Court File and Parties

Ontario Court of Justice

Date: 2014-12-01

Court File No.: Halton 414/13

Between:

Pariwash Nejatie Applicant

— And —

Domenico Signore Respondent

Before: Justice Sheilagh O'Connell

Heard on: September 30, 2014

Reasons for Ruling on Motion released on: December 1, 2014

Counsel:

• Pritina Bhavsar, counsel for the applicant
• Adela Crossley, counsel for the respondent

O'CONNELL J.:

Introduction

[1] The Respondent, Domenico Signore, seeks a variation of a temporary order for child and spousal support made on April 25, 2014 pending a trial or final resolution in this matter.

[2] On April 25, 2014, I ordered Mr. Signore to pay temporary child and spousal support to Ms Nejatie, based on an income imputed to him of $86,000.00 annually. I was satisfied, based on the evidence filed and the case law, that I could impute income to Mr. Signore on a temporary motion. Mr. Signore did not appeal that order.

[3] Mr. Signore now submits that since July of 2014, he has started new employment with a base salary of $60,000.00, and as such, there has been a material change in his circumstances. He seeks a reduction in the child support from $1,098.00 monthly to $695.00 monthly and a termination of the monthly spousal support, retroactive to July 1, 2014.

[4] The Applicant, Pariwash Nejatie, opposes the motion and seeks the continuation of the temporary order for child and spousal support pending a trial or final resolution.

[5] The parties attended a trial management conference on November 7, 2014 before the Honourable Justice Victoria Starr. According to Justice Starr's endorsement, the matter was adjourned to February 25, 2015 for a further settlement conference before proceeding to trial.

Background

[6] The parties cohabited for 16 years in a common law relationship. Mr. Signore is 54 years of age and Ms. Nejatie is 37 years of age. The parties have three children, Alessio Signore born July 9, 2003, Luca Signore born December 19, 2005 and Dania Signore born July 22, 2008.

[7] The parties separated in October of 2013 when Ms. Nejatie left the family home with the children. There is no question that this separation has been fraught with conflict. There have been numerous allegations made by both parents against each other regarding emotional, physical and verbal abuse towards each other and the children. The police and the children's aid society have been involved with the family on a number of occasions. At one point during or after the separation, Ms. Nejatie was charged criminally with assault and uttering death threats against Mr. Signore. The charges of assault were dismissed and Ms. Nejatie received a conditional discharge for uttering death threats via text messages to Mr. Signore after he reported the messages to the police.

[8] Ms Nejatie is seeking sole custody and primary residence of the children. Mr. Signore is seeking joint custody in an equal time sharing arrangement, or alternatively sole custody and primary residence.

[9] Since the separation, Ms Nejatie and the children have been living with her brother and other family members in Mississauga, Ontario. Mr. Signore was living in the former family home in Milton, Ontario, but he has recently obtained new accommodation in Milton close to the children's school.

[10] During the parties' relationship and cohabitation, Mr. Signore was the primary income earner. Mr. Signore does not dispute that during the parties' relationship Ms. Nejatie was the primary caregiver for the children and remained at home for a number of years.[1] Ms. Nejatie was 21 years of age when the parties started cohabiting and Mr. Signore was 38 years of age.

[11] At the time of the separation, Mr. Signore was a very successful car salesperson for Oakville Mercedes Benz. He has also worked as a salesperson for Jaguar, BMW and Mercedes Benz in the past. He was named as top salesman of the year in September of 2013 for Oakville Mercedes Benz.

[12] According to the notices of assessment and sworn financial statement that had been provided by Mr. Signore in these proceedings, Mr. Signore's income as a salesperson in car dealerships for the past four years was as follows:

1. 2010: $109,799.00
2. 2011: $103,917.00
3. 2012: $91,192.00
4. 2013: $86,000[2]

[13] Ms. Nejatie commenced this application for custody, child and spousal support on or about October 21, 2013. On November 27, 2013, at the first case conference in this matter, the parties, with counsel, entered into temporary, 'without prejudice' Minutes of Settlement regarding a parenting schedule pending a referral to the Office of the Children's Lawyer for an investigation and report of the issues of custody and access. The parenting schedule is as follows:

(a) Week 1 – The children shall be with their father from Thursday after school to Friday morning before school and from Saturday at 7:00 p.m. until Monday morning at school;

(b) Week 2 – The children will be with their father on two consecutive days overnight between Monday to Thursday and from Sunday morning at 10:00 a.m. until Monday before school;

(c) At all other times the children will be with their mother.

[14] This temporary parenting order has been in place since October of 2013 with the exception of the summer months of July and August 2014 when the children resided in both parents' homes on a week-about basis until school resumed in September. It is not disputed by Ms Nejatie that under this parenting arrangement the children are with their father approximately forty per cent of the time and fifty percent of the time during the summer months.

[15] During the first case conference, Mr. Signore filed a psychological report prepared by Dr. J. Pilowsky, dated November 26, 2013, to address parenting concerns that had been raised by Ms Nejatie. This report was relied upon by Mr. Signore to support his claim for custody. Dr. Pilowsky's medical report reads as follows:

"Mr. Signore is understandably distressed about his current situation. Nonetheless, he denies any ongoing symptoms of a clinical depression or anxiety and it appears to me that he is functioning at a high level with the ability to effectively cope with these stresses. Thus, it is my professional opinion that psychologically stable and that there was no evidence made present to suggest any symptoms of serious, ongoing emotional stress or psychopathology and his most recent visit to my office. Particularly, I would like to note that Mr. Signore has remained employed as a sales associate with the Mercedes Benz dealership in Oakville for the past five months and prior to that he was actively employed at BMW. This man has impressed me as an engaged, dedicated father who is making a strong effort to maintain a level of stability within his children's lives, despite the turbulence involved in his marital life with the mother of his children." [Emphasis added.]

[16] The issues of child and spousal support were also discussed at the November 27, 2013 case conference. Those issues were not resolved. The case conference was adjourned to January 29, 2014 with the expectation that counsel would resolve the financial matters in the interim.

[17] On January 9, 2014 Mr. Signore produced a letter from his employer indicating that he was terminated from his employment effective immediately. Attached to the termination letter was a medical certificate signed by his family doctor dated January 15, 2014, six days after the termination letter from his employer. The medical certificate contains a handwritten note by the family doctor which states that Mr. Signore was "unable to cope with work, acute stress, insomnia and daytime fatigue, difficult to concentrate and pay attention, estimated that the above patient is incapable of working until 15 weeks from today."

[18] Mr. Signore stated that he was terminated from his employment as a result of his inability to be productive and cope with work, due to stress caused by this litigation. He stated that he was therefore, unable to pay any child and spousal support. He relied upon the medical note from his family doctor in support of his position that he was incapable of working and paying support.

[19] Ms Nejatie challenged the veracity of the employer's letter, noting the close relationship between Mr. Signore and his employer and the timing of the letter shortly before the parties were returning to court to address unresolved issues of support. There was also no explanation for the obvious discrepancy between Dr. Pilowsky's psychological report and the medical note offered as an explanation for Mr. Signore's sudden job loss due to stress.

[20] The medical note from his family doctor indicated that Mr. Signore was capable of returning to work within fifteen weeks from January 15, 2014, which was April 7, 2014. There was no suggestion that Mr. Signore could not return to work as a car salesman with his previous employer, having been named the top salesman of the year at Oakville Mercedes Benz in September of 2013. Indeed, in Mr. Signore's affidavit sworn April 1, 2014, he deposed the following:

"I fully intend to return to work. I am actively looking for employment in my field of expertise as a car salesman. I have had some success in this field of work and this is my passion."

[21] On April 10, 2014, Ms. Nejatie brought her motion for temporary child and spousal support and for an order that Mr. Signore start contributing towards the children's section 7 expenses.

[22] The court received much documentary evidence at the hearing of the temporary motion, including Mr. Signore's notices of assessment, the medical evidence referred to above, the employer's letter, and the record of employment, which did not contain the reason for termination, as well as the parties' affidavits.

[23] At the time of the motion hearing, Mr. Signore continued to be unemployed and took the position that he was unable to pay any child or spousal support, although he was committed to returning to work as a car salesman in his field of expertise. It is well established in law that cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his reasonable health needs justify his decision not to work. See: Cook v. Burton, [2005] O.J. No. 190 (S.C.J.) and Stoangi v. Petersen, [2006] O.J. No. 2902 (S.C.J.).

[24] As indicated, for detailed reasons given at the ruling on the motion, I made an order imputing income to Mr. Signore in the amount of $86,000 per annum and I ordered that, commencing April 1, 2014, he pay temporary child and spousal support pending a trial of the issues in this proceeding. I did not make the order retroactive at that time.

[25] I was guided by the principles of law set out in the decisions of Kowalik v. Kowalik, 2011 ONSC 1551, [2011] O.J. No. 1065 (S.C.J.) and Stoyshin v. Stoyshin, [2007] O.J. No. 1772 (S.C.J.), in determining that income could be imputed to Mr. Signore 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 the 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 Court in reaching an estimate of the appropriate income.[3]

[26] I was satisfied, based on the evidence that I received from Mr. Signore, that income should be imputed to him for support purposes. Significantly, I considered the evidence of the family doctor that Mr. Signore could return to full-time employment on April 7, 2015, and Mr. Signore's affidavit, sworn April 1, 2014, indicating that he fully intended to return to work in his field of expertise as a car salesman.

[27] In making the order for child support, I took into consideration the shared parenting arrangement that existed and applied a Contino analysis[4]. I also imputed income to Ms. Nejatie at minimum wage. I therefore ordered an amount of child support that was less than the table amount for Mr. Signore in the amount of $1,098.00 per month[5]. I also ordered spousal support on a temporary basis in the amount of $400.00 per month, commencing April 1, 2104, based on the factors to consider on temporary spousal support motions and the Spousal Support Advisory Guidelines (SSAG). I relied on the SSAG calculations provided by counsel was satisfied that Ms Nejatie has established a prima facie case for spousal support.

[28] Mr. Signore did not make any voluntary payments of child or spousal support pursuant to the April 25, 2014 order. Mr. Signore did not make any payments until the Family Responsibility Office commenced enforcement proceedings against him in July of 2014. It is my understanding that the Family Responsibility started to make deductions from Mr. Signore's new employment income on August 8, 2014, based on the pay stubs attached to his affidavit.

[29] The Office of the Children's Lawyer completed its social work investigation and report (a 'section 112 Report') on June 5, 2014. The clinical investigator recommended that the parties have joint custody and the children continue to be in a shared parenting arrangement, albeit on a 'week about' basis, and the children continue to attend the same school in the Milton area, among other recommendations. These recommendations have not been implemented and the children continue to spend approximately 60 percent of the time with Ms Nejatie and 40 percent of the time with Mr. Signore pending trial or settlement of this case.

[30] On August 21, 2014, both parties brought urgent motions before me to register the children in different schools in their respective residential areas for the upcoming school year. I made a temporary order that it was in the children's best interests to continue to be registered at their school in Milton, which was the school that they had attended since kindergarten. The father had relocated to this school's catchment area.

Mr. Signore's Motion to Vary the Temporary Support Order

[31] According to the affidavits and documentary evidence filed in support of his motion to vary the temporary order, Mr. Signore obtained new employment with XPRIMA as an Interactive Marketing Consultant on July 3, 2014. The company provides services and web site solutions to car dealerships. Mr. Signore primarily presents and sells interactive websites and web solutions to car dealerships.

[32] Mr. Signore deposes that he started looking for new employment in April of 2014 and became aware of the opportunity at XPRIMA in May of 2014. The company was expanding and opened a Toronto office in July of 2014. Mr. Signore has passed the probationary period. He signed an employment contract dated June 26, 2014, which was filed in support of his motion. The contract was described as a "bridge agreement" within the contract itself and indicated that a revised contract would be given to Mr. Signore on August 1, 2014. Mr. Signore advised that he had not yet received the revised contract at the time the motion was argued.

[33] Mr. Signore submits that his new salary is now known and verifiable and that based on the parties' shared parenting arrangement and his actual income of $60,000.00, his child support payments should be reduced to $695.00 per month, which is the set-off between the table amount for his income and the imputed income of minimum wage for Ms Nejatie.[6] Mr. Signore submits that there should be no spousal support payable based on his actual income, as pursuant to the SSAG calculations prepared by his counsel, spousal support is determined to be zero.

[34] Ms Signore denies that he is intentionally lowering his income, as Ms Nejatie claims. He submits that he is still involved in the car industry and his new employer is relying upon his expertise as a car salesman. He deposes that his past experience in the car industry is invaluable to the company, given his "key connections and previous relationships with dealerships."

[35] In his Affidavit sworn September 24, 2014, Mr. Signore deposes the following:

"12. The main reason why I chose this position rather than return to working as a car salesman is because of my children. When I was working in a dealership, I would work long hours, sometimes from 9:00 a.m. to 9:00 p.m. However, with my position at XPRIMA, I have more flexibility and I am able to be at home with the children when they are in my care. This job gives me more time with my children and the opportunity to work out of the home. Although, I am earning a bit less than my previous employment, this position gives me flexibility that I need and it allows me to spend much more quality time with my children. I plan to be there in the mornings to take my children to school, pick them up at lunch time and make them lunch at home, pick them up from school, and take them to any activities. If I was working at a dealership I would not be able to do so.

13. While I worked long hours in the past, my children were living in a two parent household. This is obviously no longer the case. My children are young, they are going through a very difficult time and their emotional stability and physical safety are the most important things to me. I believe that my income of $60,000 allows my children the ability to be financially cared for, while having me actively involved in parenting them. I do not need to pay for a babysitter, as I would, if I worked my former 12 hour days. Both the Applicant and I have a joint financial responsibility to care for our children and I believe that I am more than adequately meeting my responsibility." [Emphasis added.]

[36] Mr. Signore further submits that there is real opportunity for growth in this position and that there is a strong possibility that he can work his way up into a more senior position, which will only benefit the children. He further acknowledged that although his base salary is $60,000.00 per annum, according to the employment contract filed, he will also receive commissions for the sales that he generates. According to the contract, the "commissions plan" provides for bonuses payable on a monthly basis and accounted for on a quarterly basis of up to $3,000.00 based on the number of presentations that he makes to various dealerships. It also provides for further bonuses of up to $1,000.00 per interactive web-site sold, after five or more web-sites have been sold, and four percent of any advertising sold. Mr. Signore stated that he had not yet received any bonuses.

The Law and Analysis

[37] Motions to vary interim orders are rare. There is a heavy onus on the person who, instead of waiting until the trial takes place, brings a motion to vary the interim order. See Coley v. Coley (1981), 20 R.F.L. (2d) 327 (Man C.A.), at p. 327. Otherwise, as noted by the British Columbia Court of Appeal in Huculak v. Huculak, [1998] B.C.J. No. 242, 1998 CarswellBC 135 (B.C.C.A.), which dealt with a variation of an interim spousal support order, there would be considerable expenditure of judicial time and resources on temporary matters that were subject to revision at trial. See Boissy v. Boissy, [2008] O.J. No. 2783 (S.C.J.). In Walsh v. Walsh (2004), 69 O.R. (3d) 577 (C.A.), Laskin J.A., for the Ontario Court of Appeal set out the following precondition for the variation of an interim order, albeit involving a retroactive increase in child support. At p. 581, Laskin J.A. stated:

"In rare cases, a court may order an increase in child support on an interim motion but only when the need for an increase is urgent or pressing. See Vipond v. Vipond (1990), 72 O.R. (2d) 82, 25 R.F.L. (3d) 128 (S.C.).

[38] It is well settled law that that if income is imputed, then the issue will generally be res judicata on a motion to vary or change support. See Bemrose v. Fetter 2007 ONCA 637, 2007ONCA 637. Although the court always has discretion with respect to the issue of res judicata, and can consider fraud, fresh evidence, additional disclosure or issues of fairness, the principle of res judicata provides that generally, a matter cannot be re-litigated once it has been determined on its merits. In Trang v. Trang, 2013 ONSC 1980, [2013] O.J. No. 1618; 2013 ONSC 1980, the court held as follows, at paragraphs 51, 52, 59 and 60 of that decision:

"51. When a court imputes income, that's a determination of a fact. It's not an estimate. It's not a guess. It's not a provisional order awaiting better disclosure, or further review. It's a determination that the court had to calculate a number, because it didn't feel it was appropriate to rely on – or wait for -- representations from the payor.

52. A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent "declared" income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:

a. It is no longer necessary or appropriate to impute income. The payor's representations as to income should now be accepted, even if they weren't accepted before.

Or,

b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate….

59. If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.

60. But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct – and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court."

[39] I recognise that income was imputed to Mr. Signore on a temporary motion, following the principles in Stoyshin, supra and Kowalick, supra, referred to earlier. I nevertheless made this determination based on the documentary evidence filed by Mr. Signore. It was based on Mr. Signore's stated and sworn income for 2013 as a car salesman with Oakville Mercedes Benz, and based on the evidence that he filed which demonstrated that he was capable of working. It was not disputed that Mr. Signore was capable of earning an income in accordance with his previous work history as a car salesman, and that he could have returned to work as a car salesman in a dealership, in which he is no doubt very skilled.

[40] Mr. Signore did not appeal the findings of fact that I made following the original motion, nor has he introduced additional disclosure or evidence that suggest the calculations were wrong. He did not bring a motion to set aside the order based on a mistake or misrepresentation. I agree with the court in Trang, supra, that if actual or "declared" income automatically prevails on a motion to change support, then this would defeat the purpose of imputing income in the first place. See Trang v. Trang, supra, at paragraph 53.

[41] Mr. Signore has not established a change in circumstances, nor has he established that it is no longer appropriate to impute income to him based on the earnings that he made as a car salesman throughout the parties' relationship.

[42] Mr. Signore's base income at XPRIMA is lower than the income he earned previously because he has chosen a lesser paying position. He admits in his affidavit sworn September 24, 2014 that he chose a lesser paying position so that he could spend more time with his children. As he deposes, "although I am earning a bit less than my previous employment, this position gives me the flexibility that I need and it allows me to spend much more quality time with my children…If I was working at a dealership, I would not be able to do so." [Emphasis added.]

[43] In Drygala v. Pauli, [2002] O.J. No. 3731 (C.A), the Court of Appeal made it clear that 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. The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices. See Duffy v. Duffy, 2009 NLCA 48, [2009] N.J. No. 245 (Nfld. C.A.), at paragraph 35.

[44] The children were in Mr. Signore's care approximately forty percent of the time at the time that I made the temporary order on April 25, 2014. I considered that fact when I made my ruling. The children do not have any special needs. It is not reasonable for Mr. Signore to choose employment with less income so that he can spend more quality time with his children when they are in his care, given his legal obligation to support his children at a level that he is capable of earning. Ms Nejatie cannot afford her own accommodation for herself and the children. If not for the support and generosity of her brother and family, she and the children would most likely be living in a shelter.

[45] Further, Mr. Signore deposed that there is significant room for advancement in his new position and that he is capable of earning bonuses and commissions which he has not yet reported. This could well be equal to or more than the $86,000.00 that was imputed to him during the original motion, based on the evidence filed.

[46] In this case, the parties are ready to proceed to trial. A trial management conference has been held. I see no pressing or urgent need to reduce the child and spousal support that I ordered on April 25, 2014. Mr. Signore states that he faces arrears of approximately $8,000.00 under the temporary order and now that he has started new employment, the Family Responsibility Office (F.R.O.) is deducting the support and arrears at source from his bi-weekly pay cheques. He states that F.R.O. intends to garnish up to fifty percent of his income, which will cause him significant hardship. He further states that his driver's licence may be suspended, if he cannot make these payments.

[47] Mr. Signore acknowledged that he has not been served with a Notice of Intention to Suspend his Driver's Licence by F.R.O. and his counsel further acknowledged that the issue of payment towards arrears can be addressed by entering into a voluntary payment arrangement with F.R.O. This court can also make an order in this motion to fix a monthly sum towards the payment of the arrears owed pending trial, to ensure that F.R.O. does not garnish up to fifty percent of Mr. Signore's income source towards ongoing support and arrears.

[48] Since these parties separated more than one year ago, Mr. Signore has avoided his legal obligation to support his children and his former partner. He did not make any voluntary payments of support. When he was ordered to pay support, he fell into arrears of approximately $8,000.00. Although Mr. Signore is the author of his own misfortune, I will fix the payment towards arrears at an amount that will not cause hardship to Mr. Signore or the children. Where the payment of substantial arrears will cause undue hardship, the court has the discretion, in weighing the actual needs of the recipient and children, and in looking at the current financial capacity of the payor, to grant relief in appropriate circumstances. See DiFrancesco v. Couto, 2001 O.J. No 4307 (C.A.).

Order

[49] In conclusion, I make the following order:

1. Mr. Signore's motion to vary the interim order dated April 25, 2014 is dismissed.

2. Commencing December 1, 2014, the arrears owing under the Order dated April 25, 2014 shall be payable at a rate of $100.00 per month.

3. A Support Deduction Order shall issue and the Family Responsibility Office will adjust its records accordingly.

[50] If the parties wish to speak to costs, then either party shall serve written submissions limited to three pages, with any offers to settle or bill of costs attached, no later than twenty days from the date of this order. Any response to be limited to three pages, with any offers to settle attached, and to be served ten days later. I will address the costs of this motion and the costs of the motion regarding the choice of the children's school in one written ruling.

[51] I thank counsel for their thorough presentation and the case law provided.

Released: December 1, 2014

Signed: "Justice Sheilagh O'Connell"

Footnotes

[1] In his affidavits filed in previous motions, Mr. Signore acknowledges that Ms. Nejatie was the primary caregiver for the children, remaining out of the waged workforce for a number of years. Mr. Signore also stated this to the clinical investigator from the Office of the Children's Lawyer, according to the Social Work Report filed in these proceedings.

[2] The income for 2013 was based on the information provided in Mr. Signore's sworn financial statement and his statement to the court that he earned $86,000.00 in 2013.

[3] I was also, of course, guided by section 19 of the Child Support Guidelines and the Ontario Court of Appeal's decision in Drygala v Pauli, [2002] O.J. No. 3731, both of which I referred to extensively in my decision.

[4] Leonelli-Contino v. Contino, 2005 SCC 63, [2005] 3 S.C.R. 217.

[5] The table amount for three children based on an annual income of $86,000.00 is $1,625.00 per month.

[6] In his notice of motion filed, Mr. Signore submitted that income of $35,000.00 should actually be imputed to Ms Nejatie, although he did not offer any new evidence for this figure, and did not pursue this during oral submissions.