Court Information

Date: November 6, 2017

File No.: D90009/16

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties

Between: Inna Tigay, Applicant (mother)

- and -

Alexandru Bucataru, Respondent (father)

Before the Court

Justice: Robert J. Spence

Trial heard: 2 November 2017

Reasons for Judgment released: 6 November 2017

Counsel

For the Applicant, Mother: Helen Kurgatnikov Miller

For the Respondent, Father: Theodore Nemetz

Nature of the Case

[1] The primary issue in this trial is the amount of spousal support which ought to be paid by the Respondent father (father) to the Applicant mother (mother).

[2] The father concedes that some spousal support ought to be payable, but he disputes the amount sought by mother.

[3] In preparation for this trial, the parties were to have filed their respective evidence in chief by affidavit. This requirement was ordered both by Justice Debra Paulseth (the case management judge) on July 27, 2017 and, again, by Justice Stanley Sherr (the assignment court judge) on September 11, 2017.

[4] In compliance with these orders, mother filed her evidence in chief. Father did not file his evidence in chief. Instead, father's solicitor announced to the court at the outset of trial that his client was not intending to testify and for that reason he failed to file his affidavit and, hence, he would not be leading any evidence at trial.

[5] At the conclusion of the mother's cross-examination, mother's counsel sought to cross-examine the father. Father's counsel objected stating that since the father had not testified, there was no entitlement by the mother to cross-examine.

[6] I ruled that because there is no property in a witness, mother could require the father to testify as he was then present in court. I also ruled that mother's counsel was at liberty to cross-examine the father. I made that ruling for two reasons.

[7] First, since the father was adverse in interest to the mother, the mother had the right to cross-examine the father, notwithstanding that the father was called to testify by the mother. See Chamberland v. Provincial

[8] The second reason I permitted the mother to cross-examine was about fairness. Both Justice Paulseth and Justice Sherr, with the consent of the parties, had previously organized the trial with the expectation that father would be testifying in chief by means of his affidavit filed in advance of trial. Mother filed her evidence in chief on the basis that this would occur and, accordingly, that she would then have the opportunity to cross-examine father in order to attempt to elicit certain evidence favourable to her case. Had she known in advance of the preparation and filing of her own affidavit evidence that father was not intending to give evidence in chief, she would have organized her own evidence in chief differently. Furthermore, because the father did not file his affidavit evidence as ordered by the court, mother was also deprived of filing her own reply evidence.

Background

[9] This was a marriage of relatively short duration. The parties began to cohabit in July 2010. They were married on July 20, 2011. The father sponsored the mother to emigrate from the former Soviet Union in November 2014. The parties separated in March 2015 when the father was charged with assaulting the mother.

[10] The father assaulted the mother in the presence of the children. He was subsequently convicted in criminal court, and he is currently on probation.

[11] There is one child of the union, namely, Da., who is a six year old boy. The mother has another child, a 17-year-old daughter, from a prior relationship. The mother, the daughter and Da. live together in a one-bedroom apartment.

[12] The mother commenced her Application on January 7, 2016. In that Application, she sought custody, child support and spousal support, as well as an order dispensing with the father's consent to obtain government documents for Da., and to travel with Da. outside of Canada without father's consent. In his Answer/Claim, the father sought joint custody of Da. or, in the alternative, sole custody, as well as access and travel rights for Da.

[13] By order dated March 22, 2016, the father was granted temporary supervised access to Da. He was also required to pay temporary child support in the amount of $517 per month based on an income of $57,000 per year. The court also made mutual documentary disclosure orders.

[14] On May 3, 2016 the court adjusted the temporary child support upward, ordering support for both children. The court also ordered father to pay mother costs in the amount of $1,500.

[15] On December 16, 2016, the court ordered father to pay mother costs in the amount of $150 for a wasted appearance.

[16] On March 21, 2017, the court made a final order on consent for sole custody to mother, as well as a temporary order suspending father's access to Da. The court also varied the temporary child support order by increasing it to $892 per month on an annual income to father in the amount of $60,000.

[17] On April 26, 2017, the court ordered, inter alia, that father would have no access to Da. And based on further income information from father, the court varied the temporary child support order by increasing it to $966 per month, based on an annual income of $65,000. The court also ordered documentary disclosure in respect of the outstanding spousal support claim by mother.

[18] On July 27, 2017, the court ordered further documentary disclosure by the father. The court also increased the temporary child support to $1,232 per month based on an annual income of $85,000. And finally, because the father had failed to comply with income disclosure timelines set by the court, the court made a costs order against the father, in favour of the mother in the amount of $1,000.

[19] The case then went before Justice Sherr for domestic trial assignment court on September 11, 2017. The father had yet to file complete financial disclosure. Justice Sherr ordered it to be provided within 14 days, that is, by September 25, 2017. He also ordered father to file his trial affidavit evidence in chief by October 24, 2017, with a right of reply to mother to be filed by October 31, 2017.

[20] Mother subsequently brought an urgent motion seeking to strike the father's pleadings for continued non-disclosure. That motion was made returnable October 4th, but by October 2nd the father had delivered his disclosure. Because of the late filing, necessitating the mother's motion, Justice Paulseth made a costs order against father in favour of mother in the amount of $1,000.

The Trial Evidence

a. The Mother

[21] All the trial evidence in chief came strictly from mother. Shortly after her arrival in Canada in 2014 she began attending school, with the goal of learning English and, eventually, becoming sufficiently proficient to then attend George Brown College. Her stated goal is to enroll at George Brown in a course leading to a certificate or diploma qualifying her as a cosmetologist and aesthetician.

[22] She attends the Linc Jewish School through Jewish Immigrant Aid Service. Her English language courses run from 9:00 a.m. to 2:30 p.m. Monday to Friday. She then picks up her six-year-old son, Da., from school at the conclusion of his school day.

[23] She is currently learning English at "level 5-6", having progressed slowly. However, there is no suggestion that her progress is in any way connected to lack of effort on her part. She is a single mother who must occasionally miss classes due to her or her children's illnesses, attendances at court, her lawyer's office or other appointments for herself and for the children.

[24] She estimates that she is currently at about 50% proficiency in English and that it will take her another 2-3 years to complete her English language courses so that she will be sufficiently proficient to apply to enter George Brown. The George Brown College program will take at least two years to complete.

[25] The mother has never worked in Canada. She is in receipt of social assistance. She is the sole caregiver for her two children.

[26] In particular, she has significant responsibilities in connection with the younger child Da. The 17-year-old daughter is in grade 12 and is in the process of applying to university. Mother states – and it is not contested – that the daughter requires considerable emotional and moral support.

[27] Da. suffered emotional trauma as a result of witnessing the physical assault on the mother by the father. Mother took him to see a psychologist in 2016, and he is currently on a waitlist for treatment at Hincks Dellcrest to address those emotional issues.

[28] Mother takes Da. to all his appointments, including the doctor, dentist, his after-school karate and whatever else Da. requires.

[29] As a single parent, the responsibility to look after all of these child-related obligations falls squarely on mother's shoulders, particularly as the father has completely severed his connection with both children. Mother has no respite, or the kind of backup that would usually be in place where both separated parents remain actively involved in their children's lives.

[30] Mother and the children live in a one-bedroom apartment. The mother and Da. share the bedroom, while the daughter sleeps and studies in the living room. Not surprisingly, the mother would like to secure a two-bedroom apartment, but she cannot presently afford to do so.

b. The Father

[31] The father is a chartered public accountant. He also has a Master's degree in public policy and management. Since March 2017, he has worked for Magna Closures, a large multinational corporation. Prior to that, he worked for Ernst and Young, a multinational professional services firm.

[32] His current base salary is $85,000 per annum, with a provision for an annual bonus of up to 10% of his base salary. He could earn a maximum of $93,500 this year. In cross-examination he estimated that his bonus this year will be about 6%, or $5,100; that would place his income at about $90,100. However, he did not disclose anything in writing from his employer which might have set out the parameters for determining his bonus.

[33] Throughout the litigation, the father was frequently late, or simply did not file, relevant financial disclosure. He testified that he didn't think that certain filing disclosure orders were hard and fast rules, even though they were orders issued by the court, and even though father was represented throughout this litigation by experienced counsel.

The Law and Argument

[34] The father's counsel properly states that the starting point for determining spousal support is section 30 of the Family Law Act. That section provides:

Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

[35] Counsel argues that the primary obligation rests with mother to support herself if she is so capable. He argues that mother has made certain choices in her life, and that those choices do not relieve her of the obligation to become self-supporting. For example, he argues, she has chosen not to work during the week while Da. is in school. She has chosen not to work weekends when he is not in school. She has chosen not to work during the months of July and August when Da. is on vacation from school.

[36] He argues that mother could have been looking for employment and, perhaps, secured some employment during those periods of time, and it is not reasonable for her to decide to simply not work and to come looking to the father to support her. Father's position is that mother has made a choice to attend school instead of looking for gainful employment. But in making that choice, he argues, she has avoided her legal obligation to maximize her income-earning capacity with a view toward becoming financially self-sufficient.

[37] I disagree. Mother's decision to go to school to learn English and then proceed onto College to learn an employment-related skill is entirely reasonable in the circumstances.

[38] Her decision not to work weekends or during the summer is also reasonable. Having attended school all day from Monday to Friday, it is important that she be given the opportunity to spend meaningful time with the children. Meaningful time is important not only for her, but for the children as well.

[39] Furthermore, the father fails to take into account that if she was to work on any of the days or hours that Da. is not in school, she would have to obtain and pay for daycare for Da.; and this then raises the question of whether she could earn sufficient income as an unskilled and untrained person to make it worthwhile to pay for such daycare. This daycare cost issue applies equally to any possible employment that mother might be able to obtain during the months of July and August when Da. is not attending school.

[40] Father led no evidence at all on what mother might be capable of earning as an unskilled individual, who has only a 50% proficiency level in English, and as a person who has never worked in Canada. Nor did he either lead evidence, or cross-examine the mother about the potential cost of daycare for Da., and whether it might be financially feasible for mother to pay for daycare if she were able to obtain some form of employment.

[41] While the Act may be the starting point for determining spousal support, the determination of that issue is not merely about needs and means. The court must also take into account compensatory and non-compensatory considerations, as well as any applicable contractual grounds, all with a view to equitably alleviating the economic consequences of the breakdown of the relationship. See, for example, Rioux v. Rioux, 2009 ONCA 569 and Bracklow v. Bracklow.

[42] In the present case, the contractual basis for awarding spousal support is father's signature on a sponsorship agreement to permit the mother to emigrate from Russia to Canada. In Kuznetsova v. Flores, 2016 ONCJ 203, Justice Sherr had the following to say about immigration sponsorship, at paragraph 52:

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

[43] The mother's compensatory claim for spousal support is based on the role the mother has assumed during the marriage, and its breakdown. She is Da.'s sole caregiver. And because the father has no access, the mother cannot turn to him for relief, or for appointments and other child-related matters. She has little or no ability to spend time on her own to pursue her own activities, including any possible minimal job-hour opportunities.

[44] The mother's non-compensatory claim for support arises from her need and the father's ability to pay. The mother would have been living with a person who earns in excess of $90,000 per annum, but for the breakdown of the marriage which followed immediately after the father's criminal assault on the mother, a fact which is not disputed.

[45] For all of these reasons the mother is entitled to an award of spousal support.

[46] However, father argues that support should be about $215 per month, based on imputing income to mother of $22,000 per year, and based on an income to father of $85,000 per year. He also produced three other Divorcemate Software scenarios, based on the Spousal Support Advisory Guidelines (SSAG), all of which had the father's income at $85,000, and the mother at income levels of between $15,000 and about $23,000. I do not agree with any of these income amounts, either for the father or the mother.

[47] The court does have the authority to impute income to individuals in its consideration of child support and spousal support. Section 19(1) of the Child Support Guidelines lists a number of circumstances which the court may consider in determining whether to impute income, and how much income to impute to a spouse or a parent. I find that none of the circumstances listed in section 19(1) apply, or are reasonable to apply in the present case.

[48] My finding that the imputation of income to mother is not appropriate is sufficient to dispose of that aspect of father's argument.

[49] However, even if the court were otherwise inclined to impute income to the mother, there is no evidence that would allow the court to determine how much to impute. During submissions I asked father's counsel, on what evidentiary basis could income amounts ranging from $15,000 to $23,000 be arrived at. On the complete lack of evidence before the court, counsel was understandably unable to provide a meaningful response. While it is indeed open to a court to impute income to an individual, the imputation must be based on evidence. It cannot be a number simply pulled out of a hat. Drygala v. Pauli

[50] Most importantly, for reasons I have already discussed, I do not believe it is appropriate to conclude that at this point in her life, the mother should be working or even that she has the capacity to work at anything meaningful.

[51] Father's counsel urged me to depart from the SSAG calculations emphasizing the word "advisory" in the calculations. While I appreciate that SSAG are advisory only, the Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated at paragraph 103:

In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. This is no different than a trial court distinguishing a significant authority relied upon by a party.

[52] In this case, mother's counsel has provided a SSAG calculation which appropriately sets out her various monetary receipts, which include her federal child tax benefits and H.S.T. payments, as well as the table amount of child support paid by father.

[53] Father argued that these are not properly shown as income to mother for the calculation of SSAG ranges, and that they should be. However, while they are not included as "income" in the SSAG calculations, they are otherwise shown in the calculations of the parties' respective Net Disposable incomes.

[54] In the mother's SSAG Divorcemate printout, the resultant range of monthly spousal support amounts are shown as:

• Low - $975
• Mid - $1,183
• High - $1,390

[55] The ranges are for an indefinite duration subject to variation and possibly review, with a minimum duration of 3 years and a maximum duration of 15 years from the date of separation, namely, March 27, 2015.

[56] In accordance with Fisher, supra, I see no principled reason for deviating from the calculation of the various ranges. The issue for this court is what support amount is most appropriate within those ranges.

[57] In Mason v. Mason, 2016 ONCA 725, the Court cautioned against trial judges defaulting to the mid-range of spousal support. At paragraph 122, that Court stated:

Further, in The Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version, the authors note, at p. 1 of the Introduction, that one of the challenges of the SSAGs "is the problem of unsophisticated use." The authors continue by stating:

For too many, using the Guidelines means just plugging the income figures into the software program, getting the range and choosing the mid-point. There is more to the advisory guidelines than this, and using them in this way can lead to inappropriate results.

[58] In Wharry v. Wharry, 2016 ONCA 930, the Court of Appeal stated, at paragraph 95:

The appellant has a strong compensatory claim that would suggest support in the higher end of the ranges for both amount and duration. During the marriage, she sacrificed career opportunities in order to devote her time and attention to the home and children. Her sacrifices enabled the respondent to concentrate on his farming business. The appellant suffered a disadvantage arising from her role during the marriage and its breakdown.

[59] In this particular case, I am awarding spousal support in the amount of $1,275 per month, which is the approximate mid-point between the Mid and the High amounts reflected in the SSAG calculations. I do so for the following reasons.

[60] Mother's compensatory claim is a strong one. She has been severely disadvantaged by the breakdown of the marriage. And those disadvantages will continue, as she will be required to develop her English language skills, enroll in vocational training at George Brown and then look for employment afterwards. And she is doing all of this while caring for two children, one of whom is quite young and who has experienced emotional trauma because of the father's criminal conduct.

[61] In addition to the foregoing, I have considered the following in reaching my decision with respect to the amount of spousal support.

[62] As at the date of trial the father still had not complied with all of his financial disclosure leaving a few questions unanswered. He was persistently late in providing the financial disclosure which he did deliver. Ms. Miller urged me to find that the father has engaged in active "deceit". While it is not necessary for me to make that finding, the court very much disapproves of the manner in which the father conducted himself in this litigation, particularly leaving certain facts undisclosed.

[63] Furthermore, the father's lack of candour places in doubt his credibility as to the bonus he will receive. Even if I were to accept his bare statement that his bonus will likely take his income to about $91,500 per annum, the mother's SSAG calculations are based on a lesser income for him, namely, $85,000 per annum. Further, it is open to the court to conclude that his income could be even higher, possibly as high as $93,500. This would skew the mother's SSAG calculations even more favourably toward the father. And those skewed calculations suggest that the Mid and High ranges of the filed Divorcemate calculations for spousal support do not accurately reflect what the actual support amounts would be at those respective levels.

[64] The father has no one to support, other than himself. The mother is caring for two children, one of whom is about to enter university and may require extra tutoring, which will come at a cost.

[65] As well, when mother attends George Brown College, this will necessitate the expenditure of tuition fees; Mother estimates this to be approximately $11,000 for the two-year program.

[66] Mother's living accommodations are insufficient to meet her needs and the needs of the two children. She cannot continue to share a single bedroom with her son indefinitely. A larger apartment will cost more money.

[67] Finally, when a custodial parent incurs child-related expenses, these are often somewhat mitigated by the access parent who may be spending several days per month with the child, thus providing food, transportation and entertainment for that child. Here, the mother has no such financial benefit as the father has terminated his relationship with Da.

[68] All of these considerations could easily have persuaded me to choose the High end of support range, namely, $1,390 per month; but I have chosen to exercise my discretion by awarding an amount that is somewhat less than that.

[69] The spousal support will be for an indefinite period but subject to review in a little more than four years' time – both with respect to entitlement as well as the amount of support – at the request of either party. See Kuznetsova, supra.

Conclusion

[70] At the conclusion of the trial, the parties agreed on a final order with respect to travel and government-related documents for Da. That agreement is provided for in the final order which I set out as follows:

1. Commencing April 1, 2017, the respondent shall pay to the applicant spousal support in the amount of $1,275 per month, with credit to the respondent for any amounts paid by him to the applicant since April 1, 2017.

2. This order for spousal support shall be for an indefinite duration, but it may be reviewable at the instance of either party any time after December 31, 2021.

3. Commencing in 2018, and each year following, by July 1st, the parties shall exchange their previous year's income tax returns and Notices of Assessment from Canada Revenue Agency.

4. The mother is at liberty to apply for and obtain all government-related documents for Da., including passports and OHIP cards.

5. The mother is at liberty to travel outside of Canada with Da. without the father's consent.

6. If the mother is intending to travel with Da. outside Canada for 7 days or fewer, she shall provide the father with notice 7 days prior to the start of travel.

7. If the mother is intending to travel with Da. outside Canada for more than 7 days, she shall provide the father with notice 21 days prior to the start of travel.

8. In either eventuality, the notice by mother to father shall include the travel itinerary as well as one piece of contact information which the father may use in the event of an emergency.

[71] Mother's counsel shall take out this order which shall include the usual clauses, including those pertaining to the Family Responsibility Office.

[72] In the event the mother seeks her costs of this trial, she shall provide her written submissions by 14B motion form within 21 days of the date of this judgment. Submissions shall not exceed 3 pages in length, exclusive of any Bill of Costs or authorities upon which she relies. Father's response, with the same parameters, shall be filed within 14 days thereafter.

Justice Robert J. Spence

November 6, 2017