CITATION: Santilli v. Piselli, 2010 ONSC 1301

COURT FILE NO.: DC-10-000128-ML

DATE: 20100226

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANNE MARIE SANTILLI

Umberto Sapone, for the Applicant (Wife)

Applicant

• and -

RENE DONATO PISELLI

Stephanie Di Federico, for the Respondent (Husband)

Respondent

HEARD: February 25, 2010

LAUWERS J.

[1] The respondent husband seeks leave to appeal to the Divisional Court from paragraphs 2, 5 and 6 of the Order of Mulligan J. dated January 29, 2010.

[2] Paragraph 2 of the Order dismisses the respondent’s motion. Paragraph 5 requires the respondent to pay temporary child support in the amount of $902.00 based on the respondent’s imputed income of $60,000. Paragraph 6 requires him to pay the applicant wife $1,798.00 per month commencing February 1, 2010 based again on his imputed income of $60,000. The total payment required is $2700.

[3] Mulligan J. held at para. 12:

The respondent was able to make monthly payments for the past four months and I am satisfied that those payments ought to continue at the level of $2,700.00 per month commencing February 1, 2010, until further agreement or order of this court. Based on the lifestyle and history of cash payments by the respondent, I am satisfied that for purposes of temporary child support only, the respondent’s income can be imputed at $60,000.00 yielding a monthly child support payment of $902.00. Temporary spousal support is therefore set at $1,798.00 until further agreement or order of this Court.

[4] The reasons for the imputation of income to the husband are set out in para. 10, which provides:

The husband requests the Court to consider his income at $35,000.00. However, it appears that during the marriage, the family lived a lifestyle much exceeding this figure. On questioning, the applicant gave evidence that the family expenses reached the neighbourhood of $50,000.00 per year including rent, car lease, groceries etc. The respondent worked as a waiter, but got paid a significant amount in tips and always conducted transactions in cash. He had no credit cards or bank accounts to speak of. Her evidence was that he was a recreational drug user and went on gambling trips from time to time. Although she was not sure of the amounts, he carried substantial amounts of cash with him and often used cash to pay for transactions. Her evidence was that he was employed in a business owned by his mother. The issue of whether or not he is a shareholder or has some trust interest in the business will be left to another day as there is a motion before the Court as to whether or not his mother can be questioned about the business as a non-party. The results of that questioning and further disclosure may assist the Court in imputing certain amounts of income to him beyond that which he discloses at the moment.

[5] For purposes of the appeal, the respondent does not quarrel with the imputed income of $60,000. He says , however, that, based on the imputed income of $60,000, the child support awarded greatly exceeds that amount prescribed by the Child Support Guidelines, O. Reg. 391/97, per month for one child, and the spousal support far exceeds the highest end of the range in the Spousal Support Advisory Guidelines: Carol J. Rogerson, and D.A. Rollie Thompson: Spousal Support Advisory Guidelines, (Ottawa: Department of Justice, 2008).

[6] The Notice of Motion also requested a number of items of information relating to the wife’s income, requests for work, supporting documentation for the cost of all expenses in the financial statement, and monthly bank statements for bank accounts, GICs, RRSPs or any other types of investments held by the applicant. A particular element in contention is valuation of the wife’s pension. Mulligan J. refused the respondent’s motion requesting disclosure.

[7] The background is that by consent Order dated September 2, 2009, Rogers J. required the husband to pay to the wife, the sum of $2000.00 on or before September 1, 2009, and the sum of $2000.00 on or before October 1, 2009 “on a without prejudice basis.”

[8] By consent Order dated November 4, 2009, Mullins J. required the husband to pay to the wife $2,700.00 on or before November 1, 2009, $2,700.00 on or before December 1, 2009, and $2,700.00 on or before January 1, 2010, again “on a without prejudice basis.”

[9] The matter first came before Mulligan J. on January 21, 2010 when the applicant’s motion and the respondent’s cross-motion were before him. The wife’s motion was for a temporary order re: custody, spousal and child support and other relief. The husband’s motion was for joint custody, termination of restraining order, non-depletion and other relief.

[10] The January 21, 2010 endorsement shows that the parties were aiming for a full argument on the motions to be scheduled for April 15, 2010. The husband, however, advised that he would not continue to pay $2,700 a month for child and spousal support. As a result, the argument of the motion was advanced to January 26, 2010.

[11] On January 26, 2010, Mulligan J.’s endorsement provided:

R has paid monthly amounts by consent on a without prejudice basis including $2700 in each of the last two month,

My decision on the temporary Motions is reserved, however I am satisfied that there is an immediate need for child and spousal support and without something in place the best interest of the child would be at risk.

Temporary Order to go for child and spousal support in the amount of $2700 per month commencing Feb. 1, 2010 pending my decision on these motions.

[12] On January 29, 2010, Mulligan J. issued his Order and Reasons that are the subject of this request for appeal.

[13] Ms. Di Federico submits that I should grant leave to appeal under Rule 62.02(4)(b), R.R.O. 1990, Reg. 194, since there is “good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance” that leave to appeal should be granted. She raises three issues.

[14] First, Ms. Di Federico submits that both the Child Support Guidelines and the Spousal Support Advisory Guidelines are intended to bring certainty and predictability to family law disputes: Holland v. Novotny, [2009] B.C.J. No. 2570, 2009 BCSC 1754 at para 172.. By departing materially from these guidelines, in light of the conclusion that the respondent’s imputed annual income was $60,000.00, Mulligan J.s Order creates a precedent for such departures in other cases and threatens to undermine the policy goals of the guidelines. The absence of reasons for the higher support levels reinforces the concern: Jessop v. Wright, [2008] O.J. No. 3849, 2008 ONCA 673 at para 7.

[15] Second, Ms. Di Federico submits that, seen contextually, Mulligan J. simply took the $2700 that the husband had paid in previous months “on a without prejudice basis” and divided this sum arbitrarily between child and spousal support. She submits that it was not appropriate for Mulligan J. to make use of the “without prejudice” Orders in determining the levels of support that the husband would be obliged to pay. If the decision is allowed to stand, it would bring into serious doubt the utility of “without prejudice” Orders that are routinely relied upon in family law disputes to permit matters to move along to a reasonable resolution.

[16] Finally, Ms. Di Federico argues that Mulligan J.s refusal to require the wife to provide reasonable disclosure undermines the policy of full disclosure necessary to resolve family law disputes: Emery v. Emery, 2008 12835 (ON SC), [2008] O.J. No. 844, 51 R.F.L. (6th) 294 at paras. 40-41 (Sup. Ct.). I note that in his endorsement dated January 21, 2010, Mulligan J. stated that: “Counsel have agreed to a timetable to exchange disclosure and the parties agreed to hold a four-way meeting prior to the return of motion, to canvass issues and possible settlement.” This intention, however, seems to have been overridden by the need to respond to the husband’s refusal to continue payment at the previous level.

[17] Mr. Sapone, on behalf of the wife, has three arguments. First, he urges me to take a more relaxed view in light of the fact that this is an interim-interim Order. I have trouble with this submission, since such orders can sometimes be in effect for prolonged periods.

[18] Mr. Sapone argues, secondly, that Mulligan J. did not actually impute income of $60,000.00 to the husband, despite the plain words of the endorsement and the Order. He suggests that, instead, Mulligan J. was simply allocating the $2700 that the husband was going to be obliged to continue to pay between child and spousal support. There are two problems with this submission. While there is force in this submission, it plays directly into Ms. Di Federico’s argument that Mulligan J. used the “without prejudice” Orders in fixing the amount of support rather than setting the proper levels considering the imputed level of income. And, there is no escaping Mulligan J.’s words of imputation and therefore, their legal effect: “… I am satisfied that for purposes of temporary child support only, the respondent’s income can be imputed at $60,000.00 yielding a monthly child support payment of $902.00. Temporary spousal support is therefore set at $1,798.00 until further agreement or order of this Court.”

[19] Mr. Sapone’s third and most forceful argument is that the husband did not make the payment of $2700.00 on February 1, 2010 as required by Mulligan J.’s Order as he is undoubtedly obliged to do via Rule 14.23 of the Family Law Rules, O. Reg. 114/99. He argues, and I agree, that the ordinary rule is that a person is obliged to pay support until successful on a motion to vary. Mr. Sapone relies on the decision of R.J. Spence J. in Ferguson v. Charlton, [2008] O.J. No. 486, 2008 ONCJ 1 at para. 64. He urges me to dismiss the husband’s leave application as in Ferguson.

[20] Ms. Di Federico points out that Ferguson was a case of egregious non-compliance over a lengthy period of time so that the case is distinguishable. She does not, however, offer any justification for the husband’s failure to pay beyond a vague allusion to his ability to pay, on which there is no admissible evidence before me.

[21] I do not find, however, that dismissing the appeal would advance the real issues in this case and therefore decline to do so.

[22] I accept Ms. Di Federico’s arguments and find that the three grounds of appeal advanced by the husband meet the standard in Rule 62.02(4)(b). There is good reason to doubt the decision of Mulligan J. on each of the items, and they do involve matters of such importance that in my opinion, leave to appeal should be granted.

[23] Ms. Di Federico asks that a partial stay be issued in respect of Mulligan J.’s order and that a different support order be substituted. Relying on the respective Guidelines, Ms. Di Federico submits that the husband should be obliged to pay $557 per month in child support and $825 per month in spousal support pending disposition of the appeal or other resolution.

[24] Having reviewed the , I order that:

(i) The husband shall pay $2700.00 pursuant to the Order of Mulligan J. that was to have been paid on February 1, 2010 within seven days of the date of this Order, failing which the appeal will be dismissed;

(ii) Assuming that the husband makes the payment referred to in para. 1, starting on March 1, 2010, he shall pay $883 in child support and $1000 in spousal support pending the outcome of the appeal or other resolution including any motions to vary these levels of support.

[25] The costs of the motion and cross-motion are reserved to the Divisional Court.

P.D. LAUWERS J.

Released: February 26, 2010