Pereira v. De Souza, 2022 ONCJ 607

ONTARIO COURT OF JUSTICE

CITATION: Pereira v. De Souza, 2022 ONCJ 607

DATE: December 12, 2022

COURT FILE No.: FO-22-000-42409

BETWEEN:

Ludmila Ferreira Pereira Applicant

— AND —

Fabio De Souza Respondent

Before Justice Roselyn Zisman

Heard on October 3, 2022 and November 30, 2022

Reasons for Judgment released on December 12, 2022

Darlene Rites and Alina Valachi (student at law)................. counsel for the applicant Jacques Portela ....................................................................... counsel for the respondent

Decision on temporary motion

Zisman, J.:

1. Introduction and background

1This is a motion by the Applicant (mother) for child support and spousal support based on an imputed income to the Respondent (father) of $533,426.74.

2The parties are the biological parents of one child Eloah Ferreira De Souza (the child) born on […], 2021.

3The father has two adult children from a prior relationship and the mother has an adult son from a prior relationship.

4The parties resided together from June 2018 until they separated in January 2022.

5The mother left the home alleging family violence that is denied by the father.

6The mother commenced this Application on February 16, 2022. The father was served on March 13, 2022, by leaving the documents with his adult son. The father only agreed to acknowledge service as of April 11, 2022.

7The parties attended a first appearance on May 4, 2022. The father was given an extension to file his responding pleadings to May 11, 2022.

8At the case conference on July 15, 2022, the father agreed on a final bass that the mother have sole decision-making responsibilities and primary residence of the child and that the mother be permitted to obtain government documents and travel with the child without the prior written consent of the father. The father was not permitted to remove the child from the Greater Toronto Region without the mother’s consent. The father was granted final parenting time once a week for two hours and other times including holidays as the parties agreed. To date the father has not exercised any parenting time.

9On a temporary basis, the father agreed to pay child support of $500 per month on an imputed income of $54,200. The order was without prejudice to either party requesting adjustments retroactively or on a go forward basis.

10The parties were ordered to comply with the Requests for Information that both counsel had served by September 15, 2022. Both parties allege that the other party has not complied with the disclosure requests.

11A motion date was set for October 3rd with each party to serve and file their own affidavits of up to 20 pages. Timelines were set for the filing of motion materials.

12On the October 3rd the father’s affidavit, that was to be served and filed by September 30th, was not before the court. Counsel for the father insisted that it had been filed and a confirmation had been received.

13The court confirmed that the confirmation counsel for the father received from the court staff clearly indicated that this was only a confirmation that the documents were received and not that they were accepted by the court. Counsel for the father subsequently received a notification from the court that his affidavit was not accepted as it was about 78 pages and therefore exceeded the page limits and further three other affidavits were attached to the father’s affidavit as exhibits.

14Counsel for the father then uploaded the father’s affidavit onto Caselines. This is despite the fact that documents are not to be uploaded to Caselines until they have been accepted for filing by court staff. This is an obvious flaw in the Caselines design as counsel can bypass the Family Law Rules and simply file their documents on Caselines. The further problem was that counsel for the father had not properly uploaded his documents so that the exhibits to the father’s affidavit were not available to the court on Caselines.

15Despite these irregularities the court staff was able to retrieve the father’s affidavit and counsel for the father was able to make submissions based on the father’s affidavit with its attachments.

16Counsel for the mother objects to the court considering the affidavits from third parties attached to the father’s affidavit. At the time this motion was set, there was no indication that counsel would be relying on any third-party affidavits. Timelines were set for only the parties to serve and file their affidavits. If the father subsequently determined that these third-party affidavits were necessary, he should have requested permission to file them by a 14B motion.

17The affidavits are from the father’s adult children that demean the mother and her role in the relationship. Even if they were admissible, I find that they are in any event not relevant to the issues before the court.

18The other affidavit is from a woman who alleges that she bought an item of clothing from the mother on March 28, 2022 for $120 cash and claims that there are other friends who have also bought clothing from the mother. This affidavit is filed to prove that the mother was carrying on a business in response to her claim for spousal support.

19In the mother’s Reply affidavit, she states that she has no knowledge of this particular woman. A text message in Portuguese is also attached. The mother explains that this text related to the mother reaching out to a friend at her church who owns a clothing store and asking if she needed help. The mother received about $300 in commission. This affidavit and the attachment are of marginal relevance given the small amount that is alleged to be involved.

20The father deposes in his affidavit that an affidavit from the mother’s former husband is attached as an exhibit to prove that she also made false claims that her former husband was abusive. But no affidavit is attached.

21The mother deposes that the father threatened to involve her former husband in this process as an intimidation tactic and to impose power and control over her. Anything her former husband could attest to clearly has nothing to do with the issues of child support and spousal support.

22I find that these 3 affidavits should be struck. Even though the mother replied to these affidavits as they were served upon her, it would be an abuse of process to permit the father to reply on these irrelevant affidavits and by-pass the direction of the court.

23The issues to be determined are:

1. What is the father’s actual income and should income be imputed to the father?

2. If income should be imputed, in what amount?

3. What amount of child support is payable if the father’s income is attributed to exceed $150,000? Is the mother entitled to section 7 expenses as claimed of $157 per month?

4. Is the mother entitled to spousal support? If so, in what amount?

2. Applicable legal principles with respect to imputing income

24Section 19 of the Child Support Guidelines permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim.

25Imputing 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. See: Drygala v. Pauli, 2002 41868 (ON CA), [2002] O.J. No. 3731 (Ont. C.A.).

26In Duffy v. Duffy, [2009] Carswell NFLD 211 (Nfld. CA) at para. 35 the court summarized the general principles regarding financial support of children pursuant to the Child Support Guidelines as follows:

a) The fundamental obligation of a parent to support his or her children takes precedence over the parent’s own interests and choices.

b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her own children.

c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.

d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances.

e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.

27The Ontario Court of Appeal in Drygala 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 or her reasonable educational or medical needs, or those of a child?

3. If not, what income is appropriately imputed?

28With respect to the first question, the onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.).

29With respect to the second question, once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

30The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

31When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, 2003 3433 (Ont. C.A.), at paragraph 23.

32As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.); Drygala, supra, paragraph 39.

33With respect to the third question in Drygala v. Pauli, supra, that is, “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?”

34The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson, 2006 26573 (Ont. C.A.).

35A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.

36Income can be imputed on a temporary motion. As motions are limited by the evidence available, it is incumbent on the person seeking a finding of imputation of income to provide the court with sufficient information from which a reasonable inference could be drawn. This evidence “generally involves the presence of some type of documentary evidence which assists the justice in reaching an estimate of the appropriate income.” Kowalik v. Kowalik 2011 1551 (SCJ); Stoyshin v. Stoyshin, 2007 15478 (ON SC), [2007] O.J. No. 1772 (SCJ) at paras. 13-14.

37A court is entitled to draw an adverse inference against a party for his or her failure to comply with their disclosure obligations and impute income. Woofenden v. Woofenden 2018 ONSC 4583.

38A self-employed person clearly has the onus of demonstrating the basis of his or her net income for child support purposes. This includes demonstrating that the business deductions from gross income should not be taken into account in the calculation of income for support purposes. See Whelan v. O'Connor, 2006 13554, 28 R.F.L. (6th) 433, [2006] O.J. No. 1660, 2006 CarswellOnt 2581 (Ont. Fam. Ct.).

39It is also well established in the case law that the self-employed person has an obligation to put forward adequate and comprehensive records of income and expenses, so that a proper determination of the amount of child support can be established. The onus rests on the parent seeking to deduct expenses from income to provide meaningful documentation supporting those deductions, failing which an adverse inference can be drawn. See Meade v. Meade, 2002 2806, 31 R.F.L. (5th) 88, [2002] O.J. No. 3155, 2002 Cars­well­Ont 2670 (Ont. S.C.) and Orser v. Grant (2000), 96 A.C.W.S. (3d) 644, [2000] O.J. No. 1429, 2000 Cars­well­Ont 1354 (Ont. S.C.).

40As Justice Frances P. Kitely summarized in Meade v. Meade, supra, at para. 81:

[81] It is inherent in the circumstances of those who are self-employed or who have Irregular income and expenses, that they have a positive obligation to put forward not only adequate, but comprehensive records of income and expenses. That does not mean audited statements. But it does mean a package from which the recipient spouse can draw conclusions and the amount of child support can be established. Where disclosure is inadequate and inferences are to be drawn, they should be favourable to the spouse who is confronted with the challenge of making sense out of financial disclosure, and against the spouse whose records are so inadequate or whose response to the obligation to produce is so unhelpful that cumbersome calculations and intensive and costly investigations or examinations are necessary. [Nardea v. Nardea (heard March 5, 1998); MacLeod v. MacLeod [1998] O.J. No. 3076; Reyes v. Rollo released December 14, 2001]

2.1 Application of legal principles to the evidence with respect to the father’s income

41The father is self-employed as a bricklayer through his company Caladao Construction. The father is s a member of LiUNA Local 183. The father’s wage as a unionized bricklayer is $45.14 an hour as of January 1, 2022. Based on a 40-hour work week his yearly income would be $93, 891.20.

42The mother alleges that the father is also a unionized carpenter and belongs to the Carpenters Residential Health & Wellness Plan. That union submitted in 2020 a T4A statement to the father for $181.28. Unionized carpenters earn $43.95 an hour or $91,416 yearly based on a 40-hour week.

43The father deposes that as of 2019, he is no longer a unionized carpenter as one cannot be a member of two unions.¹ This appears to be accurate but this does not diminish the fact that the father is also a skilled carpenter.

44During the relationship the mother was responsible for storing and organizing the father’s documents from his companies including his invoices and bank statements. The mother also prepared invoices. The father alleges that when the mother left the home she took her computer and at least 80% of the father’s personal and business financial documents.

45Whether the mother should have taken these documents is not relevant to the issues before the issues on this motion. However, the fact that the mother has knowledge and possession of many of the father’s documents has provided her with evidence to substantiate her allegations as to the father’s business dealings.

46In the father’s Statement of Business or Professional Activities for 2018, 2019 and 2020, he reports that he earns self-employment income from Caladao Construction. The father is the sole director and shareholder of this company and therefore controls the amount of income that he invoices the company for his services.

47The father is also the sole director of FBS Masonry Ltd. that was incorporated in 2017. Counsel for the mother points out that the father appeared before the Ontario Labour Relations Board (OLRB) on June 13, 2022 as the representative of FBS Masonry Ltd.²

48The father deposes that FBS Masonry Ltd ceased operations in 2019 but cannot be dissolved as it has accumulated debts to CRA. Further the company is being sued by the Masonry Union before the OLRB involving union issues related to its two remaining employees in 2019.

49However, based on the reported decisions, there are two grievances before OLRB. One is based on an allegation that on October 29, 2021, the company violated the collective agreement by using non-unionized labour, one of whom is the father’s older son. The litigation is still before the OLRB and it is not clear if the employees who have filed the grievance were working for FBS Masonry or the father through his company Caladao Construction.

50For the purposes of this litigation however, what is significant is that the father’s son also works for his company.

51The father deposes that he attached as Exhibit “G” a copy of the Notices of Assessment for FBS Masonry. But instead, what is attached is a account balance indicating that the company owes from December 31, 2018 to December 31, 2021 $47,588.32.

52From 2019 to 2021,³ the father’s income through Caladao Construction is as follows:

Year	Gross Income	Subcontractors	Motor Vehicle Expenses	Net Income
2019	$675,979.58	$523,607.50	$28,870.65	$33,372.98
2020	$967,596.06	$766,994.46	$50,149.63	$63,438.67
2021	$714,754.66	$617,545.22	$19,453.89	$27,327.87

53The father has deducted from 77% to 86% of his gross income for subcontractor expenses as well as a significant amount for motor vehicle expenses. It is submitted by the mother that the deductions for motor vehicle expenses include the father’s own personal use.

54Most significantly, the father has not provided a breakdown of the subcontractor expenses despite being requested to do so. This is a significant item of disclosure as there is reason to suspect that there are non-arm’s length employees such as the father’s son being employed by the father’s company. Further, the amount of this expense in proportion to the gross income of the company requires an explanation as it would appear that the father is not earning a significant income from an otherwise lucrative company.

55The father has produced pay stubs issued to himself from Caladao Construction as a bricklayer. But there is no information if the father is also issuing himself management or other fees.

56The mother deposes that during the relationship the mother frequently wrote cheques to Coliseu Construction. The owner of Coliseu Construction lives in Brazil and no longer operates the company. The father entered into a relationship with the owner to use the company name. The father would cash the cheques he writes from Caladao construction⁴ to Coliseu Construction at Toronto Latino, a cash chequing business. The father would claim these as subcontractor expenses on his income tax returns but in reality, he would keep this money.

57From January 1, 2021 to November 30, 2021 the father wrote cheques to Coliseu Construction totalling $496,100.

58According to the mother, the cheques written to Coliseu Construction would sometimes be followed by multiple consecutive ATM cash deposits totalling the same amount.

59The father has not provided the disclosure requested for his account at Toronto Latino or provided an explanation for the numerous cash deposits into his BMO business bank account. He has not provided an explanation in the affidavit he filed on this motion regarding his use of Coliseu Construction and why he is cashing cheques through Toronto Latino.

60The father alleges in paragraph 12 of his affidavit dated August 25th, 2022 that he has no ability to obtain the records from Toronto Latino.⁵ There is no explanation as to why he would not be able to obtain his own account information or that he has even attempted to do so.

61The father further states in paragraph 8 of the same affidavit, that he has no relationship with Coliseu Construction and has no knowledge of the ownership of that company. However, there are cheques with his signature.

62Further, the mother deposes that during the relationship she would often be sent by the father to pick up cheques made out to Coliseu Construction by various third-party construction related business. She attaches to her affidavit numerous cheques written by The Masonry Company to Coliseu Construction.⁶

63The mother further deposes that the father would cash cheques for himself using other company names such as Gold Construction and Carpentry.

64The mother makes very serous allegations but provides significant documentary evidence to substantiate her allegations. The father should have responded with detailed explanations of his business dealings and his relationship with Coliseu Construction and provided documents to refute her allegations. Simply denying the allegations as he has done and blaming the mother for his inability to provide full and complete disclosure is not sufficient.

65The father was required to provide all his monthly bank statements for all personal and business bank accounts wherever located. As of September 30, 2022 the following were still outstanding:

a) Monthly statements from BMO business account ending in *8946 from January 1, 2019 to September 21, 2020

b) Monthly statements from BMO chequing account ending in *9969 from January 1, 2019 to February 14, 2022

c) Monthly statements from “unnamed” bank account ending in *2075 from January 1, 2019 to January 1, 2020 and from December 29, 2020 to present and ongoing

d) Monthly statements from BMO bank account ending in *0974 from January 1, 2019 to present and ongoing

e) Monthly statements from BMO Mastercard ending in *2770 from January 1, 2019 to February 5, 2022 and from July 6, 2022 to present and ongoing

66Based on the monthly bank statements for the father’s BMO business account ending in *8946, is deposits totalled $1,019,199.14 from January 2021 to November 2021.

67In the father’ financial statement, he only lists his BMO business account ending in *8946 and one other BMO bank account ending in *0974. The father provided no statements for this BMO bank account *0974 and he did not list the other bank accounts he has.

68The father did not list any business interests in his financial statement.

69The father has produced a copy of a rental lease for the home he is residing in that states he pays $2,800 monthly. But none of the bank statements he has produced show any monthly rent withdrawals in this amount. Again, no explanation is forthcoming from the father.

70The father also does not explain how he pays for the monthly expenses he claims on his financial statement of $89,869.20 when he claims he is only earning $46,646.70. His only debt is to Mastercard of $7,800.64 but all those statements are not produced.

71The logical inference to be drawn is either that the father has other bank accounts or sources of income that have not been disclosed.

72The father disclosed some personal Notices of Assessment.

73In 2020, the father’s stated income was of $73,619.

74In 2021, the father’s stated income was $27,598.

75The father did not produce his 2019 Notice of Assessment but instead attached a Statement of Assessment indicating he owes income taxes of $21,569.99. The page with his line 150 income is not included.

76The mother seeks to impute income to the father of $533,426.74 representing:

$496,100 – the amount paid out by Caladao Construction to Coliseu Construction in 2021

$27,599.79 – the father’s declared 2021 line 150 income

$9,726.95 – 50% of the father’s 2021 motor vehicle expenses

77The Divorcemate calculation provided by counsel for the mother is based on the father’s “employment” income of $533,427. This is inaccurate as his declared employment income for 2021 is only $27,599.79. The balance that is, $496,100 and $9,726.95 is undeclared income and unreasonable expenses would be subject to a gross up. For this temporary motion, a gross up is not sought. If, there was a gross up, the father’s income for child support purposes would be higher.

78The Divorcemate calculation provided by counsel for the mother is also inaccurate as to the mother’s income is shown as “employment income.” The mother is in receipt of social assistance of $12,504 yearly with no claw back and should not have been shown as such. The proper calculation is attached.

79The father submitted that he is prepared to pay child support based on an income of $70,000. This is based on what he could earn if he was employed as a bricklayer. But based on the evidence, a unionized bricklayer earns $93,891.20.

80I find that the mother has met the onus on her to establish that income should be imputed to the father.

81I further find that a negative inference should be drawn due to the father’s significant lack of disclosure. I do not find his excuse that the mother took his documents to be an acceptable explanation for his lack of disclosure. There are many unanswered questions raised by the mother about the father’s business dealings that required an explanation from the father. Simply blaming the mother for his inability to produce documents that were in his control or ability to provide, is not an acceptable excuse for his lack of disclosure and his lack of explanations.

82I find that, on this motion, income on a temporary basis should be imputed to the father at $ 533,426.74 as calculated by the mother.

83It may be at further conferences or trial, the father will provide the necessary disclosure to refute the mother’s allegations as to his income and a readjustment can be made.

2.2 Child support based on incomes exceeding $150,000

84Neither counsel made any submissions with respect to the amount of child support that should be paid where the payor’s income exceeds $150,000.

85Counsel for the mother simply submitted that based on the Child Support Guidelines child support based on an income of $533,426 should be $4,060 per month.

86The father deposes that based on imputing income to him at $533,426 results in monthly child support of $4,060 and spousal support of $15,000 based on the mother falsely claiming that he earns $533,426 and that he lives a modest lifestyle.

87Child support is calculated in accordance with section 3 of the Child Support Guidelines as follows:

Presumptive rule

3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

88Section 4 of the Guidelines addresses incomes in excess of $150,000 as follows:

Incomes over $150,000

4 Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is

(a) the amount determined under section 3; or

(b) if the court considers that amount to be inappropriate,

(i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;

(ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and

(iii) the amount, if any, determined under section 7.

89Accordingly, where a payor earns over $150,000, if the court determines that the presumptive child support under s. 3 of the child support guidelines to be inappropriate, the court may order a payor to pay the table amount for the first $150,000 and then, in accordance with s. 4 of the child support guidelines, decide what proportion of the balance of the table amount should be devoted to child support. The court must decide this amount having regard to the condition, means, needs and other circumstances of the child, the financial ability of each spouse to contribute to the child support and the amount if any, determined under s.7 regarding any special expenses.

90The seminal case on child support for incomes in excess of $150,000 remains the Supreme Court of Canada decision in Francis v. Baker, 1999 659 (SCC), 50 R.F.L (4th) 228. That case established that there is a presumption in favour of the table amount and there must be “clear and compelling evidence” for the Court to depart from the child support guideline figure. There can only be an increase or decrease in the guideline figure under s. 4 if the party seeking the deviation rebuts the presumption that the table amount is inappropriate.

91The Supreme Court of Canada addressed the meaning of the word “inappropriate” in the context of s. 4 in Francis v. Baker, supra. The Court held that “inappropriate” is to be broadly defined to mean “unsuitable” rather than merely “inadequate” (para. 40).

92The Supreme Court of Canada in the Francis v. Baker case rejected the “sheer size of the award” argument. It held that there is a presumption in favour of the Table amount, and that the onus is on the payer to demonstrate that the Table amount is inappropriate. The test, as stated by Bastarache J. in Francis v Baker at para 49 is as follows:

…the unique economic situation of high income earners must be acknowledged. Child expenses which may well be reasonable for the wealthy may too quickly be deemed unreasonable by the courts. Of course, at some point, estimated child care expenses become unreasonable. In my opinion a proper balance is struck by requiring paying parents to demonstrate that budgeted child expenses are so high as to “exceed the generous ambit within which reasonable disagreement is possible”: Bellender v. Satterthwaite, [1948] 1 All E.R. 343 (Eng.C.A.) at p. 345.

93In Francis and Baker, supra, the father’s income was $945,538 and the court ordered table child support for the 2 children of $10,034 monthly in accordance with the table amount. The court held that Parliament had chosen not to impose a cap or upper limit on child support. A trial judge must determine on a case by case basis whether a child’s budget is required for a proper assessment of the child’s needs.

94Several cases have applied the reasoning in Francis v. Baker and upheld the table amount of child support as being appropriate for high income earners or required the trial judge to apply further analysis.

95In the case of Simon and Simon, 1999 3818 (ONCA), applying Francis and Baker, the court ordered child support for a 3 year child of $9,215 a month based on the father’s income of $1 million. The decision reversed the finding of the trial judge’s decision that support should be reduced to $5,000 per month.

96In the case of Tauber v. Tauber, 2000 5747 (ONCA), the father’s income was determined to be $2.5 million. At trial, the father called a forensic accountant as an expert witness with respect to the mother’s child’s budget being inappropriate. The trial judge held that the presumption had been rebutted and held that the table amount of $17,000 per month for a 1.5 year old child was inappropriate. However, the appellate court sent the case back for a further hearing as the trial judge had not considered the condition, means, needs and other circumstances of the child.

97In the case of R. v. R., 2002 41875, [2002] O.J. No. 1095 (ONCA), the court held there was no reason to interfere with the trial judge's determination that the guidelines table amount was inappropriate. The father’s income was $2 million and for 4 children the table amount would be over $65,000 per month. The trial judge ordered child support of $16,000 per month.

98In R. v. R., supra, court held that the family's lifestyle and pattern of expenditure were relevant and important considerations in determining appropriateness under s. 4 and justified the trial judge's decision to depart from the table amount. However, in arriving at an amount of support under s. 4, the trial judge erred by not adequately taking into account the increase in the husband's income and by failing to consider the reasonableness of the wife's budget in light of that increase.

99The court held that:

Section 1(a) of the Guidelines prescribes a "fair standard of support". It is one thing for the family to live modestly and save money while together; it is quite another, and seemingly unfair, for the paying parent to hold his children to the family's pre-separation lifestyle while saving the increase in his post-separation income, but now for his benefit alone. Given the increase in the husband's income, there was nothing wrong with the wife having included in her proposed budget items not previously acquired or even contemplated by the parties. Instead of dismissing the budget out of hand, the trial judge should have considered whether the wife's options were reasonable having regard to the substantial increase in the husband's income.

100On appeal, the court held that an appropriate amount of child support under s. 4 of the Guidelines in the circumstances of that case was held to be $32,000 monthly for four children.

101In the case of Ridley v. DeRose, 2017 ONCJ 877, the court held that the father had not rebutted the presumption that the guidelines table amounts were inappropriate. The court ordered retroactive and ongoing table support for 2 children in monthly ranges from $4,283 to $5,708 based on the father’s income of $345,186 to $452,667. The court held that the amount payable under the guidelines table was not so excessive of the children’s reasonable needs in the context of the resources available to the family. The court also noted that although the table support would provide some indirect benefit to the mother, it was not to the extent that it made the table amount inappropriate that is, unsuitable.

102Accordingly, it appears that courts have been reluctant to depart from the presumptive table amount of child support even where incomes far exceed $150,000 unless there is “clear and compelling evidence” to do so.

103In this case, the ability of the court to make appropriate findings is complicated by the lack of evidence presented by either party. Further, this is a temporary motion so none of the financial evidence presented has been subject to cross-examination.

104The mother’s financial statement indicated that her monthly expenses are $4,190.00 per month or $50,280 yearly. This includes the full amount of rent of $2,400. At present the mother’s share is only $800 per month as she resides with her son and cousin. However, the mother deposes that this arrangement may end in the very near future. Accordingly, I find that it is appropriate to include the full amount of rent in her expenses.

105The mother did not provide a proposed budget or extrapolate the child’s expenses from her budget except for $160 monthly expense for the child’s diapers and formula. The mother deposes that she needs to rely on church donations for the child’s clothing. The mother deposes that prior to the separation she spent about $400 per month on the child’s diapers and formula.

106But the expenses listed on her financial statement appear to be a combination of her actual and “proposed” budget as her income is only $21,000 consisting of social assistance and the child tax benefit and her expenses are $50,280. She has no significant debts.

107The mother also seeks an order that the father pay $157 per month as his share of the child’s extra-ordinary expenses for diapers and baby formula. However, given the fact that she will be receiving child support from the father, these expenses are not extraordinary.

108The mother did not seek any other s. 7 expenses and it would appear from her financial statement that at the present time there are no special expenses for the child.

109If child support was based on the table amount of $150,000, the applicable child support would be $1,299 per month or $15,588 yearly.

110The court is entitled to look at the parties’ lifestyle prior to the separation. The parties lived a modest lifestyle, in that they rented a home and the father only owns a 2008 truck, a 2007 truck and a 2021 Dodge. There is no evidence that the parties took any holidays or spent lavishly. The child is only 10 months old and her expenses are modest at this stage. However, there is a strong likelihood that the father has undisclosed income that was not utilized during the relationship.

111Unfortunately, neither the mother nor the father has provided the court with the information required to determine if the guidelines table amount is appropriate or if not, what amount would be appropriate.

112Counsel for the mother should have been alerted to the fact that the Child Support Guidelines may not apply as the father’s oncome is over $150,000. This is even shown as a caution on the Divorcemate calculations she submitted.

113Counsel for the mother should have provided the court with evidence respecting the child’s proposed expenses such as clothing expenses, travel expenses, expenses for daycare or a nanny if the mother is planning to attend school to improve her English and any other reasonable child related expenses that she is seeking.

114As this is a temporary motion, both parties will have an opportunity at subsequent conferences or at trial, to provide evidence to substantiate their respective positions and child support can be readjusted.

3. Spousal support

115The mother seeks spousal support both on a compensatory and non-compensatory basis. The mother seeks spousal support in the amount of $14,895 being the high end of the Spousal Support Advisory Guidelines (SSAG) as prepared by mother’s counsel.

116It is the father’s position that the mother is working or has the ability to work and therefore he should not be required to pay any spousal support.

3.1 Applicable Statutory and legal principles regarding spousal support

117Section 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.”

118In considering if a party 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).

119In Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 SCR 420, 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.

120With respect to compensatory spousal support, the court is directed to look at the economic circumstances of each spouse’s role during the marriage in determining support.

121There are three types of compensatory support (See Beneteau v. Young, 2009 40312 (ON S.C.):

i. non-specific compensatory support (where a spouse’s ability to achieve self-sufficiency was comprised by career/job dislocation for the family); Walsh v. Walsh, 2006 CarswellNB 582 (Q.B.);

ii. specific calculable disadvantage (where a spouse can point to a specific calculable overriding loss resulting from the marriage or the roles adopted in marriage)’ Spurgeon v. Spurgeon (2001), 2001 38738 (ON SCDC), 15 R.F.L. (5th) 440 (Ont. Div. Ct.);

iii. specific calculable and advantage conferred (where a spouse conferred a substantial career enhancement opportunity on the other spouse): Caratun v. Caratun (1992), 1992 7715 (ON CA), 42 R.F.L. (3d) 113 (Ont. C.A.).

122In Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813 and Bracklow, supra, the court set out the following examples of compensatory support:

a) A spouse's education, career development or earning potential have been impeded as a result of the marriage because, for example:

a. A spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economic independence to provide care for children and/or spouse;

b. A spouse's education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these opportunities;

c. A spouse has an actual loss of seniority, promotion, training or pension benefits resulting from absence from the workforce for family reasons;

b) a spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development.

123Compensatory support is therefore based on a marriage or conjugal relationship being a joint endeavour and seeks to alleviate economic disadvantage by taking into account all the circumstances of the parties, including the advantages conferred on either spouse during the relationship. It is concerned with an equitable sharing of the benefits of the marriage or conjugal relationship. Non-compensatory support is premised on need and may be ordered where it is fit and just to do so. Finally, contractual is based on an expressed or implied agreement.

3.2. Application of legal principles to the findings of facts regarding entitlement to spousal support

124The parties cohabited for 4 years from June 2018 to January 2022 and have a young child. The mother is the primary caregiver of the child. As the father is not exercising any parenting time, she is solely responsible for the care of the child. The child was diagnosed with a heart condition and has been followed by a cardiologist, family doctor and physiotherapist. The mother is the parent solely responsible for driving the child to all her appointments as well as meeting her other needs.

125When the mother arrived in Canada, she worked selling Brazilian clothes under the business name Moda Brazil and cleaning houses. The mother has not worked since June 2021 when she became pregnant with their child.

126When the mother became pregnant she sold her inventory to a friend for $6,240 and that friend took over the operation of the business.

127The mother is from Brazil and prior to coming to Canada worked for her father selling clothes from about 2009 to 2016. When the mother worked for the company, she earned about $750 to $1,000 per month. The mother states that she has not worked for the company or received any income from the company since she immigrated to Canada.

128The company known as L.S.-Representacao Commercial Ltda., was her parent’s company. When the mother’s mother passed away, her interest in the company was transferred to the mother. The father has always been the company’s de facto owner.

129The mother deposes that her father exclusively manages the company and controls the profits.

130The father has requested extensive disclosure from this company that the mother deposes she is unable to obtain. However, as it is her father who is in charge of the company, the mother should make the request for the disclosure from him. At the very least, the mother should be able to provide proof that she is not receiving any income from the company.

131On this motion, there is no evidence that the mother is working for this company or receiving any income for the company.

132I find the mother is entitled to spousal support both a compensatory and non-compensatory basis.

133The mother was employed in Brazil selling clothes. The mother deposes that she will need to have a better command of English before she can begin to work in sales in Canada.

134The mother also assisted the father in his business and took care of much of the paperwork.

135Further, the mother is the sole caregiver of a child who just turned one year old and her ability to work is limited by her childcare responsibilities.

136The mother clearly has the need for spousal support as her only source of income is Ontario Works and the Child Tax Benefit.

137It is not clear on the evidence before me if the father also sponsored the mother to come to Canada or to stay in Canada. The father produced the first page of a 15 page sponsorship agreement and in response to a question from the court, counsel indicated that the father had sponsored the mother. As counsel for the mother did not rely on this sponsorship as a basis for spousal support the court does not need to make a finding. But this issue should be clarified and a copy of the entire sponsorship document should be produced.

3.3 Legal principles regarding temporary spousal support

138As this is a motion for temporary spousal support, the applicable principles differ from a final order with respect to spousal support. See Kowalski v. Grant, 2007 MBQB 235; Robles v. Kuhn, 2009 BCSC 1163; Decker v. Fedorsen, 2010 ONCJ 618, [2010] O.J. No. 5661 (OCJ)

139Those principles regarding temporary spousal support are as follows:

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.

3.4 Application of legal principles to evidence regarding entitlement to temporary spousal support

140The father’s affidavit and counsel’s submissions on his behalf with respect to spousal support, centre exclusively on the issue of the mother being self-sufficient either on the basis that she is currently working or on the basis that she could be working or has a source of income that is undisclosed.

141The father did not provide any evidence that the mother is currently earning an income. I also find there is no evidentiary basis to impute income to the mother.

142I find that the mother has established that she has a prima facie case for spousal support.

143As set out in the case law, on a temporary motion the focus is on the need for spousal support not on the issue of self-sufficiency. That issue is left to trial.

144The mother clearly has the need for spousal support and based on the imputation of income to the father he has the means to pay spousal support.

3.5 Quantum of spousal support

145The next issue to determine is the amount of spousal support that is payable.

146Neither counsel addressed the issue of the applicability of the formula under SSAG to the issue of a payor with a high income.

147Counsel for the mother simply submitted that the mother should receive the high end of the range in the SSAG formula and provided no basis on the facts or in law for this position.

148Further, as indicated on the SSAG calculations provided by counsel for the mother, SSAG formulas may not apply as the father’s income has been imputed to be over $350,000.

149The application of the SSAG formulas cannot be simply applied without consideration for the appropriate range and the exceptions.

150As a proposed budget was not prepared, the only evidence of the mother’s expenses is limited to her financial statement.

151The court is left in the same quandary as with respect to the quantum of child support.

152The SSAGs provide at s. 11.1 that after the payor’s gross income reaches the ceiling of $350,000, the formulas can no longer be applied automatically. At the same time, they make clear that $350,000 is not a “cap” and spousal support can, and often will, increase for income above that ceiling. An individualized, fact specific analysis is required. See Halliwell v. Halliwell 2017 ONCA 349 at paras. 106 and 117.

153The SSAGs provide the following example at 11.3

If the payor earned more, say $500,000, a court could leave spousal support in that same range [the one for $350,000] or, in its discretion, a court might go higher, but no formula would push the court or the parties to do so and it would be an individualized decision. If the formula were to be applied for an income of $500,000, the support would rise to $15,625 to $20,833 . . . monthly. Or the court or the parties might settle upon an amount somewhere in between these two ranges. These are large numbers for support in this case, but keep in mind that this is the very top end of the formula, with a long marriage, a high payor income and no income for the recipient.

154In this case, although income has been imputed to the father of $533,427 and no income is imputed to the mother, it is a short relationship of only 4 years and child support has been awarded based on the full amount of the father’s imputed income.

155If a Divorcemate calculation is done based on the father’s income capped at $350,000, the mother’s social assistance of $12,504 income and payment of child support at $4,060 per month, the low range would be $7,184, the mid-range $7,990 and high range $8,893 monthly.

156I find that based on the mother’s financial statement and the amount of child support that has been ordered that even the low range of the SSAG formula is excessive. I have also considered that the mother will receive an indirect benefit from the amount of child support that has been ordered. The court was not provided with sufficient evidence to conduct a thorough fact driven analysis of the mother’s needs.

157Based on the evidence provided I find that a spousal support order of $5,000 per month would be more than sufficient to meet the mother’s needs at this time.

158The level of spousal support may be short-term as the mother plans to improve her English and then will be in a position to earn income. However, the mother should provide her plan for further education and her plans to pursue employment. At subsequent conferences or trial, the amount of support and the duration of support can be addressed.

4. Order

159There will be a temporary order as follows:

1. The Respondent Fabio De Souza shall pay child support to the Applicant Ludmila Ferreira Pereira of $4,060 per month as of March 1, 2022 based on an imputed income of $533,427 in accordance with the Child Support Guidelines for the benefit of Eloah Ferreira De Souza born […], 2021.

2. The Respondent shall pay to the Applicant spousal support of $5,000 per month as of March 1, 2022.

3. The Respondent shall be given credit for amounts paid to date through the Family Responsibility Office.

4. Support Deduction Order

160If the parties cannot resolve the issue of costs, the Applicant shall submit cost submissions not to exceed 3 pages, with a bill of costs and any offer to settle attached by December 22, 2022 and the Respondent shall submit his response on the same terms by January 10, 2023. No copies of case law are to be submitted. Any reference to caselaw shall name the case, the citation and the paragraph number being relied upon. Cost submissions are to be emailed to the trial coordinator to my attention.

Footnotes

1. 1Unfortunately, neither counsel provided any explanation of why the father received this T4A. Based on the CRA explanation re box 119 that shows a benefit of $181.28, this is a taxable benefit to former employees that received term life insurance.
2. 2See Masonry Council of Union Toronto and Vicinity v. FBS Masonry Ltd et all 2022 53779. In addition to this citation there are 6 prior proceedings. In all the proceedings the father was listed as the representative of FBS Masonry carrying on business as Caladao Construction.
3. 3The numbers for the net income for 2020 and 2021 differ slightly from those in the mother’s affidavit based on the court’s review of the father’s statement of income and expenses. No statement was attached for 2022 although referred to in the affidavit.
4. 4Ex. H to mother’s affidavit
5. 5The affidavit is attached as Ex. I to the mother’s affidavit of September 14, 2022) that was served on counsel for the mother, but not filed with the court.
6. 6Ex. J to the mother’s affidavit of September 14, 2022