Court File and Parties

Ontario Court of Justice

Date: 2015-02-03

Court File No.: Toronto DFO 14 11545

Between:

Andreas Veneris Applicant

— And —

Mipha Koh Veneris Respondent

Before: Justice E. B. Murray

Heard on: January 9, 2015

Amended Reasons for Judgment released on: February 3, 2015

Counsel:

• Ms. Judith M. Nicoll — counsel for the applicant
• Ms. Nicole Tellier — counsel for the respondent

DECISION

MURRAY, E. B. J.:

[1] Introduction

[1] This is my decision on a motion and cross-motion brought by the parties, Andreas Veneris ("Andreas" or "Father") and Mipha Koh Veneris ("Mia" or "Mother"). Andreas and Mia married on June 24, 2011 and separated on March 23, 2014. They are the parents of a daughter, Eirini, born September 19, 2013. Eirini has lived primarily with Mia since the separation.

[2] Andreas started this case immediately after separation, because of his concern that Mia would take Eirini to Japan, where Mia had lived prior to August 2012 when she immigrated to Canada.

[3] On this motion, Andreas seeks orders for the following relief:

1. An order directing that Mia and he attend for a one-day closed mediation with Elizabeth Hyde within two weeks, pursuant to the consent order made July 18, 2014;

2. An order that Eirini reside with him three times weekly, including one overnight visit (Tuesday and Sunday from 9:45 a.m. to 3:45 p.m. and Thursday from 10 a.m. to Friday at 3:45 p.m.);

3. An order that neither party may apply for a replacement birth certificate for Eirini without further court order.

[4] Although Andreas's notice of motion requested an order for joint custody, in argument his lawyer stated that she was content that no order for custody be made at this time.

[5] Mia seeks order for the following relief:

1. An order restructuring the child's current residential schedule with Andreas, so that the daytime visits which now take place 4 times weekly shall take place 3 times weekly, but be comprised of the same amount of parenting time;

2. A "conduct order" regulating the parties' use of the communication book and behaviour with the child, the particulars of which are set out in paragraph 87 of Mia's affidavit sworn November 18, 2014;

3. An order giving direction as to provision of "makeup time" to either party if there is a disruption in the child's residential schedule;

4. An order for production of documents contained in her Request for Information which was served October 6, 2014;

5. An order permitting questioning on financial issues;

6. An order for child support in the amount of $1355 monthly;

7. An order for spousal support in the amount of $3752 monthly retroactive to the date of separation;

8. An order that the parties select a mutually agreeable pediatrician for the child, and failing agreement, that the selection be made by the court.

[6] Andreas consents to the "conduct order" requested. The parties do not agree with respect to any other issue; their positions on each issue are set out below, where that issue is discussed.

[7] As for the request for an order governing the selection of a pediatrician, this relief was requested in an amended motion served without the required period of notice. In a prior consent order, the parties had agreed that Dr. Papadouris would continue to be Eirini's pediatrician. Andreas has not had time to prepare a response to this new request, and objects to the court dealing with it. I will not deal with the request at this time, without prejudice to renewal at a later date.

1. History of Litigation

[8] On March 23, 2014, Andreas came home from a professional meeting to find that Mia had left with all her possessions, taking Eirini with her. Mia went to a women's shelter. Andreas did not know where she was. He was frantic, believing that she was taking Eirini to Japan. He contacted police, who advised him to go to family court.

[9] Andreas began this case without a lawyer on March 25, 2014, seeking a non-removal order and "custody or visitation" with Eirini on an exparte basis. On the same day Justice Weagant made an order prohibiting Mia from removing the child from Toronto, and requiring her to produce the child to the court on March 27, 2014.

[10] Meanwhile, police spoke with Mia, advising her of the non-removal order. As a result of that conversation, police laid two charges against Andreas, alleging that he had assaulted Mia in July 2012 and on January 16, 2014. The terms of his release prohibited him from communicating with Mia except through counsel and from having contact with Eirini except pursuant to a family court order, with the proviso that visits, if ordered, required facilitation by a third party.

[11] By March 27, 2014, Andreas and Mia had each retained counsel. Justice Weagant made an order on consent providing that Andreas would have daily access for 1 hour, supervised by Brayden Supervision Services; an order prohibiting either party from removing the child from the jurisdiction or applying for travel documents for her, and an order providing that Andreas pay temporary child support of $1337 monthly, based on an annual income of $160,000.

[12] On April 30, 2014, both parties brought motions. Andreas requested an order for joint custody, with expanded residential time, including overnights. He deposed that his ultimate objective was to have Eirini reside with him 50% of the time by the time she was one year old, in September 2014. Mia brought a motion requesting an order for custody and for unsupervised time for Eirini with Andreas 4 times weekly: Monday, Wednesday and Friday, from 12 p.m. to 2 p.m., and Sunday from 12 p.m. to 3 p.m., with a third party effecting the transfer of the child. On consent, Justice Weagant made an order silent as to custody, and providing for the residential schedule requested by Mia. Further orders were made to insure that Eirini remained within the jurisdiction. The motions were then adjourned to May 16, 2014, and the case was transferred to the Integrated Domestic Violence Court (IDVC), pursuant to the practice direction from the Chief Justice.

[13] Counsel advise that the motions were not argued on May 16th, but that a conference was held. Justice Waldman made an order adding one hour each day to the time the child was spending with Andreas pursuant to the schedule in the April 30th order.

[14] On July 18, 2014 Justice Waldman made a consent order which, inter alia, dispensed with the need for a third party to facilitate exchanges. This followed an identical change in Andreas's recognizances on the criminal charges. The order also provided that the parties would use a journal to communicate information about Eirini.

[15] The case was put over to November 7, 2014, and both parties brought further motions returnable that date. The motions could not be dealt with on that date because of the unavailability of the presiding judge, and were adjourned to January 9, 2015.

[16] The criminal matter returned to the IDVC on December 19, 2014. The Crown withdrew all charges against Andreas, noting that there was no reasonable prospect of conviction. The Crown advised that her review of the evidence indicated that the photos which Mia alleged showed injuries received after Andreas grabbed her arm did not in fact depict such injury, and that statements made by Mia to a public health nurse and other professionals contradicted statements she had made alleging an assault on the date in question.

2. The Facts

2.1 Background

[17] Andreas is 45 years of age. He works as a professor of electrical and computer engineering at the University of Toronto. He is currently on a sabbatical which commenced July 2014. He has no teaching obligations until at least September 2015, and may be able to arrange a further release until January 2016.

[18] Andreas lives in the matrimonial home, a 2-bedroom loft condo owned by him located near Sherbourne and Bloor in downtown Toronto.

[19] Mia is 39 years of age. Prior to her immigration to Canada, she worked as a freelance interpreter/translator in Japan. She has not worked outside the home since moving to Canada. She hopes to be able to begin work here in the future, although the demands of the current access schedule make this impractical at the present time.

[20] Andreas and Mia met while he was in Japan in February 2011. After a brief courtship which involved visiting back and forth, they married in Toronto on June 24, 2011. Three days before the wedding they signed a marriage contract prepared by Andreas in which they released any rights to spousal support and agreed that they would be separate as to property. More will be said about this agreement below.

[21] Andreas and Mia honeymooned in Greece (Andreas's native country) in July and August. Mia then returned to Japan and Andreas to Toronto. Over the next year, they conducted a long-distance relationship, with Mia travelling for visits in Toronto from time to time. In the summer of 2012, Mia moved to Toronto to begin living with Andreas permanently.

[22] Andreas applied to sponsor Mia's immigration to Canada; the evidence does not establish when the application was made. In November 2012, Mia received permanent resident status in Canada.

[23] In January 2013, Mia travelled to Japan to visit her mother. While there, she discovered she was pregnant. Difficulties with the pregnancy kept her in Japan until May 2013, when she returned to Toronto. During that time, Andreas was working in Toronto, but was able to visit in Japan.

[24] There was conflict between the parties from very early in their relationship. Each alleges different reasons and blames the other for the conflict. Andreas alleges that Mia was jealous and temperamental, making unreasonable demands on him. Mia says that Andreas has always been overbearing and disrespectful to her. Beginning in 2013 and prior to Eirini's birth, Andreas and Mia attended at two different marriage counselors.

[25] Mia also alleges two instances of physical abuse by Andreas—a push in July 2012, which occurred during an argument about Mia's reluctance to attend a party, and a grabbing of her arm on January 16, 2014, during an argument when she was holding Eirini. Those allegations were the basis for the charges recently withdrawn by the Crown, and are denied by Andreas.

[26] In January 2014, Mia and Andreas went to Japan for a visit with the maternal grandmother ("Grandmother"), taking Eirini with them. Andreas was not with them for the entire visit; he left Mia (and Eirini) with Grandmother for some period so they could have some private time, and returned to Toronto two weeks before them.

[27] Mia and Eirini returned on March 16, 2014. One week later, Mia separated, leaving the home with Eirini and going to a shelter.

2.2 Transfers of Eirini Between the Parties After Separation

[28] Since the separation, Mia has not wanted Andreas to know where she lives and says that she still fears him. She says that although she agreed in July 2014 to dispense with the necessity of a third party effecting the transfer, she is uncomfortable being with Andreas even for a short period, and that he has "lingered" in attempts to talk with her on these transfers. Andreas denies this.

[29] Because of Mia's desire to conceal her location from Andreas when Eirini is scheduled to be with Andreas, Mia transports Eirini to a location in a mall close to Andreas's home, rather than having him pick up the child from her home and deliver her back. Her evidence is that the access arrangement requires her to travel about 1 ½ hours each way 4 times a week via bus and subway, as she has no vehicle. Mia stays in the downtown area for the duration of the visit, to be available to take the child home. Andreas, who has a car, has offered to pick Eirini up and deliver her back to Mia at a neutral location of her choosing nearer her home, but she has declined.

2.3 Care of Eirini Since Separation

[30] Eirini is a first child for both Andreas and Mia. From all accounts, she is a healthy, happy child.

[31] It is apparent to me that both Mia and Andreas were highly motivated to be parents from the time they learned of Mia's pregnancy. Since Eirini's birth, both parents have participated in parenting classes, and have been diligent in consulting professionals and researching answers to issues that arise with respect to Eirini's care.

[32] Mia says that she has always been Eirini's primary caregiver. Andreas says that he was equally involved in the child's care from the time of her birth, an allegation with which Mia disagrees.

[33] I accept that after the child's birth, Andreas participated in many aspects of her care. It is clear, however, that Mia was Eirini's primary caregiver before the separation. Andreas was employed outside the home. Mia was breast-feeding the child. There were periods of travel when Mia was living alone with the child.

[34] There is no question that since separation—for the past 10 months—Mia has been Eirini's primary caregiver.

[35] Andreas agrees that Mia is a good parent, except for what he says is her failure to support the child's relationship with him adequately. Except for some special arrangements agreed between the parties over Christmas 2014, the longest period that Eirini has been in her father's care is 4 hours.

[36] Mia continues to breast feed Eirini. She believes that breast-feeding gives the child important health advantages; Andreas does not disagree. Mia has been expressing and freezing milk for Andreas to use on visits. Mia would like Eirini to self-wean, which she anticipates will occur by the time the child is two years old.

[37] Mia at first questioned Andreas's ability to care for Eirini. Reports from the access supervisors who monitored visits for the first month after separation speak to his appropriate behavior with the child, and his ability to perform the everyday tasks involved in caring for an infant.

[38] Mia now accepts that Andreas is a good caregiver, except for what she alleges is his failure to be mindful to follow the child's routines during her time with him. This is not a minor issue for Mia, as she says that these failures lead to major disruptions with Eirini when she returns to her care. Mia says that:

• Andreas does not insure that Eirini always has lunch at the time she is used to having it at her mother's house.
• Andreas does not insure that Eirini has a nap; the child is used to having a nap in the morning and in the afternoon.
• Andreas does not always use the breast milk provided.
• Andreas does not always give Eirini breast milk before solid food, as recommended by her lactation consultant.
• Andreas sometimes feeds Eirini food that she has requested the child not be given because it causes digestive problems.

[39] Mia says that as a result of Andreas's failures in this respect, that Eirini often returns to her care "exhausted, cranky and hungry". She says that on the occasions on which Andreas feeds the child close to the end of the visit, a different problem results—that Eirini is not hungry, will not take dinner at her usual time, is very late getting to sleep because she has a late dinner, and is very tired the next day.

[40] Andreas denies these allegations. He says that he generally follows the routines which Mia has established, acknowledging that Eirini does not always have a nap when with him because he does not put her to bed if she is not sleepy. He adds that he consults with his own early childhood professional about these issues.

[41] The journal maintained by the parents gives some support to the allegation that the child, when with Andreas, sometimes has a meal very late or misses a meal, or does not take a nap.

2.4 The Parties' Financial Situations

[42] Andreas' financial statement says that his annual income is $152,988. Line 150 of his 2013 tax return states his income as $162,395. Mia alleges that Andreas has significantly more income from rental properties he owns in Greece and Chicago and foreign investments, income which Andreas told her he does not report on his Canadian tax return. Andreas denies this. He acknowledges that he is the owner, in whole or in part, of many rental properties in Greece and two rental properties in Chicago, but says that he derives no net income from those properties. Andreas' financial statement indicates substantial net worth (about 2.4 million dollars), including about $100,000 in cash savings.

[43] Mia's only income is the $1337 she receives in child support from Andreas. She and Eirini live in a basement apartment in a suburban area far from downtown.

[44] Mia inherited money from her father in 2004, and purchased a two-bedroom condo in Sakura, Japan; her mother has been occupying that residence since her own home was destroyed by the earthquake in 2011. Mia's evidence is that she had $180,000 left after purchasing the condo, and that most of those funds were spent on the trips she took to see Andreas prior to her immigration, on expenses during their marriage, and on supporting herself and Eirini since separation. $44,000 remains of this fund. Mia's net worth consists of this fund and her interest in the condo in Japan, which she estimates is worth $100,000.

[45] In order to meet expenses, Mia has borrowed $10,000 from two friends and has sold the jewelry which she received as a gift from Andreas during the marriage. Mia indicated in her financial statement that she had placed the jewelry with an auction house for this purpose; after receiving a letter from Andreas's lawyer threatening a lawsuit if she did so, she agreed to sell the jewelry to him for $9,200.

3. Issues

3.1 Mediation

[46] After Mia changed solicitors, she refused to attend the mediation consented to in the July 18, 2014 order. Andreas's lawyer argues that although the court would have no authority to order the parties to attend mediation absent a consent, that once consent was given and an order issued that there is a legal basis to order Mia to comply. Mia's lawyer does not challenge that submission, but argues that it would be a waste of time and money for the mediation to take place. She advises that she screened Mia and found her an inappropriate candidate for mediation; she anticipates that Ms. Hyde would have the same view. That may be so, but that is not a reason to relieve Mia of her obligation to go forward with this limited mediation. If Ms. Hyde has concerns about a power imbalance between the parties, she may decide that this can be controlled within the mediation process—e.g., by shuttle mediation. An order will issue requiring Mia to contact Ms. Hyde to initiate the intake process within 7 days, and to attend the one-day closed mediation if approved.

3.2 Direction Not to Apply for Birth Certificate

[47] Mia's lawyer did not strongly resist this request, simply noting that at some point it would be necessary or beneficial for Mia to have a birth certificate for the child. A prior order required that the child's birth certificate, passport, and other travel documents be deposited with the court and prohibited the child's removal from the jurisdiction. Following the logic of those orders, the parties should not be able to access another birth certificate that might facilitate travel while this case is pending. An order will issue to that effect.

3.3 Eirini's Schedule

The Parties' Positions

[48] Andreas's lawyer argues that he was unfairly handicapped in establishing an appropriate schedule with the child by the effects of the criminal charges—charges that she says may have been instigated by Mia to obtain an advantage in this litigation. She submits that the evidence is clear that Andreas can care well for Eirini, and urges the court to quickly move to overnight access, an arrangement which she suggests would have been in place months ago except for these charges.

[49] Mia's lawyer says that Andreas's proposed schedule may be what he wants, but that the schedule does not meet Eirini's developmental needs. Eirini still wakes up at least twice each night, and requires breast-feeding to be soothed before she can go back to sleep. Counsel submits further that Andreas's failure to follow Eirini's routines will have more impact on the child if she spends more time with him. Counsel argues that the longer day visits requested by Andreas would mean very long days for the child, and travel during rush hour on public transit. Starting visits at 9:45 a.m. (instead of noon, as currently) would mean that Eirini would have to leave home with Mia by 8:15 a.m., and ending visits at 3:45 p.m. would mean that the child was travelling home during rush hour.

[50] Mia's lawyer says that it is not surprising that Andreas is currently unable to follow Eirini's routines when the child is with him; he is trying to "pack a lot" into a 3 or 4 hour time period. She suggests that the obstacles to Andreas having more time with Eirini now would be alleviated if Mia had an adequate income and could move to the downtown area closer to his residence. She says that this is Mia's intention if she receives spousal support, and suggests that any order made now should be seen as serving for only a brief transitional period, and reviewed when Mia has relocated.

[51] Mia's lawyer suggests that pending Mia's move, what could meet Andreas's wish for longer times with Eirini and alleviate some of the strain resulting from the current travel schedule is reducing the visits from 4 weekly to 3, and adding an hour to the duration of each visit.

Conclusion

[52] My decision as to a schedule for Eirini now must of course be guided by what is in the child's best interests, and not what is "fair" to either parent. For Eirini, this means establishing a residential schedule in which she can be happy and healthy with both her parents. I have considered the issue with the factors set out in section 24(2) of the Children's Law Reform Act in mind.

[53] It is clear that each parent loves Eirini very much.

[54] Counsel for Andreas suggested that Mia was hypercritical of her client, and not working to support the child's relationship with him. Counsel for Mia made the same submission about Andreas. Despite the critical comments each party has made from time to time about the other, the evidence indicates that each is working to maintain an environment in which Eirini can flourish in a relationship with both her parents. Andreas is doing his best to maintain the routines which Mia has established for the child. Mia has been spending 6-7 hours a day, four days a week, to facilitate the time the child has with Andreas.

[55] I have no doubt that the positions the parties take on the issue of scheduling for Eirini now are formed because of their sincere perception of the child's best interests.

[56] The differences in the parties' positions stem from differences in their perceptions about how Eirini is faring on the current schedule, and the possible effects on her of extended daytime and of overnight time with her father.

[57] I do not have the benefit of evidence from the child's doctor or from the respective child development professionals that each party has consulted on this issue. As I advised the parties during argument of this motion, in my view, it would of benefit for them to establish a relationship with one child development professional who could assist them in making decisions about how to deal with difficulties which arise as Eirini's schedule with her father is changed. The parties appear open to this suggestion. If they follow through, they will be able to get the same feedback at the same time from one source.

[58] I do not doubt Andreas's capabilities as a caregiver. I would, however, like to see Eirini more comfortable on return to her mother after spending time with her father than is currently the case before a move to overnight stays is contemplated. I would also like to have more information about Eirini's routines around breast-feeding, and the viability of any plan for overnight stays, such as those requested by Andreas (30 hours), that was based on the assumption that Mia could express milk in sufficient quantities to accommodate this period.

[59] The routine which Mia has established for Eirini is not an unusual routine for a child of her age. Both parties accept that it is important for them to do their best to maintain a consistent routine. I accept that Andreas attempts to follow Eirini's routines in his home, but that because of the relative brevity of the current residential times with him, that this is difficult. Mia should be open to making small adjustments in the child's routines, to some extent in coordination with Andreas, to facilitate better visits.

[60] It may very well be that an extension of the daytime periods that Eirini spends with Andreas—somewhat longer than that proposed by Mia—will help him maintain the child's routines more regularly than he has been able to do under the current schedule. I am aware of Mia's evidence that Eirini did not react well to visits of 8.5 hours that occurred over the Christmas holidays. However, both Andreas and Eirini were sick during this period, and I do not take that experience as an indication that Andreas cannot manage longer residential times with the child.

[61] Although I accept that Mia is sincere in saying that she prefers to make the long journey to drop Eirini off and pick her up 3 times each week (rather than have Andreas make the transfer at a place closer to her residence), in my view it is in the child's interests to begin to arrange for Andreas to be responsible for the child's transportation. The current arrangement means that Eirini is travelling by public transport up to 3 hours 4 times a week in winter weather; this must contribute to the exhaustion which Mia notes in the child after visits.

[62] The evidence as to dealings between the parties since separation does not give rise to a concern for Mia's safety if this change was made. There is no allegation that Andreas breached the terms of his recognizance. There is no allegation of any threats or aggressive behaviour from him since separation.

[63] I agree that the arrangement of appropriate time between Eirini and her father will become much easier if the parties live in closer proximity. I intend to order temporary spousal support from the date of Mia's claim for such relief, and these funds should assist her in making a move.

[64] With all this in mind, my order is as follows:

• Eirini shall reside with Andreas 3 times weekly, on Tuesday and Sunday for 5 hours and on Thursday for 8 hours. If the parties are unable to agree as to the time for exchanges, I will determine those times.

• Mia shall select a neutral location near her current residence (e.g., a Tim's) in which the transfer of the child can take place on Thursday. At her election, she may decide that transfers for the Tuesday and/or Sunday visit can also be done at this location; if she does so, the visit for the day in question shall be extended for 6 hours, to take account of Andreas's travel time.

3.4 Makeup Time

[65] The evidence is that Mia is, on occasion, somewhat late when dropping Eirini off, and that on those occasions Andreas has required "makeup time". There have been other times when either Andreas or the child has been sick and visits could not take place, or when Andreas had a professional obligation which interfered with the child's scheduled time with him. At those times he has also required Mia to provide makeup within a short timeframe. Mia finds this approach frustrating, and responded at one point by requiring 27 minutes makeup time from Andreas—her calculation of the total times he had been late on several occasions.

[66] This "bean-counting" approach is not child centered. It is also not appropriate with parents who are relatively high-conflict, such as Andreas and Mia. There is no suggestion that either parent is careless in meeting his or her obligations to transfer Eirini in a timely manner.

[67] Makeup time should not be provided for in this case on occasions when one party or the other is late for an exchange. On occasions when Eirini's time with Andreas has been missed because of illness or some other obligation of either parent, then the parties should agree upon what additional residential time, if any, is appropriate. There should not be an expectation on Andreas's part that the time will reflect what he "lost" on a minute-for-minute basis, or that the replacement time will occur immediately. In some cases (e.g., a lengthy absence by Andreas to attend a conference), "replacement" of all the time he missed with Eirini may not reflect a child-centred approach.

3.5 Production

[68] Although Andreas did not consent to the production order requested, his lawyer did not in submissions state opposition. The documents requested appear to have relevance to the issues in the case, with the exception of items 13 and 14. I order production of those documents, with those exceptions, within 14 days.

3.6 Questioning

[69] Mia's lawyer requests an order for questioning on financial issues only, and assures the court that she will take a proportionate approach. Andreas says he has been truthful about his finances, and questions the necessity of this step, but does not vigorously oppose. In my view, an order for questioning should issue on the financial issues in this case—Andreas's income (including any income received from rental properties), Mia's plans with respect to work, and the facts surrounding the execution and preparation of the marriage contract.

3.7 Child Support

[70] The most reliable current evidence about Andreas's income comes from his 2013 tax return; line 150 of that return shows an income of $162,395. Andreas says that his income this year will be somewhat less than that, and Mother alleges that his income is significantly more. I will base the temporary order for child support on income of $162,395; the amount can be adjusted up or down in the future if required. An order for temporary child support in the amount of $1355 monthly commencing January 1, 2015 shall issue.

3.8 Spousal Support

3.8.1 Preliminary Issue of Entitlement

[71] There is a preliminary issue with respect to Mia's claim for interim support related to the waiver in the marriage contract and the effect of that waiver on documents signed by Andreas to sponsor Mia's immigration.

[72] I note at the outset that Mia's claim for support is made under the Family Law Act, and not the Divorce Act. The Acts have different provisions applicable in cases in which a claim for spousal support is made in the face of domestic contract limiting or waiving the right to support.

[73] Section 33(4) of the Family Law Act provides as follows:

The court may set aside a provision for support or a waiver of the right to support in a domestic contract and may determine and order support in an application under subsection (1) although the contract contains an express provision excluding the application of this section,

(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;

(b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or

(c) if there is default in the payment of support under the contract at the time the application is made.

[74] Section 15.2(4) of the Divorce Act simply provides that an agreement relating to support is one factor which the court may consider when asked to make a spousal support order.

[75] Mia's lawyer has two submissions as to why the court has the authority to order temporary spousal support in the face of the waiver in the marriage contract.

1. Andreas agreed—after the marriage contract was executed—to support Mia when he sponsored her immigration to Canada. That agreement overrides the waiver of support.

2. Even if the sponsorship agreement does not have this effect, there is significant doubt as to whether the marriage contract meets the first or second prong of the Miglin test. Counsel submits that the contract was not executed under "unimpeachable" circumstances.

   • There was no proper financial disclosure as to assets and liabilities.
   • Mia had no independent legal advice before signing the contract.
   • Mia did not understand the nature and consequences of the agreement. In particular, she did not understand the effect of the spousal support waiver. Mia deposes that she was assured by Andreas that the reason for the contract was to protect the property which each had at the time, and, in particular, the property which he had from his parents.

   As for the issues which arise on the second prong of the test, counsel submits that it cannot be said that the agreement is now in substantial compliance with the objectives of the Act. She says that Mia now lives in poverty as a result of the consequences of the breakdown of the marriage and her responsibilities in caring for the child. Counsel argues that Mia has a substantial likelihood of success in satisfying the court that the waiver in the agreement should be set aside, and that her motion for temporary support should be heard.

[76] Andreas' lawyer submits that Mia had an opportunity to get independent legal advice and did not do so. Andreas' position is that Mia released her right to support, and that the parties' agreement should be respected.

Effect of Sponsorship Agreement

[77] In Camilleri v. Camilleri, Justice Kenneth Langdon ordered support for a wife who had waived her rights for spousal support in a marriage contract, holding that the subsequent sponsorship agreement which he had signed providing that he would support the wife had the effect of "undoing the support waiver". On appeal, the Divisional Court upheld his order on other grounds, stating that it was not "necessary to consider if he correctly characterized the effect in law of the execution of the Sponsorship Agreement".

[78] In my view, I have insufficient evidence to deal with counsel's submission as to the effect of any documents signed by Andreas promising to support Mia on the spousal support waiver in the marriage contract. I have no evidence as to the particular documents signed by Andreas to sponsor Mia or as to the provisions of such documents.

[79] Caselaw referred to by counsel mentions undertakings given by the sponsor to the Government to provide for the immigrant's basic needs, and sometimes to "sponsorship agreements" signed by the parties, or perhaps by the sponsor and the Government alone, agreements which may or may not be witnessed and thus may or may not be domestic contracts as contemplated by the Family Law Act (FLA).

Authority Under the FLA to Order Support Despite a Waiver

[80] The cases referred to by Mia's lawyer involve motions under the Divorce Act for temporary support in the face of a spousal support waiver. I focus on cases under s. 33(4) of the FLA which deal with such motions.

[81] In Scheel v. Henkelman, a case which dealt with appeal of a trial decision, the Ontario Court of Appeal held that s. 33(4) is directed to unconscionable results of a provision waiving support. The court directed that in determining whether the agreement is "shocking to the conscience of the Court", the following factors should be considered:

(a) the circumstances surrounding the execution of the agreement, including the fact that each party was represented by competent counsel, the absence of any undue influence, the good faith and the expectations of the parties;

(b) the results of the support provisions of the agreement, including any hardship visited upon a party, and

(c) the parties' circumstances at the time of the hearing, including their health, employability and ability to maintain their lifestyle.

[82] There is debate as to whether this test is more or less stringent than the Miglin test.

[83] What is the test under the FLA for a party claiming interim support in the face of a waiver? It has been argued on behalf of a potential payor that the party claiming support must establish that the waiver should be set aside in reference to one of the three factors in s. 33(4)—in other words, that the claimant must meet the same test she would have to meet at trial.

[84] That argument has been roundly rejected. Noting the difficulty of conducting an "in depth analysis of the standing or entitlement issues" related to the waiver on an interim motion, courts have ruled that the applicant is required at that stage only to demonstrate that a triable issue exists as to whether the agreement will be found to be "unconscionable".

[85] I find that Mia has raised a triable issue as to whether the agreement should be set aside in reference to s. 33(4)(a) of the Act.

• There are obvious concerns related to the lack of independent legal advice, apparent lack of financial disclosure, and alleged lack of understanding on Mia's part of the provisions of the agreements at the time it was executed.
• The support waiver has resulted in hardship for Mia. She and Eirini occupy a basement apartment and are living on only $1337 monthly.

3.8.2 Entitlement to Support

[86] It is well established that on an interim motion, a rigorous analysis of entitlement to support cannot be conducted, and that the primary factors for the court to consider are means and need. Andreas did not seriously argue that Mia had no entitlement to some support on an interim basis if the court determined that it could make an order despite the support waiver in the marriage contract.

3.8.3 Quantum of Support and Retroactive Claim

[87] Mia's lawyer asks for a temporary order for support in an amount of $3,752 monthly. This amount is at the low end of range of the Spousal Support Advisory Guidelines (SSAG), and is based on Andreas's 2013 income of $162,395. Andreas's lawyer suggests that a case such as this is an exception to the SSAG, as it has not been determined whether the spousal support waiver will be set aside. She suggests that an amount of $1500 monthly would be appropriate.

[88] The SSAG are not law. However, it has been held that it is an error of law not to consider these guidelines on temporary motions for support as well as at trial. The authors of the SSAG observe that the guidelines are particularly suited to deal with interim motions for support.

[89] The authors of the SSAG do not suggest that cases in which there is a triable issue about a waiver of support should constitute an exception to the Guidelines. However, it is, of course, open to the court to order an amount different than that suggested by the Guideline range for any reason it deems appropriate.

[90] Caselaw suggests that in cases in which a court found that an application for interim support should be heard despite a waiver, that the Guidelines have been followed with respect to quantum. In Gold v. Gold, a case in which the support payor had a very high income, well in excess of the income "ceiling" referred to in the Guidelines, the court made a "generous" temporary support award in an amount that was below Guideline range, acknowledging that either party could succeed on the issue of the support waiver in the trial that was soon to begin. I am unaware of any other case in these circumstances in which a court ordered less than the amount suggested by the Guidelines to take account of the possibility that the support claimant might ultimately fail.

[91] Mia has, what at this stage appears to be, a case with respect to the support waiver with a substantial chance of success. An award of spousal support at the lower end of the range acknowledges that the issue has yet to be determined.

[92] With respect to Mia's request for retroactive spousal support from the date of separation, a court has the discretion to order retroactive spousal support on an interim basis. The criteria are the same as those applicable to a claim for retroactive child support, but the predominant factors on an interim motion are means and need.

[93] Although Mia mentioned in her April 9, 2014, affidavit that she wanted Andreas to pay spousal support, she did not request support in a notice of motion or in her cross claim until September 26, 2014 when she served her answer. If support is ordered from October 1st, Mia will have a small lump sum to make the move which she plans, and which will ease the stress for the child which is likely caused by the lengthy travel times involved in the current regime. Andreas has the means to pay this amount.

[94] The order which I make is that Andreas pay temporary spousal support to Mia in the amount of $3752 monthly commencing October 1, 2014. This order is made without prejudice to Mia's right to pursue a claim at trial for spousal support from the date of separation.

4. Costs

[95] If costs are sought, written submissions should be served within 20 days; responding submissions should be served within a further 20 days.

Released: February 3, 2015

Signed: Justice E. B. Murray