Court File and Parties
Date: April 6, 2017
Court File No.: D82189/15
Ontario Court of Justice
Between:
Maja Pecanac Patricia Gan, Counsel for the Applicant
Applicant
- and -
Ashor Mamado Tanya N. Road, Counsel for the Respondent
Respondent
Motion Heard: February 10 and March 14, 2017
Before: Justice M. Sager
Endorsement
Introduction
[1] Maja Pecanac (the mother) is 29 years old. She was born in Germany and came to Canada in 1998 when she was 11 years old. Ashor Mamado (the father) is 39 years old. He was born in Iraq and came to Canada in 1993 when he was 15 years old.
[2] In December 2013, the parties met at a club where the mother worked as an exotic dancer. They were involved in a short relationship between January 2014 and November 2014 during which they lived together for three months. Their relationship resulted in the birth of their daughter, Isabella Eva Pecanac on October 23, 2014.
[3] The parties agree that they lived together in the father's home from January 2014 to April 2014. The mother claims the relationship ended in November 2014. It is not entirely clear from the father's affidavit when he claims the relationship ended but it appears he agrees that it ended in November 2014.
[4] The mother is currently unemployed and caring for Isabella, who is now 2 years old, full time. The father claims to be suffering from injuries and related debilitating depression as a result of injuries from three car accidents and is unemployed.
[5] This motion dealt with the mother's claim for temporary child and spousal support.
[6] The mother claims child and spousal support based on an imputed income to the father of $500,000.00 per year. The father acknowledges his obligation to pay child support but claims to have no income upon which child support can be based. The father argues that the mother is not entitled to spousal support but even if she were, he does not have the ability to pay it.
[7] There is no issue with respect to the mother's entitlement to child support for Isabella.
[8] To obtain spousal support from the father, the mother must show she is a spouse as defined in section 29 of the Family Law Act (the Act). In order to meet the definition of a spouse for the purpose of seeking spousal support from the father, the mother must demonstrate that the parties, being the natural parents of a child, "cohabited in a relationship of some permanence". If the mother is not a spouse as defined by the Act, the enquiry ends there. If the mother successfully demonstrates that she is a spouse as defined by the Act, she then must show entitlement to spousal support pursuant to sections 30 and 33 of the Act.
[9] On this motion I am asked to determine the following:
a) What is the Respondent's income for the purpose of the child support calculation?
b) What amount of child support should be ordered?
c) What is the start date for child support?
d) Does the applicant have standing to request spousal support from the Respondent?
e) If so, is the applicant entitled to temporary spousal support?
f) If so, what is the income of the mother for the purpose of the spousal support calculation?
g) What amount, if any, of temporary spousal support should be ordered?
Background of the Litigation
[10] The mother commenced litigation in December 2015 seeking orders for custody, child support and spousal support.
[11] The parties attended in court on the first appearance date on February 18, 2016, and executed a consent that provided for a DNA test to confirm paternity of the child and, in the event paternity was confirmed, for the exchange of financial disclosure between the parties.
[12] The case was next before the court on April 26, 2016, for a case conference before Justice Roselyn Zisman. Justice Zisman's endorsement provides that the DNA test confirmed paternity and that the parties accepted the result. The endorsement also notes that the father's disclosure had not been completed as he advised the court he was ill and unable to gather all of the documentation required of him.
[13] Justice Zisman instructed the parties to submit any further disclosure requests to the other party and to serve and file Case Conference Briefs as well as separate disclosure briefs in advance of the next court date. The issue of costs of the appearance was reserved to the next appearance and the case was adjourned to July 14, 2016.
[14] The parties attended in court before me on July 14, 2016 with counsel. The mother had served and filed a Case Conference Brief and the father had not. Both parties argued that the other had not fully complied with disclosure requests.[1] Costs in the amount of $500.00 plus H.S.T. was ordered against the father and the matter was adjourned to September 22, 2016 for a Case Conference or possible motion to strike the father's pleadings.
[15] On September 22, 2016, the parties attended in court with counsel. The mother had served a Motion to strike the father's pleadings on September 16, 2016, without advising counsel for the father that she would be proceeding with such a motion. The motion to strike the father's pleadings was not argued and the parties once again focused on outstanding disclosure. The mother was given a date to bring a motion for temporary child and spousal support and a timetable was ordered for the exchange of motion materials. The issue of costs for this appearance was reserved to the return of the mother's motion.
[16] On November 25, 2016, the parties attended in court with counsel. The mother served and filed her motion materials in accordance with my order and wished to proceed with her motion. The father had retained new counsel who sent an agent to court to advise that she had just been retained and had been unable to comply with the timetable ordered by the court for the exchange of court materials as the mother served extensive motion materials. The motion was adjourned to February 10, 2017, on the basis that the father shall pay the mother $1500.00 in support for the months of December 2016, January 2017 and February 2017.
[17] The parties attended in court on February 10, 2017 and the motion proceeded but could not be completed as the court required additional information from the father.[2] The motion was adjourned to March 14, 2017 and timelines were ordered for the service and filing of the additional affidavit evidence.
[18] The parties completed their arguments on March 14, 2017, and the following is my decision.
Issue #1: What is the Father's Income for the Purpose of the Child Support Calculation?
The Law
[19] Section 16 of the Child Support Guidelines provides that a parent's income for the purpose of determining child support is determined by "using the sources of income set out under the heading 'Total income' in the T1 General form issued by the Canada Revenue Agency".
[20] If the court determines that relying on the parent's T1 General would not result in the "fairest" determination of income, the court can rely on sections 17-20 of the Child Support Guidelines to come to a fair determination.
[21] Section 19 of the Child Support Guidelines grants the court authority to impute income to a child support payor where the court considers it appropriate. Circumstances that would give rise to an imputation of income include when a support payor is intentionally under-employed or unemployed; where it appears that income has been diverted which would affect the level of child support payable; and, the payor derives a significant amount of income from sources that are taxed at a lower rate or tax exempt.
[22] The circumstances that may give rise to an imputation of income under section 19 of the Child Support Guidelines are not exhaustive.
[23] In appropriate circumstances, the court has discretion to impute an amount of income to a support payor. See: Liscio v. Avram.
[24] In Lawson v. Lawson, the Ontario Court of Appeal cites the decision of that court in Dryagla v. Pauli, the leading case on imputing income. The court confirmed that Section 19 (1) (a) of the Child Support Guidelines is perceived as being a test of reasonableness. The court must have regard to a parent's capacity to earn income in light of such factors as employment history, age, education, training, skills, health, available employment opportunities and the standard of living earned during the marriage. The court looks at the amount of income the payor could earn if he or she worked to capacity.
[25] Income may be imputed 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 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 justice in reaching an estimate of the appropriate income". See: Kowalik v. Kowalik; Stoyshin v. Stoyshin, [2007] O.J. No. 1772 (Ont. S.C.J.) at paras. 13-14.
[26] There must be an evidentiary basis to make an income determination. See: Quintal v. Quintal, [1997] O.J. No. 3444 (Ont. Ct. General Div.). The onus is on person requesting that income be imputed to a payor to show a reasonable inference upon which the order can be made. See: West v. West, 18 RFL (5th) 440 (Ont. S.C.J.).
[27] Lifestyle of the payor can provide the criteria for imputing income. See: Aitken v. Aitken; Jonas v. Jonas; Price v. Reid, 2013 ONCJ 373.
[28] In Bak v. Dobell, 2007 ONCA 304 at para. 43, Lang J.A., of the Ontario Court of Appeal, observed that "lifestyle is not income, but rather evidence from which an inference may be drawn that the payor has undisclosed income that may be imputed for the purpose of determining child support".
[29] The court in Duffy v. Duffy, 2009 NLCA 48, 2009 CarswellNfld 211 (N.L. C.A.) set out a summary of factors for the court to consider when being asked to impute income to a support payor. One such factor is the parent's failure to provide proper and full disclosure of financial information. Failure to do so may result in the Court drawing an adverse inference and imputing income.
[30] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.
[31] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
[32] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the Child Support Guidelines and impute income. See: Smith v. Pellegrini, [2008] O.J. No. 3616 (Ont. S.C.); Maimone v. Maimone, [2009] O.J. No. 2140 (Ont. S.C.). The parent must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. Charron v. Carriere, 2016 ONSC 4719.
Review of the Evidence
[33] The mother deposed that the father is self-employed as a mortgage consultant, arranging for credit and mortgages. She states that the father "makes a lot of money from his mortgage deals, particularly because many of his deals are shady and he gets deals and funding approved in 'unconventional ways' for someone who would otherwise not get credit."
[34] The mother describes the father as,
"a con artist who consistently hides his assets, gets credit cards for himself and others using fake names and fake information. Some of his deals are shady for which he receives huge amounts of kickbacks and money under the table, as he is able to get credit and loans for these clients who would otherwise not qualify. He would for example, help his clients get two credit cards for themselves, and as a kickback, he would be able to use one of them. He would sometimes pay off the debts in these credit cards and other times, he and the client would spend it all and then let it default."
[35] In support of her claims the mother relies on the following evidence:
(a) Several text messages received by her from the father in which he makes comments about deals he has in the works and how much money he may have made in a single day or on a single deal.
(b) When the mother moved out of the father's home he paid her rent in the amount of $1495.00 per month from April 2014 until November 2015;
(c) The mother claims the father gave her $2000.00 per week "in funds and items for myself and Isabella".[3]
(d) The mother claims that the father is the true owner of the house he lives in but he has it registered in a friend's name.
(e) The mother claims that the father is the true owner of a Corvette registered in his sister's name.
(f) According to the mother's calculations the following amounts were deposited into the father's bank account in the two years before she commenced litigation:
i. $104,463.00 in 2014; and,
ii. $258,900.00 in 2015.
(g) According to the mother's calculations the following amounts were paid to the father's credit cards in the two years before she commenced litigation:
i. $72,746.00 in 2014; and,
ii. $99,192.00 in 2015.
(h) The mother produced gaming statements for the father's accounts with two Ontario casinos she says the father frequents and which she states demonstrates that the father has spent over $1,000,000.00 in slot play between October 2015 and September 2016.
(i) The mother claims that the father loaned his friend, Basima Shabo $165,000.00 and is suing her to collect on the debt.
[36] The father claims to have no income. He deposed that he was in a car accident in 2001 which left him with serious back injuries, including a "fractured spine" and that, "The injuries I sustained in the accident were hugely debilitating and left me in a position where I could not properly work." The father deposed that he "also suffered debilitating depression on and off since the accident for which I am still undergoing psychiatric treatment."
[37] The father deposed that he worked sporadically between 2001 and 2014 including between 2008 and 2009 and again between 2012 and 2014 for a licensed mortgage broker as a "mortgage consultant". The father states that he referred business to the mortgage broker and received a nominal commission[4] for each referral and that all of his commission income is declared on his Income Tax Returns for the relevant years. He was considered a self-employed sole proprietor and did not receive a T4 from the mortgage broker. His income tax returns for 2012-2014 show gross business income of $9750.00, $10,370.00 and $14,250.00 respectively.
[38] The father deposed that he also had serious car accidents in 2010 and 2015, which "have had a debilitating effect on me and on my ability to work" and "I also still suffer from depression which causes me to sometimes have difficulty even leaving my home, for which I see a psychiatrist weekly."
[39] The father's evidence is that he is supported financially entirely through gifts and loans from friends and family. He discloses no income on his sworn Financial Statements.
[40] The father's response to the mother's evidence as set out in paragraph 35 above is as follows:
(a) The father claims that he is not the author of any of the text messages the mother has included in her sworn affidavit and that they are entirely fabricated by the mother;
(b) The father admits that he leased an apartment for the mother and paid rent of $1350.00 per month from April 2014 to November 2015, as "I felt responsible as she was carrying my child. I wanted to do the right thing and asked my family for financial support." The father also claims that he was worried if he did not provide the mother with an apartment he would be denied a relationship with his child.
(c) The father denies giving the mother $2000.00 per week and deposed that he gave her $180.00 per month "to help her with expenses for the baby, in addition to buying diapers and formula regularly." He states that he had to borrow from family in order to contribute towards the support of the mother and Isabella.
(d) The father denies being the true owner of the house he lives in and provides an affidavit from his friend, Iasic Schleimon, who deposed that he is the registered and beneficial owner of the property the father lives in. The friend deposed that the father used to pay him rent of $750.00 per month until he could no longer afford to do so around October 2014.[5]
(e) The father denies being the owner of a Corvette and has produced an affidavit from his sister deposing that she is the true owner. A copy of the registration in her name is attached to her affidavit.
(f) The father does not dispute the amounts deposited into his bank accounts but provided the court with a chart in which he identifies, where he can, where the deposits came from. It is his evidence that thousands of dollars came in cash advances on credit cards, money from his wife, his sister, and a $100,000.00 loan from Iasic Shleimon, whose house the father lives in. The father's evidence is that between January 2014 and November 2016 there were $141,881.00 in deposits into his bank account from sources he now cannot identify. All other monies came from friends, family and cash advances on credit cards.
(g) The father's evidence is that he paid his credit cards with monies borrowed from other credit cards, family and friends.
(h) The father deposed that while he does sometimes go to casinos with friends, he does not spend significant sums on gambling. He relies on affidavit evidence from friends who say that they have accompanied him to the casinos and he is not a "high roller". The father and his friends state that the mother's calculation of the father's point totals from the casinos and upon which she relies to argue that he has spent over a million dollars in slots is flawed and inaccurate. Counsel for the father provided the court with a chart setting out monies debited from the father's bank account or credit cards from casinos. The totals provided to the court are as follows:
i. 2014 - $19,244.35;
ii. 2015 - $40,551.25; and,
iii. 2016 - $6,912.00.
(i) The father claims that the debt owed by Basima Shabo to him and his wife was incurred many years ago and mostly secured by funds from his wife's parents who are "well off."
Analysis of the Evidence
[41] The father's evidence creates far more questions than answers about his income. I do not accept that the father is unable to work or that he does not work. Despite being served with the mother's Application for child and spousal support in December 2015, he did not produce a single document from a medical professional substantiating his claims that the effects of multiple car accidents and depression render him unable to work.
[42] The payor must prove that any medical excuse for being underemployed is reasonable. See Rilli v. Rilli, [2006] O.J. No. 4142 (S.C.J.). Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her 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.).
[43] Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, [2011] O.J. No. 3654, per Justice Marvin A. Zuker, paragraphs 140 and 141.
[44] The father's explanation for the amount of money that goes through his bank accounts is improbable and rejected by the court for reasons that follow.
[45] In the course of the litigation, the father produced two copies of bank statements for the same account at CIBC, for the same time period. One copy was included in a disclosure brief delivered to counsel for the mother and the second was attached as an exhibit to the father's affidavit sworn December 19, 2016. A review of the two sets of statements show that one copy (the copy included in the father's disclosure brief) was missing over $200,000.00 in deposits over a four month period between August 2015 and November 2015. Despite the fact that the copies of statements were for the same account and for the same period of time, one set of statements did not show deposits over a four month period exceeding $200,000.00.
[46] The father was given the opportunity to obtain evidence from his bank explaining the discrepancy in the statements and to explain where the monies came from. The father filed a supplementary affidavit sworn on February 28, 2017, in which he states that he has spoken to employees at his bank and made several attendances at the bank to obtain an explanation for the error but no one has been able to provide an explanation. He asks the court not to draw a negative inference against him as why would he knowingly provide two different sets of bank statements for the same time period to the mother.
[47] The father acknowledges that that the statements with the additional $200,000.00 in deposits are the correct statements and that $100,000.00 of the $200,000.00 was loaned to him by his friend Iasic Shleimon in September 2015. Mr. Shleimon provided the father with an affidavit sworn February 27, 2017 in which he states that he loaned the father the funds and attaches a redacted bank statement showing the $100,000.00 coming out of his bank account.
[48] What makes Mr. Shleimon's evidence as set out in his February 27, 2017 affidavit implausible and unreliable is the evidence contained in his affidavit sworn January 23, 2017, which the father served and filed in support of his position. When reading the second affidavit, the reader can only help but wonder if the same person swore the first affidavit. In his first affidavit, Mr. Shleimon deposed that he has known the father since high school and he is the father's landlord. Mr. Shleimon deposed at paragraph 4 of his first affidavit,
"Despite the fact that I have known Ashor fairly well, I do not know the intricacies of his financial life and could not reasonably comment on them. I know only that he has had some financial strain in recent years and that he has accumulated a lot of debt, including with me as he has not been paying me rent in the last few years. I feel badly for him and so I have practically supported him by allowing him to stay at my home but this will also not be indefinite."
[49] Mr. Shleimon failed or forgot to mention in his first affidavit that he had also loaned the father $100,000.00 in September 2015. He forgot this fact even though he paid his mind to the very issue of the father's debt to him in the form of unpaid rent. Mr. Shleimon does not explain his curious lapse of memory in his second affidavit.
[50] While the father claims that Mr. Shleimon loaned him $100,000.00 in September 2015, this debt is not contained in his first financial statement sworn January 22, 2016 or in his second financial statement sworn December 19, 2016. In fact, the father disclosed no debts to family or friends in his first sworn financial statement and only $37,259.00 in debts to family and friends in his second sworn financial statement of which $24,750.00 is owing to Mr. Shleimon for unpaid rent. Apparently, when swearing his second financial statement the father remember the debt of unpaid rent to Mr. Shleimon of $24,750.00, but forgot that he also owed him $100,000.00.
[51] Although given the opportunity to explain the loans the father claimed he received from friends and family in his supplementary affidavit, he provides no explanation in his February 28, 2017 affidavit for the deficiencies in his sworn financial statements when it comes to the debts he claims he owes family and friends. He also did not serve and file an updated sworn Financial Statement correcting the errors contained in his last sworn financial statement as required by subrule 13(12) of the Family Law Rules.
[52] In his affidavit sworn February 28, 2017, the father also claims that his former wife, who lives in Arizona with their son, loaned him thousands of dollars between June 2014 and May 2016. The father's wife did not swear an affidavit but redacted copies of her bank account, credit card and line of credit statements are attached to the father's affidavit as evidence of the money he borrowed from her as well as copies of his own bank statements showing the amounts loaned by his wife going into his account.
[53] This evidence is questionable at best, as all of the statements in the wife's name on which her address has not been redacted show the father's current address. Where activity in the accounts has not been redacted, the activity is clearly taking place in Ontario, including in-branch payments and deposits and withdrawals at bank machines in Ontario. In fact, all of the activity on the approximately 19 different statements provided in the father's wife's name took place in Ontario. The father does not explain this given that his wife lives in Arizona.
[54] The father does not adequately explain the debt owing to him and his wife by Basima Shabo, including verifying the amount of the debt owed to him and his wife. The mother included as an exhibit to her affidavit, email correspondence between a lawyer's office and the father regarding his litigation against Ms. Shabo. In the email the lawyers' law clerk is communicating about the preparation of his affidavit of documents and a motion the father was considering bringing in the course of the litigation. The father does not explain the email correspondence to him from the lawyer's office nor does he disclose any debt owed to him on either of his sworn financial statements by Ms. Shaba.
[55] In his affidavit sworn February 28, 2017, the father deposed that after receiving the $100,000.00 loan from Mr. Shleimon in September 2015, "I regret that I also gave thousands of dollars in that month to my friend Casto Rago for the purpose of gambling….I had hoped that he would win big money from the funds I was loaning him and that the pay-out would enable me to pay off all of my debts. This sadly did not turn out to be the case."
[56] I am astonished by the father's evidence. Firstly, the father did not disclose on either of his financial statements that Mr. Rago owed him money. Furthermore, Mr. Rago swore an affidavit in support of the father's claim that he was not a serious gambler in which he deposed that he has known the father for 8 years and that from time to time they go to the casino together. Mr. Rago states that he is an avid gambler but that the father is not and that the father often accompanied him to the casino "to hang out". Mr. Rago goes on to state that the father would occasionally gamble and "if I was having a good day, I might also give him a few dollars to play."
[57] Nowhere in his affidavit does Mr. Rago state that the father has loaned him any money, moreover "thousands of dollars", as deposed by the father. Conversely, it is Mr. Rago's evidence that he sometimes gives the father money to gamble.
[58] The father also provided supplementary affidavit evidence of money loaned to him by his sister Deyana Mamado. Ms. Mamado swore an affidavit on February 28, 2017, in which she deposed that she has loaned her brother $10,000.00 in 2015. She has attached to her affidavit redacted copies of statements from a line of credit and a credit card both in her name showing the monies being deducted which she claims to have loaned her brother.
[59] There are three statements attached to Ms. Mamado's affidavit; one from a personal line of credit with BMO and the other two are CIBC Visa statements. Ms. Mamado's address is redacted or not visible on two of the three statements. On the statement where her address is not redacted it shows Ms. Mamado's address to be that of the father, specifically 19 Homeview Road, Brampton, Ontario. This is problematic for the court as Ms. Mamado swore at paragraph 3 of her affidavit that she lives with her parents in Brampton, Ontario.
[60] Once again, neither of the father's sworn financial statements disclosed the debt he claims to owe his sister Deyana Mamado.
[61] The web of deceit in the father's evidence is outlandish. Other examples of questionable evidence are as follows:
(a) How was the father able to secure a lease on an apartment for the mother and Isabella when he has no income;
(b) How did the father come into possession of a Government of Canada Identification Card, a Social Insurance Card, a credit card and a credit card statement bearing the name "Sophia Ford Phillips" with a picture of the mother on the citizenship card;[6]
(c) The father and a friend deposed in their affidavit that the mother was taking advantage of the father yet they did not explain why that is if the father has no income or assets; and,
(d) The father does not explain why his sister Athor Mamado pays her car loan for the Corvette registered in her name through the father's bank account.
[62] The father asks the court to accept his evidence that the mother is not honest and that she has manipulated documentation and lied to the court to further her claims against him. He deposed that the mother was involved in a fraudulent mortgage scheme in Ottawa in 2011 in which she netted $150,000.00 before defaulting on the mortgage and declaring bankruptcy in 2013.
[63] The father also relies on the government identification with the mother's picture in the name of Sophia Ford Phillips as evidence of the mother's untrustworthiness.
[64] The mother explains that she was duped into getting involved in the property acquisition in Ottawa and that she trusted her friend who approached her to purchase rental property in her name. The mother states that the property had tenants and that her friend was supposed to manage the property and collect the rent, which he claimed would cover all of the expenses and the mortgage. When he disappeared and the rent went into arrears, the mother ran into difficulties keeping up with the mortgage and the house was repossessed by the bank. She eventually had to declare bankruptcy.
[65] The mother denies having any knowledge of the documents in the name of Sophia Ford Phillips and she has reported the existence of the false government identification with her picture on it to the police.
Conclusion with Respect to the Father's Income
[66] I am faced with the task of determining the father's income for the purpose of fixing his support obligation until the matter is dealt with on a final basis at trial. The father has made it very difficult for the court to determine his true income with any amount of certainty. There is no one to blame for this but the father. He has presented his evidence in a dishonest manner and must bear total responsibility for the lack of precision in determining his income on a temporary basis.
[67] The father is clearly living a very comfortable lifestyle where he can loan people money, live rent free, gamble and pay the mother's rent. I do not accept the father's evidence that he has no income and has been supported by family and friends. He has not adequately explained the monies that have gone through his bank account, his payment towards debts, money spent at casinos or the loans he claims to and from family and friends. It will now be left to the trial judge to decide the issue on a final basis based on a comprehensive evidentiary record, more specifically, after questioning, examinations in chief and cross examinations.
[68] The mother seeks child and spousal support based on an imputed annual income of $500,000.00 to the father. I cannot find reliable evidence to support this figure. While I am tempted to rely on the text messages filed by the mother to impute a higher income to the father, I will reluctantly decline to do so in light of the father's denial that he wrote the text messages. I also cannot rely on the mother's evidence in relation to the value of the points the father earned at casinos as the court has no way of knowing if the mother's interpretation of the documentation is correct. These issues will have to be dealt with at trial.
[69] In reaching the figure to be imputed to the father on a temporary basis, I am relying on the bank documents filed with the affidavit evidence and the father's spending habits and lifestyle. In 2014 and 2015 the father showed total deposits to his bank account of $362,463.00.
[70] The father argues that if the court is going to rely on deposits to his bank account as evidence of his income, the more reliable year is from 2016. The father further argues that if the court relies on the deposits to his bank account as evidence of his income, the court should only rely on the deposits for which he cannot determine or identify the source of the deposit as the other deposits came from third parties and are not income. He argues that over three years between 2014 and 2016, there were $141,881.00 in unknown deposits, which averages out to $47,293.00 per year and that child support should be based on income imputed to the father in that amount.
[71] I reject both arguments as the father was served with the mother's Application in December 2015, which gave him the opportunity to arrange his affairs accordingly after being given notice of the court proceeding to show less activity in his bank account and credit card statements. For all of the reasons set out above, I will not give the father the benefit of the doubt on the deposits and base his income on the bank activity from 2016 only. Nor will I determine income based on an average of the unknown deposits over three years.
[72] I find that given the father's decimated credibility on this motion, the banking information from 2014 and 2015, before he was served with the Application, are a much more reliable source upon which to determine his income then bank statements from 2016.
Final Determination of the Father's Income for the Purpose of Child Support
[73] The father will be required to pay temporary child support for Isabella based on an imputed annual income of $150,000.00 subject to adjustment by the trial judge.
Issue #2: What is the Start Date for Child Support?
[74] The mother commenced her Application in December 2015 and the father was served on December 17, 2015. The father did not make any voluntary support payments after being served with the Application.
[75] The mother commenced the Application immediately after the father stopped paying her rent.
[76] As the father was put on notice that the mother was seeking child support from him in December 2015, the presumption is that child support starts once notice has been given.
[77] In MacKinnon v. MacKinnon, 75 O.R. (3d) 175 (C.A.) at paragraph 19, the Ontario Court of Appeal clarified that retroactive support relates to claims for support for the period predating the commencement date of the pleading in which support is claimed. A claim for support within the pleading is properly characterized as prospective support. Here, the pleading is dated December 16, 2015.
[78] Ordinarily, once ability to pay child support has been established, child support is payable, at a minimum, from the date on which notice of the claim is provided and is based on the actual income of the payor, in accordance with the guidelines (MacKinnon, supra, paragraph 22).
Issue #3: Is the Mother Entitled to Temporary Spousal Support?
[79] The mother's claim for spousal support is framed under section 33 of the Family Law Act (the Act). In order to meet the test for entitlement, the mother must first demonstrate that she is a "spouse" as defined in Part III of the Act. Section 29 of the Act defines "spouse" for the purpose of support as "either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child."
[80] The question here is whether the parties' cohabitated in a relationship of some permanence. If the mother establishes such a relationship, the enquiry goes on to determine entitlement and quantum. If the mother fails to meet this threshold requirement, her motion for temporary spousal support must be dismissed.
[81] Justice Stanley Sherr considered this issue in Johazi v. Bennett, 2008 ONCJ 805. Justice Sherr relied on DeSouza v. DeSouza, 48 R.F.L. (4th) 63 (OCJ) in which the court found that a relationship of only six months may still be considered to be a relationship of "some permanence" and that the court must examine the individual factors of each case to determine this.
[82] In DeSouza v. DeSouza, Justice Eleanor M. Schnall wrote,
"There are several factors to be considered in determining the permanency of a relationship. No one factor is conclusive in isolation from the others. In this case, the factors include the parties' intention, as overtly expressed, and as reflected in their actions, including the circumstances of the individual case, and the duration of the relationship. The applicant says that she intended this relationship to be permanent. The respondent does not assert that this was not their joint intention. The applicant deposed that she gave up her accommodation where she had been living with the children, sold her motor vehicle and moved in with the respondent. She considered the re-union with the respondent to be the re-unification of the family unit. These allegations have not been disputed by the respondent."
[83] In the case before this court, the father deposed that the mother asked if she could stay with him only weeks after they met as she owed money to her roommate for rent and they were not getting along. The mother acknowledges in her affidavit sworn October 24, 2016, that when the parties met she was "desperately trying to make ends meet" while working part time. The mother does not deny that she asked the father to move into his home as she was indebted to her roommate with whom she was not getting along.
[84] The father claims that shortly after the mother moved into his home she became pregnant. They argued and the father realized that "any long term relationship with her would not be possible". The mother's evidence is that the parties lived together from January to March 2014 and that in April 2014 she moved into her mother's home[7] but the parties continued their relationship until November 2014. She claims that she moved out of the father's home because he did not tell her that in January 2014 he had a baby with his ex-wife who lives in Arizona.
[85] The mother says the parties continued their relationship until November 2014 while living in separate homes. The father does not state clearly when he believed that the relationship was over but he does depose in his affidavit sworn December 19, 2016, that he rented an apartment for the mother in April 2014 as he was concerned that if he did not do as asked of him by the mother he "would lose her and any relationship with my child." The father further states that in November 2014 he realized the mother had started a new relationship.
[86] Neither party gave evidence that the decision to live together was intended to be permanent or long term. The mother gave no evidence of how she came to live with the father and the father's evidence is that she asked to stay with him as she was not getting along with her roommate. There is no evidence that the parties were planning a life together as a family and one economic unit. Both parties' affidavits are silent to that effect. Neither party provided evidence of any discussions about living together and raising their child together. There is no evidence that the mother gave up her apartment, disposed of assets or did anything as a result of a belief that she was entering into a long term relationship with the father.
[87] Just as the court can find that parties are in a relationship of some permanence even though they do not maintain one joint residence, the fact that the parties shared the same home for 3 months is not conclusive evidence that the parties had a relationship of some permanence. See: Hollefriend v. Cole, 2017 ONSC 197, Para. 130.
[88] The fact that the father paid the mother's rent in her new apartment does not necessarily make the relationship one of "some permanence". This is just one factor to consider.
[89] The father denies providing the mother with financial assistance to the extent that she claims. The extent to which the father contributed to the mother's support other than paying her rent cannot be determined on a motion with competing affidavits.
[90] While there may be some evidence of economic interdependence, it is not entirely clear what the arrangements were as so many of the facts are in dispute. This issue will also require a determination based on more complete evidence.
[91] There are scant details available to the court to determine whether the parties' relationship was one of some permanence. The evidence at this point suggests that it is more likely that the cohabitation was intended to be temporary, not permanent as the father was helping the mother out during a difficult financial period, something the mother does not deny, by allowing her to move into his home.
[92] The mother provides the court with little to no description of her relationship with the father in support of her claim for spousal support other than they lived together for 3 months in his home, she became pregnant, and, they continued a relationship for 8 months after she moved out.[8] As the mother is seeking spousal support it is incumbent on her to demonstrate that she is a "spouse" as defined in Part III of the Act and entitled to spousal support. She has not done that.
[93] I am unable to conclude on the facts before me at this stage of the litigation that the parties were in fact in a relationship of some permanence as defined in section 29 of the Act. As a result, the mother's claim for temporary spousal support must fail as she does not have standing at this stage of the litigation to make such a request. As the mother does not have standing to seek spousal support, there is no need conduct an analysis of the mother's income for the purpose of spousal support.
Order
The Order goes as follows:
Commencing January 1, 2016, the Respondent shall pay child support to the Applicant in the amount of $1263.00 per month until further order of the court based on an imputed annual income of $150,000.00.
The Respondent shall receive credit for the amounts paid to the Applicant directly pursuant to my order of November 25, 2016. Counsel shall agree on the amount paid and notify the Family Responsibility Office.
The Applicant's claim for temporary spousal support is dismissed.
If either party is seeking costs of the motion they shall deliver their submissions to the other side within 15 days of the date of this order and the responding party shall have 15 days to respond. Submissions whether in support of an order for costs or in response to a request for costs must be no more than 4 pages in length not including attachments or a Bill of Costs.
The cost submissions, if any, shall be delivered to the trial coordinator so that they may be brought to my attention.
Dated this 6th day of April 2017.
Justice Melanie Sager
Footnotes
[1] My endorsement notes that the mother had provided her financial disclosure prior to the April 26, 2016 court date and counsel had not received a letter from father's counsel detailing what disclosure they claimed was outstanding.
[2] On February 10, 2017, while in court, counsel for the father realized that counsel for the mother had received two sets of bank statements for the same accounts but with different entries; one through her office and the other through the father's previous lawyer. The motion was adjourned to allow the father to obtain information from the bank to explain the discrepancies in the two sets of bank statements.
[3] It is unclear from the mother's affidavit if this was in addition to paying her rent.
[4] The father's evidence is that he earned a few hundred dollars for each referral.
[5] It is unclear from the affidavit evidence when the father began living in this property.
[6] The father included copies of these documents in his affidavit material in support of his claim that the mother is not an honest person and uses different alias' to obtain credit but did not disclose how he came into possession of these documents.
[7] As the father produced a letter from the landlord of the mother's current residence confirming that he signed a one year lease for the premises and that the mother lived there, it is unclear to the court why the mother deposed that she moved out of the father's home and into her mother's home at the end of March 2014.
[8] She did give evidence that the father gave her $2000.00 a week to support her and their daughter, something the father denies.