Family Law: Spousal Support, Propertyâ€‹ Division
Climans v. Latner 2019 ONSC 1311**
The parties separated in 2015 after a 14-year relationship that was sexual in nature. During that relationship, they maintained separate Toronto residences. The applicant claimed that she kept her own house so that her children from a previous marriage could be close to their school. The respondent, who was extremely wealthy, paid all of the applicantâ€™s expenses and provided her with spending money. They exchanged rings and held themselves out to others as a couple. After the separation, the applicant brought an application for spousal support. The respondent claimed that the applicant was his girlfriend and travelling companion, not his spouse.
Held, the application should be allowed.
Section 29 of the Family Law Act (â€œFLAâ€) provides that â€œspouseâ€ means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years. Section 1(1) of the FLA defines â€œcohabitâ€ as â€œto live together in a conjugal relationship, whether within or outside marriageâ€. The partiesâ€™ relationship was conjugal. They were in a long-term committed sexual relationship. The respondent treated the applicant as his wife. They celebrated the anniversary of the day they met, held themselves out as a committed couple, and were perceived as a couple by their family and friends. They lived together in their summer cottage and spent alternate weekends together in Florida during the winter. In all of the circumstances, the fact that they maintained two houses in Toronto was not fatal to a finding that they â€œlived togetherâ€ in a conjugal relationship. The applicant was a â€œspouseâ€ for the purposes of the support provisions of the FLA.
The applicant was entitled to non-compensatory support based on the difference between the needs and means of the parties. The circumstances of the relationship created a pattern of economic dependency. The applicant now earned $24,000 per year as a yoga instructor, while the respondentâ€™s annual income was at least $6.5 million. Without support, the applicant would be unable to maintain a life- style even close to that she enjoyed during the relationship. The applicant was also entitled to compensatory support. She gave up her job at the start of the relationship to be available to the respondent and had been out of the workforce for 14 years due to their relationship. The respondent was ordered to pay the applicant indefinite spousal support in the amount of $53,077 per month. The applicant was also entitled to retroactive spousal support from the date of her application.
Were the parties spouses?
Part III of the Family Law Act, R.S.O. 1990, c. F.3 (the â€œFLAâ€) states:
- In this Part,
. . . . .
â€œspouseâ€ means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years[.]
Section 1(1) of the FLA defines â€œcohabitâ€ as â€œto live together in a conjugal relationship, whether within or outside marriageâ€.
Was Ms. Climans a spouse? There is no question that her relationship with Mr. Latner was longer than three years. Did Mr. Latner and Ms. Climans
(a) â€œlive togetherâ€
(b) â€œin a conjugal relationshipâ€?
Defining a â€œconjugal relationshipâ€
Molodowich v. Penttinen,  O.J. No. 1904, 17 R.F.L. (2d) 376 (Dist. Ct.) has often been cited as setting out the criteria to consider when determining whether a conjugal relationship exists. While this case dates back to 1980, it has been adopted and followed in numerous recent cases.
The Supreme Court of Canada, in M. v. H.,  2 S.C.R. 3,  S.C.J. No. 23, adopted and affirmed the Molodowich criteria. This case concerned the right of same-sex couples to be identified as common-law spouses under s. 29 of the FLA. It is the leading Supreme Court case in interpreting the meaning of s. 29. While largely a constitutional case, two paragraphs of this decision relate specifically to the legal definition of â€œconjugalâ€ relationships (paras. 59-60). In these paragraphs, the Supreme Court adopts the contextual and flexible definition of â€œconjugalâ€ outlined in Molodowich, finding that there are many elements of a conjugal relationship that may be present in varying degrees in different relationships, and that the approach to determining whether relationship is conjugal must be flexible:
Obviously, the weight to be accorded the various elements or factors to be considered in determining whether an opposite sex couple is in a conjugal relationship will vary widely and almost infinitely.
In Campbell v. Szoke,  O.J. No. 3471, 45 R.F.L. (5th) 261 (S.C.J.). the parties had a 17.5-year relationship. They lived together in Florida for six months each year but maintained separate residences in Ontario. The plaintiff was seeking spousal support while the defendant denied that they cohabited as spouses. Mr. Szokeâ€™s position was that the plaintiff was paid to care for him in Florida because of his injury and health problems. In Ontario he lived with his son and daughter- in-law. The evidence did not support Mr. Szokeâ€™s position and instead supported Ms. Campbellâ€™s position that he treated her as a spouse. Justice Karakatsanis summarized the criteria from Molodowich in her decision in Campbell v. Szoke, at para. 51, as follows:
Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 at 381-382 has set out a non-exhaustive list of criteria to be considered in determining whether a conjugal relationship exists. Elements to consider include shared shelter, sexual and personal behaviour, services, social activities, economic support, children as well as the societal perception of the couple. These were confirmed as generally accepted characteristics of a conjugal relationship by the Supreme Court of Canada in M. v. H.,  2 S.C.R. 3 (para. 59). However, it is recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be conjugal.
Given the facts set out above, there is no doubt that all the elements/criteria set out in Molodowich were present in the relationship between Ms. Climans and Mr. Latner and lead to the conclusion that their relationship was a conjugal relationship. They were in a long-term, committed relationship. Mr. Latner treated Ms. Climans as his wife. Their relationship was sexual in nature. They held themselves out as a committed couple and were perceived as a couple by their family and friends. Ms. Climans was considered family by the extended Latner family. The parties participated in social activities as a couple. Mr. Latner supported Ms. Climans financially. They travelled extensively together. They lived together at the cottage each summer.
The one issue that gives me pause is whether they had a â€œshared shelterâ€. Did Ms. Climans and Mr. Latner â€œlive togetherâ€, even though they maintained two houses in Toronto, and if not, is it fatal to Ms. Climansâ€™ claim for spousal support?
Defining â€œliving togetherâ€
Finding that the parties maintained two separate residences in Toronto is not the end of the inquiry as to whether they lived together. In considering the flexible approach put forth by the Supreme Court of Canada in M. v. H., and in considering whether maintaining separate residences eliminates a partyâ€™s ability to be considered a spouse, Justice Karakatsanis, in Campbell v. Szoke (referred to above), states:
The fact that the parties maintain separate residences does not prevent the finding of cohabitation. The court must look at all of the circumstances and consider the reasons for maintaining another residence, such as to facilitate access with oneâ€™s children: Thauevette v. Maylon (1996), 23 R.F.L. (4th) 217 at 222 (Ont. Gen. Div.). Continuous daily cohabitation is not a necessity for a finding under section 29 of the Family Law Act. A couple who lived together only on weekends was found to be cohabiting in Hazelwood v. Kent,  O.J. No. 5263 at 8 (Ont. S.C.J.). Whether a couple has cohabited continuously is both a subjective and an objective test. Intention of the parties is important. Where there is a long period of companionship and commitment and an acceptance by all who knew them as a couple, continuous cohabitation should be found: McEachern v. Fry Estate,  O.J. no. 1731 at para. 21 (Ont. Gen. Div.).
Justice Karakatsanis found that the parties lived together as common-law spouses. At para. 56, Justice Karakatsanis carries on to state:
In fact, I find that Frank occasionally stayed the night. I accept that he may have avoided staying the night after he became convinced later in the relationship that it would attract financial responsibility. However, I do not believe it to be a prerequisite that they lived together all the time or that he stays the night at her apartment. Initially the apartment was maintained to house Kathleenâ€™s children. Subsequently it was maintained because of Frankâ€™s son. Ultimately Frank thought he could avoid financial responsibility by maintaining the separate apartment. The evidence is clear that he was there almost every day well into the evening and that they otherwise continued to act as spouses in every other way.
In Stephen v. Stawecki,  O.J. No. 2412, 32 R.F.L. (6th) 282 (C.A.), the question was whether the parties were living together three years prior to the date Mr. Stawecki died, to determine if Ms. Stephen was a spouse for support purposes on the date of his death. There was no dispute that they were living together on the date of his death. Three years prior, the parties each had their own homes but were looking to purchase a house together. They were spending three to four nights per week together. The appellants in that case argued that the court should impose a â€œbright-line ruleâ€, stating that parties must have â€œmoved inâ€ together to be considered to â€œlive togetherâ€/â€œcohabitâ€. Despite their not living together the trial judge found that the parties had shown the necessary intent to cohabit by
(a) being exclusive to one another;
(b) sleeping, shopping, gardening, cooking, cleaning, socializing and living together as a couple; and
(c) representing themselves as such to their friends.
The Court of Appeal declined to impose a bright-line rule, stating that the law recognizes a variety of different relationships and living arrangements, making such a rule impossible and inconsistent with the flexible approach to spousal relationships outlined by the Supreme Court in M. v. H.9 Further, the court stated, at para. 4, that â€œthe specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting.
In Thauvette v. Malyon,  O.J. No. 1356, 23 R.F.L. (4th) 217 (Gen. Div.), the parties also maintained separate homes. At the time the parties started their affair, both parties were involved in other relationships. The plaintiff was married and the defendant was involved in a long-term common-law relationship. Both parties eventually left their partners. The plaintiff first moved into a home owned by the defendant, who was still living in his matrimonial home with his wife at the time. Subsequently, the defendant separated from his wife. He did not move in with the plaintiff but rented alternate accommodations. The parties wanted to keep their children separate and apart and this way the defendant could exercise access with his own children separate and apart from the plaintiff and her children. The defendant spent four to five nights a week at the plaintiffâ€™s home. The defendant took the position that the plaintiff was just a girlfriend and that he carried on relationships with other women during this time. He did not disclose these relationships to the plaintiff. Counsel for the defendant argued that the parties did not live under the same roof as they maintained separate residences. However, defendant was spending, on average, four or five nights a week with the plaintiff. Justice Roy, starting at paras. 32, 33, 34, 35 and 39, states:
In my opinion, the fact the defendant maintained a separate residence does not in itself mean he did not cohabit with the plaintiff. In todayâ€™s society, couples who carry on independent careers often in different cities could hardly be said to live under the same roof. There are instances where couples share more than one residence, like a cottage where one of the parties spends much more time than the other. Would the courts conclude thereby these people did not cohabit if they had not married? I think not.
In my opinion, the court has to look at all of the circumstances and consider the reason for maintaining another residence.
Here, there is a consensus amongst the parties, it was in the best interest of everyone involved the defendant maintain a separate residence to facilitate access with his children, away from the plaintiffâ€™s family.
The defendant argues the plaintiff was just a girlfriend like all the other women with whom he had had affairs.
. . . .
The problem is the defendant never advised the plaintiff of his intentions towards other women. At no time was he ever candid or discuss with her or explained to her his rules and conditions for their relationship. In fact, he tried to convince her otherwise.
Justice Roy concluded that upon reviewing all of the circumstances, including the conduct of the parties, there was cohabitation.
What is clear from a review of the case law is that each case is fact-specific. To determine whether the parties lived together in a conjugal relationship, all the factors must be considered in conjunction with one another. However, there needs to be some element of living together under the same roof. The very definition of â€œcohabitâ€ requires that the parties live together in a conjugal relationship.
There is a clear difference in the relationship of the parties in the cases that found the parties to be â€œcohabitingâ€ from those that found they were not.
In Nowell v. Town Estate (1994), 19 O.R. (3d) 303,  O.J. No. 1423 (Gen. Div.), appeal allowed on other grounds (1997), 35 O.R. (3d) 415,  O.J. No. 4044 (C.A.), the parties had a 24-year affair. Ms. Nowell knew that Mr. Town was married with children and Mr. Town was clear that he would not leave his wife. They maintained separate residences. Ms. Nowell did not receive any direct support from Mr. Town. They developed their own social network in which the affair was well known. Justice Jarvis found [at para. 9] that â€œ[c]onsenting adults with separate residences, who visit one another, cannot be said to cohabitâ€.
Mr. Latnerâ€™s lawyers rely on Quesnel v. Erickson,  O.J. No. 3693, 2012 ONSC 4335, 24 R.F.L. (7th) 229 (S.C.J.). In that case, the parties had a child together and the mother was arguing that she was a spouse because they [at para. 95] â€œcohabited in a relationship of some permanenceâ€. In considering whether the parties were spouses, Justice Hennessy states:
The parties did not share a residence during the time that Ms. Quesnel now alleges that they cohabited. This fact alone does not preclude a finding of cohabitation. The case law recognizes that, given a variety of relationships and living arrangements, there should be a full assessment of their relationship in order to determine whether they cohabited in a relationship of some permanence.
In reviewing the evidence and considering the facts (in a similar analysis to that set out in Molodowich), Justice Hennessey concluded that the parties were no more than a dating couple. There was no evidence that they lived in a â€œmarriage-likeâ€ relationship. The parties had had dinner with Mr. Ericksonâ€™s brother and wife and family a couple of times. They were seeing each other exclusively. However, they did not merge any part of their financial lives. They did not do any domestic services for one another. They did not participate in neighbourhood or community activities. They did not inform their families that they were in a committed relationship.
The respondentâ€™s counsel also relies on the case of Lukic v. Zaban,  O.J. No. 5256, 2012 ONSC 6078 (Master), a decision of Master MacLeod. This was a motion for interim support from the estate of Steve Zaban, under the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the â€œSLRAâ€). The issue was whether Ms. Lukic was a spouse. Mr. Zaban helped Ms. Lukic set up a lingerie store. He permitted her to live in his home for eight months. He purchased a car for her use and gave her the use of his credit cards. However, the parties were not sexually intimate (Mr. Zaban could not have sexual intercourse) and they had separate bedrooms. They did not cohabit for even close to three years. It was unclear whether the relationship was even a romantic one. There was no corroboration to Ms. Lukicâ€™s position that they were in a marriage-like or even a romantic relationship. They did not hold themselves out as a couple in the community. They did not travel together on holiday. At para. 20, Master MacLeod states:
It is possible to cohabit while maintaining separate residences but in that case the evidence will have to be overwhelming that the lives of the parties were so intertwined that they must be considered to be in a spousal relationship despite that fact.
After a review of the factors set out in Molodowich, Ms. Lukic was found not to be a spouse.
Justice Dunphy specifically considered the term â€œliving togetherâ€ in Stajduhar v. Kerzner Estate,  O.J. No. 4511, 2017 ONSC 4954, 99 R.F.L. (7th) 401 (S.C.J.). This is another estate case where a party was seeking support as a dependent under the SLRA. Section 57 of the SLRA defines a â€œdependantâ€ as â€œthe spouse of the deceasedâ€. The definition of a â€œspouseâ€ under the SLRA is the same as in s. 29 of the FLA. Ms. Stajduhar alleged that she was a dependent of the late Jeffrey Kerzner and that they cohabited for not less than three years in a conjugal relationship before his death. Mr. Kerzner was providing some level of financial support before his death. Dunphy J.â€™s comments, at para. 52, are helpful:
The real world of human relations more closely resembles a spectrum than a well ordered world of binary certainties. A myriad of close relationships exhibiting some elements of dependency exist in the world of real people leading real lives. The inquiry I must undertake cannot be reduced to a simple checklist. While it is clear that the substance of the relationship needs to be examined, that examination must proceed in the light of the minimum requirements of the legislation.
The question before Justice Dunphy was whether a romantic partner can make a claim for dependent relief without establishing that she lived together with the deceased for at least three years. Justice Dunphy was not persuaded that the parties ever lived together. The couple had a loving relationship and Mr. Kerzner was generous to Ms. Stajduhar. The parties maintained separate residences throughout. In looking at whether the parties ever lived together, para. 65 states:
Living together implies something more than having conjugal relations, spending time together or doing so for a long time. It cannot be defined by a simplistic accounting of days or nights spent at this or that address. It imports the concept of a common abode where both our primarily resident. That place may change from time to time depending upon the lifestyle of the couple. However, there ought to be a place readily identifiable as a place where both are ordinarily to be found most of the time when they are at â€œhomeâ€.
[Emphasis in original]
However, in that case, the parties spent a lot of time together, but there was no evidence that they slept at each otherâ€™s houses, except on exceptional instances, such as illness or other similar events. They did not go on holiday together even once in six years. At para. 71, Justice Dunphy states that â€œ[t]he texture and feel of a relationship involving a couple â€˜living togetherâ€™ as opposed to â€˜going steadyâ€™ over a lengthy period of time is quite absent from [the claimantâ€™s] evidence viewed as a wholeâ€. The conclusion was that Ms. Stajduhar â€œhas supplied insufficient evidence to present a convincing case that she lived together with Jeffrey at any identified timeâ€.
In Derakhshan v. Narula,  O.J. No. 404, 2018 ONSC 537 (S.C.J.), Mr. Derakhshan was seeking spousal support from Ms. Narula, claiming they were in a common-law relationship. The parties enjoyed a romantic relationship and, for one year, Mr. Derakhshan resided at Ms. Narulaâ€™s house. However, the evidence fell short of establishing that they were in a spousal relationship. There was no evidence of any express intention by either of them to enter a long-term relationship. They did not hold themselves out socially as spouses. Their finances were kept entirely separate. They travelled separate and apart (except for trips to India). Shead J. ultimately found that, â€œ[t]aking into account the other evidence, I conclude that Derakhshan has failed to prove that he and Narula were in a spousal or common-law relationshipâ€.
I find that Ms. Climans and Mr. Latner were spouses for the purpose of spousal support having regard to all the factors. The dynamic of their relationship was such that all of the elements were present to some degree or another, but when viewed all together, lead to the conclusion that they were spouses:
(a) Committed relationship: The parties were in a committed 14-year relationship, as set out in more detail above, having exchanged rings (even if only â€œcommitment ringsâ€, as described by Mr. Latner), celebrated their anniversary each and every year, exchanged numerous love letters with expressions of deep commitment, Mr. Latner calling the applicant Mrs. Latner (or other similar names), and Ms. Climans caring for Mr. Latner during hospital stays. There was an expectation that Ms. Climans be available to Mr. Latner, and run errands for him.
(b) Financial Arrangements: Mr. Latner paid for Ms. Climansâ€™ expenses for the entirety of the relationship, provided her with a lavish lifestyle, paid off one of her mortgages and created a financial dependency.
(c) Extended Family and Social Perception: Ms. Climans was treated as family by the extended Latner family. The parties held themselves out as a couple in a long-term committed relationship to both family and friends. They have referred to each other as spouses in public. Ms. Climans participated in the extended Latner family lifecycle events and even walked down the aisle with Mr. Latner at his daughterâ€™s wedding, standing under the chuppah (canopy) with him.
(d) Living together:
(i) I find that every summer, Mr. Latner and Ms. Climans moved up to and lived together at the cottage. This was their summer home, where they could be located throughout the summer for almost the entire 14 years.
(ii) I also find that for the first several years of the relationship, Ms. Climans was residing at Mr. Latnerâ€™s home on a regular basis, when her children were not in her care, being alternate weekends. I accept that she maintained a separate home for her children, to be close to their school, and by the time they graduated the parties were already in the process of building a home together. This may have changed later in the relationship but was certainly present in the first few years.
(iii) The parties also lived together as spouses when in Florida.
Had these been the only factors, I would not have concluded that they were spouses. However, when taken into account along with all the other dynamics in this relationship (summarized above), I conclude that they were common-law spouses.
Spousal Support Standing
Given my finding that Ms. Climans is a spouse within the meaning of the Family Law Act, she therefore has standing to seek support.
Is Ms. Climans entitled to spousal support?
It is Ms. Climansâ€™ position that she is entitled to spousal support, both compensatory and non-compensatory support, based on the accustomed standard of living enjoyed while they were together. It is Mr. Latnerâ€™s position that she is not entitled to support. Mr. Latnerâ€™s position is that she is not entitled to compensatory support because she did not suffer any economic disadvantage caused by the relationship and Ms. Climans had nothing to do with his success, since he was already a wealthy man when they met. Her current financial circumstance is as a result of her mismanagement of her own money. Mr. Latner also took the position that she is not entitled to non- compensatory support. Specifically, the amounts that he paid to her following separation should have â€œcushioned Lisa into self-sufficiencyâ€ and she should have made better efforts to become self-sufficient.
I find that Ms. Climans is entitled to non-compensatory support, based on the difference between the needs and means of the parties. The circumstances of this relationship clearly created a pattern of economic dependency. Ms. Climans has a need for support. Currently, Ms. Climansâ€™ only source of income is from teaching yoga. She continues to rely on the interim without prejudice support payments from Mr. Latner to meet her day to day needs. There is no dispute that Mr. Latner has significant means. Mr. Latnerâ€™s position during the trial was that his ability to pay support was not relevant. There is a huge difference in the partiesâ€™ incomes. For 14 years, Mr. Latner provided Ms. Climans with a lavish lifestyle, one that she cannot maintain on her own income. Ms. Climans will be unable to maintain a lifestyle even close to that which she enjoyed during the relationship. In fact, she cannot even afford the lifestyle she enjoyed prior to the relationship.
Ms. Climans is also entitled to compensatory support, which will inform the amount and duration of support. A compensatory basis for spousal support can be found when a recipient has suffered economic loss or disadvantage as a result of a role played during the relationship. Ms. Climans gave up her job at the start of the relationship to be available to Mr. Latner. She has been out of the workforce for 14 years, due to the relationship. Mr. Latner acknowledged that he wanted Ms. Climans to be available to him. It was partially for this reason that he started to cover all of her expenses.
However, it cannot be said that Ms. Climans contributed to Mr. Latnerâ€™s success (or that Mr. Latner owes his success due to Ms. Climansâ€™ role in the relationship). Mr. Latner did receive some benefit from Ms. Climans during the relationship, however, when Ms. Climans and Mr. Latner met Mr. Latner was already well established in his familyâ€™s business. Ms. Climans had no role to play in the acquisition or improvement of the family business. Any benefit conferred on Mr. Latner by Ms. Climans did not survive the breakdown of the relationship. Ms. Climansâ€™ compensatory claim in this regard exists but is weak.
What is Mr. Latnerâ€™s Income?
Mr. Latner did not really take a position on what his true income is for support purposes. He acknowledged that this is a case where means is not an issue. It was Ms. Climansâ€™ position that because Mr. Latner failed to provide adequate financial disclosure to determine his true income or even take a position as to his true income, an adverse inference should be drawn against him. She also takes the position that given that Mr. Latner did not deny, or refuse to admit and give reasons for his refusal, the statement that â€œhe has the ability to pay any amount to Lisa for her supportâ€, he is deemed to have admitted same, pursuant to rule 22(4) of the Family Law Rules, O. Reg. 114/99. It is Ms. Climansâ€™ position that Mr. Latnerâ€™s income is in excess of $5 million each year.
In this case, Ms. Climansâ€™ position is correct, in that the quantum of spousal support is going to be driven mainly by the recipientâ€™s needs. However, I still need to make some finding with respect to Mr. Latnerâ€™s income.
The starting point for determining income under the Spousal Support Advisory Guidelines (the â€œSSAGsâ€) is the definition of income under the Federal Child Support Guidelines, SOR/97-175 (SSAGs, s. 3.3.2). Those guidelines and the Ontario Child Support Guidelines, O. Reg. 391/97 (the â€œCSGsâ€) are virtually identical.13 Section 16 of the CSGs provides that subject to ss. 17 to 20, a spouseâ€™s annual income is determined using the sources of income set out under the heading â€œTotal incomeâ€ in the T1 General form issued by the Canada Revenue Agency, adjusted in accordance with Schedule III.
Sections 17 and 18 permit a court to depart from line 150 income where the court is of the opinion that the determination of the spouseâ€™s line 150 income would not be the fairest determination of income.
Section 17(1) allows a court to consider patterns or fluctuations in a spouseâ€™s income over the last three years:
17(1) If the court is of the opinion that the determination of a . . . spouseâ€™s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the . . . spouseâ€™s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
Section 18 allows the court to add all or part of the pre-tax corporate income for the most recent taxation year for a corporation of which a spouse is a shareholder to that spouseâ€™s income.
Section 19 addresses imputing income to a spouse and sets out a non-exhaustive list of circumstances in which income may be imputed.
Mr. Latnerâ€™s income is a combination of employment income, dividends, rental income and capital gains. Mr. Latner owns shares in MELCO.14 MELCO, in turn, holds shares in three companies, referred to collectively as â€œShiplakeâ€.15 This structure came about in 2016/2017, when there was a structural reorganization, primarily to pre-empt the 21-year deemed disposition rule for the Michael Latner Family Trust No. 3 (the â€œTrustâ€). At the same time, the existing corporate structure was simplified by amalgamating some of the companies. For example, Bentley, a holding company, was amalgamated into Shiplake Holding. Mr. Latner now draws his income primarily from his shareholder account in MELCO.
Further, Mr. Latner was a discretionary beneficiary of theTrust, which he controlled. The Trust had a value of approximately $220 million in 2015. The Trust assets were subsequently transferred into MELCO, as set out above. As part of the reorganization (and distribution of the trust assets), Mr. Latner allocated $70,000,000 of the Trust assets to himself, paid some money out to his children, and reallocated the rest (approx. $150 million) to his children. Mr. Latner now owns his interest in MELCO by way of two different tranches of shares, one worth approximately $70 million and the other worth approximately $21.5 million.
Mr. Latnerâ€™s net worth is hard to determine with any accuracy on the disclosure provided and the evidence given during trial. His position changed throughout his various financial statements and disclosure, but his most recent financial statement (April 3, 2018) shows his net worth to be $137,875,120. What is known is that at separation Mr. Latner owned 19 Old Forest Hill Road (worth approx. $5 million) and 21 Forest Hill Road. He owned a cottage worth $4 million and the Florida Condo. He owned boats, cars and significant art (the art being worth over $38 million as per his financial statement) at separation. He had approximately $3.5 million in personal (non-corporate) investments plus the corporate assets and trust assets. The Trust assets were around $220 million at separation. Mr. Latner had full control over these assets.
In considering s. 16 of the Guidelines, I find that Mr. Latnerâ€™s income tax returns do not reflect his true income. His income from his tax returns is as follows:
(a) 2015 â€” $5,676,015
(b) 2016 â€” $232,694
(c) 2017 â€” $14,355,553.79 This included a $26,464,000 capital gain from the sale of personally owned piece of art to one of his companies, as well as a $86,467 loss from the sale of the second cottage (sold for $4 million).
I also find that Mr. Latnerâ€™s Form 13 financial statements do not reflect his true income. His income from his various financial statements can be summarized as follows:
(a) $273,401 â€” set out in his financial statement sworn November 6, 2015.
(b) $232,694 â€” set out in his financial statements sworn May 24, 2017 and April 3, 2018.
(c) $14,355,552 â€” set out in his financial statement sworn November 30, 2018.
In order to determine income available to Mr. Latner from which to pay support, it is important to look at MELCO and the related companies, not simply the income reported on his personal income tax returns.
Under s. 18 of the Guidelines, I can consider the pre-tax corporate income from his companies. The pre-tax corporate income for MELCO and Shiplake during these years can be summarized as follows:
2015* Not provided $7,855,717
2016* $1,867,267 -$2,000
2017* $30,254,426 $685,000
2018* $8,028,000 $2,062,488
- Shiplakeâ€™s year end is June and MELCOâ€™s year end is April for 2015/16 and May for 2017/18. The three-year average is over $14 million, or over $10 million in pre-tax corporate income in 2018.
Further, Mr. Latnerâ€™s income (whether considering his income tax returns, his financial statements or his pre-tax corporate income) fluctuates each year. I find that looking at his income over a three-year period to be the most fair and reasonable approach in these circumstances. However, based on the evidence presented at trial (or lack thereof), it is difficult to make a finding as to his true income. Nonetheless, I do have sufficient information to determine how much Mr. Latner drew from MELCO for his own expenses over the last three years.
Mr. Latner took the position that he draws money from MELCO to meet his expenses and the accountants determine how to treat the draws at the end of the year. Mr. Bester gave testimony that they are now paying Mr. Latner a more regular sum each month to keep track of money being drawn from his account. The money flowing into and out of Mr. Latnerâ€™s MELCO shareholder account can be summarized as follows:
2015 $2,328,147 $10,698,559
2016 $10,800,000 $7,979,244
2017 $26,633,999 $5,138,697
2018 (until Nov) $84,358 $12,738,289
- This includes taxes paid and money provided to his ex-wife, Karen Latner.
Mr. Latner had use of just over $8.6 million per year, on average, for the last three years. I appreciate that some of this money may technically be characterized as a draw on capital for income tax purposes, but given the history of how he earns his income, his organizational structure and the disclosure provided, I find that without further information this is the most accurate way to determine the funds to which he had access for the purpose of determining his income for spousal support. This does not take into account the beneficial tax rate as a result of some careful tax planning by his advisors.
Of the $12,738,289 drawn in 2018, $7,497,382 went to pay taxes, largely as a result of the art sale. But even without taking into account income taxes paid for 2018, he still had use of over $5,200,000 that year, plus his normalized income taxes paid. He would still have had an average income of over $6.5 million per year, for the last three years, or at least $7 million for 2018.
If I were to go through the exercise of determining his income for support purposes as provided for under the Guidelines (by starting with his income tax returns, grossing up dividend income as well as capital gain income), his income would be even higher. Suffice to say, I am satisfied that there is sufficient income from which to pay support. In this case, Ms. Climansâ€™ needs, measured against her standard of living during the relationship, will be the driving factor in determining the quantum of spousal support, not Mr. Latnerâ€™s means.
Ms. Climansâ€™s needs and income
Ms. Climansâ€™ position is that she is entitled to spousal support in the amount of $67,000 to leave her with $34,700 net. She has a projected budget of $34,679 net per month. Mr. Latnerâ€™s position is that even if Ms. Climans is found to be entitled to support, he has discharged his obligation in paying her $621,783.88 net since separation. If spousal support is to be ordered, his position is that the quantum should not be based on the Spousal Support Advisory Guidelines as his income is over $350,000.
With respect to her expenses, Ms. Climans provided a proposed budget of $34,679 net per month. During cross- examination, she acknowledged that her budget was a wish list. She included groceries of $2,800 per month plus $2,000 for meals outside the home, as the amount she spent during the relationship. The $4,800 per month for food would have included Mr. Latner and her children. Mr. Latner is not responsible for the expenses for her children. I would therefore reduce these two items by $2,000 total. The estimated $6,000 per month for vacations included at least one of her children. There were a few other expenses which were not entirely accurate. I would reduce her budget for vacations to $4,000 per month. Her voice lessons ($1,600 per month), boxing ($350 per month), personal trainer ($433.33 per month), Canadian National Ballet lessons ($165 per month), gifts ($1,000 per month) and car lease (at $1,332 per month, even though Mr. Latner agreed to transfer the car to her as the lease is up shortly) were all part of her â€œwish listâ€. The monthly total for these items is $4,880.33. I would reduce the overall amount to $3,000. This would still give her a discretionary amount but perhaps not incurring all of the expenses at the same time. For example, if the car is transferred to her, her proposed budget is immediately reduced by $1,332 per month. If and when she needs to replace the car, she may no longer be taking voice lessons. Or she may find she is not spending $1,000 per month on gifts. She will still have significant discretionary funds to spend on these items. I have left many of her other lifestyle expenses such as her talk therapy ($1,000 per month), her beauty care (over $1,900 per month), her clothing ($5,000 per month), alcohol ($200 per month) and renovations on her home, without any reduction as they are reflective of the lifestyle and expenses she enjoyed during the relationship.
As such I would reduce her needs, as set out in her proposed budget, by a total of $5,880, for a total budget of $28,800 net per month (being $34,679-$5,880).
It is within the courtâ€™s discretion to draw the line at certain types of lavish expenditures, such as private jets and plastic surgeons16 and to adjust budgets when circumstances dictate. In McCain v. McCain,17 the husbandâ€™s income was $9.7 million, and he was worth over $500 million. The wife had a budget of $118,803 net per month, and assets between $15-17 million. The court determined spousal support by looking at the wifeâ€™s budget. The court ordered spousal support of $175,000 per month, or approximately $87,500 net per month. The court looked at the wifeâ€™s budget and reduced same to arrive at the support amount. The judge commented that while incomes do not need to be equalized, the spousal support should be sufficient so that the wife does not need to sell her house or use her capital. However, McCain was decided on a motion for support. In Elgner v. Elgner,  O.J. No. 5269, 85 R.F.L. (6th) 51 (S.C.J.), the husbandâ€™s income was $3.8 million, and the wifeâ€™s budget was $140,000 per month. The court also determined spousal support by looking at the wifeâ€™s budget, with adjustments to same. In this case the court ordered spousal support of $110,000 per month.
In Knowles v. Lindstrom,  O.J. No. 1059, 2015 ONSC 1408, 57 R.F.L. (7th) 402 (S.C.J.) the partiesâ€™ lifestyle during the relationship was found to be relevant to the context of establishing the applicantâ€™s needs for support purposes. The case was a motion for interim spousal support. The husband earned $1.5 million but did not pay tax. The parties lived together from 2002-2012. The husband argued that the wife was not a spouse.
The motion judge found that the wife satisfied him on a prima facie basis that she was a spouse. The SSAG range was from $35,000-$45,000 per month. The wife was asking for $30,000 per month. The judge ordered $25,000 per month.
Ms. Climans is currently on track to earn $24,000 this year as a yoga instructor. There is no dispute that Ms. Climans has an obligation to contribute to her expenses, but it is very unlikely that she will earn enough to be self-sufficient and afford the lifestyle she enjoyed during the relationship. In considering s. 33(8)(c) of the FLA, Ms. Climans should have an incentive to contribute to her own expenses. The Court of Appeal, in Reisman v. Reisman, (2014), 118 O.R. (3d) 721,  O.J. No. 663, 2014 ONCA 109 confirmed that limits on spousal support are an effective way to emphasize a recipientâ€™s obligation to work towards self-sufficiency so long as it is still within the context of the recipientâ€™s age, skills, education, opportunity for retraining and realistic employment prospects.
Ms. Climans was 51 years old at separation. She recently completed her training to be a yoga instructor. Being a yoga instructor may not be the most reasonable step to contribute to her own expenses. Evidence was presented at trial that teaching yoga is a good way to supplement income but not a means by which to support oneself. Ms. Climans is not going to earn more than $24,000 per year teaching yoga. A lower award of spousal support may encourage a recipient to make greater efforts towards self-sufficiency, or at least contributing to her expenses at a more reasonable level. Ms. Climans is an articulate, bright and motivated individual. I am satisfied that she could be earning more than what she is earning as a yoga instructor. Ms. Climans is currently earning approximately $24,000 per year. This is less than minimum wage. She has a positive obligation to contribute to her own expenses, within reason. She is never going to be earning an income sufficient to support her current life- style but given her age, her skill set and her previous employment I find that she can be earning more than she is currently earning as a yoga instructor. I find that at this time, she can be earning at least minimum wage, and I would impute $30,000 of income to her. However, Ms. Climansâ€™ income, whether at $24,000 or an imputed income of $30,000, is not going to have any real impact on meeting her expenses (the impact is less than $500 gross per month in spousal support).
Considerations for quantum and duration
Once entitlement has been determined, the issues of quantum and duration must be determined. The partiesâ€™ positions with respect to quantum are set out above.
The FLA provides a framework to determine support:
Order for Support
33(1) A Court may, on application, order a person to provide support for his or her dependants and determine the amount of support.
. . . . .
Purposes of order for support of spouse
(8) An order for the support of a spouse should,
(a) recognize the spouseâ€™s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
Determination of amount for support of spouses, parents
(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependantâ€™s and respondentâ€™s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependantâ€™s capacity to contribute to his or her own support;
(d) the respondentâ€™s capacity to provide support;
(e) the dependantâ€™s and respondentâ€™s age and physical and mental health;
(f) the dependantâ€™s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondentâ€™s career potential;
(k) Repealed: 1997, c. 20, s. 3 (3).
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouseâ€™s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the familyâ€™s support,
(v.1) Repealed: 2005, c. 5, s. 27 (12).
(vi) the effect on the spouseâ€™s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money.
Further, the introduction of the SSAGs has provided considerable assistance in addressing questions of quantum and duration of spousal support.
In Fisher v. Fisher (2008), 88 O.R. (3d) 241,  O.J. No. 38, 2008 ONCA 11, at para. 96, the Court of Appeal held that although the SSAGs are not legislated or binding they are a useful tool, provided that â€œthe reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstancesâ€.
In Thompson v. Thompson,  O.J. No. 4001, 2013 ONSC 5500 (S.C.J.), at para. 61, the court sets out a number of factors to consider in determining the appropriate quantum and duration of support within the ranges. These include:
a) The strength of any compensatory claim for support . . .
b) The recipientâ€™s needs . . .
c) The age, number, needs and standard of living of the children.
d) The payor spouseâ€™s needs and ability to pay.
e) The need to preserve work incentives for the payor.
f) Property division and debt . . .
g) Self-sufficiency incentives in relation to the recipient spouse.
Although Mr. Latnerâ€™s income is greater than $350,000 and the ranges under the SSAGs may not apply (see discussion below), the considerations set out above are still helpful in determining the quantum of support.
As set out in the Spousal Support Advisory Guidelines: The Revised Userâ€™s Guide, 2016, the formulas and amounts are no longer presumptive applicable once the payorâ€™s income exceeds the â€œceilingâ€ of $350,000 of income.
The formulas are not to be applied automatically above the ceiling, although the formulas may provide an appropriate method of determining spousal support in an individual case, depending on the facts.
With income above the ceiling, spousal support requires an individualized, fact-specific analysis, having regard to the legislative framework, set out at s. 33(9) of the FLA. There is further discretion given to the court in these circumstances. Further, once the payorâ€™s income is â€œfarâ€ above the ceiling, then the amount of support ordered will usually be below the low end of the SSAG range, but SSAG ranges are still calculated and some- times the outcome will fall within the SSAG range.19
With respect to duration, Ms. Climansâ€™ position is that she is entitled to indefinite spousal support. Mr. Latner had two different positions. The first was that Ms. Climans is no longer entitled to spousal support given that she has received in excess of $621,000 since separation. In the alternative, he took the position that I should order significantly time-limited step-down spousal support, urging significant weight be put on the need to promote economic self-sufficiency. His reasoning for time limited support was that it would allow Ms. Climans to gradually adjust her standard of living from the one enjoyed during the relation- ship to one based on her own income.
Under the SSAGs, spousal support is payable for a duration of between seven to 14 years, unless the years of their relationship and Ms. Climansâ€™ age total 65 or more (the Rule of 65). Ms. Climans was 51 years of age at separation (or to be exact, 51 years, nine months and 13 days). Ms. Climans has taken the position that they started cohabiting as of November 1, 2001 and separated May 11, 2015. This means that they cohabited, by her calculations, for 13 years, six months and 24 days. By her calculations she hits the â€œRule of 65â€ (65 years and five months), and is asking for indefinite spousal support. While I may not agree that they started cohabiting as early as November 1, 2001, there is a five-month leeway. It was Mr. Latnerâ€™s position that the parties never cohabited, so he did not provide any evidence or take a position as to the start date. I find that at some point in those first five months of the relationship, the parties did start cohabiting.
However, even if Ms. Climans hits the Rule of 65, this does not mean that she will receive spousal support for life. There have been cases that have ordered time-limited support, even in light of a result of indefinite support under the SSAGs. In Fisher v. Fisher, even though the wife met the Rule of 65, at para. 88, the Court of Appeal held:
To provide the appellant with a reasonable transition following her nineteen- year marriage, it is my view that the appellant will need support for seven years, beginning with the year of separation. In my view, a seven-year order complies with the spousal support objective of recognizing the appellantâ€™s eco- nomic disadvantage arising from the marriage and its breakdown, while also encouraging the appellant to complete her transition to self-sufficiency, whether by reason of earning a higher income or, more likely, by adapting her lifestyle to her then income.
In Mercel v. Bouillon,  O.J. No. 5544, 2012 ONSC 6557 (S.C.J.), the parties had a 14-year relationship and the wife met the 65-year rule. Her spousal support was terminated after 17 years.
At some point in time, Ms. Climans may have to adapt her lifestyle to meet her means. By ordering indefinite support, I am not necessarily making a finding that she is entitled to permanent spousal support.
Summary on support
I have decided on the quantum of support based on the following factors (all of which were discussed in detail above):
(a) This is a needs-based support award, with a weak compensatory element (lower end of support).
(b) The parties had a 14-year relationship. They enjoyed a lavish lifestyle. A dependency was created almost from the start of the relationship. Ms. Climans relied on the financial support from Mr. Latner (higher end of support).
(c) Ms. Climans does not have the ability to support herself at this time, and certainly not at a level that she enjoyed during the relationship (or even before the relationship). Her income is currently $24,000 per year. Her primary asset is her home. She does not have any significant savings for the future (higher end of support).
(d) Ms. Climansâ€™ needs, as per her budget, adjusted as set out above, are approximately $28,800 net per month.
(e) Mr. Latnerâ€™s income for spousal support purposes is at least
$6.5 million, although likely higher. There is unlikely to be a material change in circumstance in his income or asset base.
(f) Ms. Climans did not contribute to Mr. Latnerâ€™s earnings and career development. He entered the relationship with significant means and income. This has not changed (lower end of support).
(g) Ms. Climans was 38 years old when the parties met. She was 51 years old at separation and in good health. She does not have the ability to support herself, but she should and could be earning more than $24,000 to contribute to her own expenses (lower end of support).
(h) Mr. Latner is currently 63 years old. He has had some health scares over the last few years (lower end of support).
(i) This was a second marriage for both parties and there are no children of this relationship (lower end of support).
(j) The duration of support will be indefinite (lower end of support).
Weighing the factors set out above, along with the other considerations set out in the Family Law Act, such as lifestyle, ages, contribution to expenses, a weak compensatory claim, the duration of support and the length of the relationship, I find that Ms. Climans is entitled to indefinite spousal support in the amount of $53,077 per month, which will net her $28,800 per month. This will leave Ms. Climans with just over 11 per cent of the net disposable income of the parties. The Divorcemate calculation is attached.
Ms. Climans is requesting spousal support retroactive to the date she issued her application. Mr. Latner is asking that her claim for retroactive spousal support be dismissed because
(a) her needs were being met by him following separation;
(b) she did not bring a motion for support; and
(c) he did not engage in blameworthy conduct.
Section 34(1)(f) of the FLA permits orders for retroactive support. A spouseâ€™s obligation to pay support starts at separation. A spouse is expected to commence support proceedings in a timely manner. I find that Ms. Climans commenced her proceedings in a timely manner.
In Kerr v. Baranow,  1 S.C.R. 269,  S.C.J. No. 10, 2011 SCC 10, the Supreme Court concluded that the considerations it had set out for child support retroactivity in S. (D.B.) v. G. (S.R.)  2 S.C.R. 231,  S.C.J. No. 37, 2006 SCC 37 are also relevant in deciding the suitability of a â€œretroactiveâ€ award of spousal support. The factors for consideration for retro- active support are [at para. 207]:
[T]he needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support. I will mention some of those differences briefly, although certainly not exhaustively.
The court referred to the Ontario Court of Appealâ€™s decision in MacKinnon v. MacKinnon, where the court held that the date of the initiation of court proceedings for spousal support is the usual commencement date for the support order, unless there is a reason for making the order commence on a different date: MacKinnon v. MacKinnon (2005), 75 O.R. (3d) 175,  O.J. No. 1552 (C.A.).
After reviewing the facts in Kerr v. Baranow, the Supreme Court of Canada found the trial judge was justified in making a retroactive order where the recipient was in need, there was no delay in applying for support, and there had been no inordinate delay between the date of application and the date of the trial. The payor had the means to provide support and had prompt notice of the claim for support (see paras. 215-219).
Finally, in Knowles v. Lindstrom, the judge ordered support retroactive to the date the application was issued, finding the wife was entitled to support from the date that she gave notice.
Likewise, I find that Ms. Climans needed support (and had depleted her capital to meet her ongoing expenses), issued her application within a few months following separation and as of that time Mr. Latner was on notice that she would be seeking same. Mr. Latner had the ability to pay. The imposition of retroactive spousal support will not create a hardship for Mr. Latner. Further, it is clear from the evidence presented at trial that Mr. Latner was not entirely forthcoming with his financial disclosure. Finally, given Ms. Climansâ€™ limited resources (especially com- pared to Mr. Latner), I find it was reasonable to push this matter to trial rather than bringing a costly motion for support. The issue of whether she was a â€œspouseâ€ needed to be determined prior to the questions of entitlement and quantum.
I am not going to order spousal support for the period prior to her application and she does not seek this relief in her application. The application was issued on October 8, 2015.
I would not impute any income to Ms. Climans until January 1, 2019. Therefore, to determine the retroactive support payments owing, I have relied on the actual income earned by the applicant each year. Given that the parties cannot file their income tax returns for any year prior to the last calendar year, I have calculated the entire retroactive lump sum support payment owing as being net of tax (in that the support is not to be included in Ms. Climansâ€™ income for income tax purposes, nor deducted from Mr. Latnerâ€™s income). Further, Mr. Latner has advanced $621,783.88 net of tax by way of without prejudice payments from separation to the date of trial. He shall receive credit for these payments.
The retroactive lump sum spousal support owing is $421,795.12 net, calculated as follows:
Support Owing â€” using the midpoint of the support, net of tax, owing each year (mid- point, being the net cost v. net benefit of
support) Paid by Mr. Latner
2015- 3 months only $83,000
Total: $1,043,579 ($621,783.88)
Retroactive support owing: $421,795.12
For spousal support owing for January and February 2019, Mr. Latner shall also receive credit for any payments made to or on behalf of Ms. Climans, as per the agreement between the parties, dated April 6, 2016, for January and February 2019.
On a final note, it may have been appropriate in this case to make an order for lump sum spousal support, in lieu of ongoing support. Section 34 of the Family Law Act states that a court may make an order (a) requiring that an amount be paid periodically, or (b) requiring that a lump sum be paid, or to make an award comprising both forms of support. In reviewing his financial statement, there is no doubt that Mr. Latner has the ability to pay a lump amount. Both parties would have benefitted from finality and a clean break. However, Ms. Climans limited her submissions for a lump sum payment to simply cover the compensatory, and not needs based, support. As such, I had insufficient submissions before me on which to base an order for lump sum support.
Ms. Climans has requested an order requiring Mr. Latner to have a life insurance policy to secure the support obligation. Mr. Latner made no submissions in this regard. Ms. Climans referred to Katz v. Katz,  O.J. No. 3909, 2014 ONCA 606, as authority for the court to make the order.
Section 34(4) provides that â€œan order for support binds the estate of the person having the support obligation unless the order provides otherwiseâ€.
Section 34(1)(i) permits a court in an application under s. 33 to â€œmake an interim or final order . . . requiring that a spouse who has a policy of life insurance as defined under the Insurance Act designate the other spouse or a child as the beneficiary irrevocablyâ€.
Section 34(1)(k) gives a court discretion to make an interim or final order â€œrequiring the securing of payment under the order, by a charge on property or otherwiseâ€.
In Katz v. Katz, the Court of Appeal confirms [at para. 69] that a court does have jurisdiction, under para. 34(1)(k), â€œto order a spouse to obtain an insurance policy to secure payment of the order following the payor spouseâ€™s deathâ€. However, at para. 74 of the decision, the Court of Appeal states:
That said, where there is no existing policy in place, a court should proceed carefully in requiring a payor spouse to obtain insurance. This case demonstrates the desirability of having evidence of the payorâ€™s insurability and of the amount and cost of the available insurance. Careful consideration should be given to the amount of insurance that is appropriate.
There was little to no evidence led by either party during the trial with respect to the issue of life insurance. I cannot state with any certainty if Mr. Latner has a policy of life insurance and I certainly have no information to make a decision as to whether he can obtain same and at what cost. I find that there was insufficient evidence before me and I therefore I cannot make an order with respect to life insurance, as requested by Ms. Climans.
Order to go as follows:
(a) I find that the applicant, Lisa Climans, and the respondent, Michael Latner, were spouses under Part III, s. 29 of the Family Law Act.
(b) The applicant shall be imputed with an income of $30,000 commencing January 1, 2019.
(c) The respondentâ€™s average income over the last three years is at least $6,500,000.
(d) The respondent, Michael Latner, shall pay the applicant, Lisa Climans, spousal support in the sum of $53,077 per month, commencing January 1, 2019 and on the first day of each month thereafter. This amount is deductible by the respondent and to be included by the applicant when determining their incomes for income tax purposes. The respondent shall receive credit for the monthly payments made in January and February 2019, in accordance with their agreement, dated April 6, 2016.
(e) Within 90 days of the release of this judgement, the respondent shall pay the applicant a lump sum payment of $421,795.12 in satisfaction of all retroactive spousal support owing between them, up to and including December 31, 2018.
(f) If the parties are unable to agree on costs, if any, they shall arrange a conference call for either 9:00 am or 9:30 am on a date to be arranged through my administrative assistant.
(g) Support deduction order to issue. On consent:
(h) At the end of the current lease/financing, the respondent shall transfer the motor vehicle currently driven by the applicant, into the applicantâ€™s name, at no cost to the applicant. However, as between the applicant and the respondent, as of January 1, 2019, the applicant shall be responsible for the monthly lease payments.
**source: Ontario Reports