otherwise alienate the two life insurance policies listed at subparas. 2 d) and e) above, except for the purpose of paying to Ms. Van Westerop their cash surrender values as of January 14, 2020, and he shall immediately take all necessary steps to ensure that Ms. Van Westerop is named as the irrevocable beneficiary of at least $500,000 under one or both of these policies.
William Van Westerop’s motion to change spousal support which was commenced on March 2, 2011, shall continue to be stayed until he completes the following:
a. Pay the costs of this motion, and all outstanding costs owed to Ms. Nicole Van Westerop to date plus any additional interest accrued thereunder;
b. Pay the full cash surrender value of all five life insurance policies in compliance with the above paragraphs;
c. Provide proof to the Court, prior to scheduling his motion to change, that he has paid all of his outstanding costs payments, paid the cash surrender value of all of the above- mentioned life insurance policies to the Applicant, and has irrevocably named Nicole Van Westerop as the beneficiary of $500,000 under one or both life insurance policies listed at subparas. 2 d) and e) above; and,
d. Attend questioning as may be requested by Ms. Van Westerop or her assignee the Ministry of Community and Social Services.
In the event that the Respondent, William Van Westerop, or any of the added interested parties, Willem Van Westerop, Stephane Van Westerop or Melissa Van Westerop, breaches any terms of the within order, the Applicant shall be permitted to bring a contempt motion against them (or any one of them) seeking relief.
This decision shall be released to Ms. Van Westerop 48 hours before it is released to Mr. Van Westerop and any of the added interested parties. The draft order can be forwarded to my attention via Trial Coordination or my judicial assistant to be signed and issued without it being approved by any of the Respondents.
COSTS
[48] Ms. Van Westerop is entitled to her full recovery costs for all steps taken by her since she initiated this motion, subject to offers to settle that may have been exchanged until this motion was finally heard. She is also entitled to her costs against Stephane and Willem for all steps taken from February 25, 2020, when they sought to be added as interested parties in this motion, subject again to offers to settle that may have been exchanged. Since Melissa did not take a position in the motion, she shall not be responsible for any of Ms. Van Westerop’s costs.
[49] If the parties are unable to agree on costs, I will accept written submissions not exceeding five pages, double spaced, 12-point font, exclusive of Bills of Costs and Offers to Settle, in accordance with the following timelines:
Ms. Van Westerop to serve and file her submissions by October 14, 2022;
All other parties to serve and file their submissions by October 28, 2022; and,
Ms. Van Westerop may serve and file her brief reply, if any, by November 4, 2022.
Madam Justice Julie Audet
Released: September 27, 2022
COURT FILE NO.: FC-05-380
DATE: 2022/09/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NICOLE VAN WESTEROP
Applicant
– and –
MINISTRY OF COMMUNITY AND SOCIAL SERVICES
Assignee
– and –
WILLIAM G. VAN WESTEROP
Respondent
– and –
WILLEM VAN WESTEROP, STEPHANE VAN WESTEROP, and MELISSA VAN WESTEROP
Added Interested Parties
(for this motion only)
Reasons for decision
Audet J.
Released: September 27, 2022