Court File and Parties
Ontario Court of Justice
Date: November 28, 2019
Court File No.: D30644/19
Between:
Florin Gavriluta Applicant
— AND —
Liliana Pricopciuc Respondent
Before: Justice Roselyn Zisman
Heard on: November 13, 2019
Reasons for Judgment released on: November 28, 2019
Counsel
Florin Gavriluta — on his own behalf
Zahra Taseer — counsel for the respondent
Decision on Motion
Zisman, J.:
Background
[1] This is a temporary motion brought by the Respondent ("mother") seeking the Applicant ("father") pay her child and spousal support as of June 1, 2019.
[2] The parties met in Romania and began to live together in August 2001 and then moved to Canada in September 2004.
[3] They are both 43 years old.
[4] They have one son O. born on […], 2013.
[5] According to the mother, the parties separated in November 2017 but lived in the same apartment until the mother moved out at the end of October 2018. It is the father's position that the parties separated on April 1, 2018 when the parties separated their finances and began to each spend time alone with their son.
[6] For the purposes of this motion the actual date of the separation is not relevant.
[7] Prior to the separation, the mother and father both worked as superintendents for the building they resided in. In addition to receiving a rent free two-bedroom apartment they also were paid $750 per month. The father took care of the maintenance of the building and the mother took care of the administrative duties such as renting out new units, communicating with contractors and closing contracts.
Court Proceedings
[8] The mother brought an urgent motion on June 21, 2019 as she and the father could not agree on a parenting schedule.
[9] A temporary without prejudice order was made that day. The child was to be in the primary care of the mother and the child was to reside with the father on a two-week schedule. In week one from Monday to Tuesday and from Friday to Monday morning and in week 2 from Thursday to Friday.
[10] On July 12, 2019 the motion returned to court. Both parties were represented by counsel and after oral submissions the decision was reserved. The father agreed that he would continue to pay child support of $750 per month on a without prejudice basis.
[11] The decision was released on July 18th. The mother was granted temporary custody and the father's access continued essentially in the same terms as the previous order.
[12] On September 27, 2019 the parties returned to court for a case conference. The father who had been represented by counsel on a limited scope retainer was no longer represented. The issues of child support and spousal support could not be settled and a date was set for a motion on these issues.
Mother's Circumstances
[13] The mother remained home on maternity leave after the birth of their son and returned to work in January 2015.
[14] The mother has a degree in graphic design. She has worked as an art director and designer since coming to Canada.
[15] She was laid off from her full-time position in July 2018. The company she was working for restructured and she lost her employment as a result.
[16] It is the mother's position that she has been attempting to find full-time employment but has only been able to find part-time and contract positions. She has provided proof of her attempts.
[17] The mother's income is as follows:
- 2015 - $53,215
- 2016 - $57,609
- 2017 - $64,478
- 2018 - $55,185
[18] In 2018, the mother employment income was $46,817.76 that also included $3,750 that she earned from January to May 2018 when she worked as a superintendent. The remainder of the income is comprised of some interest and investment income and a retirement allowance.
[19] In October 2019, the mother obtained a six-month employment contract that will end in March 2020 based on a yearly salary of $80,000 to cover a maternity leave.
[20] For this motion, she is agreeable to her income being imputed at $55,000.00 although her income may be somewhat less in 2019 as she no longer has any investment or interest income or the job as a superintendent. The mother is uncertain as to what her income will be in 2020 after her contract ends in March 2020.
[21] The mother agrees as alleged by the father that in addition to her degree in graphic design, she has a certificate in property management that she obtained in 2006. But it is the mother's evidence that her certificate is no longer acceptable in the industry due to changes in the legislation. Therefore, it is her position that she cannot get a job in property management.
Father's Circumstances
[22] The father is employed as a property manager and industrial designer. He continues to also act as a superintendent for the building where the parties resided together.
[23] The father's income is as follows:
- 2016 - $76,187
- 2017 - $78,477
- 2018 - $90,209
[24] In 2018, his T-4 income was $90,209. His income was comprised of employment income of $82,809.60 plus a further $5,250 for the 7 months he received $750 per month as a superintendent. The balance of his income is comprised of investment income.
[25] In addition to his employment income and salary for being a superintendent he has continued to receive the benefit of a two-bedroom rent free apartment with hydro.
[26] It is the position of the father that the apartment he continues to reside in has a current market value of $1,500 per month. He attached to his affidavit copies of various ads for comparable apartments.
[27] The father also relies on a letter from Jenida Investments that confirms he has acted as a superintendent since 2005 and that the value of the apartment at the time of his first occupancy was $1,300 per month. The father does not explain why a present market value is not cited in the letter.
[28] The mother deposes that she and the father initially lived in a one-bedroom apartment and then they moved into the two-bedroom apartment in 2014. The mother also points out that although the letter from Jenida Investments states that the father was employed with the company since 2005, she was the person employed by Jenida Investments from 2006 to May 2019. It appears that the income was reported on the mother's income tax return.
[29] The mother obtained an opinion from an independent real estate agent as to the value of a 2-bedroom apartment in the area. It is the opinion of the real estate agent that a comparable apartment would rent for $2,400 per month.
Applicable Legal Principles
[30] Child support is payable in accordance with the child support guidelines. The issue in this case is a determination of the father's income.
[31] The father does not dispute that the tax-free benefit of his rent free apartment should be grossed up for child support purposes. The issue is the value of that benefit.
[32] With respect to the issue of spousal support, as this is a motion for temporary spousal support, the relevant applicable principles to be applied are as follows:
a) temporary support is to provide income for the dependent spouse from the time the proceedings were instituted until trial. It should only be ordered when a prima facie case for entitlement has been made out;
b) on temporary support motions, needs of the dependent spouse and the ability of the other spouse to pay support take on greater significance than the need to achieve self-sufficiency;
c) the court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered an economic advantage or disadvantage as a result of the relationship. That is to be left for the trial judge;
d) temporary support is a holding order to maintain the accustomed lifestyle if possible pending final disposition if the claimant is able to present a triable case for economic disadvantage;
e) temporary support is to be based on the parties' means and needs, assuming that a triable issue exists. The merits of the case in its entirety must wait a final hearing; and
f) temporary support should be ordered within the Spousal Support Advisory Guidelines ("SSAG") range unless exceptional circumstances dictate otherwise.
Discussion
[33] Applying these principles, I find that the mother has established her entitlement to and need for temporary spousal support.
[34] There is already a temporary order that the mother have custody of the child. That order was based on a finding that the mother was the child's primary caregiver prior to the separation. The father in his affidavit attempts to relitigate that issue.
[35] I accept the mother's evidence that she was forced to leave the apartment as the father insisted on staying. As a result, she lost the benefit of a rent-free apartment and the salary she was receiving as a superintendent.
[36] Either a few months prior or after the separation, the mother also lost her full-time job and has been unable to obtain a full-time permanent position.
[37] The next step is to determine the father's ability to pay. The only dispute in this regard is the value of the rent-free apartment. I find that the opinion of the real estate agent of the market value of comparable apartments is the most reliable evidence at this stage of the proceedings. Accordingly, a tax-free benefit of $2,400 per month should be added to the father's income. This benefit is grossed up for tax purposes.
[38] It was unclear in the father's submissions if he agreed that income should be imputed to the mother at $55,000. He agreed orally to this income but then began to rely on his affidavit that the mother could earn in the range of $108,635 a year.
[39] The father based this position on the mother earning an employment income of $54,000 and a salary and benefits totaling an additional $56,635 that she could earn as a superintendent.
[40] The father also relied on various calculations that he prepared using MySupportCalculator based on the earning capabilities of the parties at the time of the separation. Based on his income of $77,000 and the mother's income of $85,000 the calculations indicated that he should not be required to pay any spousal support. The father provided several different scenarios, but I find that the information he used in his calculations was not accurate and it appeared that this online service did not calculate income that needed to be grossed up.
[41] The father also submitted that when they separated the mother in various communications insisted that she would not be seeking spousal support. I put no weight on these communications at this stage of the proceedings.
[42] Due to the father changing his position about the amount of income that should be imputed to the mother, I have proceeded on the basis that it is the father's position that income should be imputed to the mother in an amount greater than $55,000.
[43] As a matter of law, income can be imputed to a party for spousal support purposes. As noted in Rilli v. Rilli, the test in Drygala v. Pauli for imputing income for child support purposes applies equally to claims for spousal support.
[44] The Ontario Court of Appeal in Drygala v. Pauli, supra, set out the following three questions which should be answered by a court in considering a request to impute income:
Is the party intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child of the marriage or reasonable health needs?
If not, what income is appropriately imputed?
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.
[45] I find that the father has not met the onus on him to prove that income should be imputed to the mother at an income greater than $55,000.
[46] The father's position that the mother can obtain a job as a superintendent or property manager is not relevant at this stage of the proceedings. I accept the mother's evidence that she does not have the proper certification to currently obtain such a position. Further, on a temporary motion the court looks at the present circumstances as opposed to some future opportunities that the mother may have to become self-sufficient.
[47] Based on the mother's evidence I am satisfied that she is making her best efforts to obtain full-time permanent employment.
[48] I note that when the parties resided together the mother's income was only in the range from $53,215 to $64,478. That income would also have included about $9,000 earned as a superintendent. The father's income ranged from $76,187 to $90,209.
[49] I find that it is reasonable to impute the mother's income at $55,000 as she has stipulated. The mother seeks spousal support in accordance with the mid-range of the SSAG.
[50] The father has based his current income on his 2018 income. But in 2018 he only received $3,750 for his employment as a superintendent.
[51] With respect to a determination of the father's income for support purposes, he did not provide any proof of his 2019 income. But I assume that he will make similar employment income as in 2018 and if not, the temporary support order can be re-adjusted.
[52] However, in 2019 the father will receive the full benefit of the yearly salary of $9,000 as a superintendent. I see no reason why this income would not be included in determining his current 2019 income. The father will also continue to receive the tax-free benefit of the apartment. At a rental value for the apartment of $2,400 per month, the grossed-up value of this tax-free benefit is $28,800 yearly.
[53] Accordingly, the father's income for child and spousal support purposes for 2019, is imputed to be $140,429.00.
[54] The parties also claim some section 7 expenses. The mother agrees that the father paid for the child's summer camp in 2019 in the amount of $3,746 and that she owes the father her proportionate share of this expense.
[55] The child attends before and after care at a cost of $20 per day. From January to June 2019 the mother paid this expense and the father paid her 50% of the cost. As of September, the father has not paid his share of the child care expenses.
[56] The mother provided invoices for the cost of child care for September and October 2019 in the amounts of $400 and $440 respectively. Based on an average monthly cost of $420 for 10 months the yearly cost of child care would be about $4,200. The father's proportionate share of this expense may have to be adjusted once the mother provides a receipt for the actual cost for 2019.
[57] The mother also claimed a contribution from the father for the child's basketball activity. The cost is $150 for 3 months. Even if the child attended for the whole year, the cost would only be $600. I do not find that this is an extraordinary extracurricular expense in accordance with section 7 of the child support guidelines.
[58] Counsel for the mother submitted various Divorcemate calculations that I find are more accurate than those presented by the father. However, the mother's calculations are based on the father's 2018 income whereas I have determined that it is more appropriate to base the father's child and spousal support obligations based on his estimated 2019 income. Also, mother's counsel has not included the cost of childcare or the summer camp expenses and these expenses impact on the quantum of spousal support payable by the father.
[59] As a result, I have prepared Divorcemate calculations that are attached as schedules to this decision. If there is an issue with the mathematical accuracy of these calculations, either party may make further submissions by either 14B or at the next court attendance.
[60] Based on these calculations, the father is obligated to pay child support of $1,228.00 per month as of June 1, 2019.
[61] For the month of June 1, 2019, there are no special expenses claimed, as the parties had resolved the child care expense up to the end of June, the father is required to pay spousal support of $1,323.
[62] For the months of July and August 2019, the father paid for the child's camp expenses of $3,746 and the mother therefore owes him her proportionate share of this expense, namely $1,352. The father is also required to pay the mother spousal support of $1,292 for the months of July and August 2019.
[63] As of September 2019, the mother has been paying for the child's child care expense estimated at $4,200 yearly. The father is required to pay $148 a month as his proportionate share of this expense.
Other Issues
[64] After the motion was heard both parties raised other issues that were case conferenced.
[65] The mother sought a return of all her personal items paper or electronic including but not limited to her financial documents, photographs of her parents, and all photographs saved on the parties' computer or hard drives. Although the court does not have jurisdiction to order the return on any property, the father undertook that he would give the mother these items.
[66] The mother also raised the issue of the father not attending at the school to provide proof that he lives in the school's catchment area. The school has advised mother that otherwise the child may have to be removed from the school. It is in the child's best interests to continue to remain at his school and it is unclear why the father had not yet attended at the school and provided the information requested. He indicated that he would do so.
[67] The father arranged for piano lessons on Sundays for the child without consulting with the mother. It is the mother's position that as the child is just transitioning to Grade 1 it is too much for him to have piano lessons and be required to practice every day in addition to handling school work at this time. Both parties were advised that they should not be scheduling activities during the other parent's time with the child unless there is prior written consent to do so.
[68] There have been some ongoing issues with holiday access, but the parties were able to agree on a schedule for the Christmas school break. I would urge both parties to prepare draft proposals for a sharing of holiday access and special occasions for the next court attendance.
[69] Following the previous urgent motion, the parties settled the issue of costs. The father agreed to pay the mother costs fixed at $4,935 and it was agreed that he would pay the costs in installments. To date he has only paid $2,500. The amount owing is therefore $2,435. The mother seeks an order that the father be ordered to pay this amount forthwith. The father did not dispute the order sought and made no submissions on this issue. I find that it is appropriate to order that the outstanding costs be paid.
Order
[70] There will therefore be a temporary Order as follows:
Based on the Applicant's imputed income of $140,429.00, he shall pay the Respondent child support for the child, O. born […], 2013 in the amount of $1,228.00 per month as of June 1, 2019 in accordance with the child support guidelines.
The Applicant shall pay the Respondent spousal support as follows:
(i) For the month of June 2019, $1,323.00;
(ii) For the months of July and August 2019, $1,292.00 for each month, a total of $2,584.00; and
(iii) As of September 1, 2019, $1,300.00 per month and each month thereafter.
As of September 1, 2019, the Applicant shall pay to the Respondent, $148.00 per month and each month thereafter, being his proportionate share of the child's before and after school care based on the estimate annual cost of $4,200. The Respondent shall provide proof of the total cost of this expense for 2019 and the Applicant's proportionate share of this expenses will be adjusted accordingly.
The Applicant shall receive a credit of $1,352, being the amount owed by the Respondent to the Applicant as her proportionate share of the child's 2019 camp expense.
In the event the Applicant has directly paid the Respondent child support as of June 1, 2019, the Respondent shall advise the Family Responsibility Office of any such funds that were paid.
Based on the Applicant's imputed income of $140,429.00 and the Respondent's imputed income of $55,000, the Applicant shall pay 64% of the child's future extraordinary expenses as defined by section 7 of the child support guidelines.
Prior to incurring any extraordinary expenses for which a party seeks a contribution from the other party, prior written consent shall be obtained. Such consent not to be unreasonably withheld.
The Applicant shall within 30 days pay to the Respondent cost of $2,435 with respect to the temporary motion heard on July 12, 2019.
Support Deduction Order to issue.
Counsel for the Respondent shall prepare this Order and the approval of the Applicant as to form and content is dispensed with.
[71] As the successful party, the Respondent is presumed to be entitled to costs. If the parties cannot resolve the issues of costs, counsel for the Respondent shall submit written costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle attached within 30 days. The Applicant shall submit his written response not to exceed 3 pages with any Offer to Settle and a Bill of Costs, if desired, within 30 days of receipt of the Respondent's costs submissions. All submissions to be filed with the trial co-ordinator. If either party refers to any caselaw it is not necessary to provide a copy of the case.
Released: November 28, 2019
Signed: Justice Roselyn Zisman