COURT FILE NO.: 31831/09
DATE: 20120412
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Margaret Elizabeth Santor (now Harnock, aka Peggy Santor)
Applicant
– and –
William Gregory Santor
Respondent
Richard A. Wellenreiter, for the Applicant
HEARD: November 18 and December 7, 2011
reasons for judgment
FOLLOWING UNCONTESTED TRIAL
coats j.
Overview and Background Information
[1] The uncontested trial of this matter took place on November 18, 2011 and December 7, 2011. I also received a written submissions brief by correspondence from Mr. Wellenreiter dated January 13, 2012. The Respondent’s Answer was struck by the Honourable Mr. Justice Goodman on July 27, 2011 due to, in part, a failure of the Respondent to make production as required under the Family Law Rules and previous court orders, namely, my order dated March 8, 2010 and the order of the Honourable Mr. Justice Murray dated February 23, 2011. Both orders were made on consent. The Respondent did not appear in court on June 23, 2011 when his counsel was successful on his motion to be removed as counsel of record for the Respondent. The Respondent did not appear in court on June 28, 2011 for a settlement conference. The Applicant then brought a motion to strike the Respondent’s pleadings on July 27, 2011 and was successful. The Respondent did not appear, nor file any material. An uncontested trial was ordered. The uncontested trial was scheduled on the November trial blitz list by Justice Hourigan on September 26, 2011. A trial management conference endorsement of Justice Hourigan dated November 9, 2011 confirmed the matter would proceed unopposed. I then heard the uncontested trial.
[2] It is clear from Exhibit 3 that the Respondent knew that an order had been made for an uncontested trial. Exhibit 3 is a series of correspondence between lawyer Geoffrey Carpenter on behalf of the Respondent and Mr. Wellenreiter. Mr. Carpenter initially indicated he was retained for the limited purpose of a motion to set aside the order for an uncontested trial. No such motion was brought. In later correspondence, Mr. Carpenter recognized the uncontested trial would proceed and asked Mr. Wellenreiter to bring certain documents regarding the Respondent’s health to the attention of the Court, which Mr. Wellenreiter did. Neither Mr. Carpenter, nor the Respondent attended at the uncontested trial to request an adjournment or any other order.
[3] The trial addressed the issues of custody and access, income for support, child and spousal support, and the division of property.
[4] The basic particulars relating to the parties from the evidence of the Applicant and court file are as follows:
a) The child: There is one child, Jacob Andrew Santor, born […], 2002. He is presently 10 years of age (hereinafter referred to as “Jake” or the “child”);
b) The Applicant/mother: Margaret Elizabeth Harnock (formerly Santor), born […], 1973 (hereinafter referred to as “Peggy”);
c) The Respondent/father: William Gregory Santor, born […], 1974 (hereinafter referred to as “Will”, “Mr. Santor” or the “Respondent”).
d) Date of Cohabitation: September 2000;
e) Date of Marriage: September 29, 2001; and
f) Date of Separation: October 15, 2007.
Divorce
[5] I am satisfied that the parties have lived separate and apart for a period in excess of one year. There is no possibility of reconciliation or resumption of cohabitation and there has been a permanent breakdown of the relationship. A divorce order shall issue.
The Applicant’s Position
Custody
[6] It is the Applicant’s position that she should have sole custody of Jake. This is consistent with the fact that the Applicant has been Jake’s primary care giver throughout his entire life and, in particular, has been the only consistent and stable parent for Jake since separation.
Access
[7] As to access, it is the Applicant’s position that access must be supervised at this time due to the change in circumstances that developed as of June of 2011 and the ultimate hospitalization of the Respondent in September of 2011.
Determination re: Custody and Access
[8] I find that it is in Jake’s best interests that the Applicant be granted sole custody of him. The Applicant has provided the primary care of Jake throughout his life in terms of care, cooking, child rearing, schooling and play. Jake has at all times resided with the Applicant and she has sole custody of the child pursuant to the terms of the Interim Separation Agreement dated August 13, 2008 (the “Interim Separation Agreement”) at paragraph 2(1) which sets out that:
The wife shall have sole custody of the child and the primary residence of the child shall be with the wife who will have the day-to-day care and control of him including deciding what extracurricular activities that the child partakes in, subject to paragraph (2) below.
The Interim Separation Agreement also provided for a process by which the access of the Respondent would progress and it provided that Jake would receive counselling from Susan Garafolo who was a play therapist and made provision for the parties to use the services of a parenting coordinator.
[9] Jake started attending school for grade 2 in 2009. He attends at a school in the neighbourhood of the Applicant’s home. He did not have to change schools when the matrimonial home was sold in April of 2011. The Applicant relocated in the same neighbourhood. The Applicant and Jake lived in the matrimonial home from separation to April of 2011. Jake was previously homeschooled. The Applicant gave evidence that Jake is doing well academically and socially. He has friends in the neighbourhood. He was enrolled in gymnastics in the fall of 2011 and was to begin a drama program in 2012. The Applicant has been providing for his emotional and physical needs and Jake , from the Applicant’s evidence, is doing well. The Applicant has never been charged with or found guilty of a criminal offence. There has been no Children’s Aid Society involvement regarding her care of Jake. The Applicant has family in the area that she and Jake interact with on a regular basis.
[10] The Applicant has ensured that Jake receives proper medical care and dental care. She has made appropriate decisions regarding Jake’s care and ensured that he receives appropriate treatment for his anxiety disorder. I have also read and considered Exhibit 4, Form 35.1, the Applicant’s Affidavit in Support of Claim for Custody or Access dated November 14, 2011.
[11] Based on all of the above, the Applicant shall have sole custody of Jake. The Applicant has a plan for before and after school care of Jake once she returns to work. At the time of trial, she was not employed and was caring for Jake before and after school on a daily basis.
[12] This history of access is important to understanding the reason for the Applicant’s current position and this Court’s order with respect to access. The following is important to note:
The separation occurred, in part, due to the Respondent’s sex addiction;
The Respondent was soliciting the services of prostitutes and was regularly watching internet pornography;
At the time of separation, the Respondent was in an addiction treatment facility in California and at the same time the addictive behaviour was continuing. He was still in contact with prostitutes. There were emails to confirm this conduct;
The Applicant had concern about the ability of the Respondent to parent because of the addiction and the inability of the rehabilitation facility to address it.
[13] In light of the above, access at the time of separation in 2007 and into 2008 was only during the day. There were no overnights. Until the Interim Separation Agreement was signed, the parties were working out the schedule amongst themselves. During this time they were also working with Susan Garafalo and Jake to help him through the separation and eventually matters progressed to the point that in 2009 regular overnight access was able to take place.
[14] Thereafter, access progressed well until June of 2011.
[15] In June of 2011, the Respondent was evicted from his house at 249 Lakeside Avenue, Burlington. He did not inform the Applicant of this. At this same time, the Respondent’s mother was ill and the Respondent was using this as a way in which to deflect and avoid disclosing that he had been evicted. However, subsequent to June of 2011, the Respondent’s time and access with Jake became sporadic and inconsistent and on some occasions unsafe for Jake when staying at the Respondent’s mother’s house due to the other foster children residing there.
[16] On August 8, 2011 the Respondent’s mother died. In September of 2011, the Respondent was admitted involuntarily at the psychiatric ward of Joseph Brant Hospital. This occurred on September 6, 2011. On September 5, 2011 the Applicant received a telephone call from Jake’s school principal. The principal had been contacted by the Respondent’s family doctor and told it was not safe for the Respondent to pick up the child. The Applicant picked up the child.
[17] At this time, the Applicant is not prepared to allow access to occur in an unsupervised manner given the historical issues with the Respondent and his inability to properly seek treatment for his sex addiction and his refusal to properly address his psychiatric issues. The Applicant’s position is appropriate and in Jake’s best interests. The documents provided by Mr. Carpenter, filed with the court, regarding the Respondent’s mental health, are not adequate.
[18] The Applicant does wish for access to return to the stage it was at prior to June 2011, but reassurances and steps need to occur prior to this.
[19] As such, access at this time shall be supervised and in the presence of the Applicant or a third party that is mutually agreeable to both parties pending the provision of medical documentation that is satisfactory to the Applicant regarding the Respondent’s psychiatric condition from a qualified psychiatrist and confirmation that the Respondent is able to safely parent Jake on his own.
[20] In an effort to consider alternate possibilities, the Applicant also consulted with Paul Ricketts who indicated that he was prepared to accept the role of parenting coordinator. According to the Applicant, Paul Ricketts is one of the recognized experts in the area of child and parenting capacity assessments and is duly qualified to act in this role. I have reviewed his curriculum vitae and I find that he has the necessary expertise the assist the parties. Paul Ricketts’ correspondence reflecting his willingness to accept the role was provided to the Court.
[21] The Applicant is content to allow Paul Ricketts to act as the parties’ parenting coordinator and to obtain his assistance to develop parameters for a plan for reintegration of access, including any additional reports required regarding the Respondent’s mental health. The Applicant suggests that the costs of Paul Ricketts be shared equally. This proposal of the Applicant to have a parenting coordinator and for the costs to be shared equally is appropriate. This shall not prevent either party from coming to court on a motion to change re: access.
[22] The Respondent has now moved back into his residence on Lakeside Avenue in Burlington.
[23] On the second day of the Applicant’s testimony, the Applicant gave evidence that the Respondent speaks to Jake once a week on the phone. The Respondent had visited Jake the evening prior to the Applicant’s second day of evidence from 4:00 p.m. to 6:00 p.m. in the Applicant’s home. The Applicant stated that Jake was happy and the visit went well.
[24] I also note that the Applicant is supportive of Jake’s relationship with his father and gave evidence that Jake loves his father. The Applicant only wants to ensure that Jake is safe with his father - that his sexual addiction and 2011 depression are being appropriately treated from a mental health perspective. A thorough report from a qualified mental health professional would be a good start. The medical information provided by Mr. Carpenter is not adequate. It does not deal with follow-up treatment and compliance with same.
Child and Spousal Support
The Respondent’s Income
[25] In order to assist in determining the Respondent’s income, the Applicant retained the consulting firm of Pettinelli Mastroluisi Consulting Inc. (“PMCI”). Jeff Marino, MBA, CMA, CBV of PMCI prepared a report n behalf of PMCI. Jeff Marino was duly qualified at trial as an expert in business valuations and an expert in the determination of income for the purpose of calculating child and spousal support.
[26] Jeff Marino submitted two reports to deal with the issue of the Respondent’s income. They were filed as Exhibits 5 and 8.
[27] In both reports, Jeff Marino concluded that, based on the financial data available, the Respondent’s income was as follows:
2007: $198,700;
2008: $319,200;
2009: $248,500;
2010: $248.500; and
2011: $248,500 (Future Achievable Income)
[28] Jeff Marino concluded that this was the income upon which both child and spousal support were to be based. Amongst other documents, Mr. Marino reviewed the Respondent’s 2007 and 2008 income tax returns. They have also been filed for my review.
[29] An issue arose during Mr. Marino’s evidence as to whether there would be any type of “double dipping”. Mr. Marino considered the issue and noted in his report dated December 6, 2011 (Exhibit 8) that:
Had the Practice been sold immediately subsequent to the valuation date, a double-dip would have occurred had the resulting capital gain been included in income for spousal support purposes. That is, had the Practice been sold on the day after the valuation date, William Santor’s 2007 income for child support would have been $156,000 greater than reported in our Income Report. Had we also included the capital gain in our estimate of 2007 income for spousal support a double recovery would have occurred.
However, an actual sale of the Practice did not occur. A notional sale for equalization purposes does not result in a double recovery as the business continues to produce income on a go-forward basis. The capital gain from a notional sale is not reported for income tax purposes nor is it included as an adjustment in the determination of income for child support or spousal support.
Therefore, the notional sale of the Practice on the valuation date does not have an impact on our previous estimate of William Santor’s 2007 income for spousal support.
As such, we confirm that our estimate of William Santor’s income for child and spousal support for the years 2007, 2008, 2009 and 2010 and his future achievable income remain unchanged from our previously released Income Report.
[30] The following additional facts support the conclusion that the Respondent’s income is at least $248,500.00 per year:
- The Respondent reported his income as follows on the three sworn Form 13.1 Financial Statements:
i. April 17, 2008: $25,972.21 per month or $311,666.52 per year
ii. October 5, 2009: $20,272.00 per month or $243,264.00 per year
iii. March 2, 2010: TBD. His Financial Statement page 2, item 2 states
“I am in the process of having an income valuation prepared.”
On the same Financial Statements he noted that his total expenses were as follows:
i. April 17, 2008: $17,432.59 per month or $209,191.08 per year
ii. October 5, 2009: $23,956.26 per month or $287,475.12 per year
iii. March 2, 2010: $23,776.01 per month or $285,312.12 per year.
b. The Respondent noted in an email (Exhibit 2, Tab 12) to the Applicant dated February 8, 2010 in reference to his work and child and spousal support that he had requested that his lawyers not apply to reduce his support payments. Specifically, he stated:
... I am working 3, yes 3 jobs right now trying to make sure that I can keep making the payments at all and not to have to ask you to go to work, take reduced payments etc ...
The payments that I agreed to make are actually in excess of what I would actually have to make based on my last 3 year average, yet I have repeatedly told my lawyers to NOT make a request to reduce...
It is notable that the financial statement that followed this email, although reflecting his income as “TBD”, reflected that his monthly expenses were $23,776.01 or $285,312.12 per year.
c. The Respondent has been involved in movie production. Exhibit 2, Tab 11, a printout from IMDb lists that he was the executive producer of one movie, consulting producer of one movie and involved in the financing of two other movies.
d. In the report of Dr. Mikhail Epelbaum dated September 6, 2011 (Exhibit 2, Tab 4), Dr. Epelbaum stated:
... We explained to Mr. Santor and his girlfriend that he was going to be admitted to the hospital under the authority of Form 1 of the Mental Health Act of Ontario. His girlfriend appeared to be somewhat unhappy with this and inquired about whether the patient could be released from the hospital, citing some business deal that was going to bring them money and improve their situation...
e. The Respondent continues to live in his current home on Lakeside Avenue in Burlington. This is the same house in which he was living when his annual expenses were reported by the Respondent as being $285,312.12 per year (his March 2, 2010 sworn Financial Statement). The Respondent valued his home on Lakeside Avenue at $1,300,000.00 in the same sworn Financial Statement of March 20, 2010. He was carrying a mortgage according to this Financial Statement of $1,086,000.00, as well as a personal loan of $466,139.
f. The Respondent has confirmed in the Interim Separation Agreement (Exhibit 2, Tab 3) that his income in 2008 was approximately $300,000.00 per year.
g. The Applicant has confirmed that the Respondent appears to be living the same type of lifestyle now as he did in March of 2010.
[31] The Applicant testified that the Respondent continues to operate his financial planning and advisory business. The Applicant referred to the fact that Jake relayed to her that the Respondent had reported that he had an NHL hockey player as a client.
[32] It is also important to note that the Respondent’s Answer in this proceeding was struck because the Respondent failed to make proper production of his income information. It is notable that Mr. Santor had three counsel prior to having his Answer struck, namely, Marc S. Tannenbaum when the Interim Separation Agreement was signed, Esther Lenkinski when he filed his Answer, and Gene Coleman after Esther Lenkinski and just prior to the Answer being struck.
Applicant’s Employment History
[33] At the time of the trial, the Applicant was not employed. Her income was $382.07 per month. Her Financial Statement sworn November 14, 2011 is Exhibit 11. In June of 2010, the Applicant opened a dance studio. She did this on the assumption that spousal and child support would continue as she began the business. The Respondent ceased paying support in June of 2010 and the Applicant had to close the studio in June of 2011. It took a period to wrap up the studio and the Applicant at trial had been seeking full-time work in an administrative role since September of 2011.
[34] At the time the parties started their relationship, the Applicant worked full time. The Respondent earned his mutual fund and life insurance licences after the marriage. The Respondent was establishing his business. He had his own business, then was in a partnership, then started a business called Prosapia. When the Respondent’s income increased to a level to support the family, the Applicant ceased to work full time and became a stay-at-home mom, caring for Jake. The Applicant has an education in broadcasting from Humber College, has taught dance part time since she was 16 and worked in office management. In 2006 when she left employment, she was working at Halton Heritage Realty.
[35] The Applicant’s income tax returns from 2004 to 2010 were filed with the court for my review. The Applicant’s four previous financial statements were also filed for my review.
Calculations
[36] Attached at Tab 2 of the Applicant’s Submission Brief are Divorcemate calculations based on the Respondent’s income of $248,500.00. At Tab 2A is a Divorcemate calculation based upon the Applicant not having employment income for the year 2011. At Tab 2B is a Divorcemate calculation based upon the Applicant having employment as of 2012 with an annual income of $42,000.00 per year (explained below).
[37] a. The Respondent ceased paying both child support and spousal support in June of 2010. Attached at Tab 3A of the Applicant’s Submission Brief is a copy of the summary of child and spousal support arrears as of January 13, 2012 which are in the sum of $168,416.00 based upon the amount owing pursuant to the Interim Separation Agreement without any adjustment.
b. However, at Tab 3B of the Applicant’s Submissions Brief is a copy of the summary which reflects the circumstances set out in paragraph 38 below. Based upon Tab 3B, the combined arrears of child support and spousal support are $162,105.00.
[38] It is the Applicant’s position that the child and spousal support amount should be calculated as follows:
For the years 2008 to 2010 inclusive, child and spousal support should be continued in accordance with the Interim Separation Agreement as the Respondent indicated in his email of February 8, 2010 to the Applicant that he had instructed his lawyers not to apply to have it changed. As such, child support should continue to be $2,364.00 per month and spousal support should continue to be $6,500.00 per month for those years.
For the year 2011, based upon Jeff Marino’s report, child support and spousal support should be based upon an annual income of at least $248,500.00 per year. Child support on this amount is $1,983.00 per month and spousal support, when one takes the “mid” point of the Divorcemate spousal support calculations (Tab 2A) during the time period that the Applicant did not have any income, spousal support would be at the midpoint $6,629.00 per month. The range is from $6,001.00 per month to $7,288.00 per month. Therefore, spousal support should stay at $6,500.00 per month for 2011.
[39] I agree with the Applicant’s position with respect to arrears and, therefore, fix the arrears of spousal and child support at $162,105.00, to and including January of 2012 . (See Tab 3A of Submissions of Applicant)
[40] I am advised in the Applicant’s submissions that after the trial and as of December 14, 2011, the Applicant obtained employment with Royal LePage Burloak Real Estate Services, Brokerage, in Burlington. Her annual income is $42,000.00 per year. Her current Financial Statement sworn January 13, 2012 is attached at Tab 4 of the Applicant’s Submissions Brief. As noted on the Financial Statement at Part 1, paragraph 2, the Applicant is to receive her first pay cheque on January 13, 2012. Attached at Tab 2B is the Divorcemate spousal support calculation based upon the Applicant’s new income as of 2012 of $42,000.00 per year indicating that as of January 1, 2012, child support should be in the amount of $1,992.00 per month and spousal support in the range of $4,375.00 per month to $5,893.00 per month with the “mid” point being $5,133.00 per month. As of February 1, 2012 the Respondent shall pay child support in the amount of $1,992.00 per month and spousal support at the midpoint range in the amount of $5,133.00 per month.
[41] As to duration of spousal support, I find that the Applicant has suffered a significant setback as a result of the Respondent’s failure to make any support payments since June of 2010. As set out above, the Applicant made efforts to open a dance studio and then had to close it because of the loss of support from the Respondent. The Applicant also lost just under $70,000.00 in addition to not progressing with her income or career.
[42] The Applicant has suggested that if a duration of spousal support is to apply, then it should be set at 7 to 10 years from January 1, 2012. The Divorcemate calculations state indefinite duration (unspecified) with a minimum of 3.5 years and maximum of 13 years from the date of separation. When the arrears are paid to date, the duration would have been approximately 4½ years post-separation to date. I therefore order that spousal support continue for a further 7 years for a total of approximately 11.5 years, with spousal support to end with the final payment on March 1, 2019. This is an appropriate order in the circumstances - the Applicant was a stay-at-home mom, the Applicant’s business (dance studio) failed as the Respondent ceased paying support, the Applicant lost considerable savings and the Applicant has just now re-entered the work force.
Equalization of Net Family Property
[43] Exhibit 12 is the Net Family Property Brief of the Applicant. It relies upon the report of Jeff Marino dated November 17, 2011, and filed as Exhibit 6 in this matter with respect to the valuation of the Applicant’s Financial Planning Practice.
[44] Jeff Marino in his report comments upon the fact that the Respondent has been operating as a sole proprietor. This thereby distinguishes the report of Mr. Marino from the report prepared on behalf of the Respondent by AP Valuations (Exhibit 7) which indicates that there is no value in the business as that report provided a valuation of the Corporation Prosapia Wealth Management. Jeff Marino concludes that the fair market value of William Santor’s financial planning practice on October 15, 2007 is $156,000.00.
[45] As such, based upon the Net Family Property Statement of the Applicant, there is an equalization payment of $57,753.85 payable by the Respondent to the Applicant. The Respondent shall pay to the Applicant an equalization payment in the amount of $57,753.85.
The Law
[46] In making the access supervised, I have considered the decision in Burnett v. Ffrench, 2011 ONCJ 527, paras. 17, 18 and 37, where the mother was open to the idea of access but wanted it to be safe and where the father resisted the need for supervision, but, on the basis of the evidence, the Court concluded that he had given little thought to access and seemed to want to exercise it when it was convenient for him to do so, it was in the child’s best interests that any access be structured, consistent and initially supervised to ensure that father would exercise it responsibly and in a safe and child-focused manner. Once father demonstrates the ability to act responsibly, he could then ask the court to vary the order.
Orders
[47] I hereby grant the following orders:
A divorce order shall issue.
The Applicant shall have sole custody of the child.
The Applicant need not obtain the consent of the Respondent for travel with the child outside the Province of Ontario.
The Respondent shall have access to the child at the discretion of the Applicant and such access shall be supervised by the Applicant or a third party that is mutually agreeable to the parties. Further, the parties shall engage the services of a duly qualified parenting coordinator, namely, Mr. Paul Ricketts, to obtain his assistance to develop parameters for a plan for reintegration of access, including any and all reports that may be required regarding the Respondent’s mental health. Should Paul Ricketts be engaged by the parties, then the parties may seek his direction as to reintegration of access. However, notwithstanding the above, access shall continue to be supervised until the Respondent provides a letter from a psychiatrist confirming he is capable to have access to the child and parent without supervision and that the lack of supervision will not pose a safety rick to the child. The cost of the parenting coordinator is to be shared equally. These provisions shall not prohibit either party from making a motion to change access in the event of a change in circumstances (s. 17(5) of the Divorce Act).
An order fixing child support arrears payable by the Respondent to the Applicant at the amount of $39,972.00 as of January 13, 2012.
An order fixing spousal support arrears payable by the Respondent to the Applicant at the amount of $122,133.00 as of January 13, 2012.
As of February 1, 2012 and on the 1st day of each month thereafter, an order for child support in accordance with the Child Support Guidelines based upon the Respondent’s current income of $248,500 in the sum of $1,992 per month shall be payable by the Respondent to the Applicant.
As of February 1, 2012 and on the 1st day of each month thereafter, spousal support in the sum of $5,133.00 per month shall be payable by the Respondent to the Applicant, to terminate with the final payment on March 1, 2019.
An order that all arrears of child support and spousal support be collected and enforced by the Family Responsibility Office. Support Deduction Order to issue.
An order that the Respondent produce a duly sworn financial statement (Form 13) within 60 days of the receipt of the order from this Honourable Court and, in any event, by no later than June 30, 2012.
An order that the Respondent pay his proportionate share of special or extraordinary expenses (s. 7 of the Federal Child Support Guidelines). For this purpose, the Applicant’ income is $42,000.00 and the Respondent’s income is $248,500.00. This means the Respondent shall pay 85.54% of the special or extraordinary expenses and the Applicant 14.46%. The Applicant shall provide receipts to the Respondent for the child’s special or extraordinary expenses and the Respondent shall reimburse the Applicant for the Respondent’s percentage share within 30 days of being provided with the receipt.
And order for an equalization of net family property in accordance with the Applicant’s Net Family Property Brief in the sum of $57,753.85 payable by the Respondent to the Applicant.
An order that the Respondent maintain the Applicant and the child on any medical and health benefit that he has available to him through his business or employment.
An order that the Respondent designate the child and the Applicant as his irrevocable beneficiaries under any group life insurance he has in place in the minimum amount of $500,000.00 each and provide proof to the Applicant that he has done so within 30 days of this order.
An order for pre-judgment interest on the said equalization payment in accordance with the Courts of Justice Act from October 15, 2007 to the date of this order.
An order for post-judgment interest in accordance with the Courts of Justice Act.
An order that the style of cause be amended to reflect that the Applicant be shown as “Margaret Elizabeth Harnock (formerly Santor)”.
Costs
[48] The Applicant seeks an order for costs on a substantial indemnity basis in accordance with the bill of costs and costs outline attached as Tabs 9 and 10 and the account of Pettinelli Mastroluisi Consulting Inc. at Tab 11 of her submissions brief.
[49] The Applicant also seeks an order that the collection of costs and the equalization payment be enforced by the Family Responsibility Office.
[50] The total costs consist of $44,993.46 for Wellenreiter & Wellenreiter. There have already been 2 costs awards; the sum of $1,695.00 which has already been ordered by the Honourable Justice Murray on February 23, 2011, and the sum of $1,130 which has already been ordered by the Honourable Justice Gray on June 28, 2011.
[51] The balance of $42,169.46 consists of the remaining costs claimed for all other steps and disbursements in this proceeding. On a substantial indemnity basis (80%), the costs are $33,735.57.
[52] There is also $7,345.00 for Pettinelli Mastroluisi Consulting Inc., whose account is attached at Tab 11. This account at 80% is $5,876.00 and at 60% is $4,407.00.
[53] The Applicant is entitled to costs. She has been entirely successful. Rule 24(1) applies. Costs are appropriate on a substantial basis as the conduct of the Respondent has been unreasonable. The Respondent failed to make production causing delay and created additional work for the Applicant to try to determine facts particularly related to the Respondent’s income and business value. The proceeding was complex. The lack of production of the Respondent’s financial records added to the complexity. The issues are very important to the Applicant. The fees and disbursements are reasonable and appropriate. The amounts are what an unsuccessful litigant would expect to pay in a motion this complex. I have considered all of the factors in Rule 24(11). The Respondent shall pay costs in the total amount of $39,611.57, being $33,735.57 plus $5,876.00 (80% of the Pettinelli report) to be paid forthwith.
[54] The Applicant has requested that part be collectible through the Family Responsibility Office. I estimate that approximately 50% of the costs are for fees and disbursements related to support issues. Therefore, 50% of the costs, namely $19,805.79, shall be enforceable through the Family Responsibility Office. A Support Deduction Order to issue. It is not possible to make the equalization payment collectible through the Family Responsibility Office and, therefore, I decline to make such an order.
Coats J.
Released: April 12. 2012
COURT FILE NO.: 31831/09
DATE: 20120412
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Margaret Elizabeth Santor (now Harnock)
aka Peggy Santor
Applicant
– and –
William Gregory Santor
Respondent
REASONS FOR JUDGMENT
Coats J.
Released: April12, 2012