Wildman v. Wildman, (2006) 215 O.A.C. 239 (CA)

• Judge: Laskin, MacPherson and Cronk, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 30, 2006
• Jurisdiction: Ontario
• Citations: (2006), 215 O.A.C. 239 (CA);2006 CanLII 33540 (ON CA);82 OR (3d) 401;273 DLR (4th) 37;25 BLR (4th) 52;33 RFL (6th) 237;[2006] CarswellOnt 6042;[2006] OJ No 3966 (QL);151 ACWS (3d) 666;215 OAC 239

Wildman v. Wildman (2006), 215 O.A.C. 239 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. OC.017

Angela Wildman (applicant/respondent) v. Chris Wildman (respondent/appellant)

(C45135)

Indexed As: Wildman v. Wildman

Ontario Court of Appeal

Laskin, MacPherson and Cronk, JJ.A.

October 5, 2006.

Summary:

The parties separated after a 10-year traditional marriage. They had two children. Numerous court orders were made dealing with custody, access, equalization, and spousal and child support. The husband, a highly successful businessman earning $700,000 annually, had not complied with the support orders.

The Ontario Superior Court granted a divorce and corollary relief, including substantial amounts ordered against the husband for spousal and child support and for costs. The order included a finding that the husband owed more than $800,000 for spousal support, child support, equalization and interest. The husband appealed two aspects respecting the enforcement of the financial components of the order. He submitted that the court improperly pierced the veil of his companies and imposed liability on them for amounts owing his wife and children. He also challenged the order making costs and pre-judgment interest "payable and enforceable as spousal support".

The Ontario Court of Appeal allowed the appeal in two minor respects only.

Company Law - Topic 8

General - Knowledge or notice to company - [See first Company Law - Topic 311 ].

Company Law - Topic 311

Nature of corporations - Lifting the corporate veil - One person company - The parties separated after a 10-year traditional marriage - They had two children - The husband was a highly successful businessman who earned $700,000 annually - The Superior Court granted a divorce and corollary relief, including substantial amounts ordered against the husband for spousal and child support and for costs - The order included a finding that the husband owed more than $800,000 for spousal support, child support, equalization and interest - The Ontario Court of Appeal held that the trial judge did not improperly pierce the veil of the husband's solely owned companies when he imposed liability on them for amounts owing to his wife and children - The husband and his companies were one and the same - Thus, it was also irrelevant that the companies were not named as parties where this was matrimonial litigation, not commercial litigation - Notice to the husband was notice to the companies - See paragraphs 20 to 49.

Company Law - Topic 311

Nature of corporations - Lifting the corporate veil - One person company - The Ontario Court of Appeal held that the exception to the principle of separate legal personality for corporations where "it is completely dominated and controlled and being used as a shield for fraudulent or improper conduct" should be injected into family law - The court considered, inter alia, that s. 18 of both the federal and provincial Child Support Guidelines contemplated piercing the corporate veil in appropriate cases - See paragraphs 25 to 27.

Company Law - Topic 311

Nature of corporations - Lifting the corporate veil - One person company - The Ontario Court of Appeal stated that "although a business person is entitled to create corporate structures and relationships for valid business, tax and other reasons, the law must be vigilant to ensure that permissible corporate arrangements do not work an injustice in the realm of family law. In appropriate cases, piercing the corporate veil of one spouse's business enterprises may be an essential mechanism for ensuring that the other spouse and children of the marriage receive the financial support to which, by law, they are entitled." - See paragraph 49.

Company Law - Topic 314

Nature of corporations - Lifting the corporate veil - Fraudulent conduct, conversion or conveyance by company officers - [See third Company Law - Topic 311 ].

Company Law - Topic 315

Nature of corporations - Lifting the corporate veil - Preventing injustices - [See third Company Law - Topic 311 ].

Family Law - Topic 2522

Maintenance of wives and children - Enforcement - Orders - Jurisdiction - [See all Family Law - Topic 4047 ].

Family Law - Topic 2536.2

Maintenance of wives and children - Enforcement - Orders - Liability of payor's corporation - [See all Company Law - Topic 311 ].

Family Law - Topic 4047

Divorce - Corollary relief - Maintenance - Enforcement - Jurisdiction - The parties separated after a 10-year traditional marriage - They had two children - The husband was a highly successful businessman who earned $700,000 annually - The Superior Court granted a divorce and corollary relief, including substantial amounts ordered against the husband for spousal and child support and for costs - The order included a finding that the husband owed more than $800,000 for spousal support, child support, equalization and interest - The Ontario Court of Appeal held that the trial judge did not err in ordering that the costs also be enforceable as spousal support - Both statutory (Family Responsibility and Support Arrears Enforcement Act, s. 1(1)(g)) and case law authority supported such an order - The court rejected the husband's argument that only those costs relating to support should be enforceable pursuant to s. 1(1)(g) - See paragraphs 51 to 59.

Family Law - Topic 4047

Divorce - Corollary relief - Maintenance - Enforcement - Jurisdiction - Section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act provided that "In this Act, 'support order' means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for, interest or the payment of legal fees or other expenses arising in relation to support or maintenance" - The Ontario Court of Appeal held that it was impractical and inappropriate to suggest that the court should attempt to dissect costs awards in order to determine which part of the award related to the support aspect of the proceedings - See paragraphs 51 to 59.

Family Law - Topic 4047

Divorce - Corollary relief - Maintenance - Enforcement - Jurisdiction - Section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act provided that "In this Act, 'support order' means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for, interest or the payment of legal fees or other expenses arising in relation to support or maintenance" - The Ontario Court of Appeal held that where a trial judge awarded prejudgment interest with respect to the calculation of an equalization payment and not with respect to the support order or arrears, the requisite link between the interest and a support order was missing - See paragraphs 60 to 62.

Family Law - Topic 4180

Divorce - Practice - Costs - Enforcement of order for costs - [See first and second Family Law - Topic 4047 ].

Cases Noticed:

642947 Ontario Ltd. v. Fleisher et al. (2001), 152 O.A.C. 313; 56 O.R.(3d) 417 (C.A.), appld. [para. 23].

Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. et al. (1996), 2 O.T.C. 146; 28 O.R.(3d) 423 (Gen. Div.), affd. [1997] O.J. No. 3754 (C.A.), refd to. [para. 25].

Baum v. Baum (1999), 27 B.C.T.C. 219; 182 D.L.R.(4th) 715 (S.C.), refd to. [para. 27].

Arsenault v. Arsenault (1998), 59 O.T.C. 232 (Gen. Div.), refd to. [para. 28].

Rohani v. Rohani (2004), 205 B.C.A.C. 178; 337 W.A.C. 178 (C.A.), dist. [para. 32].

Drygala v. Pauli (2003), 167 O.A.C. 274; 35 R.F.L.(5th) 323 (C.A.), refd to. [para. 56].

Stancati v. Stancati (1984), 49 O.R. (2d) 284 at 287 (Prov. Ct.), agreed with [para. 59].

Statutes Noticed:

Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c. 31, sect. 1(1)(g) [para. 54].

Counsel:

Philip Epstein, Q.C., and Aaron M. Franks, for the respondent;

Gary S. Joseph and K. Stock, for the appellant.

This appeal was heard on August 30, 2006, by Laskin, MacPherson and Cronk, JJ.A., of the Ontario Court of Appeal. MacPherson, J.A., delivered the following decision for the court on October 5, 2006.