Court File and Parties

Court File No.: D80852/15

Ontario Court of Justice

Between:

Ekaterina Kuznetsova Adela Crossley and Olivia Oprea, for the Applicant Applicant

- and -

Raymond Flores Acting in Person Respondent

Raoul Lions, agent for the City of Toronto, assignee

Heard: April 4, 2016

Justice: S.B. Sherr

Reasons for Decision

Part One - Introduction

[1] This trial was about the respondent's (the father) child and spousal support obligations regarding the applicant (the mother) and the parties' 2-year-old child (the child).

[2] The mother asked the court to fix the father's annual income at $58,240. She sought an order that the father pay her the Child Support Guidelines (the guidelines) table amount of support for one child ($529 per month). She also sought an indefinite order for spousal support in the amount of $967 per month, subject to a review in three years. The mother asked that the child and spousal support payments begin as of May 1, 2015.

[3] The father asked the court to fix his annual income at $35,000. He proposed to pay the guidelines table amount ($303 per month) for child support. He asked the court to make no order for spousal support. He proposed to start the child support payments as of November 1, 2015.

[4] The issues for this court to decide are:

a) What is the father's income for support purposes?

b) Is the mother entitled to spousal support?

c) If so, what is the appropriate amount and duration of spousal support?

d) What should be the start date for support?

e) How should any support arrears be repaid?

Part Two – Background Facts

[5] The mother is 37 years old. She was born in Russia. She came to Canada in 2009 on a student visa to attend a graduate program in contemporary dance at York University. The mother fell and injured her jaw later that year. She was unable to continue dancing. She continued working in Canada on an open work permit. She taught dancing, worked at a coffee shop and completed choreographic projects for film. She also provided interpretation services for the Bolshoi Ballet when they were in Canada in 2012.

[6] The father is 43 years old. He was born in Mexico. He came to Canada in 1989. He is a permanent resident of Canada. The father is a graduate of the Ontario College of Art. He has worked for the past 25 years as a furniture finisher.

[7] The parties met in March of 2013. The mother became pregnant one month later.

[8] The mother stopped working in June of 2013.

[9] The mother's work permit was due to expire in early 2014. She was contemplating returning to Russia. However, the father promised to sponsor her to become a permanent resident of Canada.

[10] The parties married on October 4, 2013 in Canada. The father completed the sponsorship application for the mother. He also completed an undertaking to Citizenship and Immigration Canada to provide for the mother's basic needs (including food, shelter and clothing) for three years, once she became a permanent resident of Canada.

[11] The child was born in January of 2014.

[12] Once the mother's work visa expired in 2014, the father became the sole financial support for the mother and the child. The father testified, "I took care of them from day one".

[13] The parties separated on May 4, 2015. The father was charged with assaulting the mother at that time. The father then withdrew his sponsorship application for the mother.

[14] The parties have remained separate and apart.

[15] The child has remained with the mother since the separation. The father exercises supervised access to the child.

[16] The mother issued this application for custody and child and spousal support on May 13, 2015. The father was served with the application on June 3, 2015.

[17] The parties reached a temporary consent that was incorporated into a court order on September 1, 2015. Both parties were represented by counsel. This order included the following terms:

a) Temporary custody of the child to the mother.

b) Temporary child support of $529 per month payable by the father to the mother, based on the father's declared annual income of $58,240.

c) The father was to provide specified financial disclosure to the mother by September 15, 2015.

d) If the parties could not agree on spousal support and the start date of child and spousal support the mother had leave to bring a temporary motion for this relief.

[18] The father did not provide any of the financial disclosure required by the September 15, 2015 deadline. The parties could not agree about spousal support or the start date for child and spousal support. The mother brought her motion for temporary relief.

[19] The mother's motion was returnable on October 19, 2015. The father provided no responding material or any of the financial disclosure ordered. However, the parties consented to a temporary spousal support order of $967 per month on the return date. This was based on the father's declaration that his annual income was $58,240.

[20] The parties could not agree on the start date for support. This part of the motion was argued the same day. The court ordered that temporary child and spousal support start on June 1, 2015 and permitted the father to repay the arrears created by the order at the rate of $125 per month, starting on November 1, 2015, provided that if he was more than 30 days late in making any payment, the entire amount owing would immediately become due and payable. Costs were sought by the mother and the decision on this issue was reserved. Both parties were represented by counsel at this appearance.

[21] On October 20, 2015, the court ordered the father to pay the mother's costs of the motion fixed in the amount of $4,000.

[22] The mother next moved to strike the father's pleadings because he was in default of the orders for support, financial disclosure and costs.

[23] The parties agreed on February 18, 2016 to an expedited trial of the support issues instead of the mother continuing with her motion to strike the father's pleadings. The father was cautioned of the risks of an adverse inference being made by the court if he did not provide the financial disclosure ordered.

[24] The father filed most, but not all, of the financial disclosure ordered prior to the trial.

[25] The father continued to be in default of the support and costs orders as of the date of the trial. He had paid none of the costs ordered. He owed $13,746 under the temporary support orders as of April 1, 2016.

[26] The mother has no legal status in Canada. She is not permitted to work as her work permit expired. She and the child are in receipt of social assistance.

[27] The mother has applied to become a permanent resident of Canada based on humanitarian and compassionate grounds. Her application remains outstanding.

[28] On February 3, 2016, the criminal charges were withdrawn against the father and he entered into a Peace Bond and undertaking where he undertook not to communicate directly or indirectly with the mother for one year.

Part Three – The Father's Income and Child Support

[29] The mother asked the court to fix the father's annual income at $58,240.

[30] It is understandable why the mother made this submission since:

a) The father signed a consent stating that this was his annual income on September 1, 2015.

b) The father signed a second consent on October 19, 2015 agreeing to spousal support based on this annual income.

c) The father was represented by counsel when he executed both consents.

d) The father swore a financial statement on January 11, 2016 deposing that he earns $58,000 per annum.

e) The father earns $28 per hour and works full-time. Two of his pay stubs show that he earned $42 per hour for some minor overtime hours worked.

f) The father did not provide financial disclosure in a timely manner. He did not provide Statements of Professional and Business Activities with his income tax returns. He provided invoices from his business for work done that simply stated the amount charged to his employer. No documentation was produced showing how those amounts were calculated.

[31] The father's declared income in his income tax returns bore no resemblance to his actual earnings. The father reported self-employment income of $7,760 in 2013 and $11,089 in 2014. He clearly earned much more income in those years.

[32] The father said that he has operated as an independent contractor for ten years.

[33] The father asked the court to fix his annual income at $35,000.

[34] The father blamed his previous lawyer for making him consent to an annual income of $58,240 for the purpose of the temporary support calculations. He also blamed the mother's lawyer for his doing this. When it was pointed out that he had completed a financial statement on his own on January 11, 2016, declaring that he earned $58,000 per annum, the father said that it was a mistake. He said that he has never earned that level of income.

[35] The father said that he only earned $32,000 in 2015. He testified that he worked as a T4 employee for one employer until July of 2015. He then began working for his present employer in August of 2015. The father based his 2015 income figure on the T4 slips received from the two employers that added up to approximately $32,000. However, this figure did not include income billed to his current employer by his business. The father acknowledged that he arranged with his present employer to bill it as an independent contractor. He started doing this in October of 2015. His business billed his current employer close to $12,000 in 2015.

[36] The father testified that his hourly rate increased when he began working for his present employer. He testified that he earns three more dollars per hour and is working more hours at his new job. He provided no documentation to support this testimony.

[37] The court reviewed the father's pay stubs and invoices and commented to him that it appeared he was earning about $1,000 each week with his present employer. The father agreed, but insisted he would earn only $35,000. He provided no evidence to support this position.

[38] The father's invoices and pay stubs from his new employer reflect payments to him in the amount of $31,928 for the period from July 27, 2015 until March 8, 2016. This projects to an annual income of approximately $50,800. The court finds that this is the best evidence of the father's income. Where, as here, the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should have been paid. See: Vanos v. Vanos, 2010 ONCA 876; Wright v. Christie, 2011 ONCJ 109.

The father provided a T4 from his first employer showing that he earned $21,469.50 until he stopped working for them in July of 2015. This would project to an annual income of about $40,000. This calculation is relevant as the mother is asking that support begin as of May 1, 2015 (when the father was still working for his first employer).

[40] The court is not prepared to accept that the T4 statement by itself is an accurate reflection of the father's income at that time because:

a) There is a real possibility that the father's business billed his first employer for additional work in 2015 that is not reflected in the T4 statement from the employer. This appears to have been the nature of the business relationship between the father and this employer in the past.

b) The father has inaccurately represented his income to Revenue Canada in his tax returns.

c) Based on his own disclosure, the father inaccurately represented his income to this court, claiming that he only earned $32,000 in 2015.

d) The father did not make timely or complete financial disclosure. An adverse inference is drawn against him. One of the pitfalls of avoiding financial disclosure obligations is that the court is unlikely to give you the benefit of the doubt when it comes to assessing the accuracy of the income information you selectively provide. That is the case here.

[41] The father's annual income will be fixed at $50,800 for the calculation of support for the entire period covered by this order.

[42] The guidelines table amount for one child at $50,800 per annum is $458 per month.

Part Four – Spousal Support

[43] Section 30 of the Family Law Act (the Act) states that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. Subsection 33 (8) of the Act sets out the purposes of spousal support and subsection 33 (9) of the Act sets out how to determine the amount of spousal support. The court has considered these provisions in making this order.

[44] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux, 2009 ONCA 569. Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow.

[45] The father testified that he fully supported the mother and the child when they lived together. He said that for one month after the separation he also gave them food, which he valued at $200 each week. He said that he stopped supporting the mother because she falsely charged him with assault.

[46] The father testified that he shouldn't have to support the mother because she receives social assistance and the child tax credit. He does not believe that he earns enough money to pay spousal support.

[47] The father said that he has paid the temporary child support order since November 1, 2015, but has not been able to pay any spousal support or anything towards the costs order.

[48] It became clear that obeying the court orders for spousal support and costs is very low on the father's list of priorities. The father deposed that he is spending $150 per month on his dog. The father testified, "I support my child, myself and my pet. My wife is on social assistance. I have no other money".

[49] The mother established her entitlement to spousal support based on compensatory, non-compensatory and contractual grounds.

[50] The mother has a compensatory claim for spousal support based on the roles she has assumed during the marriage. She is the caregiver for the child. The father only exercises supervised access. This role will compromise the mother's ability to earn income. She will be the parent who needs to be available to meet with teachers, take the child to medical appointments and arrange her activities. It will likely affect the jobs she can take and the hours she can work.

[51] The mother also has a non-compensatory claim for spousal support based on her need for support and the father's ability to pay it. The mother is presently unable to work in Canada without a work permit. The father does not dispute this. The mother is on social assistance. Her standard of living has been reduced because of the breakdown of the relationship. She will likely continue to suffer an economic disadvantage.

[52] Although an immigration sponsorship agreement is one factor to be considered in assessing spousal support, it is not determinative of the issue. It was found to be a strong factor in favour of ordering spousal support in Camilleri v. Camilleri; Carty-Pusey v. Pusey, 2015 ONCJ 382; Javed v. Kaukab, 2010 ONCJ 606 and Gutierrez v. Petten, 2011 ONCJ 549.

[53] Here, the mother remained in Canada in reliance of the father's promise to sponsor her to become a permanent resident. See: Niranchan v. Nadarajah, 2015 ONCJ 149; Carty-Pusey v. Pusey, supra. The father promised to support the mother for three years and signed an undertaking to Citizenship and Immigration Canada to do this once she became a permanent resident. He only withdrew his sponsorship application after he was charged with assaulting the mother and she wouldn't reconcile with him. The mother might already be working towards self-sufficiency if the father hadn't withdrawn the sponsorship application. This action placed the mother and the child in a vulnerable position as the mother had no legal status in Canada and couldn't work. It forced them to go on social assistance. The taxpayer should not be supporting the mother and the child, to the extent that the father is capable of supporting doing so.

[54] The father has the ability to support the mother and the child. He has a marketable job skill. He earns a good income. He has no other support obligations or unusual expenses.

[55] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that the Spousal Support Advisory Guidelines (SSAG), while only advisory, are a useful starting point to assess the quantum of spousal support once entitlement is established.

[56] A software analysis based on the mother being on social assistance and the father's annual income of $50,800, reveals that the SSAG low range of support is $809 per month. The mid-range of support is $941 per month and the high range of support is $1076 per month. This range of support is for an indefinite (unspecified) duration, subject to variation and a possible review, with a minimum duration of four years and a maximum duration of 16 years from the date of the separation.

[57] The mother asks the court to finalize the temporary monthly spousal support payment of $967, with a right for the father to review this in three years. This is when the child will go to school full-time.

[58] This is a very reasonable position for the mother to take. Although this was a short-term marriage, the mother has a strong compensatory claim for support due to her childcare obligations. In a short marriage, with young children, most of the primary caregiver's disadvantage lies ahead of her, not behind her, namely the labour market consequences for the parent of ongoing child care. This is a strong consideration in ordering support towards the higher end of the SSAG ranges. It is also an important factor in not time-limiting support on an original application for spousal support. See: Ideas of Spousal Support Entitlement (2015), 34 Can. Fam. L.Q. 1, by Professor D.A. Rollie Thompson.

[59] The court also considered that the father has played a large role in the mother's economic disadvantage. He promised to sponsor her and withdrew that sponsorship, leaving her unable to work and requiring her and the child to go on public assistance.

[60] The existence of a sponsorship agreement can be a factor in extending the durational limits of the SSAG or ordering support at the high end range. See: The Spousal Support Advisory Guidelines, A New and Improved User's Guide to the Final Version, Department of Justice Canada, March 2010, Chapter FV 7(b) by Carol J. Rogerson and D.A. Rollie Thompson, where the authors write:

Short Marriages: Immigration Sponsorship Cases

One category of short marriages, those involving immigration sponsorship agreements, raise some unique issues under the without child support formula. These are cases where a marriage breaks down while a sponsorship agreement is in place. Most spousal sponsorship agreements now run for a period of 3 years, but in the past the duration was as long as 10 years. In some cases involving very short marriages, courts have used the duration of the sponsorship agreement as the appropriate measure for the duration of spousal support, thus extending duration beyond the durational ranges generated by the Advisory Guidelines. As well, in such cases, some courts have also ordered support in an amount beyond the high end of the range to generate an amount of support that will meet the recipients' basic needs and preclude resort to social assistance. See Gidey v. Abay; and T.M. v. M.A.G., [2006] B.C.J. No. 3479, 2006 BCPC 604 (B.C.P.C.).

Some of the identified exceptions may be relevant in these cases to justify a departure from the formula ranges:

• the compensatory exception in short marriages
• the exception for compelling financial circumstances in the interim
• the basic needs/hardship exception

However, it does appear that the sponsorship agreement may be an independent factor in short marriages, leading to either an amount or a duration outside the formula ranges.

[61] The court will order the father to pay final spousal support to the mother in the sum of $967 per month. This is between the middle and high ranges of the SSAG.

[62] The software analysis indicates that the support payments will leave the father with about 41.1% of the family's net disposable income. This is a reasonable distribution of net family income, taking into consideration that the father only has to support himself.

[63] There is no merit to the father's request to start his support obligations on November 1, 2015. The child and the mother have required support from him and he has not met his obligations. The support payments will begin as of June 1, 2015 – the start date chosen on the temporary motion. This is the month when the father was served with the mother's application.

[64] The spousal support order will be indefinite, but will be subject to review (with respect to both entitlement and amount of support) at the request of either party after three years from this date. This is similar to the approach taken in Zivic v. Zivic, [2014] O.J. No. 6272 (SCJ) and Dupuis v. Desrosiers, 2013 ONCJ 720, which were both cases of short marriages with young children. The mother has an obligation to use reasonable efforts to become self-supporting and an examination of such efforts will be part of any court review. The court, at that time, will consider if the mother is still entitled to spousal support or may impose a time limit for her support.

[65] A review of spousal support is also warranted because it remains uncertain if and when the mother's application to become a permanent resident of Canada will be approved. This will have a significant impact on the mother's ability to become self-supporting.

[66] The father will receive a small credit towards his present arrears as a result of this order. His child support obligations are reduced by $69 per month for an 11 month period, being $759. This means that his arrears are now $12,987, in addition to the $4,000 costs owing.

[67] The father has already breached the temporary order requiring him to make monthly repayments towards the support arrears. The consequence of this behaviour is that the court is unwilling to make a similar accommodation for the support arrears that remain owing arising out of this order.

Part Five – Conclusion

[68] A final order shall go as follows:

a) The father shall pay child support to the mother in the sum of $458 per month, starting on June 1, 2015. This is the guidelines table amount for one child, based on the father's income, assessed by the court at $50,800 per annum.

b) The father shall pay indefinite spousal support to the mother in the sum of $967 per month, starting on June 1, 2015.

c) Spousal support is subject to review by either party on or after April 1, 2019, with respect to both entitlement and amount, without the necessity of proving a material change in circumstances and based on the expectation that the mother will use her best efforts to become self-supporting.

d) This order supersedes all prior orders of this court.

e) The support arrears created by this order are fixed at $12,987.

f) The parties shall exchange their complete income tax returns and notices of assessment by June 30th each year.

g) A support deduction order shall issue.

[69] The parties shall have until April 25, 2016 to make written submissions if they believe that there are any mathematical or inputting errors in the software analysis that will be sent to them with this decision. The other party will then have 7 days to make written response. The order shall not be taken out until this time period elapses, or until the court addresses any submissions made.

[70] If the mother is seeking costs, she is to serve and file written submissions by May 9, 2016. The father will then have until May 19, 2016, to serve and file his written response. The written submissions shall not exceed three pages (not including any offer to settle or bill of costs) and shall be delivered to the trial coordinator's office on the second floor of the courthouse.

Justice S.B. Sherr

Released: April 13, 2016