ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-11-17292
DATE: 20120322

BETWEEN:

MAYUMI SEILER KENT Applicant
– and –
DAVID KENT Respondent

Valois Ambrosino, for the Applicant
Herschel Fogelman, for the Respondent

HEARD: March 5, 2012

Reasons for Decision

Benotto J.

[ 1 ] The applicant brings this motion to change the amount of child support payable to her. The respondent brings a cross-motion to terminate the $1 per year spousal support order. These reasons will deal first with child support then the spousal support issues.

Child Support

[ 2 ] The parties are both professional musicians. The applicant is a world renowned violinist. She is a soloist who has taught and performed in Europe. The respondent is a percussionist with the Toronto Symphony Orchestra. He also teaches at the Royal Conservatory of Music. Until earlier this year, he was also the Human Resources director for the Toronto Symphony Orchestra. Both the applicant and the respondent are living with new partners.

[ 3 ] The parties were married in 1996 and separated in February 2003 after 5½ years of marriage. They have two children, Seiji currently age 11 and Hana currently 14. They were divorced in August 2005. The Divorce order dealt with division of property, custody, access, spousal and child support.

[ 4 ] With respect to child support, the Divorce Order provided that:

…the Respondent (father) will pay child support to the Applicant in the amount of $1865 per month, based on upon his represented income of $160,000 and the amount shall be reviewed on September 1, 2006 when Seiji enters grade one….

The quantum of child support and the Respondent’s contribution to the children’s child care expenses will be reviewed commencing June 15, 2006 in advance of Seiji entering grade one. If the parties cannot agree, both issues will be mediated/arbitrated by Philip Epstein…The award in respect of section 7 expenses shall be effective as of September 1, 2006.

[ 5 ] The parties did go to Philip Epstein in 2006 and entered into an agreement to amend and vary the terms of the Divorce order with respect to child support. They signed Minutes of Settlement which resolved the quantum of child support for four years, up to August 2010. It was silent with respect to section 7 expenses. The Respondent concedes that they should be paid and is willing to do so. The monthly child support agreed to with Mr. Epstein was as follows:

• Commencing September 2006 up to an including August 1, 2007: $2300

• Commencing September 2007 up to and including August 1, 2008: $2400

• Commencing September 2008 up to and including August 1, 2010: $2500

Currently the respondent is paying $2600 per month and the applicant has post dated cheques up until August 2012.

[ 6 ] In January 2011, the applicant commenced, by way of application, a claim for child support. Although the application included a claim for increased spousal support, and access issues, there was no evidence to support a change in regard to these issues. The evidence consists of a financial statement and her subsequent cross-examination. The issue that arises from the applicant’s material filed is an adjustment to child support.

[ 7 ] In June 2011 Justice Aston ordered that the matter should proceed as a motion to change and if there was to be a change, it shall be determined by way of a long motion on affidavit evidence.

[ 8 ] The full day motion was booked on September 14, 2011 and returnable Monday March 5, 2012. There were 2 settlement conferences held before Mr. Justice Jarvis in November 2011.

[ 9 ] On the morning of the motion the applicant requested an adjournment. Counsel for the applicant argued that the matter could not proceed because there were disclosure issues outstanding and because there were no affidavits filed. In fact, it appeared as though the applicant had done very little to advance her claim in over a year. She signed one “form” affidavit and financial statement in March 2011. In effect, she relied on her own failure to pursue the matter in order to request a further delay. I granted her leave to file the affidavit. When the affidavit was filed, it turned out to be sworn by a law clerk in counsel’s office, not by the applicant.

[ 10 ] The law clerk’s affidavit claimed to be in support of a motion which included inflammatory claims including:

• An order that the respondent produce all his medical records and undergo a medical examination by a practitioner of the Applicant’s choosing;

• An order requiring the Respondent to provide an income determination report by a certified business valuator;

• An order requiring the Respondent to pay to the Applicant interim disbursements in the amount of $30,000. (This is in addition to the $25,000 she had already spent.)

[ 11 ] Nowhere in the Child Support Guidelines, or in the Family Law Rules was it ever contemplated that a straightforward adjustment of an existing child support payment for a payor whose occupation has not changed would possibly be this complex or this expensive.

[ 12 ] The respondent is a percussionist with the Toronto Symphony Orchestra. He also teaches at the Royal Conservatory of Music. He has filed Financial Statement as required by the Rules, income tax returns and supporting documentation. His affairs are not complicated and have not substantially changed in the last several years. The costs already spent are totally disproportionate to the quantum and complexity of the issues. To grant a further delay and yet additional costs for a matter that may need to be reviewed yearly is not in the interests of justice.

[ 13 ] The respondent earns income from the TSO on a self-employed basis. As verified by the letter he filed from the TSO, he was paid $259,319.50 in 2011. He also earns salary from his teaching at the Royal Conservatory. The T4 slip from the Conservatory indicates he was paid $9,267.54. Thus, his gross income for 2011 is $268,587.03. This is in line with the gross income for the past several years which was as follows:

2007 $282,000
2008 $267,000
2009 $305,000
2010 $270,000

[ 14 ] The applicant alleges that the respondent’s income for the guideline purposes is $270,000. This does not take into account the professional expenses he has incurred to earn the income. Those are set out by him at Schedule A to his financial statement. The expenses total $89,000 which brings his income to $177,500. Although he was not cross-examined on these expenses, I find that the claim for “rent” of $14,000 which he apparently deducts for home office should be added back since he is actually paying it to himself. This brings his income for purposes of the Guidelines to $191,500.

[ 15 ] The guideline amount for this level of income of the payor is less than the $2600 he is currently paying. His income is similar for 2010. I therefore order no change to the child support amount currently being paid.

[ 16 ] The applicant’s income is relevant to the section 7 claim for extraordinary expenses. The applicant claims her income is $85,000. She has not filed an updated financial statement. She objected to several significant questions during her cross-examination. She has no documentation to support her income for 2011. Her income for 2010 was $125,000 but she claimed only $76,000. She filed a spread sheet of professional expenses which reduces her income to $55,000. She claims expense deductions that come to nearly 75% of her income. I note that these deductions include child care of $20,400, insurance of $3400, use of home office of $5875. If these latter 3 items are added back, as they should be, then her income is approximately $85,000. I accept this for purposes of this application.

[ 17 ] The affidavit of the law clerk (which is not a substitute for the updated financial statements required by the rules,) includes a schedule showing section 7 expenses of approximately $16,000. The respondent submits that he thought the section 7 expenses were $11,000.

[ 18 ] The applicant will have to provide the respondent with an affidavit verifying the $16,350 in section 7 expenses. The respondent will then pay her his proportionate share based on his income of $191,000 and hers of $85,000.

Spousal Support

[ 19 ] The Respondent has brought a cross motion requesting that the spousal support of $1 per year be terminated. The Divorce Order of 2005 provided that:

It is the Respondent’s position that the Applicant is self-supporting and capable of obtaining several positions paying at least $60,000 per year and the Applicant has not fully disclosed her income in 2004 and the Respondent believes that she is working on a part-time basis only and that she has an obligation to secure full-time employment. Finally, it is the Respondent’s position that it would be appropriate for the Applicant to fully and finally release any claim to spousal support. The Applicant disagrees with the Respondent’s position and is not prepared to fully and finally release her claim to spousal support. The Applicant states that her career has been irrevocably affected by, inter alia, her relocation to Toronto and assumption of child care responsibilities and that notwithstanding her best efforts, she cannot be self sufficient. She further states that she accepts $1,00 per year based on section 15.3 of the Divorce Act …

[ 20 ] The Order went on to provide that the spousal support was variable in the event of material change in circumstances that could include:

a) A change in either party’s financial position;

b) The applicant’s remarriage;

c) The applicant’s cohabitation with another person who would qualify as a spouse under the FLA or any other similar change.

[ 21 ] It is agreed that the Applicant has been living in a common law relationship with another man who is assisting her support. They have been living together for nearly (but not quite) the three year mark which would entitle her to claim support from him. The house they purchased together three years ago was for $1.77 million dollars with no mortgage. She acknowledged that they are planning a life together. She claims to suffer from fibromyalgia and other maladies. The affidavit of the law clerk attaches a letter from a naturopathic specialist referring to a diagnosis of fibromyalgia. A one paragraph letter from Dr. John McMillan is also attached. It states that she is:

Currently in treatment for a medical condition that limits her normal capacity to work. As this condition is aggravated by physical and emotional stress, I have recommended that she limit her exposure to both. It is not known how long this condition will persist. I can provide more information only if authorized by the patient herself.

[ 22 ] No claim was made for spousal support until this action was started in 2011. She has failed to present any evidence to support this claim. In fact, her circumstances appear to have significantly improved since her divorce.

[ 23 ] Clearly there should be no increase in the spousal support. With respect to termination completely, I am invited to make several findings of credibility which I cannot do on the material before me. The existing order will not be changed at this time.

[ 24 ] As is clear from my reasons, the adjournment initially sought by the applicant was denied. My reasons for proceeding with these matters reflect the need for the court to control both its own process and the conduct of family law litigation.

[ 25 ] The primary objective of the Family Law Rules is to deal with cases justly. This includes:

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. (Emphasis added)

[ 26 ] The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. There is an inherent obligation on an applicant to pursue the case started before the courts.

[ 27 ] Of all the cases that should be expeditious and straightforward it is a motion to change an existing child support order. It presumes that the parties have an order outstanding. Here, there was an order and a subsequent mediation, both involving child support. The parties have not changed their professions. An adjustment to the child support is not complex.

[ 28 ] This application had spiralled out of control. To have spent the better part of one year’s worth of child support on a motion to change is not “appropriate” to the “complexity” of the issues. The applicant’s proposed adjournment would usher in a further delay, additional and unnecessary expense and heightened animosity between the parties. The children are entitled to have the child support determined on the basis of the respondent’s income, the details of which were before the court.

[ 29 ] I have no idea why the parties did not return to Mr. Epstein (or another qualified person) to resolve this issue. The Respondent said he wished to do this but the Applicant refused. There is an ongoing duty of disclosure. I strongly urge the parties to establish an ongoing methodology for future changes or adjustments. The court process invoked here is too costly both financially and emotionally.

[ 30 ] The parties may exchange and send me brief written submissions as to costs on the following timetable: the applicant within 10 days, the respondent within 5 days thereafter and reply, if any, within 5 days after that. They should be sent to me at Osgoode Hall, not to the Family Law Office at 393 University.

Benotto J.

Released: March 22, 2012