Court File and Parties

Bracebridge Court File No.: FC-19-78 Date: 2023-04-25 Superior Court of Justice - Ontario

Re: Vagia Vohra, Applicant And: Rajat Vohra, Respondent

Before: The Honourable Mr. Justice J.P.L. McDermot

Counsel: David Winnitoy, for the Applicant Stephen Kirby, for the Respondent

Heard: February 17, 2023

Ruling on motion

[1] The Respondent, Dr. Vohra, and the Applicant, Ms. Vohra, have lived together since at least 2003 and they married on September 22, 2006. They have one daughter, Angelina, who was born in 2004 and who is now 18 years old. Ms. Vohra brought two children into the relationship who are now adults. The parties had a short marriage and separated in 2010. Ms. Vohra had thought the marriage longer until an arbitrator decided otherwise.

[2] Dr. Vohra is a medical doctor who practices in Sudbury. He did not always practice medicine there; when he met Ms. Vohra, he practiced in Woodbridge. They moved into a home that was solely owned by Dr. Vohra in Huntsville. Both parties had originally thought that the home was jointly owned until it was discovered in February, 2022, by Mr. Winnitoy’s office that the home was solely owned by Dr. Vohra.

[3] These proceedings were commenced by application filed by Ms. Vohra on April 3, 2019. Although parenting time was an issue, the child has now aged out, and is no longer subject to a parenting plan. The Applicant asked for a divorce, equalization of property, and spousal and child support. At the time the application was filed, Dr. Vohra had already agreed to pay child support of $2,500 per month and spousal support of $3,500 per month in a separation agreement copied from the internet and signed by the parties on March 6, 2011. On July 26, 2019, by consent order of Justice Casullo, the Respondent agreed to pay $8,000 per month of uncharacterized support to the Applicant; that provision is specifically “without prejudice and subject to verification of the payor’s income and redefined as child support or spousal support once payor’s income verified retroactively to July 1, 2019.”

[4] I mentioned that the parties had fought over the length of cohabitation: the Respondent said that the parties separated in 2010 while the Applicant said that the date of separation took place in 2018. The parties concentrated their efforts on that issue rather than the income verification issues contemplated by the July 26, 2019 order. The issue of the parties’ date of separation was bifurcated along with any necessary extension of the limitation period under the Family Law Act[^1] and because of COVID delays, the parties agreed to submit the valuation day issue to an arbitrator, Herschel Fogelman.

[5] In arbitration with Mr. Fogelman, the Respondent was wholly successful on the issue of the date of separation: the arbitrator determined after hearing evidence that the Applicant was not a credible witness and that the date of separation was that advocated by the Respondent, being December 8, 2010. In making this decision, Arbitrator Fogelman was none too complimentary about Ms. Vohra’s testimony, at times describing it as “begging credulity”[^2] and as being “nonsensical”[^3] and “baffling”.[^4] He was especially critical of her explanations for the signing of the internet separation agreement and as to the use of her credit card in the United States between 2015 and 2018. He found that one of the Respondent’s adult children had manufactured evidence to show the parties still residing together after 2010. Arbitrator Fogelman preferred Dr. Vohra’s evidence to that of Ms. Vohra based upon the internal inconsistencies in Ms. Vohra’s testimony and her lack of details.

[6] However, Ms. Vohra was as successful on the extension of the limitation period as Dr. Vohra was on the issue of the date of separation. Citing the reasons for the delay in commencing proceedings as to being in good faith and also finding lack of prejudice, Arbitrator Fogelman exercised his discretion to extend the limitation period under the FLA. Dr. Vohra has appealed this portion of the arbitrator’s decision, but Ms. Vohra chose not to appeal the decision on the issue of the date of separation.

[7] Based on the decision on the date of separation, Dr. Vohra has now brought a motion to suspend spousal support. He says that if the parties separated in December, 2010, the cohabitation of the parties was under 8 years and, at best, spousal support should terminate, even in a compensatory support situation, after at most, 12 years. He says that based upon the Spousal Support Advisory Guidelines (the “SSAG”) the maximum term of spousal support for an 8-year cohabitation is 12 years.

[8] Although only mentioned two times by Mr. Kirby during argument, Dr. Vohra also asks in his material that child support for Angelina, who is now over 18, come to an end. Notwithstanding Angelina’s sickle cell disease, he complains that she is not carrying a full course load at York University, where she is attending virtually from the Applicant’s home, and that she is no longer a child of the marriage within the meaning of the Divorce Act.[^5]

[9] Mr. Winnitoy, in his argument and in his materials, states firstly that Dr. Vohra has no standing to bring this motion as he is in default of his support obligations. And indeed, he is behind in his support. After Arbitrator Fogelman’s decision, Dr. Vohra stopped paying support other than a comparatively small amount of child support of under $2,000 per month.[^6] At the first return of this motion with Justice Woodley, he began paying the support again, but never brought the arrears into good standing. He refuses to because he believes that Ms. Vohra owes him some $4.9 million which he will never see and therefore he should not have to pay the support arrears. Ms. Vohra says that her husband owes her unpaid support of $13,128.33.

[10] As well, Mr. Winnitoy brings a motion for interim disbursements and costs payable by Dr. Vohra. Ms. Vohra wishes to pay for a critique of Dr. Vohra’s income report, which she says is wrong and does not take into account substantially increased shareholder equity within the Respondent’s professional corporation. She also wishes the court to order funding of a vocational assessment to account for her disabilities. Finally, she needs her legal fees paid.

[11] As well, the Respondent seeks to have me find that the Applicant’s evidence should be viewed with suspicion based upon the credibility findings of the arbitrator.

[12] Finally, there was a motion brought by way of 14B motion by Ms. Vohra to amend her pleadings resulting from the discovery by Mr. Winnitoy that the matrimonial home was solely in the name of Dr. Vohra. It was seen by me as being inappropriate for a 14B motion and complex in light of the lengthy affidavit material filed (five affidavits, some of which did not comply with the page limits in the Notices to the Profession). I extended the time for argument of this motion to three hours, as a result which was fully used in argument of this matter. The materials state that this issue has now been settled.

Result

[13] For the reasons set out below, I have determined the following:

(a) The motion to terminate child and spousal support is dismissed; and,

(b) There shall be an order for interim disbursements to be paid in the amount of $100,000.

Analysis

[14] There are three issues placed before the court:

(a) Should I view the Applicant’s evidence as not being credible based upon the credibility findings of the arbitrator?

(b) Should child and spousal support be terminated at this point?

(c) Should there be an order for interim costs and disbursements in the requested amount of $152,000?

Credibility Findings of Arbitrator

[15] As noted above, the arbitrator who heard the bifurcated trial on the issue of the date of separation made negative credibility findings concerning Ms. Vohra. His description of her evidence, his findings of fact and his comments make it clear that he felt that Ms. Vohra was not a believable witness, at least in comparison with her husband, Dr. Vohra.

[16] Mr. Kirby, in his factum, urged me to adopt the arbitrator’s findings concerning Ms. Vohra’s credibility. He suggests, based upon the arbitrator’s credibility findings, “that any conflicting evidence in the affidavits of Rajat and Vagia should be reconciled in favor of Rajat and his evidence preferred.” The issue is whether this court should defer to the credibility findings of the arbitrator in this motion, which is unrelated to the arbitration itself.

[17] The Respondent has filed a number of cases in support of his position. Unfortunately, none of them are on point. Some confirm the well-known doctrine that an appellate court will defer to a trial judge’s determinations of a witness’s credibility absent “clear and palpable error”: see Khamis v. Noormohamed, 2011 ONCA 127 and Purcaru v. Seliverstova, 2016 ONCA 610. That is inapplicable in the present case which is not an appeal of the arbitrator’s decision. Similarly, in Luxterior Design Corp. v. Gelfand, 2020 ONSC 446, the Divisional Court considered a motions judge’s setting aside of the credibility findings of the Master who heard a trial and produced a report: the decision of the motions judge was set aside and the Master’s report restored, in part because the court determined that it was “an error of law for the motion judge to reassess findings of credibility.” However, even though I am also a motions judge, Luxterior is inapplicable to the present case, as, in that case the motions judge was confirming a Master’s report and the Divisional Court confirmed that in doing so, that the standard of review of the motions judge was similar to an appeal:

…the standard of review applicable to a motion to oppose confirmation is the same as the standard of review applicable to an appeal from an order arising from a motion to oppose confirmation. Findings of fact are not to be overturned in the absence of a palpable and overriding error.

[18] In Dhieux v. Potter, 2013 ONSC 7881, Blishen J. dealt with a similar issue to the one at bar in the context of a motion to strike pleadings [at para. 55]:

What the respondent has pleaded in paragraphs 71, 128 and 129 is evidence not material facts. The respondent argues that from this evidence, the Court will be able to draw the conclusion that the respondent is a credible, reasonable person whose evidence has been accepted on previous occasions. He has been believed before and therefore is to be believed now. This is oath helping. The Court is being asked to infer from this evidence that the respondent is a credible person who has a better plan. It is the role of the trial judge in this case to decide the credibility of the parties based on the evidence before the Court and to draw his or her own conclusion, not to adopt the credibility findings of a previous judge or arbitrator on factual matters.

[19] In criminal matters, previous testimony that has been found to lack credibility is not a valid means of impeaching a witness. In R. v. Ghorvei (1999), 1999 19941 (ON CA), 46 O.R. (3d) 63 (ONCA), in an appeal regarding the evidence sought to be used to impeach a police officer, the court made the following comments about permissible lines of cross-examination to impeach a witness [at para. 31]:

In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case. That fact, in and of itself, does not constitute discreditable conduct. I do not think it would be useful to allow cross-examination of a witness on what is, in essence, no more than an opinion on the credibility of unrelated testimony given by this witness in the context of another case. The triers of fact who would witness this cross-examination would not be able to assess the value of that opinion and the effect, if any, on the witness's credibility without also being provided with the factual foundation for the opinion.

[20] Hearings of motions within a proceeding must be conducted with a view to litigation fairness. That involves each judge who hears a motion to make independent assessments of the facts before him or her unfettered by previous credibility findings. The fact that Arbitrator Fogelman found Ms. Vohra not to be credible does not mean that I should necessarily find the same in this motion.

[21] In fact, I found Dr. Vohra’s evidence in this motion somewhat questionable. Firstly, I find his evidence as to when he discovered the home was not jointly owned to be particularly unbelievable as he failed to adequately explain, in my view, his assertion in both his financial statement and in his response to the request to admit that the home was, in fact, jointly owned. Both of these documents were prepared by counsel and for Dr. Vohra to say that he did not understand the concept of joint ownership is belied by that legal advice presumably received in preparation of those documents.

[22] I also found Dr. Vohra’s material to be unnecessarily hostile and aggressive which to me affects the credibility of that material. Dr. Vohra’s lengthy Affidavit, sworn November 7, 2022, is replete with statements about Ms. Vohra’s bad character without much, if any, supporting evidence. He says that the Applicant is an “untruthful litigant and everything she says or deposes needs to be viewed with scrutiny.”[^7] He says without evidence that Ms. Vohra’s quest for a later valuation date at arbitration was a “shakedown attempt to extort money from me”[^8]: in saying this, Dr. Vohra seems to ignore the fact that the arbitrator found in extending the limitation period that Ms. Vohra acted in “good faith” in pursuing her claim regarding the limitation date. He says that the Applicant “will do and say anything to try to extract money”[^9] and says that he provided evidence of this at trial; however, he failed to provide evidence of this for the motion. He accuses her of having “swindled and misappropriated” funds intended for a renovation on the matrimonial home which consititue accusations of fraud which require a fairly high standard of proof not found in the affidavit. Dr. Vohra’s low opinion of the Applicant is not evidence of anything other than his own perception of her and do not assist the case.

[23] My determination would obviously be different were I sitting in appeal of the arbitrator’s decision. However, I am not. My task is to determine whether interim spousal and child support should terminate and whether there should be an order for interim disbursements. This matter is unrelated to the arbitration process and, in making my decision, the court must independently assess the evidence on this motion including, if necessary, the credibility of that evidence as placed before me, as difficult as that is on conflicting affidavits. I am not bound by the arbitrator’s determinations as to credibility as this motion and counter-motion are unrelated to the bifurcated issues or the arbitration process. And it would be unfair for me to disbelieve everything that the Applicant says because the arbitrator made credibility findings at a hearing on different topics and issues than those addressed in this motion.

Termination of Support

[24] The order of Justice Casullo provided that the support payable by the Respondent of $8,000 per month was uncharacterized. This means, of course, that it may be part spousal support and part child support. Because Angelina was then a dependent, at least part of it had to consist of child support and the heading in the order itself notes it as “Child Support”. The exact ratios have yet to be determined because Dr. Vohra’s income has not been determined; even his income valuator, Steve Ranot, gave three different scenarios as to what his income would be depending upon the need for and allocation of retained earnings within the Respondent’s professional corporation.

[25] There are therefore two issues to be separately considered under this heading:

(a) Termination of child support; and,

(b) Termination of spousal support.

Termination of Child Support

[26] Under the Divorce Act, which is the statute the court is operating under as the Applicant requested a divorce, child support comes first in priority to spousal support: see s. 15.3(1) of the Divorce Act.

[27] The court must therefore firstly decide whether child support comes to an end before determining the issue regarding spousal support. This is especially important where support is uncharacterized in the court order in question and there are continuing and ongoing issues concerning the payor’s actual income in this case: if child support continues, how does the court allocate the amount of spousal support payable under the order? It is to be noted that when Dr. Vohra stopped paying support after receipt of the arbitral award, he continued to pay a limited amount, presumably child support, although he has not disclosed his logic in setting those amounts.

[28] Originally when he brought this motion returnable in the May sittings in 2022, Dr. Vohra was not seeking to terminate child support. He acknowledged in his affidavit, sworn April 20, 2022, that he had to continue paying child support as Angelina was under 18 years of age and was in full time school.

[29] It is perhaps a measure of how long it has taken to have this motion heard that now Dr. Vohra has amended his Notice of Motion to request a termination of child support. He amended his Notice of Motion on October 23, 2022, after Angelina turned 18 and he now says that he should not be paying any support at present.

[30] I was confused as to whether the Respondent was pursuing this claim at the motion. It was not vigorously argued. Mr. Kirby at one point said that it was Dr. Vohra’s position that child support could continue but he needed disclosure as to the university attendance and as to how the child’s sickle cell illness affects her ability to attend university. Later he noted in his oral submissions that there is a request for termination of child support in the amended Notice of Motion but again he did not argue the specifics of the issue or speak to the issue of termination of child support beyond mentioning the claim. The claim was not abandoned by Mr. Kirby during argument. I will therefore address the claim to terminate child support based upon the written material, specifically Dr. Vohra’s affidavit, sworn October 23, 2023, and his counsel’s factum.

[31] The grounds that Dr. Vohra relies upon to determine child support is that Angelina is over 18 and is, without good reason, only attending university part time. In one of Dr. Vohra’s needlessly aggressive statements, he says in his affidavit that his daughter Angelina is nothing other than a “foot soldier for Vagia” and asks the court to find that she is only enrolled in the 9-credit program at York University solely to give the appearance that she is in university to assist Ms. Vohra in retaining her right to child support. He says this without any evidence to support the statement although there was evidence that he has been estranged from Angelina since she was 15. He says that Angelina’s sickle cell disease is entirely manageable by Angelina and should in no way impair her ability to attend university full time or, for that matter, work full time.

[32] In an argued case such as the present, there are issues that need to go to trial and issues that are clear enough that a trial is unnecessary. In this case, almost every issue between these parties is in dispute. Ms. Vohra paints herself as the victim who is, as a result of illness and disease, unable to support herself; Dr. Vohra says she is nothing other than a dishonest chiseller who is in it for the money only and who will not hesitate to deceive the court to milk him for all he’s worth. However, for the court, the real issue in terminating child (and for that matter, spousal support) is whether the court can decide these issues on a contested motion with affidavit evidence that is untested by trial. In other words, similarly to a motion for summary judgement under r. 16, is there a genuine issue for trial regarding the continuation of these support payments? This raises issues of the child’s and the Applicant’s disabilities and the Respondent’s income, as well as the Respondent’s contention that, without a doubt, he is owed nearly $5 million by the Applicant.

[33] That being said, courts have in the past terminated child support on a temporary motion where the facts are not in dispute or sufficiently clear that the child is no longer a child of the marriage: see Fiorino v. Fiorino, 2013 ONSC 2445; Warner v. Warner, 2017 ONCJ 920 and Harder v Harder, 2003 SKQB 286, 41 RFL (5th) 69, all cited in the Respondent’s factum.

[34] The Respondent contends that Angelina is no longer a “child of the marriage” within the meaning of the Divorce Act and child support is thereby no longer payable. That term, “child of the marriage” is defined as follows:

child of the marriage means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

[35] It is unquestioned that Angelina is now over the age of majority. The issue is the effect of the disease, sickle cell disease, and whether this is something that prevents her from “withdrawing from her mother’s charge or obtain the necessaries of life”.

[36] Unlike the Applicant’s supposed disabilities, those of Angelina are addressed by a medical letter from SickKids Hospital, the facility that treated Angelina’s sickle cell disease up until Angelina turned 18 (she is now being treated as an adult by Toronto General Hospital). The major issue for Angelina appears to involve pain management and discomfort caused by the disease. This was confirmed by the application for accommodation from York University for Angelina completed by SickKids Hospital: the major issue mentioned in that application was Angelina’s pain management.

[37] In the letter from SickKids, dated July 22, 2022, Angelina’s doctor and her occupational therapist jointly write:

Physical and psychological stressors including extremes of or changes in the weather, dehydration or infections cause the Red Blood Cells to change shape, or sickle, so that they obstruct the flow of blood and oxygen around the body. These episodes, termed vaso-occlusive crises, are exceedingly painful and can lead to hospitalization. The duration and severity of the pain experienced is highly variable from crisis-to-crisis though can last a week. Fatigue and a heightened susceptibility to infection also characterize SCD. This may affect the ability to concentrate and perform strenuous exercises, and during a pain episode, may limit movement. While there is no cure for SCD, the illness adequately be managed with prophylactic penicillin, hydration therapy, pain medications and regular clinic appointments.

In addition to regular hospital appointments, Angelina also reports that at times, she will have unpredictable sickle cell pain crises which can be managed at home with medication, however can also lead to lengthy unplanned hospital admissions. She may be prescribed pain medications (Opioids) that could impact her cognitive abilities (i.e. attention, memory, concentration, alertness, cause nausea). Due to the nature of the illness, there may be times when Angelina misses classes, assignments and/or exams unexpectedly. It is hoped that we can collaborate to ensure her academic, social and emotional success.

[38] Angelina has chosen to take a substantially reduced course load and to work virtually from home. The letter from SickKids does not recommend this. It recommends accommodation in class attendance to take account of clinic and hospital attendances and it also notes that Angelina’s cognitive abilities may be affected by pain medication for her disease. She has lost her spleen. The Applicant deposes that Angelina is on a reduced course load but hopes to increase her course load as her disease permits. Angelina was hospitalized for a week in early September, 2022, just when she was beginning her university experience. Ms. Vohra says that there is no intention to stretch Angelina’s undergraduate university experience over 10 years.

[39] Dr. Vohra says that Angelina is nothing other than a “foot soldier” for Ms. Vohra and that she is only taking 9 credit’s worth of courses because she mistakenly thought that 9 courses a year would give her full time status (it requires 9 credits per term) in service of Ms. Vohra’s quest for support. He says that Angelina managed to be an honour student in high school and attended on a full-time basis throughout. He is estranged from Angelina and has been since Angelina was 15 years old.

[40] I note that if Angelina and Ms. Vohra have worked together to reduce support, they did this early on as Ms. Vohra made it clear in her affidavit of May 6, 2022 that Angelina intended to attend university virtually because of her illness.

[41] Other than the inferences drawn by Dr. Vohra, there is no evidence that Angelina is doing this to assist her mother in the litigation. This is not to say that Ms. Vohra is not innocent of drawing her children into this dispute; the arbitrator found that she did so in having her 29-year old daughter, Caterina (Dr. Vohra’s stepchild), manufacture evidence in support of her mother’s claim for a later date of separation by leaving family pictures around the residence. However, I am not prepared to infer from this that Ms. Vohra enlisted Angelina, then only 17, to obtain a medical letter from SickKids Hospital, request accommodation, pay tuition for Angelina’s courses and register Angelina for online learning in service of her ongoing child support claim: it is a far cry from leaving some pictures around a home to manufacturing evidence by going through a complete university accommodation and registration process. I note that the amended Notice of Motion was only dated October 23, 2022, well after Angelina had registered for university and requested her accommodation in July, 2022 and I have no evidence that the issue of child support was the driver behind Angelina’s university education. I am not willing to make the inferences that Dr. Vohra does concerning his daughter’s registration at university.

[42] Dr. Vohra complains that the decision regarding Angelina’s university was made without his involvement when he had joint decision making. He says that it is Ms. Vohra, not himself, that is in breach of the order. However, Dr. Vohra is in no position to make a decision concerning Angelina, who is now an adult and is not talking to Dr. Vohra. No reason was given by either party for this. The Applicant and the Respondent obviously have no communication between themselves and the decision regarding university was communicated to Dr. Vohra in a brief text from the Applicant. That may be as good as it can get under the circumstances. I am not prepared to find the Applicant in breach of any order made in the proceedings.

[43] I note as well that, in making this motion, Dr. Vohra says that he relies “on findings made against Vagia at the arbitration about her propensity towards dishonesty and creation of evidence.” I have already addressed this issue above. I do not find that, in this motion, Ms. Vohra has a “propensity” towards dishonesty, and I decline to do so as the arbitrator’s credibility findings do not bind this court in any way.

[44] Angelina has a serious illness. She had requested accommodation for this disease from York University in July, 2022. She enrolled for a part-time program and is attending virtually. She is a good student, and this indicates that she is serious about her education. The cases filed by the Respondent and noted above supporting a termination of child support on a motion are completely distinguishable from the present case: those cases involved children over the age of majority who were working, living away from the recipient’s home or both. None were attending post-secondary school and one child had spent time in custody for criminal convictions. This case does not meet that bar, where there was no doubt that those children were no longer “children of the marriage” within the meaning of the Divorce Act. I am not willing to make a finding, based upon the conflicting evidence before me, that Angelina has registered in university to serve her mother’s child support claim. That is an issue that should be addressed at trial where the evidence of the effect of the child’s sickle cell disease can be properly addressed by a trial judge.

[45] The Respondent’s motion to terminate child support is therefore dismissed.

Termination of Spousal Support

[46] Dr. Vohra seeks a reduction or elimination of spousal support payable to his wife. He says that now that the date of separation has been established beyond doubt, the maximum duration of spousal support for the seven years of cohabitation, 12 years, has now expired, and this is sufficient for the court to terminate spousal support on an interim motion.

[47] On the face of it, he is correct that spousal support should end. Based upon the SSAG, it appears that the “time’s up.” The SSAG calculations filed with the parties’ materials confirm that the maximum duration of spousal support is 12 years. As is well known, the courts are not to depart from the SSAG lightly: see Slongo v Slongo, 2017 ONCA 272.

[48] The case law confirms that there is jurisdiction to vary a temporary order in a divorce proceeding: see Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689. However, the case law also confirms that the proponent seeking to change an interim order rather than waiting for trial bears a “heavy onus”: see Coley v. Coley (1981), 1981 3459 (MB CA), 20 R.F.L. (2d) 327 (Man. C.A.).

[49] The case law also confirms that there is a two stage test for changing an interim order pending trial. As suggested in Falacho v. Falacho, 2018 ONSC 7273, the steps are as follows:

1. Has the payor made out a prima facie case for a reduction of spousal support; and

2. Does the payor come to the court with clean hands?

[50] Mr. Winnitoy suggests that there is no prima facie case. The Applicant deposes that she is disabled and suffers from a number of physical and psychological illnesses which prevent her from working. These problems, according to Mr. Winnitoy, would result in an exception to the 12-year duration limit under the SSAG. In her materials, the Applicant says that she suffers from PTSD, bi-polar disorder and agoraphobia. She also suggests that she suffers from fibromyalgia, arthritis, migraine headaches, severer hearing impairment, irritable bowel syndrome, asthma, sleeping issues and allergies. She relies upon an email from Dr. Vohra, dated September 5, 2010, to corroborate these issues where he speaks of Ms. Vohra’s “recent health concerns”.[^10]

[51] Unfortunately, none of these health concerns are verified in any other manner. Unlike the case of Angelina, there is no medical evidence whatsoever in Ms. Vohra’s materials. There have been requests for this information by Dr. Vohra as early as September 2, 2020 without any response (at least nothing attached to an affidavit in these proceedings). There is nothing from Ms. Vohra’s family doctor confirming that there is a diagnosis of the conditions noted above and no other corroboration of any diagnosis of the conditions that Ms. Vohra says that she is suffering from. Not even a note on a prescription pad. The court cannot accept the fact that Ms. Vohra is disabled simply on her say so and the email that she relies upon is without specificity. There is insufficient evidence for a finding of a prima facie case that Ms. Vohra is sufficiently disabled to set aside the duration limits in the guidelines even on an interim motion with contested affidavit evidence.

[52] However, that is not an end to this issue. My major difficulty in addressing this motion is the quantum of spousal support that is being paid in an uncharacterized support order combined with uncertainties as to Dr. Vohra’s income. To address this, I firstly come back to the wording of the order of Casullo J. dated July 26, 2019 which addresses the uncharacterized support that Dr. Vohra seeks to end. Paragraph 24 of that order provides for $8,000 per month in uncharacterized support which was being paid without prejudice, subject to verification of the Respondent’s income.

[53] The order therefore contemplates that all or part of the support be redefined as either spousal support or child support, depending on the Respondent’s income.

[54] I have already determined that the Respondent has not made out a prima facie case for the termination of child support. I am therefore being asked to terminate spousal support without knowing whether part or all of the support being paid by Dr. Vohra is spousal support or child support or a combination of the two. That is impossible to address at present because Dr. Vohra’s income remains unverified at this time.

[55] That is clear from the report of Steve Ranot prepared at the request of Dr. Vohra. In that report, three scenarios were provided giving vastly different amounts of income for Dr. Vohra. For example, under the report, for the year of 2019 (which was the last year addressed in the report and consists of an income estimate only), there is a range of income under those three scenarios of between $212,000 to $623,000 per annum. The lower scenario represents Dr. Vohra’s Line 150 income only; the highest scenario takes into account undistributed corporate income and questionable expenses charged by Dr. Vohra against income within his professional corporation.

[56] One of the reasons for this spread lies with the issue of retained earnings. Between 2009 and 2019, retained earnings in the Respondent’s professional corporation (essentially representing undistributed corporate income) increased by over 18 times from $95,295 to $1,863,704. Dr. Vohra’s taxable income was only the salary paid to him by that professional corporation, but significant profits remained in the corporation and were not distributed to Dr. Vohra by dividend or otherwise. There is a duty for support payors to maximize income for support purposes (see Obedeochina v. Ayetor, 2013 ONCJ 738 at para. 51 and Lavie v Lavie, 2018 ONCA 10) and therefore the issue is whether the Respondent should have distributed to himself unused but earned corporate income for support purposes. Certainly, for support purposes it was to Dr. Vohra’s advantage not to distribute those unearned income as that would have increased Dr. Vohra’s taxable income for support purposes.

[57] It is to be noted that Mr. Ranot, in preparing his report, says that the retained earnings should not have been distributed and that the lower income amount should be used: he says:

With hindsight, the economic impact of the COVID-19 virus would require a prudent business owner to retain funds to withstand the anticipated downturn in the coming months or years. Accordingly, with hindsight, we determined it would be unreasonable to assume that Medco had the ability to distribute any of its corporate income in 2019.[^11]

[58] It is to be noted that the report on Dr. Vohra’s income was prepared only a month into the pandemic and during the major shutdowns that occurred at that time. It is also to be noted that the pandemic may not have affected the income of a medical professional corporation during the pandemic as it might have a non-health care business. It is to be noted that Dr. Vohra’s income increased (according to his Notices of Assessment) through the pandemic. He says this was a result of his changing his area of practice and through his own efforts. He says that the Applicant should not be able to share in those increases based upon the fact that any spousal support entitlement is non-compensatory in nature. In any event, the real question is whether the distribution of retained earnings and maximization of income could be addressed in hindsight rather than at the time the income was earned. As well, if the retained earnings have continued to accumulate since without being used in any way (unknown for 2021 and 2022) speaks to the necessity of holding back retained earnings for future growth of the corporation.

[59] As well, the Applicant says in her affidavit that there are questionable expenses which were charged against income within the corporation, thereby reducing income.

[60] Dr. Vohra’s income for 2020, 2021 and 2022 remain unverified and unanalyzed by Mr. Ranot. Mr. Winnitoy has only received the corporate financial statements for 2019 and 2020. Dr. Vohra says that he will be updating his income report for the years since it was completed but he has not done so yet.

[61] As child support is to remain in place, there is no reasoned way by which I can quantify the portions of the support which would remain in place if I left child support as being payable and eliminated spousal support. I do not know what Dr. Vohra’s income is at present outside of his Line 150 income for 2021. The condition in the order for characterization of the support has not been met at this point in the litigation. I therefore have no idea of how much any reduction to the uncharacterized support would be as I am unable to verify Dr. Vohra’s income at this time. It is to be noted that Dr. Vohra would have it that no support, for either his child or the Applicant, would be payable now but I have not terminated child support, leaving the spousal support portion of the support unknown. Based upon the chart attached as Ex. B to the affidavit of Ms. Vohra dated May 6, 2022, there is potential for the entire amount of support being characterized as child support only.

[62] Even if I was able to quantify the reduction in spousal support, I agree with Mr. Winnitoy that Dr. Vohra does not have clean hands. He withheld about $13,000 in support when he received the arbitrator’s award. He did not repay this amount. He says that he did not do so because he is owed money by Ms. Vohra, but that is speculative only and is an issue for trial. And the fact that Ms. Vohra may owe him money is no excuse for withholding either child support or spousal support as those are obligations of a different nature. The order of Justice Woodley only speaks of Dr. Vohra continuing the support, but Dr. Vohra owed unpaid support under the Casullo J. order and should have repaid it; it would not have been any sort of burden to him under the circumstances. His withholding of payment of support because he was flush with success from the arbitration was, in my view, blameworthy conduct and would result, in my view, in a dismissal of the motion even if there was a prima facie case for reduction of the uncharacterized support.

[63] Mr. Kirby argues that the support can be changed notwithstanding blameworthy conduct because the order is without prejudice. The words “without prejudice” in the order do not mean that the order can be ignored or changed without any grounds whatsoever; those words leave it open for the Respondent to argue entitlement to support, income issues and the SSAG to reduce or eliminate support, but he still must have grounds to do so. He cannot just wave his hand in the air and ask for a reduction in support without making a case for doing so. And the words without prejudice do not preclude the Applicant from making all reasonable arguments necessary to maintain payment of interim support. Clean hands and the principles of the law of equity are not precluded by the words, “without prejudice”.

[64] The Respondent’s motion to reduce spousal support is therefore dismissed.

Interim Disbursements

[65] The Applicant requests an order for the payment of interim disbursements in the amount of $152,657.34. The disbursements represent the estimated costs of a responding income valuation, a vocational assessment and Ms. Vohra’s costs of her lawyer conducting the arbitration, the arbitration appeal as well as the trial and questioning.

[66] The jurisdiction for an order for interim disbursements can be found in r. 24(18) which reads as follows:

The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.

[67] The leading case on issues of interim disbursements in Ontario remains Stuart v. Stuart, 2001 28261 (ON SC), [2001] O.J. No. 5172 (S.C.J.) despite the fact that the case is more than 20 years old. Rogers J. decided the case and conducted a comprehensive review of the case law, determining at para. 8 of the case certain “themes” regarding cases under the then r. 24(12) (now r. 24(18)):

1. The ordering of interim disbursements is discretionary: Airst v. Airst, [1995] O.J. No. 3005 (Gen. Div.); Hill v. Hill (1988), 1988 4710 (ON SC), 63 O.R. (2d) 618 (H.C.) and Lossing v. Dmuchowski, [2000] O.J. No. 837 (Ont. S.C.J.).

2. A claimant must demonstrate that absent the advance of funds for interim disbursements, the claimant cannot present or analyse settlement offers or pursue entitlement: Hill v. Hill (1988), 1988 4710 (ON SC), 63 O.R. (2d) 618 (H.C.) and Airst v. Airst, [1995] O.J. No. 3005 (Gen. Div.).

3. It must be shown that the particular expenses are necessary: Lossing v. Dmuchowski, [2000] O.J. No. 837 (S.C.J.).

4. Is the claim being advanced meritorious? Lynch v. Lynch (1999), 1 R.F.L. (5th) 309 (Ont. S.C.J.) and Randle v. Randle (1999), 1999 ABQB 954, 3 R.F.L. (5th) 139 (Alta. Q.B.).

5. The exercise of discretion should be limited to exceptional cases: Organ v. Barnett (1992), 1992 7433 (ON SC), 11 O.R. (3d) 210 (Gen. Div.).

6. Interim costs in matrimonial cases may be granted to level the playing field: Randle v. Randle (1999), 1999 ABQB 954, 3 R.F.L. (5th) 139 (Alta. Q.B.).

7. Monies might be advanced against an equalisation payment: Zagdanski v. Zagdanski, 2001 27981 (ON SC), 2001 CarswellOnt 2517 (S.C.J.)

[68] She notes later in the case that the suggestion that interim disbursements only be granted in “exceptional” cases was tempered, to some extent:

The court interprets the new Family Law Rules to require the exercise of the discretion in rule 24(12) on a less stringent basis than the cases that call for such only in exceptional cases. The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possible go to trial. Simply described, the award should be made to level the playing field.

[69] In Rea v. Rea, 2016 ONSC 382, Douglas J. followed both Stuart and British Columbia (Minister of Forests) v. Okanogan Indian Band, [2003] S.C.C. 71 in suggesting the following three criteria for an award of interim disbursements and costs:

(a) The party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case;

(b) The claimant must establish a prima facie case of sufficient merit to warrant pursuit; and

(c) There must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.

[70] In Rea, Douglas J. surveyed a number of cases in which interim disbursements were awarded in a range of between $100,000 to $500,000.

[71] What is also clear from the caselaw is that a party’s case must have sufficient merit to obtain an award for interim disbursements. As stated by Rogers J., the award of interim disbursements should not give someone a license to litigate.

[72] It is to be noted that the party who is requesting interim disbursements does not have to prove that he or she is impecunious. That party just has to show that they are incapable of funding the litigation from any other source. In Woodburn v. Woodburn, 2016 ONSC 6694, Emery J. suggested [at para. 29]:

Although the moving party need not provide evidence that she or he could not carry the case but for the financial assistance requested, the court should have evidence that there is a risk that the moving party who has a meritorious case worthy of pursuit will not have the resources to pursue the claim without that financial assistance.

[73] Based on the caselaw, I address the issues raised in the claim for interim disbursements as follows:

Levelling the Playing Field

[74] There is no issue that the playing field is not even between the Respondent and the Applicant. Dr. Vohra is a successful physician earning income which generally exceeds $200,000 per annum. His professional corporation which pays his salary has income greatly exceeding that. The Respondent’s financial statement shows that he has an RRSP of nearly $370,000 and the mortgage on the matrimonial home has decreased since separation by nearly half. He has retained earnings within his corporation of an unknown amount at present but were in the range of $1.8 million in 2019.

[75] On the other hand, the Applicant’s financial statement shows that she has little in the way of assets. She has no savings and no liquid resources. Her debts, unlike those of the Respondent, have increased from about $147,000 to $215,000 since the date of separation. Her major asset is the claims being made against Dr. Vohra. She has no resources to fund this litigation.

[76] What is most telling in reviewing the party’s respective abilities to carry on the litigation is the legal fees expended by both parties. This was clarified by the costs submissions in the arbitration. According to those submissions, the Respondent is claiming costs for legal fees expended by him for the arbitration in the amount of $134,000. He had also paid about $74,000 to his previous solicitors for a total of about $208,000.

[77] On the other hand, Ms. Vohra has provided Mr. Winnitoy with a retainer of $5,000. That’s it. Mr. Winnitoy has been funding this litigation without being paid for the majority of his work (he says his legal fees claimed on the arbitration total about $24,000). It is clear that the Respondent has a much greater ability to fund this litigation than does the Applicant.

[78] Dr. Vohra says that to award interim disbursements would do nothing other than to give Ms. Vohra a license to litigate the issues in this matter. However, to not provide that award would, on the other hand, also give Dr. Vohra a license to litigate with impunity as Ms. Vohra is without resources to conduct this very complicated and acrimonious court battle. Trial is on its way as is questioning. The playing field is obviously not even and this needs to be addressed to ensure litigation fairness.

Ability to Pay for Litigation

[79] Dr. Vohra claims that Mr. Vohra is hiding money and that she should have saved money from the support that has been paid by him taking into account the fact that he was also paying the expenses of the home in which Ms. Vohra and the children live.

[80] That is not disclosed by Ms. Vohra’s financial statement, which suggests that her expenses (which include the expenses of the parties’ daughter) exceed $170,000 while her income from support is $96,000. Her debts have increased over the years. Although Ms. Vohra’s expenses may be exaggerated, one need only contrast those expenses to those of Dr. Vohra, who said in his financial statement sworn May 19, 2019 that his expenses exceeded $330,000 per annum. Although he has reduced that amount in his latest financial statements sworn on November 7, 2022 to $125,000 per year, that reduction in expenses is unexplained in his materials and appears to be addressing criticisms of his 2019 financial statement set out in the Applicant’s affidavit of May 9, 2022.

[81] Dr. Vohra claims that Ms. Vohra has salted away nearly $700,000 over the years as a result of his overpayments of support. He has no evidence upon which to base this assertion. There is no evidence that Ms. Vohra has the resources to address the issues in this matter.

[82] Dr. Vohra also claims that Ms. Vohra has no ability to repay him the disbursements advanced in this case. He says he is owed some $5,000,000 and that the Applicant cannot repay that and to force him to advance more funds would not be in the interests of justice.

[83] That is a double edged sword. Ms. Vohra’s impecuniosity is exactly the reason that the playing field needs levelling in the present case. And Dr. Vohra’s claims for repayment are unproven and denied by Ms. Vohra.

[84] Moreover, as recognized by Justice Rogers in Stuart, there is no necessity that there be an equalization payment against which the award is advanced.

[85] I therefore find that Ms. Vohra does not have the ability to pay the trial costs and the costs of a critique of the income valuation in this matter. She has no assets to call on and her debts have increased. Dr. Vohra complains of her impecuniosity in his own materials. There is no evidence of hidden funds and the financial statements in question does not disclose this to be a fact. I therefore find that this litigation is unaffordable to Ms. Vohra without an advance of funds by Dr. Vohra.

Merits of the Applicant’s Case

[86] Ms. Vohra says that she has a large claim for an equalization payment and for retroactive child and spousal support. She says that the Respondent put his present residence in Sudbury into the name of his professional corporation after separation. She also says that she has a trust interest in the matrimonial home. She says that Dr. Vohra acknowledged at times that he was underpaying support and that he did, in fact, underpay his support. She says that the Respondent underutilized his corporate income and that there will be a claim at trial that his income was substantially more than that declared in his tax returns.

[87] Dr. Vohra says that the Applicant’s claim has no merit. He says that there is no real claim for equalization as the marriage was short and there were few assets which accrued in value during the duration of the marriage. He says that he will, in fact, be owed an equalization payment based upon his assets on the date of marriage. He claims that he will be successful in his appeal of the arbitrator’s decision to extend the limitation period in this matter and if he is, Ms. Vohra will be statute barred from continuing with the claim.

[88] He also says that the Applicant’s claim for retroactive spousal and child support is limited by the criteria in D.B.S. v. S.R.G, 2006 SCC 37, [2006] 2 SCR 231 and that these criteria make a claim for retroactive child support unlikely prior to the date of effective notice of the claim (which he says would have been when this application was commenced or when the Casullo J. order was made). He says that there is ample caselaw that limits a claim for retroactive child support and spousal support.

[89] However, Ms. Vohra’s claim is neither negligible, nor is it necessarily without merit. Firstly, on the equalization claim, it is difficult to verify exactly what it will be. Dr. Vohra’s latest financial statement has numerous assets and debts which are “TBD” throughout as of valuation day. He estimates the value of his professional corporation as being $400,000 but he acknowledges that it remains unvalued. He relies upon his appeal of the arbitrator’s decision succeeding; only if it is dismissed will he then provide a business valuation of that corporation. He has not provided values of his assets or debts on the date of separation which would allow a court to verify what, if any, the equalization payment might be. In fact, in claiming prejudice, he claims in his affidavit that he may not be able to provide accurate values for his assets because of the time that has gone by since separation.

[90] On the other hand, Ms. Vohra relies not only on the provisions of the Family Law Act in addressing her property claims. It appears from the evidentiary record that all parties in this matter thought that Ms. Vohra had a joint interest in the matrimonial home in the Huntsville area until Mr. Winnitoy performed his due diligence and conducted a title search of the property in February, 2022. Mr. Winnitoy attempted to amend the application as a result to claim a trust interest in the matrimonial home; Dr. Vohra initially objected to this amendment. That issue has now been settled and the application amended.

[91] Dr. Vohra says that the trust claim is statute barred based upon the date of separation in 2010 and the 10-year limitation period on trust claims against real property.[^12] However, the issue is the discoverability of that claim, and it appears from the record, including the homemade separation agreement and Dr. Vohra’s own pleadings that all parties were of a similar impression that the matrimonial home was jointly owned until February, 2022. The Applicant’s argument is that the trust claim became necessary as a result of the discovery that she had no legal interest in the home which would mean that any proprietary interest in the land would be based on a trust claim against the property.[^13] There is a prima facie meritorious property claim by the Applicant before the court, and in any event, Justice Rogers specifically said in Stuart that the claim for interim disbursements is not dependent upon an equalization payment against which the claim may advanced against: see para. 14 of the report where Rogers J. says, “The order for interim disbursements should not be limited to cases where it would be taken out of an equalisation payment.”

[92] On the issue of retroactive support, suffice to say that these issues are hotly contested. Firstly, the amount that Dr. Vohra says he paid is disputed based upon his disclosed income and the usage by both parties of the joint account. The issue of Dr. Vohra’s income and blameworthy conduct is also in issue based upon the Marmer Penner report and the opinion given on the use of retained earnings. Without a payment of interim costs, Ms. Vohra is in no position to provide an alternative opinion. I am not prepared to find that Ms. Vohra’s claim for retroactive support is limited to three years under D.B.S. based upon the different fact scenarios set out in the affidavits of the parties. And Dr. Vohra’s income through the years as set out in the Marmer Penner report has a large spread depending on the use of retained earnings in his professional corporation.

[93] Dr. Vohra says that he is also owed substantial sums of money including his occupation rent for the matrimonial home which is owned by him, money he says was stolen from him in the guise of renovation costs and the costs of the arbitration, which he is confident will be in his favour. He says that the Applicant will be unable to repay him for the money that is owed; neither will she repay any disbursements advanced to her through this motion.

[94] It is to be firstly noted that the costs at the arbitration remain unrewarded (as of the hearing of the motion) and success was divided at the arbitration. The alleged renovations costs and misuse of these funds are contested by Ms. Vohra: she says that funds were allocated by Dr. Vohra for renovations to his second home (which she says is in the name of his professional corporation) in which he resides at present. The suggestion that Ms. Vohra owes him overpayments in support is addressed above: Ms. Vohra says that the money paid by him was paid into a joint account that both parties used and that Dr. Vohra could not possibly have paid those funds considering the income that he claims that he made. His claim for occupation rent is unproven and is a discretionary issue for trial.

[95] Dr. Vohra says that Ms. Vohra owes him money back for overpayments of support back to at least 2018. He supports this when he says that she could have made income of nearly $100,000 per annum had she gone to work in a bank. Imputation of income is for a trial judge. And the Respondent appears to be saying that he can go back to retroactively reassess support and demand a return of funds, but that the Applicant cannot go back to reassess support because of D.B.S. Unfortunately, the Respondent cannot have it both ways; he cannot claim that he can go back to retroactively revisit what was paid for child and spousal support and not allow the Applicant to do so. That will again be an issue for the trial judge.

Conclusion

[96] This is complicated and hard-fought litigation. There are issues which are presently unresolved, and will require extensive analysis, disclosure and questioning for resolution. There are issues of facts that remain untested and numerous assets belonging to the Respondent which remain unknown today. There are also issues of misconduct alleged on both sides, including the misuse of funds intended for renovations to the matrimonial home. At least one expert’s report is required to address the Respondent’s income throughout the years and to allow the trial judge to make a finding on the use of retained earnings and shareholder’s equity in the Respondent’s professional corporation have grown substantially over the years. There is no easy resolution ahead for these parties and the litigation would not only be unaffordable for Ms. Vohra who, rightly or wrongly, remains dependent on her husband more than 12 years after their separation; it would be unaffordable for most of us.

[97] Dr. Vohra says that there is no need for any sort of expert’s report to critique the Marmer Penner report. I disagree. I have already outlined Mr. Ranot’s opinion regarding the use of the retained earnings in the corporation which is an opinion that will be crucial to the determination of Dr. Vohra’s income. That alone may require input from another expert. There are expenses that were charged against the professional corporation and there was evidence that Dr. Vohra’s residence in which he presently lives was, at least for a period of time, owned by that professional corporation. The lines between business and personal use appear to be significantly blurred. In light of this, the Applicant should be in a position to obtain a critique to the Marmer Penner report.

[98] For these reasons I am not willing to make a finding that Ms. Vohra owes money to the Respondent, thereby making her claims meritless. As best as can be determined at this time, still early in the litigation, I find that Ms. Vohra has a prima facie meritorious case which would allow her to make a claim for interim disbursements. As well, I find that the playing field is completely uneven and that Ms. Vohra would be unable to fund the litigation without an interim disbursement in this matter. Without that, she will inevitably end up unrepresented, fighting a litigant who has already been able to devote more than $200,000 for legal fees alone to date.

[99] There will therefore be an order for interim disbursements under r. 24(18) of the Family Law Rules.

[100] The next issue is quantum. I note that the award for interim disbursements includes the costs of two reports. The letter from Vivian Alterman indicates that she will require up to $35,000 for a report critiquing the Marmer Penner report and also addressing Dr. Vohra’s income. Ms. Vohra says that she also needs about $6,000 for a vocational assessment. Mr. Winnitoy has filed a bill of costs which assumes three days of questioning and a two week trial as well as the arbitration appeal; he says that the anticipated legal fees will be $106,300 including legal fees of $24,100 already expended.

[101] I have concerns about the vocational assessment. Ms. Vohra has made a prima facie case regarding equalization and support, but she failed to provide any credible proof of a disability. She has, as noted above, provided no evidence whatsoever corroborating her supposed illnesses. She says that she wants the assessor to review her medical evidence but provides no such evidence. Any vocational assessment would be nothing other than a fishing expedition. I am not willing to order the funding of the assessment.

[102] As well, Mr. Winnitoy anticipates a two-week trial. That is in contrast to the Trial Scheduling Conference endorsement that was filed on March 15, 2021 which calls for a four to six day trial. It is acknowledged that the issues have become more complicated since, considering the arbitrator’s finding on the date of separation. That hearing took five days for which Mr. Winnitoy says he charged $24,100. However, the suggestion that the trial would take two weeks is well beyond the time for trial initially agreed to in 2021. Moreover, legal fees are intended to not only pay for the entire course of litigation; as pointed out by Rogers J., they are intended to also analyze “settlement offers”.

[103] The expense of $35,000 for the assessment report is reasonable. On top of that, I am willing to order the funding of $65,000 for legal fees in this matter.

[104] There shall therefore be an interim advance of disbursements payable to the Applicant in the amount of $100,000.

[105] There is a costs issue before the arbitrator which remains outstanding. This order is meant to enable the Applicant to fund her part of the litigation and move it toward a trial. I am concerned that, considering the level of cooperation between the parties, they may get bogged down in arguments as to whether this order should be set off against any costs award of the arbitrator, thereby providing the Applicant with nothing. If there is an argument over the issue of set off or payment of the interim disbursements in the face of a costs award, the parties may speak to that issue before me through a date to be set by the trial coordinator.

[106] Therefore, order to go as follows:

a. The Respondent’s motion for the elimination of child and spousal support is dismissed.

b. The Respondent shall make an advance of interim fees and disbursements of $100,000 payable within 30 days of the date of this endorsement.

[107] The Applicant has been successful on all of the major issues on this motion. She shall have her costs of the motion. If the parties cannot agree on the amount of costs payable, they may make submissions as to the quantum of costs on a ten-day turnaround, with the Applicant filing submissions first and then the Respondent. There shall be no reply costs submissions. Costs submissions to be no more than four pages in length excluding offers to settle and bills of costs.

MCDERMOT J.

Date: April 25, 2023

[^1]: Family Law Act, R.S.O. 1990, c. F.3 [^2]: Arbitral Award No. 2 of Herschel Fogelman dated January 28, 2022, para. 94. [^3]: Ibid., para. 95. [^4]: Ibid., para. 154. [^5]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [^6]: In March, 2022, Dr. Vohra paid only $1,501 on his $8,000 monthly obligation and in April, 2022, he paid only $1,369.75. The amount of those payments were never explained by Dr. Vohra in his materials. He was ordered by Woodley J. to resume his payments under the order on the first return of his motion to terminate support on April 28, 2022 (although the order requiring the Respondent to resume payment of support that was attached as Ex. L to the Applicant’s May 6, 2022 Affidavit was referred to in that affidavit as “disputed orders”, it was not found on the continuing record and not mentioned in Woodley J.’s endorsement). Whether that order was disputed or not, Dr. Vohra resumed his payments of $8,000 per month on May 1, 2022, but never made good the defaults in March and April, 2022. [^7]: Respondent’s affidavit, sworn November 7, 2022, para. 32. [^8]: Ibid., para. 45. [^9]: Ibid., para. 88. [^10]: Ex. E to the affidavit of Vagia Vohra dated November 5, 2022. [^11]: Report of Marmer Penner dated April 3, 2020, p. 14, attached as Ex. A to the affidavit of the Applicant sworn May 6, 2022. [^12]: See McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561 where the court determined that there is a 10 year limitation period to trust claims against real estate under s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15. [^13]: Whether the discoverability of a claim as set out in ss. 4 and 5 of the Limitations Act, S.O. 2002, c. 24 applies to a limitation period for a claim under s. 4 of the Real Property Limitations Act is beyond the scope of this inquiry. Certainly, Mr. Winnitoy acted promptly upon discovery of the issue after February, 2022 and there were statements made by both parties that appear to confirm the joint belief of the parties as to the property being jointly owned.