SUPERIOR COURT OF JUSTICE – ONTARIO - FAMILY COURT

Court File No.: FC-11-39619-00
Date: 20120321

RE: Gina Menchella v. Anthony Menchella

BEFORE: The Honourable Madam Justice H. McGee

COUNSEL: Harold Niman and Daniel Bernstein, for the Applicant
Gary Joseph and Elissa Gamus, for the Respondent

ENDORSEMENT

McGEE J.

Background

[ 1 ] This is the applicant mother’s motion for:

(a) temporary custody of the parties’ twelve year old daughter, Alexia Rose Menchella born January 8, 2000;

(b) exclusive possession of a matrimonial home that is owned by the mother [^1] ;

(d) child support of $5,333 per month retroactive to October 10, 2011 based on imputed income to the father of $700,000;

(e) spousal support of $19,998 per month retroactive to October 10, 2011 based on imputed income to the father of $700,000;

(f) contributions of $2,264.17 to their daughter’s special and extraordinary expenses;

(g) an order for certain listed disclosure; and

(h) an order dispensing with the father’s consent to their daughter travelling with the mother to Florida and Chicago from March 11, 2012 to March 25, 2012 (which relief was resolved prior to the hearing of the motion).

[ 2 ] The parties only recently ended their spousal relationship of 15 years during which they were married for the past 13 years. The father is a 52 year old realtor. The mother is 50 years of age and has not worked outside the home since the parties married. It is not contested that she has been the primary caregiver for their daughter Alexia.

[ 3 ] The marriage ended on October 10, 2011 when the daughter discovered on the home computer that her father was in an ongoing extra-marital relationship with a partner who resides in Sweden. Neither the fact of the father’s relationship nor the date of separation is in issue.

[ 4 ] The mother deposes that upon separation the father cancelled available credit, closed a joint account and withdrew financial support. The father does not dispute having taken these steps, but explains his actions not in the context of the separation, but as a necessary and final response to the mother’s relentless overspending.

[ 5 ] Little time was spent in pre-litigation negotiation. This Application was served December 15, 2011 and was answered January 11, 2012. Counsel consented to an early Case Conference which proceeded on January 16, 2012. Shortly thereafter this motion was scheduled as a one hour event for February 22, 2012. Parties have not attended for questioning, nor is there any independent evidence at this time of Alexia’s views and preferences.

14B Motions dated March 2 and March 6, 2012

[ 6 ] Counsel have submitted 14B Motions subsequent to the hearing of the motion. Mother’s counsel filed an affidavit stating that the father again travelled to Sweden for a lengthy period just after the hearing of this motion. Father’s counsel states that it is wholly inappropriate for such evidence to be placed before the Court after a motion is heard.

[ 7 ] I agree with the submission of father’s counsel. I have disregarded the mother’s 14B Motion dated March 2, 2012. It is dismissed.

Motions before the Court

Temporary Custody

[ 8 ] The mother seeks an order for sole custody, the father seeks joint custody. As is almost always the case with interim motions, the record before me is not sufficiently matured to make any award of custody at this early stage. I will only confirm on the consent of the parents that Alexia shall continue to be primarily resident with her mother in the matrimonial home.

Exclusive Possession

[ 9 ] The matrimonial home is solely owned by the mother. It was custom built by the parties and has a fair market value of $3,000,000 to 3,300,000. Funds for the build came from the mother’s family. There is no mortgage. It is 6000 square feet with a pool and extensive landscaping. It is agreed that it costs $4500 to $5000 a month to maintain. In the home is the father’s office, but he does not depose within this motion that he is dependent on maintaining the home office to earn income.

[ 10 ] The Marriage Contract, dated August 27, 1998 (two days before marriage), excludes the home as a family asset on marriage breakdown and releases any claims of trust. The father’s affidavit states that title was at one time in their joint names. Within the pleadings the father is asking to set aside the Marriage Contract. Trust claims have been advanced.

[ 11 ] The mother wants the father out yesterday. She states that his continued occupation of the home is intolerable.

[ 12 ] The father has refused to permanently vacate the home despite lengthy trips to Sweden in November and again in December of 2011. The father deposes in his February 16, 2012 affidavit that he wishes to remain in the home to maintain a relationship with Alexia. In his view, the mother has made enflamed and fabricated accusations for the sole purpose of removing him from the home.

[ 13 ] Both spouses have an equal right to possession of a matrimonial home upon marriage breakdown: Section 19(1) of the Family Law Act R.S.O. 1990, c. F.3, s. 19 (1) . The court may, on motion, make a temporary order under section 24(1) that r egardless of the ownership of a matrimonial home and despite a spouse’s right of possession, the court may direct that one spouse be given exclusive possession of the matrimonial home.

[ 14 ] The criteria for an order for exclusive possession are found in section 24(3):

(a) the best interests of the children affected;

detailed in 24(4) to consider the possible disruptive effects on the child of a move to other accommodation; and the child’s views and preferences, if they can reasonably be ascertained.

(b) any existing orders under Part I (Family Property) and any existing support orders;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children. R.S.O. 1990, c. F.3, s. 24 (3) .

[ 15 ] An order for exclusive possession is dramatic in effect, and highly prejudicial to the dispossessed spouse. An order for exclusive possession should not be made on a motion where there is conflicting evidence that requires findings of credibility that are only available at trial.

[ 16 ] The legislature clearly intended spouses and their children to be able to maintain the shelter and consistency afforded by a matrimonial home while the issues arising from a marriage breakdown are determined. Section 24(4) speaks directly to maintaining a stable residence for children whose parents have separated. The statutory exception to continued possession of a home arises primarily in circumstances in which continued joint occupation is a potential or real threat to the safety or wellbeing of a child or a spouse.

[ 17 ] The best interests of a child are paramount in determining an order for exclusive possession. Bortolotto v. Bortolotto , [2002] O.J. No. 2068 (Ont. S.C.J.) . Mother’s counsel places before me the usual line of cases in which a primary care parent has been granted exclusive possession. These cases have in common findings that:

(a) there is conflict in the home that is adversely affecting the child;

(b) the stress in the home has become unbearable and leaving the home would be disruptive to the children;

(d) an order for exclusive possession is otherwise justified.

Rafail v. Naguib [2012] O.J. No. 528 (Ont. S.C.J.) ; Bright v. Leslie-Bright, [2007] O.J. No. 4408 (Ont. S.C.J.) and Brotherton. Brotherton 2006 CarswellOnt 4281 (Ont. S.C.J.)

[ 18 ] Alexia and her mother will continue to reside in the matrimonial home. The question before me is whether there are sufficient grounds to exclude the father from the home. The mother relies heavily on potential harm to Alexia should the father remain.

[ 19 ] There are very different views of the impact the separation has had on Alexia.

[ 20 ] The mother deposes that Alexia is under considerable distress which can only be relieved by the father’s absence. She has filed with the Court a “Triage Assessment Form” and a “Specialty Clinic Referral Form” that resulted from a trip to the Emergency Room on December 23, 2011. Mother and daughter had been at the Mall when Alexia began experiencing a rapid heartbeat and anxiety. The mother submits the emergency room forms, and her own affidavit evidence that Alexia is suffering from nightmares; in support of her view that Alexia is in need of reprieve “from the stress of living in a home in which the parents are essentially at war and living in a state of siege.” [^2]

[ 21 ] I do not find the mother’s reports of Alexia’s nightmares to be persuasive. I have no evidence that the mother has involved Alexia in any form of counseling since separation that would be the usual response to such events. Neither has there been any follow up to the December 23, 2011 trip to the emergency room.

[ 22 ] The medical reports from that attendance are concerning to the Court. At the same time nothing of the report links Alexia’s distress to her parents’ joint occupation of the home. Alexia’s anxiety attack occurred at the Mall – not the home, and on the same day that the father was leaving for Sweden for the entire Christmas period. [^3]

[ 23 ] The timing of the attack is perhaps more suggestive that it was her father’s preference to spend Christmas with his new partner and her family that caused Alexia distress. And while the father’s decision calls his parenting priorities into question, it is not sufficient in my view to find that continued joint parental cohabitation of the home is adversely affecting Alexia.

[ 24 ] The father strenuously denies that Alexia is distressed to the extent described by the mother. He deposes that her distress is the projection of her mother’s distress. He denies that he has in any manner a diminished relationship with his daughter. He states with some emphasis that Alexia’s discovery of his extramarital relationship was the result of the mother’s urging of Alexia to monitor his personal emails and communications.

[ 25 ] I have no independent evidence of Alexia’s views and preferences. I am very concerned that she has become caught in between her parent’s struggle; and that her parents have not to date provided her with any clinical or neutral counseling supports. On my own volition, and with the consent of counsel at the close of the motion, I ask for the assistance of the Children’s Lawyer to provide counsel for Alexia.

[ 26 ] The father proposes to live quietly and discretely within 500 square feet of their 6,000 square foot home. He states that he has no other accommodation and that the size of the home allows both parties to reside within it without significant contact. He has no savings or assets, and is unable to secure credit against the home, (as it is wholly owned by the mother.) The father’s only source of finances is his income from which he must first maintain as a priority his child and spousal support.

[ 27 ] The father certainly has not taken any steps to delay this proceeding to date. He consented to an early Case Conference, an early motion and has participated fully throughout. The exchange of financial disclosure is ongoing. I do not find that he has delayed in producing financial disclosure.

[ 28 ] I have considered all the criteria within section 24(3) of the Family Law Act , with priority to Alexia’s best interests and am unable to find that the mother has met the statutory test for an order for exclusive possession of the home.

Child and Spousal Support

[ 29 ] The mother seeks an order for child support of $5,333 and spousal support of $19,998 per month retroactive to October 10, 2011 based on imputed income to the father of $700,000.

[ 30 ] The father’s 2011 Income Tax Return is not yet prepared. His Financial Statement sworn January 16, 2012 states his prior year’s income as $371,555 and his present income as only $126,000. His Agent Payroll History Report for 2011 shows a net figure of $450,000 prior to expenses. His affidavit of February 21, 2012 estimates that his 2011 expenses will be between 60 and 65% of his income. He goes on to state that he does not anticipate earning more than $110,000 in 2012. He has cashed in RRSPs in January 2012 and is returning his leased vehicle next month.

[ 31 ] Adding to the complexity of determining the father’s current income is the past year’s events. The father launched his own brokerage in March of 2011, which he closed in January 2012. He attributes its failure to: a downturn in sales for high end homes in his area, poor administration, and the wife speaking poorly of it within their community. At paragraph 70 of his February 16, 2012 affidavit he deposes that “I was once a successful real estate broker.”

[ 32 ] The father has now returned to a brokerage with a contract of employment. The contract does not in any manner assist with an assessment of the father‘s current income.

[ 33 ] The father’s prior years income was:

Year Gross Fees Line 150

2010 $595.189 $223,194

2009 $812,267 $464,011

2008 $743,417 $440,107

[ 34 ] The father’s income for support purposes will not be limited to Line 150 income. The nature of his income is that there will be significant expenses which provide personal benefit such as vehicle, travel, entertainment and communication; that will need to be added back with an appropriate gross – up for applicable taxes. I also note that the father works from the home, so his home office expenses will need to be added back to a determination of his actual available income for support purposes. [^4] The modest income splitting between the parties in prior years will result in amounts being added back from the mother’s income.

Assessment of Fair and Reasonable Support

[ 35 ] The role of the Court on a temporary motion is limited to awarding support that is fair and reasonable that meets the needs of the disadvantaged spouse as best as possible based on the then apparent ability to pay of the other spouse. Huska v. Adams, [2009] O.J. No. 1617 (Ont. S.C.J.) .

[ 36 ] A motions Justice should proceed cautiously when the evidence before the Court is contradictory. When findings of credibility are necessary to determine a matter of importance the matter must proceed to trial: Irello v. Irello 2006 CarswellOnt 5887 CA.

[ 37 ] Counsel for the mother acknowledged that there is not yet a complete record and asks that the Court “do its best” to determine income on the information available.

[ 38 ] Mother’s counsel also asks that the Court make adverse findings on the basis that the father has not fully disclosed. I am not prepared to do so. It is simply too early in the process to measure the respondent in terms of his obligation to clearly demonstrate the basis of his net income such as in the decision of Wright v. Wright 2009 CarswellOnt 1817 (Ont. S.C.J.) .

[ 39 ] That said, I can make certain observations with respect to the parties’ prior years’ income and pattern of spending. The personal spending for 2011 by both parties was in well in excess of the Line 150 income reported for the prior year – particularly the wife’s new vehicle purchase and certain household purchases, as well as the husband’s July 22, 2011 trip to Beverley Hills and Las Vegas. Neither the prior earnings nor the wife’s calculation of credit card spending support a finding of income anywhere close to the range of $700,000.

[ 40 ] In reviewing the materials available to me on this motion, it appears to me that neither party has made a measured claim. The father’s dire anticipation of his current earnings appears to the Court to be as overstated as the mother’s view of his actual earnings. The father did enjoy significant sales in 2011. In January 12, 2012 the father received commission cheques through his realty company totaling $100,000.

[ 41 ] In my view, the appropriate range for the father’s current income on the record before me is $325,000. This view originates from the 2010 line 150 income with certain add backs, and tax adjustments and inclusive of prior amounts split with the mother. The father’s new brokerage start in March 2011 was not intended to diminish family income and the net sales of $450,000 suggest that even with expenses in the range of 50-60%, (some of which would be added-back) the taxable earnings are consistent with the prior year of 2010.

[ 42 ] On this income, table child support for one child is $2,558. The range of spousal support pursuant to the Spousal Support Advisory Guidelines is: $7,944(low) - $8,782(medium) - $9,617(high). The net benefit to the mother on these respective amounts (inclusive of child support and tax/benefit adjustments) is $8,610 - $9,068 - $9,527. Net disposable income to each of the parties is 51.3/48.7(low) ^5 – 48.8/51.2(mid) and 46.2/53.8(high).

[ 43 ] There are a number of factors to consider within the ranges of support. A high range award would reflect the father’s benefit from his continued occupancy of the home and the mother’s obligation to pay all the household expenses. A high award range could be reconsidered upon the father vacating the home.

[ 44 ] A lower range could also be considered if the father is paying the wife’s, or disproportionate family credit card debt and he is unable to consolidate it (particularly credit card debt at interest rates in the range of 20%) at a lower rate secured against the home (potentially as low as 4%. [^6] ) As at the date of the motion, a breakdown of what each party has incurred in outstanding credit card debt was not available.

[ 45 ] Not available at the motion was any evidence as to the mother’s ability to contribute to her own support. Prior to marriage she ran a successful business. Alexia is of an age for which a parent need not be entirely out of the workforce. The mother lists in her financial expenses housekeeping and landscaping services.

[ 46 ] On the record before me I find that the appropriate range for spousal support at this stage is the high range: which I round to $9,600 per month.

[ 47 ] This is a fair and reasonable amount given the presents needs of the mother, my finding with respect to the father’s income, the mother’s current costs in maintaining the home, the father’s benefit from continued occupation, and the range identified by the SSAG.

Commencement Date

[ 48 ] Mother’s counsel sets out a list of unpaid accounts since the date of separation: property tax arrears, current utilities, a cell phone balance, post separation credit card debits, and ongoing car lease and car insurance. It is agreed that only approximately $2,000 has been contributed by the father to the household over the past four months since separation.

[ 49 ] The mother seeks an order that support commence as of the date of separation. Adequate notice of the claim has been provided.

[ 50 ] Although it is not consistently the practice on motions to award retroactive support, I find that this is an appropriate case for retroactive support. The wife has had no other source of funding and all household accounts fall to her as the sole owner of the property. Payment of those accounts benefits not only her and the father, but also Alexia.

[ 51 ] I can think of no reason why the father should be relieved of his obligations to fund the household from November to present. Although he may not be able to secure alternative accommodation; the maintenance of his own lifestyle while living in the home, and his trips abroad in November and December speak to an ability to pay retroactive support. The maintenance of his personal expenses and the benefit of remaining in the home should not be prioritized over his obligations to support his spouse and daughter.

[ 52 ] Order to go that the respondent father shall pay table child support of $2,558 and spousal support of $9,600 commencing November 1, 2011, less a credit of $2,000. Support deduction order to issue.

Special expenses

[ 53 ] The limited time available for this motion precluded argument on the issue of special expenses. From the motion materials I can see that the mother seeks an amount of $2,264.17 per month for Alexia’ special expenses, based on an annual budget of $27,170. But for $3,000 of this annual amount (semi private tennis lessons,) the budget wholly consists of horse expenses: boarding, lease, show fees and riding equipment.

[ 54 ] There is some discretion in determining special expenses when income is in excess of $150,000 per annum (section 4 Federal Child Support Guidelines. ) I lack the evidentiary foundation to determine whether these are appropriate section 7 expenses in this matter per sections 7(1) (d) and (f). Moreover, there is a question of whether the father has paid for these expenses in the past.

[ 55 ] It is agreed that private school fees for Alexia are paid directly by her maternal grandmother. The father states that the maternal grandmother also pays for summer camp and the horse expenses.

[ 56 ] I decline to make any order for section 7 expenses at this time. Either party may bring a motion in that respect upon the matter first being conferenced.

Disclosure

[ 57 ] The mother’s requests for disclosure were also outside the scope of a one hour motion. Either party may bring a motion in that respect upon 20 days notice.

Other

[ 58 ] On Consent, the parties agree to an order that this matter be case managed by a single Justice, to be assigned by the Trial Coordinator.

Costs

[ 59 ] Costs submissions to be filed within 20 days of release of this Endorsement, responses within 15 days thereafter. Submissions limited to three pages, exclusive of Bills of Costs and Offers to Settle.

McGee J.

Released: March 21, 2012

[^1]: The parties executed a Marriage Contract dated August 27, 1998 that excludes the home from the mother’s net family property on marriage breakdown. Within this proceeding, the father seeks to set aside the Marriage Contract.

[^2]: Applicant mother’s affidavit sworn February 13, 2012 paragraph 14.

[^3]: December 23, 2011 to January 7, 2012.

[^4]: And such deductions may not be appropriate or available going forward as the mother is responsible for those expenses.

[^6]: The home is sole in the mother’s name, so the father cannot use it to secure a home equity home.

Menchella v. Menchella, 2012 ONSC 1861

Case Summary