Katz v. Katz

• Jurisdiction: Ontario
• Judge: Doherty, Simmons and Tulloch, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: 2014 ONCA 606,(2014), 324 O.A.C. 326 (CA)
• Date: 22 May 2014

Katz v. Katz (2014), 324 O.A.C. 326 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. AU.030

Orly Katz (applicant/appellant) v. Neil Ari Katz (respondent/respondent)

(C57255; 2014 ONCA 606)

Indexed As: Katz v. Katz

Ontario Court of Appeal

Doherty, Simmons and Tulloch, JJ.A.

August 25, 2014.

Summary:

The mother sought orders of contempt against the father for his failure to comply with orders to contribute to exceptional expenses regarding the parties' two youngest children under s. 7 of the Federal Child Support Guidelines and to obtain life insurance and to designate the parties' children as beneficiaries.

The Ontario Superior Court denied the motions. The mother appealed.

The Ontario Court of Appeal dismissed the appeal.

Contempt - Topic 684

What constitutes contempt - Judgments and orders - Disobedience of or non-compliance with - [See Family Law - Topic 4045.4 and first Family Law - Topic 4094 ].

Contempt - Topic 2649

Defences - Particular defences - Inability to comply with court order - [See first Family Law - Topic 4094 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - The mother sought an order of contempt against the father for his failure to comply with an order to contribute to exceptional expenses regarding the parties' two youngest children under s. 7 of the Federal Child Support Guidelines - The mother sought payment of $16,524,32 on account of arrears of s. 7 expenses and an order for ongoing monthly payments of $896.40 - Prior to the motion's hearing, the father paid $9,350.85 on account of s. 7 expenses - The mother appealed and filed fresh evidence on the appeal related to the father's alleged ongoing failure to pay s. 7 expenses - The Ontario Court of Appeal dismissed the appeal - The motion judge made no error in dismissing the enforcement motion as it related to s. 7 expenses - The material filed as fresh evidence demonstrated nothing more than the continuing conflict between the parties - An ongoing disagreement did not justify an order for enforcement as claimed by the mother - See paragraphs 29 to 37.

Family Law - Topic 4054.2

Divorce - Corollary relief - Maintenance - Enforcement - Contempt proceedings - [See Family Law - Topic 4045.4 ].

Family Law - Topic 4094

Divorce - Corollary relief - Incidental matters - Insurance policies naming spouse or children beneficiaries - The divorce order required the father to obtain life insurance and to designate the parties' children as beneficiaries - Following the life insurance medical exam, the father was diagnosed with and treated for prostate cancer - He was unable to obtain life insurance - The mother sought an order of contempt against the father for his failure to comply with the order - The motion was denied - The mother appealed and sought to introduce fresh evidence concerning the availability of life insurance through a "non-medical requirement carrier" - The Ontario Court of Appeal declined to admit the fresh evidence and dismissed the appeal - It was open to the motion judge to find that the father had made reasonable efforts to obtain life insurance - The divorce order did not contemplate anything more than life insurance requiring a medical exam - The fresh evidence did not demonstrate that the father could have complied with the order - See paragraphs 43 to 54.

Family Law - Topic 4094

Divorce - Corollary relief - Incidental matters - Insurance policies naming spouse or children beneficiaries - The divorce order required the father to obtain life insurance and to designate the parties' children as beneficiaries - Following the life insurance medical exam, the father was diagnosed with and treated for prostate cancer - He was unable to obtain life insurance - The mother sought an order of contempt against the father for his failure to comply with the order - The motion was denied - The mother appealed, asserting, inter alia, that the motion judge had erred in holding that there was no legal basis on which the mother could insure the father's life - The mother sought to introduce fresh evidence in the form of a law clerk's affidavit regarding the availability of life insurance through a non-medical requirement carrier and an order allowing her to obtain the required insurance and to collect the premiums from the father as if they were child support - The Ontario Court of Appeal declined to admit the fresh evidence and dismissed the appeal - The law clerk's affidavit did not comply with rule 14(19) of the Family Law Rules in that the law clerk had failed to depose that she believed the contents of the attached letter from an insurance advisor to be true - Further, the order requested by the mother required a change order mandating the purchase of significantly lower amount of insurance from a specialized carrier - The proper course was to move to change the existing order - See paragraphs 55 to 64.

Family Law - Topic 4094

Divorce - Corollary relief - Incidental matters - Insurance policies naming spouse or children beneficiaries - The divorce order required the father to obtain life insurance and to designate the parties' children as beneficiaries - Following the life insurance medical exam, the father was diagnosed with and treated for prostate cancer - He was unable to obtain life insurance - The mother sought an order of contempt against the father for his failure to comply with the order - The motion was denied - The mother appealed, asserting, inter alia, that the motion judge had erred in holding that there was no legal basis on which the mother could insure the father's life - The Ontario Court of Appeal, in dismissing the appeal, discussed the court's authority to require a spouse to obtain or reintstate life insurance - The same power that existed under the Family Law Act to order a spouse to obtain life insurance to secure payment of support payments that were binding on the payor's estate also existed under the Divorce Act - However, where there was no existing policy in place, a court should proceed carefully in requiring a payor spouse to obtain insurance - The obligation to maintain insurance should end when the support obligation ceased - Finally, when proceeding under the Divorce Act, the court should first order that the support obligation was binding on the payor's estate - See paragraphs 65 to 74.

Family Law - Topic 4171

Divorce - Practice - Appeals - Admission of new evidence - [See Family Law - Topic 4045.4 and second Family Law - Topic 4094 ].

Family Law - Topic 4181

Divorce - Practice - Costs - Solicitor and client costs - A motion judge denied the mother's motion for an order of contempt against the father for his failure to comply with an order to contribute to exceptional expenses regarding the parties' two youngest children under s. 7 of the Federal Child Support Guidelines - On appeal, the mother asserted that the motion judge had erred in failing to award the mother substantial indemnity costs of the enforcement motion because the father's obligation to pay substantial indemnity costs under the divorce order was triggered when the father paid a portion of the s. 7 expenses in response to the mother's motion - The Ontario Court of Appeal dismissed the appeal - The issue of costs remained within the discretion of the motion judge - In making the divorce order, the trial judge was not entitled to bind the judge's discretion in dealing with a subsequent motion - In any event, the mother had failed to comply with the divorce order's terms regarding s. 7 expenses - See paragraphs 38 to 42.

Family Law - Topic 4248

Divorce - Evidence and proof - Affidavit evidence - [See second Family Law - Topic 4094 ].

Practice - Topic 6931

Costs - General principles - Discretion of court - [See Family Law - Topic 4181 ].

Practice - Topic 7465

Costs - Solicitor and client costs - Entitlement to - Divorce actions - [See Family Law - Topic 4181 ].

Cases Noticed:

Services aux enfants adultes de Prescott-Russell v. N.G. et al. (2006), 214 O.A.C. 146; 82 O.R.(3d) 686 (C.A.), refd to. [para. 51].

Feinstat v. Feinstat, [2012] O.A.C. Uned. 559; 27 R.F.L.(7th) 317; 2012 ONSC 5339 (Div. Ct.), not folld. [para. 57].

Laczko v. Laczko (1999), 104 O.T.C. 139; 176 D.L.R.(4th) 507 (Sup. Ct.), refd to. [para. 70].

Trinidad v. Trinidad, [2007] O.T.C. Uned. Q90; 47 R.F.L.(6th) 128 (Sup. Ct.), refd to. [para. 71].

Schwartz Estate v. Schwartz (1998), 52 O.T.C. 72; 36 R.F.L.(4th) 110 (Gen. Div.), refd to. [para. 72].

Carmichael v. Carmichael (1992), 115 N.S.R.(2d) 45; 314 A.P.R. 45; 43 R.F.L.(3d) 145 (C.A.), refd to. [para. 72].

Will v. Thauberger Estate (1991), 95 Sask.R. 52 (Q.B.), varied (1991), 97 Sask.R. 97; 12 W.A.C. 97 (C.A.), refd to. [para. 72].

Linton v. Linton (1990), 42 O.A.C. 328; 1 O.R.(3d) 1 (C.A.), refd to. [para. 72].

Counsel:

Rodica David, Q.C., and Jennifer Krob, for the appellant;

Susan Harris, for the respondent.

This appeal was heard on May 22, 2014, by Doherty, Simmons and Tulloch, JJ.A., of the Ontario Court of Appeal. On August 25, 2014, Simmons, J.A., delivered the following judgment for the court.