ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-08-63549-00
DATE: 2012-02-10

BETWEEN:

DAVID DEL MASTRO

C. Willson, for the Applicant

Applicant

• and -

CHEMAYNE MICALLEF DEL MASTRO

Marvin Kurz, for the Respondent

Respondent

HEARD: December 15, 2011

Van Melle, J.

[ 1 ] Both parties have motions before me. The Applicant, David Del Mastro, seeks:

a) A variation of the order of Justice Mossip, dated May 7, 2009 to reduce the payment of uncharacterized monies of $10,000.00 per month to a payment of $5,640.00 representing $1,890.00 for child support and $3,750.00 for spousal support;

b) An order imputing income to Chemayne Micallef Del Mastro in the amount of $50,000.00 annually;

c) An order requiring Chemayne to disclose bank statements, investment statements and credit card statements for 2010 and 2011 and all job search efforts, communications with all prospective employers, and all efforts to obtain employment and self-sufficiency;

d) An order that Chemayne pay her proportionate share of special expenses for Vienna, born February 24, 2004;

e) A determination that David is not in default of the Mossip Order and that there are no arrears;

f) Alternatively, an order rescinding any arrears of the Mossip Order;

g) A determination of the amount and character of the payments made by David to Chemayne since 2009 as child support, spousal support and payments on equalization;

h) A determination of the amount and character of the payments made by David to Chemayne from today as child support and spousal support;

i) An order settling the terms of sale of 883 Sangster Avenue, Mississauga;

j) An order staying the payment of my costs Order dated November 21, 2011 until July 1, 2012.

[ 2 ] The Respondent, Chemayne asks that the David’s pleadings be struck due to breaches of various court orders and that David be held in contempt for failing to comply with my Order of September 29, 2011. Although the motion was argued on December 15, 2011 I did not receive the properly organized Court File until January 23, 2012.

[ 3 ] Chemayne and David Del Mastro were married on August 2, 2000 and separated either in November 2006 (David’s date) or August 2008 (Chemayne’s date). There is one child of their relationship, Vienna born February 21, 2004. David has two other children Jakob and Isaak.

[ 4 ] David and Chemayne’s separation has been acrimonious from the outset. There have been numerous disagreements resulting in many court appearances on financial issues and issues relating to Vienna.

BRIEF HISTORY OF THE LITIGATION

[ 5 ] From my review of the court file, I have compiled a history of the court proceedings and the orders. I may have missed something but I believe this reflects for the most part the court dealings between the parties.

July 30, 2008 Application issued by David. (Amended November 13, 2008)

August 18, 2008 Early Case Conference

Justice Coats made an order regarding parenting time of Vienna, she also ordered Peel Children’s Aid Society to release all records regarding the parties, Vienna, Isaak, Jacob and Michelle Poliquin, David’s former wife. Disclosure was ordered.

September 15, 2008 Answer issued by Chemayne

September 25, 2008 Case Conference

Justice Gray ordered disclosure of both parties’ psychological reports and ordered some work to be completed on the matrimonial home.

October 8, 2008 Reply by David

December 12, 2008 Motion

David brought a motion for exclusive possession of the matrimonial home; interim joint custody of Vienna and a s. 30 CLRA assessment. (David agreed to pay the cost of the assessment subject to his right to claim set-off.)

Chemayne brought a motion for:

• Exclusive possession of the matrimonial home;

• Interim sole custody

• That David continue to pay expenses related to the matrimonial home;

• That David continue to provide Chemayne with a vehicle and pay all the expenses for the vehicle;

• That David pay for repair and maintenance of the matrimonial home and complete renovations;

• Child support based on $400,000.00;

• Life insurance and medical benefits;

• The appointment of the Office of the Children’s Lawyer;

• Interim disbursements of $50,000.00.

Justice Corbett ordered that there been an assessment relating to custody and access. Justice Corbett made a separate order granting exclusive possession of the matrimonial home to David.

December 18, 2008 Justice Corbett ordered David to pay Chemayne $40,000.00 in $10,000.00 installments during January and February of 2009. He ordered that the salary being paid to Chemayne by Deltro cease as of December 31, 2008. He also made an access order relating to Vienna.

January 16, 2009 Motion by David to travel with Vienna and to have her passport.

Justice Flynn made an order on consent re travel with Vienna and her passport.

March 5, 2009 Long motion

Chemayne brought a motion for David to produce the documents in her Request for Information dated February 6, 2009 and asked for leave to question.

Justice Van Rensburg dealt with terms of an adjournment granted on February 25, 2009. She made an Order that the parties were to make disclosure in accordance with Schedule “A” attached to her Order.. She ordered David to pay Chemayne $30,000.00 -- $10,000.00 by March 16, 2009; $10,000.00 by March 30, 2009 and $10,000.00 by April 15, 2009. She modified access.

May 7, 2009 Motion

Chemayne brought a motion asking for:

• David’s pleadings to be struck for failing to comply with Justice van Rensburg’s Order of March 5, 2009;

• continued interim payments of $10,000.00 on the 1 st and 15 th of each month commencing May 1, 2009;

• Immediate payment to her lawyers of $37,500.00 to be credited toward professional fees incurred by Chemayne for Pettinelli Mastroliusi Consulting Inc. in the amount of $35,500.00;

• An order that David forthwith take all necessary steps to obtain requisite permits from the City of Mississauga to comply with all By-Laws, Regulations and Orders.

• An order for the immediate listing for sale of the matrimonial home;

• An order allowing Chemayne to attend at the matrimonial home to obtain a Real Estate appraisal;

• An order compelling David to bring the property taxes on the matrimonial home into good standing;

• An Order allowing Chemayne to remove two pianos from the matrimonial home and her furniture from the conservatory;

• An order that Pettinelli Matroliusi have access to all records required to perform a valuation;

• An order for David to provide an up-to-date Financial Statement;

• An order for delivery of disclosure pursuant to Justice van Rensburg Order of March 5, 2009;

• An order that questioning be completed by May 15, 2009.

David brought a motion asking for:

• Questioning of Chemayne;

• Requiring Chemayne to obtain an appraisal as to the market value of items listed in schedule “A” to her Financial Statement sworn April 16, 2009;

• Copies of Chemayne’s credit card statement for 5the last three years for TD Visa, CIBC Visa, Mastercard, American Express, Citi Commerce and any other cards;

• An order varying the Order of Justice van Rensburg to decrease the payment of $10,000.00 due from David to Chemayne on April 15, 2009 to $5,000.00 due April 24, 2009.

Justice Mossip ordered that the parties were to attend at the matrimonial home with a structural engineer to find out what had to be done to make the matrimonial home marketable. She ordered David to advance $10,000.00 to Chemayne towards a business valuation. She also ordered David to pay $10,000.00 per month commencing May 1, 2009 until further information is known about David’s financial circumstances. She stipulated that the figure was not assigned as support or an advance on equalization. She said: “ As with other payments, this assignment will be done with the final settlement .” [Emphasis added]. She ordered that the documentary disclosure ordered by Justice van Rensburg and by Justice Mossip herself on May 7, be completed by Mary 15, 2009. She ordered Chemayne to provide copies of credit card statements as requested by David in his Request for Information dated March 19, 2009. She set out dates for questioning and made some access terms relating to Vienna.

October 13, 2009 Motion

Chemayne brought a motion asking for:

• An order striking David’s pleadings for breaches of Justice Mossips’ May 7, 2009 Order:

▪ For failing to attend with a structural engineer architect to determine the necessary steps to make the matrimonial home marketable and ensure no building code problems;

▪ Requiring an advance of $10,000.00 for business valuation;

▪ Requiring $10,000.00 monthly;

▪ Requiring completion of documentation disclosure by May 15, 2009.

• An order requiring payment of all arrears by way of a lump sum;

• An order striking pleadings for breach of paragraph 1 of Justice van Rensburg’s Order of March 5 requiring disclosure;

• An order authorizing Chemayne to obtain disclosure from third parties directly;

• An order varying Justice Mossip’s May 7 order to require the monthly $10,000.00 payments to be made by direct deposit;

• An order reinstating dental and medical benefits;

• An order requiring David to keep life insurance in place in a minimum amount of $2 million;

• An order for additional financial disclosure;

• An order dealing with various aspects of access;

• An order for a replacement vehicle upon the expiry of the lease of the current vehicle;

• An order for a T-4 from Deltro for 2008;

• An order for the removal of the pianos and other contents from the matrimonial home;

• An order that Chemayne’s motion returnable April 28, 2009 for the sale of the matrimonial home be heard.

Justice Corbett ordered the parties to arrange an inspection by an engineer.

December 22, 2009 Case supervision

David brought a motion for specified parenting time with Vienna.

Justice Fragomeni made an order on consent.

January 6, 2010 Motion

Chemayne brought a motion for the same relief as her Notice of Motion originally returnable October 13, 2009 as well as for interest on unpaid support and an order requiring David to pay $1,092.20 as an interest adjustment fee incurred by her with the mortgage lender due to delinquent payments caused by David’s tardy support payments.

Justice Mossip said:

The husband sought an adjournment of the motion which had been set for some time. I agreed to deal with those matters the parties agreed were urgent and which need to be dealt with pending a conference with Justice Fragomeni which is scheduled for March, 2010. As I said at the time of the motion, the parties need to get a grip on this file or it is going to spiral both of them into financial ruin and cause untold emotional damage to all of the children, but particularly Vienna. The parties as I mentioned should look to themselves for the solution rather than simply blaming the other party. That is a useless waste of time and energy and money.

My decision on the 3 issues I was asked to deal with is as follows:

1. Arrears

2. The husband is to pay to the wife’s valuator the sum of $10,000.00 within 15 days.

3. The balance of the arrears, being $24,000.00 (assuming the husband paid a vet bill of $1,500.00) shall be paid at the rate of $3,000.00 per month commencing February 1, 2010. This amount shall be in addition to the regular monthly amount payable pursuant to my order.

4. Costs of the October 13, 2009 motion, the attendance before the Registrar and this attendance are adjourned to final settlement or the trial judge.

5. Car

6. The husband shall make available to the wife the Hummer he presently has under lease and shall continue to make the lease payments on that car.

7. The wife shall forthwith, before the end of January, deliver up to the husband the Mercedes truck she presently drives.

8. If the wife does not want to drive the Hummer, she can make her own arrangements for a car and be solely responsible for that cost.

9. Medical Benefits

The husband shall maintain the wife and child on his benefit plan. If the plan is not available at the time the wife submits an expense, the husband shall pay the wife or child’s medical expense.

4. Case Supervision

There are to be no further motions brought prior to a chase supervision meeting with Justice Fragomeni. At that meeting hopefully Justice Fragomeni can set a timetable to get this matter on for trial as soon as can be accommodated. There have already been too many interim motions trying to figure out what the husband’s real income is and how seriously his company has been affected by the financial times. Subject to the case supervision Judge’s views, this seems to me issues best left for trial, which should be scheduled without delay.

March 9, 2010 Case Supervision Hearing

Justice Fragomeni

May 27, 2010 Motion

David bought a motion to adjourn the trial date; allow questioning of third parties; an order for Chemayne to provide copies of Exhibits and answers to undertakings, refusals and advisements given at her questioning on April 14, 2010 and that Chemayne provide a list of the witnesses she planned to call at the Valuation Date trial. He also moved for a variation of Justice Mossip’s January 18, 2010 Order with respect to providing a vehicle for Chemayne and an order requiring Chemayne to return the rental vehicle in her possession.

Justice van Rensburg noted that the trial was on the issue of valuation date which is anticipated to take 2 days. Justice van Rensburg granted a three week adjournment to the week of June 21, 2010. Justice van Rensburg also dealt with some issues relating to the Hummer motor vehicle and in the end upheld Justice Mossip’s Order in that regard.

June 17, 2010

Justice Price listed the matter for trial for June 21, 2010

June 21, 2010

Justice Ricchetti ordered a trial to determine the valuation date. Trial was scheduled to take two days.

June 24, 2010 Trial re Valuation Date

Justice Tulloch heard evidence in June, November, December of 2010, January and June 2011. Submissions were completed by December 2011. No decision has been rendered yet.

July 26, 2010

Justice van Rensburg granted costs to Chemayne in the amount of $6,000.00 inclusive of disbursements and GST relating to the May 27, 2010 motion.

August 19, 2011 Motion

Chemayne’s motion was for an order to comply with all the outstanding undertakings and refusals as well as an order that David produce copies of transcripts he planned to rely on at trial.

Chemayne also moved for:

• An order striking David’s pleadings for failing to comply all the orders requiring him to pay $10,000.00 per month; all the orders for disclosure; Justice van Rensburg’s July 26, 2010 costs order and Justice Corbett’s December 18, 2008 Order that David remove Chemayne from Deltro’s payroll;

• Payment of all arrears and costs in the approximate amount of $34,000.00;

• Partition and sale of the matrimonial home and that all mortgage payments, the Line of Credit and the property taxes be paid from David’s share;

• Return of Chemayne’s possessions;

• Disclosure;

• Life insurance to secure the support payments;

• Health insurance and medical benefits as ordered by Justice Mossip on January 18, 2010.

Justice Bielby adjourned the motion (at David’s request) to a long motion. He ordered David to pay $10,000.00 before September 1, 2011 as a term of the adjournment. He stated: “The issue of disclosure shall be adjourned to the long motion on September 16, 2011 but reasonable disclosure required especially if the Applicant claims impecuniosity.”

September 16, 2011 Long motion

David brought a motion for:

Variation of Justice Mossips’ Order of May 7, 2009 from $10,000.00 per month to a payment of $2,000.00 per month as child support;

• An order that no spousal support be payable;

• An order imputing income to Chemayne of $50,000.00 annually;

• An order requiring Chemayne to disclose her job search;

• An order for Chemayne to pay her share of special expenses for Vienna;

• A determination that there is no default or arrears under Justice Mossip’s Order or in the alternative rescinding any arrears.

I heard the motion. I stayed David’s motion to vary Justice Mossip’s Order because David was in breach of various court orders including Justice van Rensburg’s costs order and Justice Bielby’s August 19, 2011 Order. I characterized the $10,000.00 monthly payment as support and I ordered sale of the matrimonial home. I ordered disclosure and made some orders relating to Health insurance and Medical benefits.

November 21, 2011

I granted costs of August 19 and September 16, 2011 to Chemayne in the total amount of $32,103.74.

MOTIONS BEFORE THE COURT AT THE PRESENT TIME

[ 6 ] On December 15, 2011, at the conclusion of the argument, I indicated to the parties that I would not be in a position to render a decision before the end of January. I therefore made an endorsement wherein I indicated that if David did not comply with my order of September 29, 2011 forthwith, that is, if he did not list the matrimonial home for sale, I would make an order transferring carriage of the sale to Chemayne.

[ 7 ] I am satisfied beyond a reasonable doubt that David willfully failed to comply with my September Order in failing to list the matrimonial home for sale. There will be a finding of contempt against him. He has until 5 days after the release of this endorsement to purge his contempt if he has not done so already.

[ 8 ] I am not going to make an order striking David’s pleadings at this time. Counsel for Chemayne advised me that he had just received a package of documents and that he was not in a position to advise whether or not all the documents that were required had been received. Chemayne may renew her motion in this regard but must provide detailed information as to what disclosure remains outstanding.

[ 9 ] I am not going to deal with David’s request for a characterization of the payments made by him since 2009. Pursuant to Justice Mossip’s Order that issue is to be determined at the time of settlement [or trial].

[ 10 ] I am not going to make any orders settling the terms and sale of 883 Sangster Avenue. The materials do not disclose where the issues lie regarding the sale; only that David does not wish to comply with my order for sale.

[ 11 ] Although David’s counsel advised that she thought it would be at least two years before this matter can be listed for trial, I am hopeful that with some judicial assistance, this matter can be tried some time in 2012. It would be in everyone’s interests to get this matter to trial as quickly as possible. Once Justice Tulloch has rendered his decision regarding the valuation date, the valuations can be completed and there should be no further reasons for delay.

[ 12 ] In arguing for a reduction in Justice Mossip’s Order, David’s counsel spent much time submitting that Chemayne must find a job and contribute to her support and to the support of Vienna. Quite frankly, I accept some of her arguments in that regard. Chemayne, who is only 42 years old, has two university degrees and should either have a job or a plan in place toward become self supporting. Mr. Kurz says that this issue should wait for trial, however, if Ms. Willson is correct and the trial does not take place for another two years, Chemayne will be a further two years delayed in finding employment. As well, due to the fairly short duration of the marriage, it is unlikely that she will be entitled to unlimited support.

[ 13 ] Of concern though is David’s interference in Chemayne’s relationship with Somerset Entertainment causing Somerset to withdraw a contract offer to Chemayne for 2010. Clearly if David persists in this type of interference in Chemayne’s ability to earn income, this will be taken into consideration in determining spousal support quantum and duration on a final basis.

[ 14 ] However, Chemayne’s lack of paid employment is not germane to the issue at hand. David must prove a material change of circumstances since the granting of Justice Mossip’s Order.

[ 15 ] David has just filed his last three years of Income Tax Returns. According to his returns, his income was as follows:

2008 $309,407.50
2009 $322,600.00
2010 $236,000.00

[ 16 ] David owns and operates Deltro Electric Ltd., an electrical contracting company. He owns 90% of Under Pressure Inc., a company which provides Hyperbaric Oxygen Therapy. David derives his income from these corporations. For the purposes of calculating support, some of his allowable deductions for income tax purposes are properly added back into his income.

[ 17 ] In looking at the Spousal Support Advisory Guidelines based on his self declared income for 2009 David would have had to pay child support of $2,531.00 and spousal support in the mid range of $8,816.00 and the high range of $9,635.00 for a total payment of either $11,347.00 or $12,166.00. This indicates the reasonableness of the Mossip Order. Indeed it appears to be on the low side. As well, David received a tax deduction for the whole amount as Deltro made the payments on his behalf.

[ 18 ] In running the calculations, I note (although I am not imputing income to Chemayne at this time) that were I impute an income of $20,000.00 to Chemayne the amounts suggested for spousal support in all the ranges do not change much.

[ 19 ] David has been trying to vary the $10,000.00 monthly payments since April of 2009 and Justice Mossip’s Order since October, 2009. He has complained about Justice Corbett’s December 2008 Order. He has always taken the position that he cannot afford the payments as ordered. It is noteworthy that even if his monthly payments were varied to $5,640.00 he would still be in arrears. One is left with the clear impression that he feels that Chemayne is not entitled to the payments and that he begrudges her any amount of money.

[ 20 ] It is only for this motion that he produced his Income Tax Returns for 2008, 2009 and 2010. As he has just filed there are no Notices of Assessment so we are not in a position to know if CRA accepts his returns as submitted.

[ 21 ] David has been submitting that his businesses are insolvent since he commencement of the litigation. And yet, his businesses continue to afford him a very good standard of living. He has also continued to carry on both businesses despite their alleged precarious financial positions.

[ 22 ] As far as the matrimonial home is concerned, I ordered the sale in September, and I gave detailed reasons for ordering the sale. The reasons for my order have not changed. If anything, given the representations made on behalf of David, my concerns have intensified. David insists that he has no money with which to pay support. He says that his companies are on the verge of insolvency. All the more reason to sell the matrimonial home, clear up the debt load, and reduce his daily living expenses.

[ 23 ] I am not going to grant David’s motion for a reduction in the payments ordered by Justice Mossip. I will however allocate the payments -- $2,743.00 to child support and $7,257.00 to spousal support. I base this on an income of $350,000.00 annually which I believe is the minimum amount earned by David. My reasons are as follow.

[ 24 ] This is David’s motion to reduce the payments that he was ordered to make to Chemayne. He is therefore obligated to produce the evidence to support his request. As my reasons for denying his request for variation will demonstrate, he has failed to produce documentation to support his request or has provided only some information. Of note, he had not even filed an up-to-date Financial Statement when his motion for variation was first heard in September 2011. No doubt his excuse will be that he was not represented by counsel at the hearing of the motion in September, but this belies the fact that his materials in support of that motion were in fact prepared by the law firm that continues to represent him today.

[ 25 ] During submissions, David’s counsel suggested forcefully that the whole motion “boils down” to credibility. She submitted that David was more credible than Chemayne and pointed to bank statements, credit card statement and financial statements of third party exports to support this submission. I do not agree with her analysis. If anything, it is David who lacks credibility. As my summary of court proceedings demonstrates, he has consistently failed to abide by court orders. He has failed to make payments on time and has rarely paid the full amount. He has failed to make disclosure in a timely fashion, even when the disclosure was ordered on consent.

[ 26 ] In my September endorsement, I indicated that David spent some $25,000.00 in renovations to the outside of the matrimonial home. In this motion, I have learned that according to his own calculations, he actually spent some $82,000.00, which expenditure did nothing to bring the home up to code. Chemayne submits that he actually spent well over $100,000.00.

[ 27 ] David deposes that he is on the brink of financial ruin and that both Deltro and Under Pressure are on the verge of bankruptcy. As I noted in September Deltro has advanced over $1.6 million to keep Under Pressure afloat. David is an astute businessman. I do not believe that he would have advanced 1.6 million from Deltro to Under Pressure if he felt that either company was on the verge of bankruptcy.

[ 28 ] I have not ignored the affidavit sworn on December 8, 2011 by William Reid, C.A., the public accountant for Deltro and Under Pressure. While the statements in his affidavit may be accurate, in my view they do not present the whole picture. If the situation at Deltro and Under Pressure is as bleak as painted by Mr. Reid, it is hard to understand why David is still in business and how he has managed to support his lifestyle.

[ 29 ] In any event, despite Mr. Reid’s affidavit, David has not produced documentation regarding his situation for 2011. There is no Financial Statement for either Deltro or Under Pressure. There are no numbers to show what David has taken out of the business, nothing about the Shareholder’s Account and nothing about unpaid work.

[ 30 ] David deposes that in order to secure contracts for Deltro he must entertain clients with meals, drinks and hockey games. He makes this statement without providing any details or indeed any evidence to support that he has in fact obtained business in this manner.

[ 31 ] David is also the recipient of a lease for a Lamborghini motor vehicle that his former partner in Under Pressure leased through Under Pressure. Apparently when David took over his former partner’s interest in Under Pressure he got the Lamborghini that the former partner had leased through the company. He deposes that he is unable to do anything with the Lamborghini as it is part of an equipment lease for the car and 2 oxygen chambers. In September I observed that the documentation establishing this, as well as Schedule A to the Lamborghini lease, which presumably includes all the terms of the lease, were not included in David’s motion materials. The documentation was likewise not included in the materials in support of this motion.

[ 32 ] In his affidavit sworn in support of the December motion, David deposes that the Lamborghini is in danger of being repossessed, yet he includes no corroboration in this regard.

[ 33 ] Many of David’s personal expenses are paid through Deltro, including private school for Vienna and one of his sons and university expenses for his other son. In 2009 these expenses totaled some $150,000.00. If these expenses were included as income for David his taxable income would be much higher as would his income for support purposes.

[ 34 ] David’s claim that he has no money is hard to believe in light of his lifestyle. According to Chemayne it is David who insists on keeping Vienna in private school. As well, in addition to the renovations to the matrimonial home, David owns several vehicles in addition to the Lamborghini, has had elective cosmetic surgery and owns a yacht.

[ 35 ] In support of this motion, David deposed that he sold his 5% interest in the Ottawa Generals Junior A Hockey Club for $131,500.00 in March 2010. David has sworn several affidavits since March 2010 and yet this is the first time he mentions the sale of his interest. Chemayne submits that his sale number should be grossed up and included in his income for 2010. Adding in that number and some of the expenses that are paid on his behalf by Deltro, his true income would be in excess of $400,000.00.

[ 36 ] I have reviewed the Continuing Record. David has deposed consistently that he supports his mother, although the amounts that he pays on her behalf change from affidavit to affidavit. However, he is inconsistent regarding money that she has advanced to him. Throughout he acknowledges that his mother received an inheritance of more than $100,000.00 and that she advanced the money to him. In his September affidavit his deposes that his mother gave him the money. He also says that his mother used the money to pay the tuition for his children’s private school fees and university. In his affidavit sworn December 9, 2011 he says that he borrowed the money from his mother and put it into Deltro.

[ 37 ] In his affidavit sworn September 7, 2011, David says that he took out a personal loan of $140,000.00. It does not show in his December Financial Statement nor are any details provided as to who leant the money to him, or the terms of the loan.

[ 38 ] In his affidavit sworn February 23, 2009, David talks about litigation involving Deltro. In his April 29, 2009 affidavit he says that a Construction Lien in the amount of $3,780,994.95 2as registered on behalf of Deltro for work done in Milton. There are no updates in subsequent affidavits as to the status of the litigation or the status of the lien.

[ 39 ] David now says that he owes money to the Canada Revenue Agency for Deltro HST and payroll remittances. He also owes income tax as a result of submitting three years worth of Income Tax Returns recently. This is all of his own making. He was the one who made the decision not to remit to Revenue Canada. His argument that he did not have the funds does not make sense when one considers the renovations done to the matrimonial home, the $1.6 million advanced from Deltro to Under Pressure and other expenditures which he obviously made in preference to his obligation to Revenue Canada.

[ 40 ] As at December 15, 2011, according to Chemayne, David owed Chemayne $96,103.74 for arrears of the monthly payments and outstanding costs orders.

[ 41 ] In the result, David’s motion for variation is dismissed. The $10,000.00 monthly payment is characterized as $2,743.00 for child support and 7,257.00 for spousal support, based on an imputed income of $350,000.00. The balance of David’s motion is dismissed.

[ 42 ] Chemayne’s motion for contempt is granted to the extent that is set out in this endorsement. David’s arrears of $96,103.74 as at December 15, 2011 are fixed and will be payable from David’s share of the proceeds of sale of the matrimonial home. Chemayne’s motion to strike David’s pleadings is dismissed without prejudice.

[ 43 ] I must caution David against continuing to bring motions to vary the $10,000.00 monthly payments. Although I have not made an order prohibiting him from bringing any further motions for variation I will not hesitate to do so should David persist. His time and money would be much better spent in advancing this matter toward trial and trying to resolve at least the custody, access and support issues on a final basis.

[ 44 ] I will entertain written submissions on costs. Chemayne’s submissions are to be forwarded to me within 20 days; David has 15 days to reply. All submissions are limited to three pages plus a costs outline plus any relevant Offers to Settle.

Van Melle, J.

Released: February 10, 2012

COURT FILE NO.: FS-08-63549-00
DATE: 2012-02-10

SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DAVID DEL MASTRO v. CHEMAYNE MICALLEF DEL MASTRO
BEFORE: VAN MELLE J.
COUNSEL: David Del Mastro, self Marvin Kurz, for the Respondent

ENDORSEMENT

Van Melle J.

Released: February 10, 2012