COURT FILE NO.: FS-19-96622-0000
DATE: 20220201
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Micheline Boutin
AND:
Victor Boutin
BEFORE: The Honourable Justice Van Melle
COUNSEL: Robert M. Halpern and Victoria Bell Varro, for the Applicant
Nizam Hasmi for the Respondent
HEARD: January 19, 2022 (virtually)
E N D O R S E M E N T
[1] This motion came before me on January 19, 2022. This matter has a long history. To date there are at least 15 court orders, many dealing with disclosure by the respondent.
[2] For the purposes of this motion, the April 9, 2021 order of Justice Miller is instructive. On that day she granted exclusive possession of the matrimonial home to the applicant; ordered a one-time lump sum payment of $500,000 within 30 days and adjourned the issue of spousal support. She said:
The long motion on the issues of retrospective and prospective spousal support is set to be heard the week of October 25, 2021 on the assurance of counsel for the Respondent that disclosure necessary for that motion to proceed including valuations will have been completed and provided before then. (emphasis added).
[3] The motion did not proceed due to a lack of judicial resources. The parties attended before Regional Senior Justice Ricchetti on December 22, 2021 who scheduled today’s date.
[4] The applicant is 71 and the respondent is 76. The parties were married for 47 years before their separation on November 1, 2019.
[5] The application was issued on November 28, 2019 and an answer was filed on March 5, 2020. The respondent’s finances are complicated. To date he has failed to make required disclosure. According to Justice Barnes’ endorsement of December 31, 2021, the respondent owns at least 30 properties and 8 corporations.
[6] There are four disclosure orders which the respondent has not fully complied with: August 13, 2020 (Dennison J); February 26, 2021 and May 25, 2021 (Barnes J); June 22, 2021 (Mandhane J).
[7] By way of an endorsement dated December 31, 2021, Justice Barnes declined to strike the respondent’s pleadings, even though Justice Barnes found that there was non-compliance with the disclosure orders. He felt that it was preferable to have the respondent participate in the litigation. He extended the timelines for the respondent to provide the outstanding disclosure. The respondent argues that because of the deadline extension he is not in default, but I do not agree. The deadline extension is an indulgence granted by Justice Barnes. The respondent remains in default of the orders of Justice Dennison and Justice Mandhane and prior orders of Justice Barnes. The motions that have been brought by the applicant are all due in large part to this lack of disclosure.
[8] The applicant’s motion is for:
An order that the Respondent be restrained from depleting, transferring, or otherwise dissipating any property in his possession or control, without the Applicant’s express written consent obtained in advance.
An order that the Respondent shall pay to the Applicant a without prejudice lump sum payment of $1,000,000 for her support.
An order that the Respondent shall pay to the Applicant without prejudice $1,000,000 as an interim disbursement so the applicant can conduct her own appraisals, and pay her legal fees.
An order that the Respondent shall pay to the Applicant $1,000,000 by certified cheque or bank draft payable to the Applicant within fifteen (15) days of this Order so that the Applicant can pay for outstanding utilities, property taxes, property insurance, and general maintenance and repairs relating to the matrimonial home as ordered by Justice Miller on April 9, 2021.
An order that the respondent shall direct the real estate solicitor acting for him and/or any corporation in which he has an interest on the sale of Concession 10, Part Lots 16, 17 and 18, 10th Line, Halton Hills (PINS: 250590026 and 250590002), to disburse to the Applicant the amount of $4,000,000.00, as an advance payment on account of the equalization, immediately upon the closing of the sale of Concession 10,
An order that the 6 properties listed in this paragraph at of the draft order shall be immediately listed for sale and continue to be listed until sold, on the following terms:
a. The Respondent’s consent to any step in the listing, marketing, and sale of these properties shall be dispensed with;
b. The Applicant shall have full authority over the listing, marketing and sale of these properties without the need for the Respondent’s written consent;
c. The proceeds of the sale shall be paid directly to the Applicant, subject to her providing an accounting for payments made from the sale proceeds to: satisfy the amounts due to her by the Respondent pursuant to this Order if not yet paid, and the Orders of Justice Miller dated April 9, 2021 and April 26, 2021, with the balance, if any, to be held as a reserve fund to address ongoing defaults of any court orders to and including those made at trial:
An order that the Respondent authorize his current accountant, Doug Polson of McCarney Group LLP; and his former accountant at MNP LLP, to meet with the Applicant’s retained Chartered Business Valuator, Tim Martin, and produce all requested relevant information at the Respondent’s sole expense.
An order that the Respondent shall permit the Applicant’s appointed real estate appraiser to physically access any and all real property owned by the Respondent in his personal capacity or owned by corporations in which the Respondent has an interest on 48 hours’ written notice and a further order requiring the Respondent to provide contact information for any individuals requested by the Applicant’s appointed real estate appraiser for the purpose of obtaining information necessary to conduct appraisals of the Respondent’s real property.
An order granting leave to the Applicant to register this Order on title to any and all real property owned by the Respondent in his personal capacity or owned by corporations in which the Respondent has a 100% interest.
An order that the Respondent shall deliver to the Applicant’s counsel within fifteen (15) days all mortgage documents with respect to the mortgage with Equitable Bank related to the property located at 2000 Steeles Avenue West, Brampton, Ontario, including but not limited to the mortgage registered on title securing his first loan from Equitable Bank, along with any and all subsequent mortgage(s).
[9] In total the applicant is claiming $7,000,000.
[10] The respondent’s position is that:
The request for the prevention and restraining order is too broad and would permanently destroy his business activities and worth.
That the applicant’s claim that she will be entitled to a substantial equalization payment is too difficult to assess even on a preliminary basis, especially given the fact that the respondent’s financial statement sworn October 6, 2021 shows that his net family property is 0. He states that this is likely to be confirmed once the valuations are completed.
That the respondent’s sworn financial statement shows that he has more debts than assets
That the applicant owns property in her own name and that as of the date of her October 5, 2021 Financial Statement she had $183,371.93 in her chequing account.
That the issues involved in this case are complex given that the facts and the law are disputed and very complicated, the record is undeveloped. There are questions of credibility that cannot be determined at this stage and that it is impossible for a court on an interim motion to assess with any degree of certainty which expert’s report will prevail at trial.
That the valuations are not complete and the applicant has not yet valued her corporation, Everlast Restoration Ltd. She also has not appraised the Caledon property which is in her name.
That the weakness of the applicant’s claim to an equalization, the complexity of the issues, income or undeveloped record and current circumstances make the granting of such an order very risky.
[11] The respondent also takes issue with the amended Notice of Motion which includes a request for $4,000,000 that was not present at the original return date of the motion.
[12] The respondent says that Justice Barnes has now given him until February 14, 2022 to make the disclosure that he was ordered to make so this motion should wait until after the disclosure has been provided.
[13] The applicant says that despite Everlast being in her name, it is the respondent who runs it on a day to day basis and they he is one who should value it.
[14] The respondent’s submission that it is premature to make a decision based on an “undeveloped record” is ingenuous, give that it is he who has failed to make the disclosure that he was ordered to make, even though some of the orders were made on consent and others after assurances that the disclosure would be available by a certain date.
Respondent’s ability to pay
[15] The applicant claims that the respondent can make the payment because:
As of April 19, 2022 there are retained earnings in Boutin Holdings Limited, a company of which the respondent is the sole shareholder.
The respondent assured Justice Miller on April 9, 2021 that the disclosure necessary for the spousal support motion to proceed, including valuations would have been completed and provided in September 2021.
The respondent holds a 100% interest in the following:
a) 2136615 Ontario Ltd.;
b) Everlast Group Ltd.;
c) Boutin Holdings Ltd. (which holds a 50% interest in JSVB Holdings Ltd., 2131006 Ontario Ltd., and ) 2131754 Ontario Ltd.);
d) 879662 Ontario Inc.;
e) 2240523 Ontario Inc.;
f) SRQ Holdings Inc.;
g) Everlast Caulking and Waterproofing Ltd; and
h) ATS Biotech Inc.
[16] The respondent says that the applicant receives $1,000 per month every month for rent from the Caledon property. The applicant says she receives $800 per moth in rent from which she pays all expenses, including utilities, the water tank rental, property taxes and property insurance for the property. In 2020 she earned $9,600 in rental income and paid $6,236.81 in expenses. She adds that there were significant losses in the first three years of owning the property.
Claim for interim disbursements
[17] The respondent has provided largely draft appraisal reports of real estate properties.
[18] It appears that the Respondent has not provided appraisals for the following properties:
a) The property located at Elkhart, Indiana;
b) The property in Ste. Claire, Bellechasse, QC;
c) The property located at Levis, QC;
d) The property located in Halton Hills, ON; and
e) The property located in Collingwood, ON.
[19] The applicant requires a chartered business valuator and chartered business valuator’s estimated cost of $250,000 to $350,000. She also requires funds for legal fees.
[20] The applicant says that while the respondent disputes that the applicant requires her own appraisals and critiques he does not dispute the professionals’ estimated costs of $400,000 to $500,000 for appraisals, critiques and legal fees.
Analysis
[21] Despite the respondent’s position that he is not in default of previous orders because Justice Barnes on December 31, 2021 gave him until February 14 to complete his disclosure, that is not correct. Justice Barnes specifically found that the respondent had in fact breached 4 disclosure orders. He went on to say that the respondent is not entitled to any further orders from the court until he has complied with Justice Barnes order.
[22] The respondent’s position that his financial affairs are complicated and thus he has been unable to comply, is difficult to believe. While I accept that his financial affairs are more complicated than most, he should have been in compliance of his disclosure obligations and court orders long before now. The parties separated November 1, 2019. The application was issued on November 28, 2019. The first court order for disclosure was made in August 2020.The duty to disclose is paramount in family law. There is no credible explanation for the respondent’s delay in producing the disclosure.
[23] I accept the applicant’s submission that the disclosure that has been made has been disorganized and piecemeal. It is troubling that an Agreement of Purchase and Sale dated November 19, 2021, for the properties in Halton Hills, was not provided to the applicant until January 12, 2022. It is even more troubling that the disclosure on January 12 contradicted previously produced disclosure and revealed several previously non-disclosed corporate interests.
[24] The documents provided by the respondent disclose a web of interrelated corporations, including corporations owned or co-owned by the parties’ sons and grandchildren. A great deal of time and effort will go into unravelling the respondent’s respective interests in the corporations and properties.
[25] The lack of timely disclosure and the nature of the disclosure that has been provided to date, leads me to conclude that the applicant is in need of funds to either get her own valuations or have her experts critique the valuations that have been provided and to fund her ongoing legal fees.
[26] I do not accept that the respondent does not have access to funds to advance to the applicant for this purpose.
[27] Regarding the applicant’s claim for temporary spousal support, I find that she is in need of support and that the respondent is able to pay her a lump sum now to assist her for the next few months, until the disclosure is provided in full, appraisals and critiques carried out, and questioning is held.
[28] I am not going to grant the applicant’s request for $7,000,000. Full disclosure and investigation are required. From my review of the materials on this motion, it is very possible that the applicant will be entitled to a large payment from the respondent. However, on a temporary motion, I have to estimate what will be required to get the parties to the next step.
[29] I find that a payment of $1,500,000 should be sufficient for the time being. I accept the applicant’s position that $500,000 is required for legal and experts’ fees. I find that a temporary spousal support order of $500,000 without prejudice is appropriate at this time. I also find that an amount of $500,000 without prejudice should be sufficient for renovations. The respondent’s proposal that he send a crew in to carry out renovations is rejected. The applicant has interim exclusive possession and should not have to interact with a crew provided by the respondent.
Order
[30] An order will issue that the respondent pay the applicant $1,500,000-- comprised of $500,000 toward interim disbursements, $500,000 for her support and $500,000 toward renovations to the matrimonial home. The order of Justice Miller and all previous orders remain in effect.
[31] If the parties have not done so already, they should schedule a meeting with the case management judge to determine next steps.
[32] Both parties have provided me with costs submissions. The applicant seeks full recovery costs of $147,548.65; substantial recovery of $132,793.76 and partial recovery costs of $88,529.19. The applicant seeks as well, her expert fees pertaining to the motion before me of $12,569.42.
[33] The respondent’s full recovery costs are $187,134.78; substantial recovery are $168,421.30 and partial recovery are $112,280.86. It is evident from the respondent’s costs outline that he is aware of the costs incurred with respect to this motion. It is noteworthy that his fees in all three categories are higher than the applicant’s, from which I conclude that the costs claimed on behalf of the applicant are reasonable.
[34] The costs claimed include preparation for the long motion which was scheduled to be heard the week of October 25, 2021 (not heard due to lack of judicial resources); an urgent motion seeking that the matter be scheduled for an early long motion date; preparation and attendance at long motion scheduled to be heard on December 15, 2021; preparation for and attendance at appearance on December 22, 2021 and preparation and attendance at the appearance before me on January 19.
[35] On November 18, 2021 Justice McGee urged the parties to serve comprehensive and severable Rule 18 Offers to Settle. The applicant served an Offer to Settle, but the respondent did not. When the parties were before Justice Ricchetti on December 22, 2021, he told the parties that it would be helpful if they had their accounting experts with them for the January 19, 2022 motion. The applicant’s expert was in attendance; the respondent’s was not.
[36] I order the respondent to pay the applicant’s costs on a full recovery basis and the accountant’s fee in connection with the long motion. Despite the fact that the Offer to Settle was not better than the result obtained today, there is no question that the motion was necessitated by the failure of the respondent to comply with four disclosure orders. In assessing costs, I also consider the late disclosure of the Agreement of Purchase and Sale regarding the Halton Hills property and the previously non-disclosed information that only came to light with that disclosure.
[37] The applicant provided a draft order. The order will issue in terms of paragraphs 1, 7, 8 and 9. Paragraph 2 will issue except that the amount shall be $500,000. Paragraph 3 will issue except that the amount will be $500,000. Paragraph 4 will be amended to say that the respondent shall pay to the applicant $500,000. toward renovations on the matrimonial home. Paragraph 10 will be added as follows:
An order that the Respondent shall deliver to the Applicant’s counsel within fifteen (15) days all mortgage documents with respect to the mortgage with Equitable Bank related to the property located at 2000 Steeles Avenue West, Brampton, Ontario, including but not limited to the mortgage registered on title securing his first loan from Equitable Bank, along with any and all subsequent mortgage(s),
[38] Costs of $160,118.07, all inclusive, are ordered to be paid by the respondent within 30 days.
Van Melle J.
DATE: February 1, 2022
COURT FILE NO.: FS-19-96622-0000
DATE: 20220201
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Micheline Boutin
AND
Victor Boutin
BEFORE: The Honourable Justice Van Melle
COUNSEL: Robert M. Halpern and Victoria Bell Varro, for the Applicant
Nizam Hasmi for the Respondent
ENDORSEMENT
Van Melle J.
DATE: February 1, 2022