Court File and Parties

Court File No.: Brampton 286/10 Date: 2012-10-22 Ontario Court of Justice

Between: Bettina Marfo, Applicant

— And —

Richard Poku, Respondent

Before: Justice J.C. Baldock

Heard on: October 16, 2012

Reasons for Judgment released on: October 22, 2012

Counsel:

• Carolyn C. McNeill, for the applicant
• Shellah M. Nimjee, for the respondent

BALDOCK, J.:

[1] Introduction

[1] This motion is brought by the applicant, Bettina Marfo. She seeks an order striking the pleadings of the respondent Richard Poku, and awarding her spousal and child support.

1: BACKGROUND

[2] The parties met in 2006 and commenced cohabitation in January 2007.

[3] They are the parents of two children:

• Jerron Poku, born June 24, 2007;
• Zeyanna Poku, born July 2, 2008

[4] All issues relating to custody and access have been resolved.

[5] In December 2006, the respondent won a $1.1 million lottery. A significant amount was used for the couple's general living expenses and the purchase of vehicles. The respondent also gave money to friends and family members.

[6] Prior to the parties' separation in February 2011, the applicant was, for the most part, a stay-at-home mother. She did obtain employment for an eight month period from September 2010 to May 2011, for which her rate of pay was $12.00 an hour. Efforts to find further employment were not successful. She has since upgraded her education and is currently attending York University for a four year degree in sociology, funded by the Ontario Student Assistance Programme ("OSAP"). The respondent is employed as a bilingual customer service representative, at an annual salary of approximately $38,000.00.

2: LITIGATION HISTORY

[7] The applicant commenced her application in June, 2011. The first court date was August 25, 2011.

[8] On November 8, 2011, an order was made requiring the respondent to provide certain disclosure.

[9] The respondent was given until December 9, 2011 to serve and file his answer, sworn financial statement and the following:

• Copies of his T1 General Income Tax returns together with his Notices of Assessment and/or Reassessments for taxation years 2008, 2009 and 2010;
• His most recent statement of earnings for 2011 indicating the total earnings paid in 2011 to date, including overtime, or, in the event such a statement is not available, a letter from his employer setting out that information including the rate of annual salary;
• A record in regard to his lottery winnings including all documentation tracing the lottery winnings to his current assets, to the extent that such documentation is available;
• A copy of the transfer documents and mortgage statements in regard to all real estate in his name, in his name jointly with a third party and held in trust for him by a third party between August, 2010 and the current date; and
• Copies of all account statements for all bank accounts, investment accounts, savings plans and debts in his name, in his name jointly with a third party and held in trust for him by a third party from August, 2010 to the current date.

He did not do so.

[10] On March 6, 2012, counsel for the applicant confirmed that while some material had been provided to her (albeit not within the time required by the order) it fell short of the disclosure ordered. She consented to an extension of time to allow the respondent to file the balance and his material already served.

[11] His answer was filed on March 6, 2012, eight months after having been served with the application.

[12] On March 6, 2012, an order was made which provided that the applicant's counsel would make a written request for all outstanding disclosure, and the respondent was to deliver same within thirty days thereafter. He was also to provide a sworn affidavit explaining any missing items.

[13] On June 14, 2012, the respondent was still in default of the outstanding disclosure orders and was granted a further extension to July 9, 2012.

[14] On July 20, 2012 (now a year after the commencement of this proceeding) the respondent filed an affidavit, sworn July 19, 2012, setting out an explanation for items not provided. He attached:

• His T1 General for 2011;
• His T1 General for 2010;
• A copy of the transfer with respect to his residence at 2 Freshspring Drive;
• A copy of the T.D. Mortgage Statement with respect to that property;
• A statutory declaration with respect to land in Ghana in his parents' names;
• Confirmation of medical coverage for the children;
• Confirmation of trusteeship for children as beneficiaries of his insurance;
• Certain statements from T.D. Bank including:
  • Visa statement July 6, 2009;
  • Bank account statements of February 27, 2009, March 31, 2009, December 30, 2011 and February 29, 2012;
  • Price Waterhouse statement May 31, 2009.

[15] Still outstanding are the following:

• Complete T1 General for 2008 and 2009
• Documentation tracing use/distribution of lottery winnings
• All bank statements from August 2010
• Information as to the value of the Ghana property
• Notice of Assessment for 2011

3: THE POSITIONS OF THE PARTIES

[16] In his affidavit, the respondent states that he has provided all that he has "been able to find". He attaches an earlier affidavit sworn February 20, 2012 in which he accounts for the lottery winnings as follows:

• $300,000 Gifts to family/friends
• $73,000 Purchase of vehicles (including one for the applicant)
• $160,000 Two years of expenditures on general living
• $30,000 To his grandmother for her home in Ghana
• $80,000 To his mother for her home
• $50,000 To friends
• $400,000 Invested with Price Waterhouse
• $200,000 For his current home.

While this totals more than the $1.1 million he received, it is unclear whether the funds provided to his mother and grandmother and the $50,000.00 to friends is included in the $300,000.00 he refers to as being "gifts".

[17] He states that he made poor investment choices and lost 30 percent of his money with Price Waterhouse.

[18] He takes the position that he has made reasonable efforts to comply with disclosure requests and orders.

[19] The applicant maintains that even if the respondent's rather vague and imprecise accounting and his evidence with respect to poor investments were accepted there would still be approximately $270,000.00 (i.e. the balance of funds with Price Waterhouse) unaccounted for.

[20] While the applicant makes no claim on the lottery winnings as an asset, she takes the position that a substantial amount was available for investment, providing income to be considered for child and spousal support.

4: ISSUES

4.1 Striking Pleadings

[21] Firstly, I must determine if the lack of full and complete disclosure justifies striking the respondent's pleadings pursuant to Rules 14(23) and 10(10).

[22] Clearly the respondent had ample time to obtain the necessary material, or at least to make a concerted effort to do so.

[23] I find he made no real attempt to obtain documents not already in his possession.

[24] There is nothing to indicate where the $400,000.00 Price Waterhouse investment went, the only statement provided shows the account as closed.

[25] The very few (non consecutive) bank statements do not relate to the period in question or provide any kind of assistance.

[26] There are no tax returns showing investment income.

[27] The respondent expects the court to take his word as to how the funds were distributed without any supporting or corroborative evidence.

[28] I find that the respondent has paid little heed to the orders for disclosure or the timelines imposed.

[29] Accordingly, I strike his pleadings and this matter then proceeds on an unopposed basis.

4.2 Child Support

[30] The applicant seeks to have income imputed to the respondent based on a very modest investment income which he either has but does not disclose, or should have if he were to exercise some prudence and maximize his income for the benefit of his family.

[31] I find the applicant's position to be entirely reasonable and impute income of $45,000.00 based on the respondent's ability to earn a modest $6,000.00 per year investment income.

[32] Accordingly, the respondent will pay for the support of two children the sum of $664.00 per month commencing effective August 1, 2011.

[33] The respondent shall be given credit for any payments made pursuant to the existing temporary order.

4.3 Spousal Support

[34] The applicant has established a need for support. She was dependent on the respondent for the period of cohabitation. Her employment was short lived and the rate of pay insufficient for self sufficiency.

[35] Her current plan is to complete her four year degree, at which time she should be in a position to pursue a career in her chosen field.

[36] The applicant has had to rely on social assistance and is currently in receipt of OSAP. I find her goals to be reasonable and some support is needed to enable her to achieve self sufficiency.

[37] I am of the view that the mid-range set out in the "Divorce Mate" calculations submitted is appropriate in this situation but on a time limited basis.

[38] The respondent will therefore pay the sum of $387.00 per month commencing November 1, 2012 and terminating October 31, 2016.

[39] The parties have consented to an order that the respondent shall maintain the children as beneficiaries of his life insurance for as long as such insurance (or its equivalent) is available to him through his employment and so long as the children remain dependants who are entitled to support.

[40] Counsel for the applicant may make brief written submissions with respect to costs within 21 days.

Released: October 22, 2012

Justice J.C. Baldock