Ontario Court of Justice

Date: November 23, 2021 Court File No.: D 40779/20

Between: Jason Michael Ramsay, Applicant

And: Rebecca Lynn Christie, Respondent

Before: Justice Roselyn Zisman

Heard: November 8, 2021 Reasons for Judgment Released: November 23, 2021

Jason Michael Ramsay............................................................. self-represented applicant Lisa Baumal................................................................................ counsel for the respondent

Decision on Temporary Motion

Zisman, J.:

1. Introduction and background

[1] This is a temporary motion by the Respondent (mother) for child and spousal support based on an imputed income to the Applicant (father) of $96,000.

[2] The parties were in a common law relationship since June 1, 2000.

[3] The mother is 51 years old and the father is 52 years old.

[4] The parties have 3 children L.A.R. born […], 2005, A.G.R. born […], 2007 and J.M.R. born […], 2003.

[5] The parties separated on a final basis on November 1, 2019. The mother and children left their home and moved in with the maternal grandmother and the father rented his own accommodations. As of March 20, 2020, J.M.R. has resided with the father except for a few weeks where he lived on an alternate week basis with both parents.

[6] The father disputes the date of separation and claims that the parties separated on December 31, 2016 but lived separate and apart in the same home. Although this may be relevant on a final determination of the mother’s ability to become financially self-sufficient since the separation, it is not relevant on this motion.

[7] The father does not dispute the final date of the parties’ physical separation and admits that he fully supported the mother and children both during their relationship and after the separation.

[8] The father is a licenced paralegal. He specializes in criminal, highway traffic and personal injury work. He also sends referrals to criminal lawyers, including the mother’s brother John Christie who provide him with referral fees.

[9] The mother was a licensed paralegal until 2014. She worked primarily for her brother John Christie with whom she had a falling out. The reasons for her leaving are disputed but are not relevant on this motion. The mother and her brother are presently estranged and involved in litigation.

[10] It is not disputed that the mother left her employment voluntarily in 2014. However, the parties differ on the reason she stopped working. The mother was the primary caregiver of the children since leaving her employment in 2014.

[11] It is not disputed that the mother is presently not employed.

2. Litigation history

[12] I outline the history of the litigation to date as the father has continued a pattern of frustrating the orderly resolution of this matter and caused the mother to incur unnecessary legal expenses.

[13] The father commenced this Application on October 26, 2020. The father obtained an ex parte order on October 27, 2020 to file his financial statement without his Notices of Assessment on his undertaking to file his Notices of Assessments for 2017, 2018 and 2019 and Statement of Professional Activities within 30 days. He failed to comply with this order despite numerous requests by mother’s counsel.

[14] The mother did not have her 2019 Notice of Assessment and requested the father consent to filing her financial statement without it. The father did not respond to this request and the mother’s counsel was required to bring a motion for this relief and request an extension to file. The mother filed her Answer and claim on January 8, 2021.

[15] From November 2020 to February 2021, mother’s counsel wrote to the father numerous times requesting his income tax returns and financial statements. The father only responded on February 16, 2021 stating that they had court on March 17th [the first appearance] and he would answer questions at that time. He also told mother’s counsel not to contact him directly again.

[16] The father did not participate in the first appearance on March 17, 2021 which was held by telephone. No explanation was provided. Ms Kaur, another counsel from the law firm Batish Kaur, participated on behalf of the father as his agent. She advised she was not retained but requested a lengthy adjournment which was objected to by mother’s counsel.

[17] A case conference was held on April 26, 2021 by zoom. The father again did not attend but his agent a Ms Kumar, who was from the same law firm, attended. Ms Kumar stated that she had authority to agree to a disclosure order. Costs were reserved as the father had not filed a brief, not provided his Notices of Assessment as he had undertaken to do and had not provided any further disclosure. The father was ordered to participate in the next attendance or costs would be ordered. A date of June 23, 2021 was set for either a further case conference or motion, if necessary.

[18] A disclosure order was made on April 26th with respect to both parties who were to serve their disclosure by May 31, 2021.

[19] The mother complied and provided proof of her 2019 and 2020 income, copies of all of her bank records from January 1, 2019 and a medical report.

[20] The father was ordered to serve the mother’s counsel with copies of his income tax returns with all attachments and his Notices of Assessment from 2017 to 2020, proof as to when he requested his accountant prepare his returns, copies of all of his personal and business accounts from January 1, 2018 to present. It was made clear that this was just initial disclosure and further disclosure could be ordered.

[21] On May 31, 2021 the father provided some bank records and his tax returns for 2017 to 2020 but not his Notices of Assessment. He provided a letter from his accountant indicating that the father had not retained him until May 2021 to do the bookkeeping and filing his tax return that is, over 4 months from the date he undertook to do so.

[22] On June 1 and 3, 2021 mother’s counsel again wrote to the father requesting the disclosure that had been ordered and not provided. Mother’s counsel requested further banking disclosure that arose out of the disclosure that had been provided and also sought an explanation as to why the father filed his tax returns in the name of “Jason Pennefather.” Mother’s counsel advised that if the father was not agreeable to providing the disclosure that she would proceed with a motion for disclosure on the return date. The father was not agreeable to providing the requested disclosure and instead requested disclosure from the mother.

[23] On June 23, 2021, the mother’s motion for disclosure proceeded. The father was then represented by counsel Ayaz Mehdi. No response was filed. However, the father’s counsel had sent mother’s counsel a letter outlining the disclosure he was requesting from the mother. Despite father’s counsel not having a motion before the court, mother’s counsel agreed to the mother producing the disclosure that was requested. An order was made for that disclosure to be provided.

[24] The father was ordered to provide the disclosure that had been previously requested by the mother’s counsel. The father was ordered to pay costs of $1,300 as a partial wasted attendance as there was no need for the motion. The father paid the costs.

[25] The mother complied with the disclosure order immediately.

[26] The father provided some but not all of the disclosure. As of the date of this motion the following disclosure was still outstanding;

1. TD business bank account statement from January 1, 2020 to January 30, 2020;
2. Details and statements of all business bank account statement from January 1, 2018 to May 28, 2020;
3. Details and statements for all trust account held in his name from January 1, 2018 to the present;
4. Statements from his TD personal bank account from May 30, 2018 to present;
5. A legible copy of page 2 of his RBC bank account;
6. Articles of incorporation for 10505781 Canada corporation for which he is the sole shareholder;
7. Copies of statements for any other credit cards the father has held in his name, either business or personal, sole or joint from January 1, 2018 to present;
8. Copy of his car lease agreement for his 2010 BMW and his lease application;
9. Copy of his lease application for 153 Norseman Road, the parties’ former residence; and
10. ‘Copy of his lease for 4 Pony Farm, his current residence.

[27] The matter then returned to court for a further case conference on October 13, 2021.

[28] A Voice of the Child Report was ordered for the two girls as the father was alleging the mother was interfering with his relationship with them. Both parties were ordered to provide their intake forms immediately.

[29] As the issues of child support and spousal support could not be resolved, a motion date was set for November 9, 2021. The mother was required to serve and file her motion and affidavit by October 25th, the father his response by November 4th and any reply by November 9th. The length of the affidavits was increased to 25 pages plus 25 pages for exhibits. The endorsement stated that no extensions to late file would be permitted.

[30] The mother complied with the filing deadlines.

[31] On November 1st, a Notice of Change of Representation was filed indicating the father would be representing himself. The father then requested an adjournment from the mother’s counsel but as they could not agree on terms the motion proceeded.

[32] The father filed his affidavit electronically on November 4th. Despite the fact that the affidavit was in about 4 point font, contrary to the practice direction of the court and the deficiencies in his affidavit of service he insisted that the court staff accept his materials for filing. The father’s affidavit of service sworn November 4th indicates that he served mother’s counsel November 4th at 11:00 p.m. that is, he filed his materials with the court before they were even served. He also filed an affidavit from John Christie that was 2 pages long but with 40 pages of exhibits.

[33] The mother’s reply affidavit states that the father served her counsel November 4th as 11:19 p.m. with his affidavit sworn November 4th and an unsworn affidavit of Mr. Christie. On November 5th at 9:35 a.m. he then served his revised sworn affidavit and then at 9:43 a.m. a second copy of his revised affidavit and a sworn copy of Mr. Christie’s affidavit. The mother in her reply affidavit replied to the father’s revised affidavit. [1]

[34] Despite these irregularities, counsel for the mother wished to proceed with her motion due to the prejudice to her client if the motion was delayed.

[35] The only motion before the court was filed on behalf of the mother. Despite this, the father made submissions about adding J.M.R. who is 18 years old to the request for a Voice of the Child Report. It also became clear from the father’s submissions that he had not immediately sent in the intake form for the Voice of the Child Report and it then became quite unclear if he had ever sent it in. Counsel for the mother was asked to contact the Office of the Children’s Lawyer to determine the status of the matter and if necessary to serve and file a 14B requesting a further order for a Voice of the Child Report for the two girls.

3. Position of the parties

[36] It is the position of the mother that with respect to both child support and spousal support income should be imputed to the father in the amount of $96,000. It is submitted that the father has diverted income and therefore he has unreported his income on his tax returns, he has unreasonably deducted expenses from his income and he has failed to provide income information when under a legal obligation to do so and has breached court orders for disclosure. It is further submitted that the father’s lifestyle far exceeds his claimed income and accordingly he must have a source of undeclared income.

[37] It is the position of the mother that she is entitled to spousal support based on both a compensatory and non-compensatory basis based on the length of the relationship and her role as being primarily responsible for the care of the children, who have various educational challenges and medical and mental health issues. Further, the mother has medical issues that prevent her from currently working.

[38] It is the father’s position that the mother is not entitled to any spousal support and income should be imputed to her. He submits that the mother is intentionally unemployed and that she is the owner of a property at 750 Scarlett Road that is not being reasonably utilized to generate income.

[39] The father’s position with respect to his obligation to pay child support is more difficult to ascertain. He continually maintained that he has no problem paying child support and submitted that he pays for the children’s various expenses and pays them money directly. He agreed that he did not pay child support directly to the mother.

[40] The father submitted that he does not have any undisclosed income and blamed any lack of disclosure on his former counsel.

[41] The father further submitted that COVID has had a devastating impact on his business and that he has subsisted on government assistance and loans from friends. He expects to be without any income shortly and lose his paralegal license. When pressed by the court as to his position with respect to what income should be attributed to him as he continually submitted that he has no issue with paying child support, he finally stated he will have to obtain a new job and feels he could earn $50,000. He provided no other information.

4. Issues to be determined

[42] The following issues are therefor raised on this motion:

1. What income, if any, should be imputed to the mother?
2. What income, if any, should be imputed to the father?
3. What child support should be payable by either parent to the other parent?
4. Is the mother entitled to spousal support and if so, in what amount?

5. (a) Applicable law with respect to imputing income

[43] Income under s. 2 of the Federal Child Support Guidelines means annual income by applying section 15 to 20. Those sections provide that income can be determined in one of four ways:

1. Where both spouses agree in writing on the amount ( s.15 (2)).
2. If the spouses do not agree, using the sources of income set out under “total Income” in the spouse’s Income Tax Return, as adjusted in accordance with Schedule III, using the most current information ( s.16 and s. 2 (3)).
3. If that would not be the fairest way of determining the income, a fair and reasonable amount having regard to the average of income over the last three years ( Guidelines , s. 17).
4. In appropriate circumstances, imputing an amount of income.

[44] Section 19(1)(a) of the Federal Child Support Guidelines permits a court to impute income to a spouse who is intentionally underemployed. Intentional underemployment occurs when a payor chooses to earn less than he or she is capable of earning. There is no need to find a specific intent to evade child support obligations before income can be imputed on the basis of intentional underemployment.

[45] When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity. [2]

[46] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. [3]

[47] The Ontario Court of Appeal in Drygala v. Pauli [4] set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs?
3. If not, what income is appropriately imputed?

5. (b) Should income be imputed to the mother?

[48] The mother has not been employed on a full-time basis since 2014. Prior to that time she worked for many years as a paralegal for her brother. It is the mother’s evidence that it was agreed that the father would work full-time and financially support the family and she would work as a secondary financial support and also be the primary caregiver for the children.

[49] The mother’s average income from 1998 to 2013 was $43,133.13. In 2014 she deposes that her brother did not pay her and she had no income. Thereafter, she did not work regularly and only did some occasional work.

[50] The mother’s income in the following years was as follows:

2015 - $7,800 2016 - $7,378 2017 - $15,599 2018 - $2,128 2019 - $6,250 2020 - $17,000

[51] The mother states that in 2020 her income was comprised of CERB and Canada Recovery Benefit. However, that income terminated on July 31, 2021.

[52] As of 2014, the mother has not had regular full-time employment. According to the mother, the parties decided that the mother should remain home to meet the needs of the children, including driving them to school, attending various medical and other appointments. In addition, the mother began to experience her own medical issues related to her back and eyesight.

[53] All three children suffer from medical and/or educational issues that require the mother to devote a considerable amount of time to ensure that their needs are met.

[54] J.M.R. is 18 years old and suffers from anxiety and some depression. He was diagnosed with ADHD and dyslexia when he was young. In 2014, one of the reasons the mother left her employment was in part to meet their son J.M.R.’s educational needs by transporting him J.M.R. 3 times a week to his tutor. J.M.R. is high functioning and does not see a therapist or social worker. He is currently attending school virtually and is expected to graduate from high school in January 2022.

[55] A.G.R. is 14 years old and in Grade 11. She suffers from juvenile arthritis, migraines, anxiety and depression. She has appointments at the hospital every 3 months for treatment of arthritis and migraines, meets with a social worker and a referral has been made to a psychiatrist. The mother drives her to school and picks her up in addition to taking her to all of her appointments.

[56] L.A.R. is 16 years old and is in Grade 11. She suffers from severe depression, anxiety and panic attacks. She has recently been diagnosed with a severe eating disorder. The mother takes her to a weekly medical appointment, drives her to and from school and meets her for lunch to ensure that she eats properly. L.A.R. has been referred to an eating disorder clinic and meets with a social worker. She also has an IEP and requires consistent support and encouragement with respect to her schoolwork. The mother also meets with the school weekly.

[57] In addition to providing medical letters about A.G.R. and L.A.R., the mother has produced a medical report about her own deteriorating health. The letter states that the mother’s eye issues have been followed since 2009. The mother suffers from anterior uveitis in her left eye associated with ankylosing spondylitis and has severe glaucoma in her left eye that has greatly impaired her sight in that eye. Her condition affects her ability to read or write on screens or in print for long periods of time. The chronic pain as well as constant strain on the eye cause extreme fatigue and therefore impacts her ability for employment.

[58] Accordingly, the mother is responsible on a daily basis for meeting the needs of her daughters in addition to dealing with her own health issues.

[59] I find that there is undisputed evidence that due to the mother’s own health conditions and her care of her daughters, that she is currently unable to obtain employment.

[60] The father submits that the mother has the ability to obtain income as a result of her ownership of her property at 750 Scarlett Road that is valued at about 1.5 million but subject to mortgages of about $400,000. The father alleges that in the past the mother has received rental income from that property that is not declared.

[61] The mother deposes that she owns the 750 Scarlett Road property through a corporation. The building was used by her brother John Christie as his office and he sublet it to other lawyers. The mother deposes that the rental income is declared on her corporate return.

[62] More importantly, the mother has not received any rental income from that property since the summer 2020. The father filed John Christie’s affidavit. Mr. Christie confirms that he has not paid rent since that time and that the issue of his beneficial ownership of the property is currently under litigation. A copy of the Statement of Claim issued by Mr. Christie against the mother is attached to his affidavit.

[63] It is therefore clear that the mother is not receiving any rental income at this time and would not be in a position to claim rental income pending the outcome of the outstanding litigation.

[64] The father also submits that the mother will inherit significant funds from her mother. As the maternal grandmother is currently alive there is no relevance to this submission.

[65] Accordingly, I find that income should not be imputed to the mother on this motion.

5. (c) Should income be imputed to the father?

[66] In order to determine if income should be imputed to the father, it is initially necessary to ascertain his actual income. This in turn requires an examination of his financial disclosure.

[67] Although at times very difficult to follow the father’s written or oral submissions, it is essentially his position that he provided all of the financial disclosure he was ordered to provide to his counsel and his counsel is to blame if it was not then forwarded to mother’s counsel.

[68] However, as pointed out by mother’s counsel, if the father was having difficulty or lost confidence with his counsel, he had many months to either provide the disclosure himself or find new counsel rather than choosing to represent himself a week before this motion.

[69] The case law is abundantly clear that there is an ongoing obligation on litigants to provide timely, proactive, full and frank ongoing disclosure. [5]

[70] I find that in this case the father has not provided court ordered disclosure and has not provided relevant disclosure requested by the mother’s counsel. I find that a negative inference should be drawn from his failure to do so.

[71] By way of a few examples, the father alleges that COVD has had a devastating impact on his practice but fails to provide any proof. The father alleges that his paralegal license is suspended and attaches to his affidavit a copy of printout titled, “Paralegal Contact Information” that states that he is “suspended administratively” and that there is a regulatory proceeding pending. There are handwritten notations stating “Fees Only”.. “will be suspended from working shortly, might be losing licence to practice.” I draw the inference that these notations are written by the father as he made similar submissions to the court.

[72] The father took the position that it was up to the mother to prove that his allegations were not true or conduct further investigation. However, it is up to the father to provide evidence that is within his control. He does not provide any information as to why he did not pay his fees or if there are other grounds for the pending regulatory proceeding.

[73] This is troubling as the father deposes that he received $60,000 as a government grant and has received loans from friends. One would have thought that some of these funds would be used to maintain his licence and the source of his income. If it turns out that the father intentionally did not pay his fees or did not otherwise meet the regulatory requirements of his paralegal licence then this would be a ground to impute income to the father as he would have created a situation where he was intentionally unemployed.

[74] On the father’s October 5, 2021 financial statement, he discloses that he obtained a Canada Emergency Business Account (CEBA) grant or loan of $60,000, $15,000 from “a friend” and a further $20,000 from a friend M. Chudzick. These loans were not noted on his financial statement sworn October 14, 2020. Nor did the father provide any proof of these loans or deposits to his bank account that correspond to these loans.

[75] The father attached to his affidavit a copy of the first page of CEBA application made on April 17, 2020. It would be expected that if he applied for the loan in April that he would have received it by October 14, 2020 when he swore his first financial statement. The only deposit that the mother’s counsel found was in April 2020 to his business account of $40,000 that was marked as a GC term loan. This could or could not be the CEBA loan but then there is no deposit for the remaining $20,000. The father did not explain this discrepancy in his responding affidavit or provide proof of the receipt of any CEBA funds. He maintained that the application was on-line and he had no other documents. But if he deposited the funds to one of the 3 bank accounts he alleged he had, proof of the deposit would be simple. This leads to the inference that the father may have another bank account or he is simply not providing full details of any loans that he has received.

[76] There are issues with respect to the father’s credibility based on the financial disclosure that he provided. The father has provided different income figures for his income in the various documents he has disclosed. He has not explained how he is able to fund his expenses based on his stated income.

[77] The father did not file his tax returns from 2017 to 2020 prior to the commencement to this litigation.

[78] The Notices of Assessment he has now filed indicate the following income:

2017 – gross income of $41,894, net of $19,806.70 2018 – income of $11,000 2019 – income of $41,300 2020 – income of $27,000

[79] The father incorporated a company in 2018 and accordingly his income is based on a salary he paid himself. A copy of his Statement of Business income and expenses was not attached to either of his financial statements or his affidavit.

[80] The father alleges that he only has 3 bank accounts, a TD business account, a TD personal account and an RBC account that he deposes is used only for the children. He apparently also has a TD trust account that has not been disclosed even though mother’s counsel agreed he could redact the names of his clients.

[81] The father did provide copies of his business account from May 28, 2018 to May 10, 2021. In 2020 the deposits $118,834.74. The deposits for 4.5 months in 2021 total $45,290 but the father only claimed an income of $27,000 for that entire year. He did not provide proof of his business expenses.

[82] With respect to the father’s personal account he only provided copies of bank statements from January 1, 2018 to May 31, 2018 though ordered to provide statements from January 1, 2018 to present. The deposits for those 5 months in 2018 total $33,964.85.

[83] With respect to the RBC bank account only statements from October 2019 to May 2021 were provided. In 2020, the deposits total $22,125.50.

[84] On the father’s financial statement sworn October 14, 2020 he claims an income of $47,000 compared to his declared income to CRA of $27,000. He also claims expenses of $104,460.00. He claims further section 7 expenses that he pays for the children of $13,300 for a laptop for his son, iphones for all of the children that cost $1,000 each and for extracurricular activities of $8,500. Some of these expenses may be included in his yearly expenses although this is not clear. He therefore has a shortfall of $57,460 in after tax dollars and not including the section 7 expenses.

[85] On the father’s financial statement sworn October 5, 2021 he claims for the first time an income of only $21,600 comprised of CERB. The father does not provide any evidence of proof of the monthly amount, when he started to receive CERB income or when it ended. His expenses are $65,179.20. He claims section 7 expenses for the children of $16,800. These include $12,000 for orthodontal expenses. He includes the cost of the laptop for his son and iphones for all three children which I assume are the same expenses he previously outlined on his 2020 financial statement but he does not explain this either. His has a shortfall of $43,579 in after-tax dollars not including the section 7 expenses.

[86] Upon the separation in November 1, 2019 the father rented a 3 bedroom home for $3,500 per month even though at that time none of the children were residing with him.

[87] The father then moved into his current residence on or about November 1, 2020 despite his alleged financial difficulties, his financial statement sworn October 5, 2021 indicates he pays rent of $3,500 monthly. [6] His financial statement indicates that he no longer has possession of his Ford Explorer but still is in possession of his 2010 BMW although he now states he is not paying the car lease. No proof of any of these changes in his financial statement were provided.

[88] The father moved into this expensive rental accommodation and continued to incur expenses that far exceed his stated income even though on his October 14, 2020 financial statement he states in describing his business:

Jason Ramsay Legal (sole proprietor) Due to COVID there is no office anymore, working from home now, but COVID destroyed the practice. Prior to COVID was barely surviving.

[89] The father also for the first time stated that he had ADHD and that this effects his ability to earn an income. He provided no proof of this or how he was able to carry on his business in the past even though he suffered from ADHD but that it is only now having an effect on his ability to earn an income.

[90] The father provides no plausible explanation as to how he is paying for his stated expenses. He does not indicate any rental arrears for the premises he has rented since the separation. His business bank statement shows he paid rent of $3,350 from February to April 2021. There are no other withdrawals for rent or for his car lease. The father only provided his personal bank statements from January to May 2018 so if he paid these expenses from his personal account, he did not provide the court ordered bank statements.

[91] The father deposes that he was receiving CERB of $1,800 per month. But again there are no deposits in his business account and if he deposited the funds to his personal account he could have complied with the court order and provided these statements

[92] The father tried to explain that there were transfers between accounts or blames the mother’s counsel for improperly examining his bank account statements. The father could have quite easily provided copies of his bank statements that show that these expenses are being paid through one of his bank accounts.

[93] The father is also paying for his daughters’ orthodontal expenses. His financial statements indicate that the cost is $6,000 for each daughter and that he is paying $500 per month. He submitted that he pays $500 a month cash as the orthodontist does not accept credit cards or e-transfer payments and the father does not use cheques. The father’s bank statements that he has disclosed do not show monthly withdrawals to match these payments. If the father submits that the mother’s counsel misconstrued his bank records then he could have easily provided copies to prove he withdrew these funds and paid the orthodontist.

[94] Mother’s counsel also raised an issue as to whether the father has an undisclosed credit card. He only disclosed his Capital One Mastercard credit card. There are only modest charges and no proof of payment on any of the bank records he disclosed. But the father filed proof that he paid $1,800 for his son’s laptop using a “VISA ending in 5678”. The father maintains that this was his debit card. Again, the father could have very easily provided proof that this was a debit card and shown the corresponding withdrawal from one of his bank accounts.

[95] By way of further concerns about the father’s credibility and transparency, the father signed a rental agreement on October 27, 2020 for one year indicating his income was $8,000.00 per month. He now maintains that the rental agent told him just to put down any number.

[96] It is the mother’s position that based on the father’s stated income on this agreement of $96,000 that this income more closely reflects his actual income and lifestyle.

[97] Based on the lack of full and complete financial disclosure and the many issues raised as to the father’s credibility and contradictions in the financial disclosure he has provided, I find that it is reasonable to impute his income at $96,000. This is the income he purported to earn on his rental agreement and would support his after-tax claim of expenses of $65,179.20.

6. What amount of child support is payable?

[98] Based on the father’s imputed income of $96,000, he is required to pay child support for the two children in the mother’s care of $1,423 per month.

[99] Based on my findings, income was not imputed to the mother.

[100] In 2020, the mother’s income was $17,000, she is therefore required to pay child support for the father for their son who is in the father’s care of $118 per month. Setting this amount off against the father’s support obligation, the father is required to pay child support to the mother of $1,305 per month from November 1, 2020 to December 1, 2020.

[101] In 2021, the mother had income from January to July 2021 of $11,000 when her government benefits ceased. Based on that income and in accordance with the Child Support Guidelines no child support is payable.

[102] As of August 1, 2021, the mother had no income and as income was not imputed to her, she is not required to pay child support for their son.

[103] However, if the mother’s financial situation changes she may be required to pay child support for J.M.R. if he attends post-secondary education after he graduates from high school in January 2022. The father submits that J.M.R. is planning on attending Humber College in the Fall and in the meantime will be enrolling in a business management course. He will need to provide proof of this if he is seeking the mother pay child support in the future.

[104] The father is required to pay child support for their two daughters in the mother’s care of $1,423 per month as of January 1, 2021. The father is entitled to a credit of $2,5000 being the total amount of child support he paid the mother directly for the children in 2021.

[105] With respect to the funds the father has expended for the children and that he lists as section 7 expenses on his financial statement, the mother should not be required to contribute towards these expenses.

[106] The father acknowledged that he never sought the mother’s consent to begin orthodontal treatment for their daughters. The mother would have wished to wait until her finances permitted this cosmetic dental work. It now appears that the father has fallen behind on the payments and so it appears he was ill advised to have started the treatment at this time.

[107] The father also did not consult or ask the mother to contribute to the computer, iphones or activities that the father arranged on behalf of the children.

[108] In view of the mother’s lack of income, she does not have the funds to pay for any of these expenses. In the future, if the father is seeking that the mother contribute to any section 7 expenses he wishes to incur for the children, her prior written consent must be obtained.

7. Is the mother entitled to spousal support and if so, in what amount?

7. (a) Applicable Statutory and legal principles regarding spousal support

[109] Section 30 of the Family Law Act (“FLA”) provides that every spouse has an obligation to provide support for the other spouse “in accordance with need, to the extent that he or she is capable of doing so.”

[110] In considering if the Applicant is entitled to spousal support, whether on a temporary or final basis, the court is required to consider the objectives of a spousal support order set out in subsection 33(8) of FLA as follows:

(8) An order for the support of a spouse should,

(a) recognize the spouse’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). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).

[111] In Bracklow v. Bracklow [7], the Supreme Court of Canada recognized three bases for an award of spousal support:

1. compensatory based on the economic circumstances of each spouse’s role during the marriage;
2. non-compensatory based on need in circumstances where a spouse cannot become self-sufficient; and
3. contractual based on an agreement between the parties.

7. (b) Application of legal principles to the findings of fact

[112] I find that the mother is entitled to spousal support both on a compensatory basis and non-compensatory basis.

[113] This was a long-term relationship. The mother was employed for many years as a paralegal but was always the secondary earner in the family. She gave up that profession to meet the needs of the children and as a result of the onset of medical issues.

[114] Further, the mother clearly has the need for spousal support. The mother has no source of income at the present time. She is living with maternal grandmother and although originally she was to pay rent, she has not been able to do so. She is relying on the assistance of her mother and other friends to meet the needs of herself and her daughters. She has serious health issues that limit her ability to work and she is presently required on a daily basis to devote her time to meet the needs of her daughters.

7. (c) Legal principles regarding temporary spousal support

[115] As this is a motion for temporary spousal support, the relevant applicable principles to be applied are as follows: [8]

a) temporary support is to provide income for the dependent spouse from the time the proceedings were instituted until trial. It should only be ordered when a prima facie case for entitlement has been made out; b) on temporary support motions, needs of the dependent spouse and the ability of the other spouse to pay support take on greater significance than the need to achieve self-sufficiency; c) the court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered an economic advantage or disadvantage as a result of the relationship. That is to be left for the trial judge; d) temporary support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage; e) temporary support is to be based on the parties’ means and needs, assuming that a triable issue exists. The merits of the case in its entirely must wait a final hearing; f) temporary support should be ordered within the Spousal Support Advisory Guidelines (“SSAG”) range unless exceptional circumstances dictate otherwise.

7. (d) Application of legal principles to findings of fact

[116] Applying these principles, I have already outlined the basis for finding that the mother has established her entitlement to spousal support and her need.

[117] At this stage of the proceedings, the mother is unable to support herself and has no other financial means of meeting her day to day needs.

[118] The next step is to determine the amount.

[119] The mother is only seeking on this motion that spousal support commence as of January 1, 2021 as she has already filed her 2020 income tax return and that any issues with respect to retroactively be left to the trial judge if this proceeding is not resolved.

[120] Based on the Divorcemate calculations submitted by mother’s counsel, based on an imputed income of $96,000 and the mother’s income of $11,000 from January to July 2021, spousal support range is $254, $484 and $717. Since the mother is unable to pay any child support for J.M.R., I find that it is appropriate that the mid-range of spousal support that is, $484 per month be paid by the father.

[121] Based on the Divorcemate calculations for August to December 2021, the mother has no current income, the range of spousal support payable is from $688, $870 to $1.055 per month. As the father is still supporting J.M.R., I find that the mid-range of spousal support is appropriate.

[122] However, as of February 2022, the father will have to provide proof that J.M.R. is still attending school and entitled to child support as otherwise, the spousal support range would be from $1,090, $1,306 and $1,525 per month.

8. Conclusion

[123] At the end of the submissions the father sought an order that the mother provide proof of loans if that was being required of the father.

[124] Counsel for the mother submitted that the mother should not be required to provide this proof as it was the father’s position that income be imputed to her based on her ability to resume employment and based on her not reasonably utilizing her property to generate income. That is, unlike the mother’s position with respect to the father there was no claim that the mother was in receipt of undisclosed income.

[125] However, counsel for the mother submitted that if ordered the mother would comply but requested that she not be required to do so until the father had provided proof of his loans. The mother has complied with all disclosure orders made by the court and complied with all timelines; whereas the father has either not complied at all, partially complied or not complied in a timely fashion.

[126] I decline to make any further disclosure orders at this time except for orders of proof of 2021 income and proof that J.M.R. is continuing to attend school.

[127] The mother should not be put to further legal expenses to provide disclosure when the father neglects to do so. The outstanding orders for disclosure remain outstanding and it is up to the father to explain and provide proof of the many inconsistencies and issues raised by the disclosure he has made and as a result of the lack of proof he has provided.

[128] There will be a temporary order as follows:

1. The Applicant father shall pay child support to the Respondent mother for the children L.A.R. born […], 2005 and A.G.R. born […], 2007 as follows: a) For November 1, 2020 and December 1, 2020 in the amount of $1,305 per month; b) As of January 1, 2021, in the amount of $1,423 per month. The Applicant father shall receive a credit of $2,500 as a result of direct payments made to the Respondent.

2. The Applicant father shall pay spousal support to the Respondent mother as follows: a) For January 1, 2021 to July 1, 2021, in the amount $484 per month; b) As of August 1, 2021, in the amount of $870 per month.

3. As of February 1, 2022, the Applicant shall provide proof to the court and to the Respondent’s counsel that the child J.R.R. born […], 2003 is enrolled in post-secondary education. If this proof is not provided, the court will entertain a written or oral motion to increase the Applicant’s spousal support obligation to $1,306 per month.

4. Both the Applicant and Respondent shall provide proof of their total income for 2021 by January 17, 2022 either by filing an updated financial statement or by filing an affidavit with this information.

5. Support Deduction Order.

[129] If the issue of costs cannot be resolved, counsel for the Respondent to submit her costs submissions limited to 3 pages in 12 point font with a Bill of Costs and any offer to settle attached within 14 days. The Applicant shall submit his response within 14 days of being served with the Respondent’s costs submissions on the same terms. No copies of any caselaw being relied upon is to be submitted, only the citations and paragraphs being relied upon.

Released November 23, 2021

Signed: Justice Roselyn Zisman

[1] It is unclear which version of the affidavit the father filed with the court. But no submissions were made about any information lacking from the affidavit filed with the court.

[2] Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. C.A.).

[3] Supra.

[4] Supra

[5] Colucci v. Colucci 2021 SCC 24 at para. 49 to 54 and the many cases cited therein.

[6] The lease states the rent is $3,350 monthly.

[7] Bracklow v. Bracklow, [1999] 1S.C.R. 420

[8] Kowalski v. Grant 2007 MBQB 235; Robles v. Kuhn 2009 BCSC 1163; Decker v. Fedorsen 2010 ONCJ 618, [2010] O.J. No. 5661 (OCJ)