CITATION: Chiaramonte v. Chiaramonte, 2012 ONSC 6886
OWEN SOUND COURT FILE NO.: 10-7411M
DATE: 20121231
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: Anna Chiaramonte v.
Rosario Anthony Chiaramonte, R.A. Chiaramonte Dentistry Professional Corporation, 1298443 Ontario Ltd., Moutchiara Investments Ltd., Trident Services LLC, Chiaro Company LLC, Legends H.H. 1 LLC and Titan Services Ltd.
BEFORE: K. van Rensburg J.
COUNSEL: L. H. Wolfson, for the Responding Party/Applicant
W. Abbott, for the Moving Parties/Respondents
HEARD: November 29, 2012
E N D O R S E M E N T
[1] This is a motion under rule 62.02(4) of the Rules of Civil Procedure for leave to appeal the interlocutory order of Snowie J. dated August 2, 2012, with respect to child and spousal support, and granting a charging order. Snowie J. also struck the respondents’ pleadings; this part of her order is a final order and is under appeal to the Court of Appeal.
[2] The parties had a long-term traditional marriage, separating in January 2010. There are two teenaged children, who live with the applicant mother in the matrimonial home. The respondent father is a successful dentist and real estate investor. The other respondents are corporations associated with the respondent’s dental practice and real estate investments, in which he is the sole or controlling shareholder. Apart from her part-time work as a bookkeeper in the respondent’s dental practice, the applicant did not work outside the home during the marriage.
[3] The relevant procedural history is as follows. By consent order dated April 1, 2010, Eberhard J. required payment by the respondent father of temporary spousal support of $4,500 per month and temporary child support for two children of $2,572 per month, commencing February 1, 2010, based on estimated annual income of $200,000. The consent order provided for the sharing of s. 7 expenses, with the mother paying 25% and the father 75%. The consent order also required the respondent to pay the carrying charges for the matrimonial home pending further order of the court. The order contained a number of provisions requiring disclosure by the respondent father and the various corporate respondents of financial records and information concerning the dental practice and real estate and other investments.
[4] The order of Bielby J. dated October 1, 2010 provided on consent for the sale of the matrimonial home, a vacant lot in Owen Sound, and the family cottage. This order required further specific disclosure by October 15, 2010.
[5] There were a number of other orders requiring disclosure by the respondents: the order of Dawson J. dated August 12, 2010 requiring extensive disclosure within 30 days, the order of Goodman J. dated January 28, 2011, and the consent order of Thompson J. dated March 29, 2012. Pursuant to that order, the applicant’s motion (which was ultimately heard by Snowie J.) was adjourned on consent to a long motion date on July 12, 2012, peremptory to the respondent. The order specifically required that the respondent deliver, on or before June 28, 2012, a valuation report as to the value of his dental practice and a preliminary analysis of his income for at least the last three years.
[6] On the date of the motion before Snowie J. the applicant continued to live in the matrimonial home with the children. There was competing affidavit evidence as to the reasons why the home had not been sold. A great deal of the ordered disclosure remained outstanding, and no income analysis or business valuation had been provided by the respondent.
[7] The respondent alleges that the judge erred in a number of ways:
(a) in fixing the respondent father’s income for support purposes at the levels proposed by the applicant;
(b) in refusing to impute income to the applicant;
(c) in continuing to apportion s. 7 expenses according to the 75%/25% formula in the Eberhard J. order;
(d) in ordering payment of certain s. 7 expenses (for dental and orthodontic work) that were not covered by the consent order;
(e) in awarding retroactive support, and having such support run from the date of separation;
(f) in the calculation of retroactive child support, based on a chart provided by the applicant’s counsel;
(g) in awarding spousal support at the Spousal Support Advisory Guideline (“SSAG”) mid-range where the support award exceeded the applicant’s needs according to her draft budget;
(h) in granting a charging order the alleged effect of which is to prevent the applicant from being able to honour the terms of the order; and
(i) in requiring the respondent father to pay expenses for the repair and maintenance of the matrimonial home.
[8] There is no right of appeal in respect of these matters. In order to obtain leave to appeal, the respondent must establish (a) that there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the appeal, and it is desirable that leave to appeal be granted; or (b) that there is good reason to doubt the correctness of the order in question, and that the proposed appeal involves matters of such importance that leave to appeal should be granted.
[9] Before addressing the components of the test, I wish to deal with three concerns raised by counsel for the respondents in his argument for leave. First, there is the contention that, in granting the relief she did, Snowie J. improperly departed from what the parties had agreed to in the Eberhard J. consent order. The respondent father was up-to-date on the payment of support and s. 7 expenses under that order. The consent order had not provided for retroactive support, and had addressed s. 7 expenses and the payment of other expenses in a particular way. As Snowie J. observed, however, the consent order was provisional, and based on income attributed to the respondent having regard to the information that was then available. The order specifically provided with respect to child and spousal support, that it was “on a without prejudice basis, and reserving the right to request an adjustment from the date of the commencement of [the] proceeding, and subject to the right to return the issue to court once the Respondent has served a sworn Financial Statement Form 13.1”. As such, it was explicitly anticipated that adjustments would be made, and in particular, that the applicant would return the matter to court for that purpose, and not just at trial. The consent order anticipated an adjustment from the date of commencement of the proceeding. The fact that Snowie J. ordered support retroactive to the date of separation is immaterial, as the proceedings were commenced within a month of separation.
[10] The respondents also asserted that, while the order of Snowie J. provides for adjustment of support at trial, with respect to certain items, namely s. 7 expenses, and maintenance and repairs to the house, the order provides only for adjustment at the request of the applicant, and not the respondents. In other words, the order would preclude an adjustment in the respondents’ favour at trial. I disagree with this interpretation, and share the view of the applicant’s counsel, that all aspects of the order are subject to adjustment by the trial judge, in favour of the applicant or the respondents.
[11] As a practical matter, since Snowie J. struck the respondent’s pleadings, and ordered the matter to proceed to an uncontested trial, the respondent would have no ability to assert his position at trial, unless or until this part of the order is set aside. Both counsel were of the view that the part of the order striking pleadings is not before me on the leave to appeal motion, and ought not to be considered by me, as this issue is before the Court of Appeal as of right. There was also no argument that the inclusion of this provision transformed the entire order of Snowie J. into a final order. According to its terms, the order is interlocutory pending trial, and all aspects of the order remain subject to adjustment by the trial judge. The applicant’s counsel observed that, in any event, the respondent’s position, including any further disclosure he may make, will be before the court at trial – whether as a result of the obligation of the applicant to put all relevant evidence before the court, or if he is subsequently able to have the pleadings reopened, for any reason, including having cured his defaults.
[12] The respondents’ counsel argued that Snowie J. provided reasons that were inadequate to permit meaningful appellate review and to permit the respondents to understand the basis for her decision. I disagree. The basis for the relief that was granted is clear from the reasons, which were 25 handwritten pages, and from the record that was before the court.
[13] The respondent had the obligation and the opportunity to provide financial disclosure that would be relevant to the important question of support. A great deal of the ordered disclosure was outstanding, and, with respect to certain matters he had “feigned” compliance. The respondent was obstructing the applicant from moving forward with her claims, and he was content to pay the “woefully inadequate” support required by the consent order. The motion had been delayed while the respondent retained the services of his own valuator with respect to his income and business, but he ultimately did not present any expert evidence at the motion, even of a preliminary nature. On the evidence before her, the motion judge determined the minimum income of the respondent father, and ordered support based on that amount. The charging order was based on the applicant’s estimate of equalization in the absence of an exact figure, which was not available because of the lack of court-ordered disclosure by the respondents. As Snowie J. noted, the respondent father’s own personal financial statement in 2009 had claimed an annual income of $900,000 and assets, net of encumbrances, of $10 million.
[14] Snowie J. stated:
The Respondent has behaved badly and like a “bully” throughout this litigation. He has ignored wilfully the orders of this court, he has wilfully not disclosed financial information, he dissipated 1 million dollars from joint assets just prior to separation and has never accounted properly for the same. He has provided no convincing explanation to this court for his repetitive breaches. His breaches have delayed justice for the wife and children and made life a “misery” for the wife. He has caused the wife to spend in excess of $280,000 to get to this point and she still does not have disclosure. She has no job, no income except support. She has used all her RSPs. This is a nightmare for her.
The reasons that motivated the motion judge to grant the interlocutory relief that she did, are very clear. As even the respondents’ counsel noted in his factum, “the focus of Justice Snowie’s endorsement and the basis of her orders are the Appellant’s alleged breaches of the court orders in this proceeding.”
[15] I turn to consider the test for granting leave to appeal. Each part of rule 62.02(4) has two components. Considering the first branch of the test for leave, I would need to find that there is a conflicting decision and that it is desirable that leave to appeal be granted.
[16] It is not every case where a judge will order retroactive support on an interlocutory motion; the court does however have the discretion to do so: Elgner v. Elgner, 2010 100055 (ON SCDC), [2010] O.J. No. 1139 (Div. Ct.); aff’d at 2010 ONSC 3512, [2010] O.J. No. 3828 (Div. Ct.) and 2011 ONCA 483, [2011] O.J. No. 3040 (C.A.); Splett v. Pearo, [2011] O.J. No. 4456 (S.C.J.) (and cases cited therein at para. 54); Dickie v. Dickie, [2010], O.J. No. 2885 (S.C.J.).
[17] It is not every case where a judge will order spousal support within the SSAG range where there is a high income earner; again this is within the discretion of the court: Elgner v. Elgner, per Sachs J., at para. 13(3); Vanasse v. Seguin, 2008 35922 (ON SC), [2008] O.J. No. 2832 (S.C.J.), varied on other grounds at [2009] O.J. No. 2311 (C.A.), 2011 SCC 10. See also SSAG, s. 11.3: “…the [$350,000] ceiling is not a “cap” on spousal support, nor does it bar the continued use of the formulas as one method of arriving at an amount in a particular case”.
[18] It is not every case where a judge will make a charging order on an interim basis; again this is discretionary under s. 9(b) of the Family Law Act to secure an equalization payment and under s. 34(1)(k) to secure payment of support, after a consideration of all of the circumstances.
[19] A conflicting decision is one where different principles have been applied, not where a different result is reached because of different circumstances: Comtrade Petroleum Inc. v. 490300 Ontario Ltd., 1992 7405 (ON SC), [1992] O.J. No. 652 (Div. Ct.). With respect to each aspect of the relief granted by Snowie J., while the respondents’ counsel pointed to other decisions with different results, he did not take the court to any case from Ontario that articulated different legal principles, or modes of analysis for approaching the issues in question.
[20] On one issue, the propriety of awarding retroactive support on an interlocutory motion, counsel referred to three out-of-province cases: Rumpel v. Wills, [2010] S.J. No. 617 (Sask. Q.B.); Dennis v. Pidruchny, 2010 MBQB 105, [2010] M.J. No. 142 (Man. Q.B.) and Dram v. Foster, 2009 MBCA 125, [2009] M.J. No. 414 (Man. C.A.).
[21] Rumpel and Dennis are examples of cases where retroactive support was denied because there was conflicting evidence as to the history of payment of support and the timing of requests for support. No general prohibition against retroactive support orders was articulated in these cases.
[22] In Dram v. Foster, the Manitoba Court of Appeal overturned a decision on a motion awarding retroactive child support, suggesting that any lump sum award on an interim motion required evidence of need or hardship. From the court’s brief endorsement, the decision was based on the court’s authority to make interim orders under s. 43 of The Family Maintenance Act, C.C.S.M., c. F20, which led to the conclusion that interim retroactive support orders should be made only where justified by extraordinary or exceptional circumstances. There is no similar wording under the Ontario Family Law Act and Family Law Rules, and no similar prohibition recognized by our courts. I would not regard this conflicting authority, which appears to be based on the particular Manitoba statute, as an appropriate basis for granting leave to appeal.
[23] With respect to the second branch of the test, the respondents would need to persuade the court that there is good reason to doubt the correctness of the order and that the appeal involves matters of such importance that leave to appeal should be granted. There is no serious reason to doubt the correctness of the result of this motion, or of any of the components of the relief that were granted. There was an ample foundation for Snowie J. to make the order that she did, based on the history of the proceedings and the evidence that was before her. Although she expressed her disapproval of the respondent’s conduct forcefully, this was not a case like Gagne v. Gagne, 2011 ONCA 188 (C.A.), where the judge at first instance had expressed strong disapproval of a party’s conduct without an appropriate reasoned basis for his decision. Even if there is one or more aspect of the order that another judge might have determined differently, this is not the test, and there is clearly no issue affecting interests beyond those of the parties to these proceedings, that would warrant granting leave to appeal.
[24] Accordingly, the motion for leave to appeal is dismissed. If the parties are unable to agree on costs, I will receive brief written submissions limited to three pages each as follows: from the applicant within 20 days, from the respondents within 15 days of receipt of the applicant’s submissions, and reply submissions, if any, within ten days of receipt of the respondents’ submissions.
K. van Rensburg J.
Released: December 31, 2012
CITATION: Chiaramonte v. Chiaramonte, 2012 ONSC 6886
OWEN SOUND COURT FILE NO.: 10-7411M
DATE: 20121231
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
Anna Chiaramonte
Responding Party/Applicant
- and –
Rosario Anthony Chiaramonte, R.A. Chiaramonte Dentistry Professional Corporation, 1298443 Ontario Ltd., Moutchiara Investments Ltd., Trident Services LLC, Chiaro Company LLC, Legends H.H. 1 LLC and Titan Services Ltd.
Moving Parties/Respondents
ENDORSEMENT
K. van Rensburg J.
Released: December 31, 2012