Reasons For Order

NATURE OF MOTION

[1] Mona Gupta (“Ms. Gupta”) and her husband, Tarun Gupta (“Mr. Gupta”), separated three and a half years ago. Ms. Gupta, who has been awarded custody of the parties’ two children, now makes a motion for an order requiring Mr. Gupta to pay interim child and spousal support pending the trial of the issues arising from the parties’ separation.

[2] Mr. Gupta, who says he has recently left his employment at his parents’ business to start a career as a commission salesman selling commercial real estate, from which he says he has been deriving a lower income, supplemented by gifts from his parents, has failed to comply with orders of this Court which required him to make full financial disclosure of the revenues of his parents’ business and the income he has received from it and from his real estate practice. The reduction in his reported income, combined with his failure to disclose, has added to the dispute between the parties as to the amount of income to be imputed to Mr. Gupta for purposes of calculating his support obligation.

[3] Ms. Gupta, who left her last permanent employment in 2001 to work part-time for Mr. Gupta’s parents’ business, has been unemployed since the parties separated, caring for their children, now four and six years old, and applying for suitable employment. Mr. Gupta argues that by now, three and a half years after the parties’ separated, Ms. Gupta should have found employment and that income should be imputed to her for support purposes of calculating her entitlement to spousal support.

ISSUES TO BE ADDRESSED

[4] The principal issue to be decided is the amount of income, if any, that should be imputed to each of the parties. In the present circumstances:

a) Ms. Gupta, though a university graduate with a degree in electrical engineering, has not held full-time employment since June 2001. Mr. Gupta submits that the court should impute income to her in the amount of at least $40,000.00.

b) At the end of 2011, Mr. Gupta voluntarily left his position as commission salesman with his parents’ company, where he had earned of between $94,564.00 and $244,266.00 from 2005 to 2009, to work at a reduced income as a commission salesman selling commercial real estate. As of October 31, 2011, he reported earnings of only $18,463.00 from this employment, which he supplemented, he says, with gifts from his parents to bring his total income to $60,000.00. Ms. Gupta submits that an income in the amount of $144,307.00 should be imputed to Mr. Gupta based on what he earned from 2005 to 2009, and what he is still capable of earning, at his parents’ company.

c) Ms. Gupta submits that the support that Mr. Gupta is required to pay should be made retroactive to January 2011 on the ground that he ceased making deposits to the parties’ joint bank account at that time. Mr. Gupta submits that his wife continued drawing money from their joint account after January and that because of the dispute regarding the facts, the issue of retroactivity should be deferred to the trial judge.

[5] For the reasons that follow, I find that Ms. Gupta has met the onus upon her to establish a prima facie right to entitlement to interim support. She and Mr. Gupta were in a traditional marriage for ten years. Ms. Gupta left her career path as an engineer to care for the parties’ children and to work on a part-time basis at her husband’s parents’ business, which enabled Mr. Gupta to concentrate more fully on his business career. At the stage of an interim motion, great emphasis should not be placed on the objective of self-sufficiency. Ms. Gupta, who is busy caring for her children, now four and six years old, requires more time to find permanent employment that will enable her re-enter the workplace on a full-time basis.

[6] Mr. Gupta recently left his employment at his parents’ business voluntarily for lower paying employment but had continued to receive income supplements from his parents. I draw an adverse inference from his failure to disclose the financial circumstances of his parents’ business, and the income he has derived from it and from his real estate practice in spite of court orders requiring him to do so.

[7] Even if I accepted that Mr. Gupta’s income has declined to $60,000.00 since he left his parents’ employ, as he submits, I would still impute a higher income to him for purposes of support on the ground that he has failed to demonstrate the need for his change of career sufficiently to justify imposing the burden of that change on his wife and children in the form of the reduced entitlement to support for which he argues.

[8] I impute an income of $124,000.00 to him, based on the income that he earned at his parents’ business in 2007, when the net revenues of that business were roughly equal to what they were in 2011.

[9] Ms. Gupta is now 42 years old. While she holds a university degree in electrical engineering, she lacks a designation as a professional engineer and has not been permanently employed for many years. I am not imputing the income urged by Mr. Gupta to her because she has continuing responsibility for the parties’ two children, now four and six years old, and needs more time to secure suitable employment following her lengthy absence from the workforce. In the absence of satisfactory evidence as to how much work Ms. Gupta performed at her in-law’s business and how her income from that business was calculated, I impute an income of $28,000.00 to her, based on the average of the total income she reported for income tax purposes over the past three years.

BACKGROUND FACTS

[10] Mr. Gupta is 47 years of age. Ms. Gupta is 42. They were married on August 11, 1998, and separated ten years later, on December 29, 2008. They have two children, six year old Sachin Gupta, born December 18, 2005, and four year old Akshay Gupta, born February 26, 2008.

[11] On March 9, 2010, P.W. Dunn J. in the Ontario Court of Justice made a final Order granting sole custody of the children to Ms. Gupta. Ms. Gupta later began the present proceeding by an Application issued September 23, 2011, in which she claims divorce, spousal and child support, and equalization, exclusive possession, and sale of family property.

[12] Mr. Gupta worked for a decade as a commission sales person with his parents’ business, located in Houston, Texas. Net sales, and the income Mr. Gupta derived from them, were as follows:

Sales Mr. Gupta’s Income

2006 $4,944.451.00 $244,266.00

2007 $1,310,813.00 $130,773.00

2008 $2,429,164.00 $94,564.00

2009 $2,449,275.00 $136,395.00

2010 $837,803.00 $33,887.00 (plus $26,000.00 “gift”)

2011 $1,240,950.00 No evidence given of the amount

[13] Ms. Gupta was last employed on a full-time basis in 2001. While she has since been employed on a part-time basis for Mr. Gupta’s parents’ business, she asserts that the income she has reported for purposes of income tax, which was approximately $49,229.08 in 2008, $16,858.25 in 2009, and $16,175.93 in 2010, has been the result of income splitting with her husband.

POSITIONS OF THE PARTIES

[14] Mr. Gupta submits that the Court should impute an income of $70,000.00 to him, marginally more than the $60,000.00 per year he says he has received in the past two years from his earnings as a realtor, supplemented by gifts from his parents. Ms. Gupta asks the Court to impute income of $144,307.00 to her husband, being the average of his annual earnings from 2005 to 2009, before he left his parents’ employ to launch his current career as a commercial real estate agent.

[15] Mr. Gupta asks the court to impute an income of at least $40,000.00 to Ms. Gupta. He submits that three and a half years after the parties separated, she should have secured employment commensurate with her qualifications. Ms. Gupta states that she is not currently employed but offers to have an income of $35,000.00 imputed to her based on the income she earned in 2005, when she left her employment to care for the parties’ children.

ANALYSIS AND EVIDENCE

a) General principles governing spousal support

(i) General entitlement to support

[16] Marriage does not guarantee support to spouses when they separate or divorce. As L’Heureux-Dubé, J. stated in Moge v. Moge: “[M]arriage per se does not automatically entitle a spouse to support,” and the support provisions of the Divorce Act are not a “…general tool of redistribution which is activated by the mere fact of marriage.”[^1]

(ii) Equal standards of living

[17] Marriage also does not guarantee the standard of living the spouses had during their relationship. However, in a long term marriage or marriage-like relationship, particularly where, as in the present case, one party assumed primary responsibility for child care and other domestic tasks, a significant disparity in standards of living absent support will be a strong indicator that a support order would be appropriate. As L’Heureux-Dubé, J. stated in Moge: “As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution…”[^2] [Citations omitted]

b) The basis of spousal support

[18] The courts, in interpreting sub-section 15.2(6), have based orders for spousal support on: (a) compensatory, (b) contractual, and (c) non-compensatory considerations.

i) Compensatory support

[19] Because marriage and marriage-like relationships are joint endeavours, orders for spousal support are designed to be compensatory, to bring about an equitable sharing of the benefits and burdens of the relationship, having regard to all the circumstances, including the advantages each of the parties derived from their relationship.

[20] Ms. Gupta is entitled to compensatory support based on the non-monetary contribution she made to her husband’s relationship with his parents and to the parties’ children. L’Heureux-Dubé, J. described the compensatory basis for support when speaking for the majority of the Supreme Court in Moge v. Moge:

In short, compensatory spousal support is premised on a marriage being a joint endeavour between spouses. By recognizing the value of non-monetary contributions to marital unions, compensatory support seeks to alleviate the economic loss of the disadvantaged spouse through an equitable distribution of the benefits of the marriage.[^3] [Emphasis added]

[21] She later continued:

Essentially, compensatory support intends that both spouses profit from the joint venture of marriage. The question is not what the disadvantaged spouse would have achieved had he or she not entered into the marriage. Rather the question is what was that spouse’s contribution to the marriage and was the other spouse advantaged by that contribution. If so, does equity demand a sharing of any advantage gained should the benefits of an advantaged spouse be apportioned. In practical terms, the issue will generally revolve around whether one spouse has gained an advantage in his or her ability to earn income or acquire assets that should be shared for at least some period of time.[^4] [Emphasis added]

ii) Contractual entitlement

[22] Contractual entitlement flows from the express or implied agreement between the parties to the marriage. Mr. and Ms. Gupta had a reasonable expectation from their marriage that they would derive an equal benefit from the different work they performed during their marriage.

iii) Non-compensatory support

[23] Non-compensatory support is a residual basis for ordering support “where it is fit and just to do so.” In the present case, it is reasonable to provide a reasonable opportunity to Ms. Gupta to fulfill her responsibilities to the parties’ children until they are in school full time and then to find suitable employment for herself in the workplace.

c) Objectives of spousal support

[24] Orders for spousal support are designed to achieve the objectives set out in Section 15.2 of the Divorce Act.[^5] Subsection 15.2 (6) provides that spousal support should:

recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.[^6]

[25] I will address each of these objectives, mindful of the admonition that no one objective predominates; rather, all four objectives must be balanced in the context of the circumstances of the particular case.[^7] I will then balance the considerations that emerge to determine an appropriate amount of support.

i) Section 15.2(6)(a): Economic advantages or disadvantages from the marriage or its breakdown

[26] Compensatory support is based on the economic advantage or disadvantage each of the parties has derived from the marriage. See Moge.[^8] In the present case, the parties formed a relationship of financial interdependence when Ms. Gupta left her career path as a professional engineer to raise the parties’ children. This resulted in an economic advantage to Mr. Gupta and a disadvantage to Ms. Gupta, in that Mr. Gupta was able to advance in his business career at the expense of Ms. Gupta’s potential career as a professional engineer or market consultant. The disadvantage that Ms. Gupta derived from the marriage breakdown was exacerbated by the fact that she had abandoned her career as an electrical engineer, which would otherwise have enabled her to establish her own independent source of income and future security.

ii) Section 15.2(6)(c): Economic hardship

[27] Did Ms. Gupta suffer economic hardship from the marriage breakdown? Courts have differed as to whether the term ‘hardship’, as used in the Divorce Act, refers to an inability to meet basic needs or should be more liberally interpreted to refer to an inability to meet the recipient’s needs considered in their context[^9]. Whichever interpretation prevails, Ms. Gupta has suffered economic “hardship” from the breakdown of her marriage. Without financial support from Mr. Gupta she is unable to meet her basic needs or to maintain a standard of living that is equivalent either to that which the parties maintained during their marriage or to that which Mr. Gupta continues to enjoy.

iii) Section 15.2(6)(d): Self-sufficiency

[28] Section 15.2(6)(d) of the Divorce Act promotes the objective of economic self-sufficiency only if it is “practicable” to do so and where the objective can be realized “within a reasonable period of time”. As the Court of Appeal pointed out in Fisher v. Fisher, self-sufficiency, with its connotation of economic independence, is a relative concept. It should be interpreted not as the ability to meet basic expenses but as the ability to support a standard of living that is reasonable, having regard to the economic partnership that the parties enjoyed and could sustain during cohabitation and could reasonably anticipate afterward. It requires consideration of:

• The parties’ present and potential incomes;

• Their standard of living during cohabitation;

• The efficacy of any suggested steps to increase a party’s means;

• The parties’ likely post-separation circumstances (including the impact of equalization of their property);

• The duration of their cohabitation; and

• Any other relevant factors.[^10]

[29] As the Court of Appeal stated in Linton:

Self-sufficiency is often more attainable in short-term marriages, particularly ones without children, where the lower-income spouse has not become entrenched in a particular lifestyle, or compromised career aspirations. In such circumstances, the lower-income spouse is expected either to have the tools to become financially independent or to adjust his or her standard of living.

In contrast, in most long-term marriages, particularly in traditional long-term ones, the parties’ merger of economic lifestyles creates a joint standard of living that the lower-income spouse cannot hope to replicate, but upon which he or she has become dependent. In such circumstances, the spousal support analysis typically will not give priority to self-sufficiency because it is an objective that simply cannot be attained. See Linton at 27. [^11] [Emphasis added]

[30] As L’Heureux-Dubé J. stated in Moge: “The longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution”[^12] Although spousal support, which focuses on equitable sharing, does not guarantee to either party the standard of living enjoyed during the marriage, this standard is still relevant to support entitlement.[^13] Furthermore, great disparities that would result in the spouses’ respective standards of living in the absence of support are often a revealing indication of the economic disadvantages inherent in the role that one of the parties assumed during the marriage.

[31] In the present case, Ms. Gupta’s financial dependence on her husband increased when she gave up her employment to work at his parents’ business and to care for the parties’ children. Her standard of living is unlikely, in the immediate future, to equal that which she and her husband enjoyed during their marriage and which he still appears to maintain for himself. The goal of self-sufficiency is not practicable for her at the present time, having regard to her limited income-earning capacity, particularly while the children are still dependent on her.

[32] Notwithstanding the limitations imposed by Ms. Gupta’s circumstances, she is required to demonstrate that she has not been intentionally under-employed. In Thomas v. Thomas[^14], the Court held that the onus was on the wife to establish that she was not intentionally under-employed. In considering the capacity of the wife in Thomas to contribute to her own support as required by s. 33 (9) (c) of the Family Law Act[^15], Quinn J. indicated that the spouse seeking support bore “an evidentiary responsibility, not necessarily to show that reasonable efforts have been made to become self-supporting, but to establish that some reasonable steps have been taken”. In that case, the wife did not work and the judge imputed income to her on the basis that she had not made adequate efforts and had failed to present a plan for her own support.

[33] In Mann v. Mann[^16], Herman J. distinguished the Thomas case on the basis that the issue was not one of underemployment but whether reasonable efforts had been made to become self-supporting. The evidentiary onus in Thomas, he said, was to establish “that some reasonable steps have been taken”.

[34] Ms. Gupta has produced résumés and has identified the positions she has applied for. The question for the trial judge, in relation to this objective, will be how quickly it is reasonable to expect Ms. Gupta to find suitable employment or adjust her standard of living to one commensurate with her own income-earning ability. The answer will depend on a balancing of all the objectives and factors, in the context of the circumstances that exist at the time of trial.

[35] In Hotte v. Robertson, MacDougall J. set out a four-step analysis to determine the parties’ needs and means on an interim motion for support.[^17] He stated, at paragraphs 18 and 19:

In reviewing the needs of the Applicant, the motions judge was advised that Ms. Hotte was not employed and was receiving government assistance and that her ability to earn income was limited as she had not been employed outside the home for a considerable period of time.

The court should not, at an interim application stage, place too much emphasis on the submission by the payor spouse of the dependant spouse’s failure to pursue self-sufficiency. It is apparent that Ms. Hotte has an obvious need and her proposed budget is a relatively modest budget.

[36] The test established in Hotte v. Robertson was followed by O’Connor J. in Ferreira v. Ferreira,[^18] and by Platana J. in Wilson v. Wilson.[^19]

[37] While the objective of self-sufficiency is a factor which must be considered whenever determining the appropriateness and quantum of spousal support under the Divorce Act, Ms. Gupta’s failure to achieve self-sufficiency should not be given much emphasis at this interim stage.

iv) Summary of objectives

[38] In summary, then, Ms. Gupta was a traditional spouse in a marriage of medium duration who has suffered an economic disadvantage from her marriage to Mr. Gupta by having assumed child care responsibilities and household duties in a way that compromised her career as a professional engineer to the advantage of his. I do not regard her inability to achieve a greater degree of self-sufficiency at this stage, having regard to the marital standard of living and the continued dependence of her children on her, to disentitle her to spousal support at the present time or to be likely to do so at trial.

d) Factors to be considered

[39] In addition to the objectives set out in sub-section 15.2(6) of the Act, the court must consider the factors listed in sub-section 15.2(4). It should consider the “condition, means, needs and other circumstances” of each spouse, including the length of time they cohabited, the functions each performed during their relationship, and any order, agreement or arrangement they have made relating to the support of either spouse. McLachlin, J. (as she then was) stated at paragraph 36 of Bracklow:

Where the extent of the economic loss can be determined compensatory factors may be paramount. On the other hand “in cases where it is not possible to determine the extent of the economic loss of a disadvantaged spouse….the court will consider need and standard of living as the primary criteria together with the ability to pay the other party”: Ross v. Ross (1995), 168 N..R. (2d) 147, at page 156, per Bastarache, J. A. (as he then was). There is no hard and fast rule. The judge must look at all the factors in light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage break down.[^20] [Emphasis added]

(i) Length of cohabitation: Section 15.2(4)(a)

[40] The “condition, means, needs and other circumstances of each spouse” includes the length of the parties’ cohabitation. In cases involving lengthy marriages, courts have often imposed indefinite orders for support.[^21] This is because after a long-term marriage, the dependent spouse is often of an age that makes it difficult to achieve economic self-sufficiency.

[41] Mr. and Ms. Gupta were together for ten years. Ms. Gupta, although only 42, still has dependent children, 4 and 6 years old, at home. It is likely that the trial judge will consider ordering spousal support of a lengthy duration in her favour. Additionally, Mr. Gupta will be able to set off any overpayment of spousal support against an equalization payment that he may owe to Ms. Gupta, or against her share of the sale of jointly owned property. It is therefore unlikely that if I now make an order for interim spousal support, it will prejudice Mr. Gupta by depleting the parties’ capital or causing an over-payment to Ms. Gupta that cannot later be corrected.

ii) Functions performed during cohabitation: Section 15.2(4)(b)

[42] It is not disputed that Ms. Gupta assumed primary responsibility for the parties’ children and household duties during the marriage, even if Mr. Gupta was paying the bills associated with the matrimonial home. It cannot reasonably be argued that the marriage did not negatively affect Ms. Gupta, having regard to the fact that she abandoned her career to care for the parties’ children and work part-time in Mr. Gupta’s parents’ business. At the age of 42, Ms. Gupta still has no professional designation or formal training or skills and has been out of the work force in any meaningful capacity since 2005.

iii) Other circumstances: Section 15.2(4)

[43] The parties have not relied on other circumstances.

e) Principles governing interim spousal support

[44] In Driscoll v. Driscoll[^22], Lemon J. cited with approval the British Columbia case of Robles v. Kuhn[^23] for the helpful list of principles it sets out governing interim support motions. These principles can conveniently be grouped as follows:

Onus and Burden of Proof:

(a) Motions for interim support are summary in nature. The court will generally not conduct a detailed investigation into the merits of a case, in large part because at the stage of a motion for interim support, there is not sufficient evidence to enable the court to do so.

(b) A claimant need only establish a prima facie case for relief.[^24]

(c) Where contested issues of fact need to be resolved, especially those connected with the threshold issue of entitlement, it becomes less advisable to order interim support.

Criteria for Entitlement:

(a) The court on an application for interim support should not unduly emphasize any one of the statutory considerations above others;

(b) That being said, the applicant’s needs and the respondent’s ability to pay often assume greater significance and the respondent’s need to achieve self-sufficiency often assumes less significance on applications for interim support than they do at trial.

Appropriate amount of support:

(a) Interim support order should be sufficient to allow a dependant spouse money to maintain a reasonable lifestyle pending trial.

(b) Interim support should allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it.

(c) Interim support should be within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise.

[45] While the court should not unduly emphasize one criterion over another when determining interim spousal support, I will review the statutory criteria and consider the evidence relating to each.

(i) Mr. Gupta’s Ability to Pay

[46] As noted above, the applicant’s needs and the respondent’s ability to pay often assume greater significance on motions for interim spousal support than on applications for final support. In determining the payor’s means the Court may impute income to him in appropriate cases, including where the payor spouse is intentionally under-employed. As Justice Olah noted in Rilli v. Rilli[^25], the test for imputing income for child support purposes applies equally to claims for interim spousal support.[^26]

[47] In Pagnotta v. Malozewski[^27], the Divisional Court, after setting aside a final order of spousal support on the ground that a motions judge has no jurisdiction to make such an order on a motion for interim spousal support, nevertheless continued the order appealed from as one for interim spousal support, based on an imputed income to the husband.

[48] The Court may therefore impute income to a spouse for the purpose of determining spousal support even though there is no express provision in the Act which sets out how this is to be done. The Spousal Support Advisory Guidelines refer to imputing income along the lines of the Child Support Guidelines, and courts have therefore applied this same methodology in imputing income when determining spousal support.[^28]

[49] The court in Drygala v. Pauli[^29], supra, set out a three-part test to determine whether income should be imputed. The court should consider:

(i) Whether the payor is intentionally under-employed or unemployed;

(ii) If the payor is intentionally under-employed, is this by virtue of his reasonable educational needs, the needs of the child of the marriage or reasonable health needs?

[50] I will consider each of these questions in turn.

(i) Is Mr. Gupta intentionally under-employed or unemployed?

[51] There are two lines of judicial authority dealing with the meaning of "intentionally under-employed or unemployed" One line of authority holds that "intentionally" means "voluntarily". It applies where a payor spouse chooses to be under-employed or unemployed. No specific intent to evade child support is necessary. This approach was adopted by the Ontario Court of Appeal in Drygala v. Pauli[^30], by the Manitoba Court of Appeal in Donovan v. Donovan[^31], and by the Saskatchewan Court of Queen’s Bench in Mullen v. Mullen[^32]. The second line of authority holds that "intentionally" in s. 19(1)(a) requires a specific intent by the payor to evade that obligation. This reasoning was adopted by the Alberta Court of Appeal in Hunt v. Smolis-Hunt.[^33].

[52] In following the reasoning of the Ontario Court of Appeal in Drygala, supra, I find that Mr. Gupta was required to pay support and has chosen, for whatever reason, to earn less than he is capable of earning. The fact that he "chooses" to be under-employed brings his situation within the meaning of "intentional" and creates the circumstance envisioned by s. 19(1)(a). The reason for such a choice does not change the fact it is "intentional" but it may impact the court's decision to exercise its discretion and impute income.

[53] The evidence in this case satisfies me that Mr. Gupta is intentionally under-employed. He is a commission salesman and has the additional qualification of having had prior experience in his field. He has failed to provide detailed information about the sources of his income, including his commissions from sales of commercial real estate or the income he had continued to receive from his parents.

ii) Reasonable justification for underemployment

[54] The second part of the test in Drygala is: “If the payor is intentionally under-employed, is this by virtue of his reasonable educational needs, the needs of the child of the marriage or reasonable health needs?”

[55] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. Spouses or parents can take jobs with less money as long as the decision is reasonable. A payor cannot be excused from his or her support obligations in furtherance of unrealistic career aspirations.[^34]

[56] The onus is on Mr. Gupta to prove a reasonable justification for his underemployment. I find that he has failed to do so. He abandoned his employment in his parents’ business, with the explanation that he foresaw an eventual decline in that business owing to the increasing price of silver, knowing that the issues of his spousal and child support obligations were before the court.

[57] In Perino v. Perino,[^35] in 2007, Van Rensburg J. allowed the wife’s motion for interim spousal support, retroactive to the date of separation, at an amount which she based on imputing an income of $50,000.00 to the husband. During the marriage, the husband had been self-employed as a licensed airplane mechanic. For three years up to the point when the parties separated, he had earned an average income of $52,000.00 per year. Coincident with his separation from his wife, he sold his business to his business associates, and then claimed to be earning a reduced income in the amount of $36,400.00. While he asserted that he had sold the business for financial reasons and that the proceeds were simply enough for him to discharge his business debts, the evidence showed that he had netted $25,000.00 after paying the debts. Justice Van Rensburg noted, based on the test in Drygala, that “Intentional under-employment” does not require a finding of bad faith or the intention to defeat a support claim. The issue is whether the support payor, through his own conduct, that is, not as a result of circumstances beyond his control, is earning less than he or she is capable of earning.”[^36]

[58] I find that Mr. Gupta, by his own decision, and not as a result of circumstances beyond his control, is earning less than he is capable of earning from his parents’ business. Mr. Gupta argues that his income had been declining since 2007 due to a decline in the U.S. economy and, more particularly, due to the fact that the cost of sterling silver has increased significantly. He submits that its cost in 2005 was just over $6.00 per ounce and has increased to over $45.00 per ounce in 2011, that there is always a lag in the decrease of sales as companies will have bought their silver in advance, and that the eventual decline in profit margins shows over time.

[59] Mr. Gupta submits that on the basis of the decline in the jewelry business, he decided to change careers, to some extent, but to continue to act as a sales person. He took courses to become a commercial real estate agent from which he would continue to earn a commission for sales, as he has in the past, keeping his job fairly similar and consistent but with a new product to allow for higher profitability.

[60] Mr. Gupta asserts that his parents’ company, TAJ Gifts and Jewellery (“TAJ”), was in decline and that, consequently, he had no alternative but to obtain alternate employment for himself. However, as Ms. Gupta points out, her husband has never voluntarily produced any documentation relating to TAJ, even though it can be presumed that such documentation is readily available to him from his parents.

[61] Contrary to Mr. Gupta’s assertion, his income from his parents’ business has not been declining since 2007. As noted above, his income increased from 2008 to 2009 from $94,564.00 to $136,395.00. I have no evidence yet as to what his income was in 2011.

[62] Mr. Gupta relies on Section 19.(1)(a) of the Federal Child Support Guidelines, which applies equally to determinations of spousal support as to child support. That section provides that the court should impute income to a payor spouse when “the spouse is intentionally under-employed,…other than where the under-employment…is required…by the reasonable educational…needs of the spouse.” Mr. Gupta argues that he was under-employed, after leaving his parents’ employ, because he reasonably needed to secure the education required to become licenced as a commercial real estate agent. His decision to seek this education was reasonable, he says, because employment as a realtor offered more secure income in the future than continued employment by his parents.

[63] In Drygala, the Court of Appeal held that, in applying section 19.(1)(a), the court must first determine whether the educational needs themselves are reasonable, and must then determine whether satisfying them necessarily entailed under-employment. The Court of Appeal described the kind of evidence that the payor spouse must provide to discharge his onus of proof in this regard:

There are two aspects to this stage of inquiry. The trial judge must first determine whether the educational needs are reasonable. This involves a consideration of the course of study. A spouse is not to be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.
But, s. 19.(1)(a) speaks not only to the reasonableness of the spouse’s educational needs. It also dictates that the trial judge determine what is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs. How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the spouse is excused from pursuing part-time work? Could the program be completed over a longer period with the spouse taking fewer courses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under-employment is required by the reasonable educational needs of a spouse.
The burden of proof is upon the spouse pursuing education as he or she is the person with access to the requisite information. The spouse is in the best position to know the particular requirements and demands of his or her educational program. He or she will have the information about the hours of study necessary to fulfill such requirements, including the appropriate preparation time. He or she is in the best position to show whether part-time employment can be reasonably obtained in light of these educational requirements. [Emphasis added]

[64] Mr. Gupta has not provided sufficient evidence to enable the court to assess either the reasonableness of his need to obtain his commercial real estate licence or what is required by virtue of those educational needs. He bore the burden of demonstrating that his parents’ business was in fact declining. Yet he failed to produce the records that he had been ordered to produce and that might have demonstrated this.

[65] Mr. Gupta also did not produce evidence as to what courses he needed to take to obtain his realtor’s licence, the time that the courses required, and the reasons he was unable to maintain either employment in his parents’ business, or employment in the real estate industry, while he was taking the necessary courses. He simply has not provided sufficient evidence to discharge the evidentiary burden upon him.

(iii) What income should be imputed to Mr. Gupta? – Required evidence and previous earning history

[66] The third part of the test in Drygala v. Pauli, is: “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?”

[67] Mr. Gupta has not provided the evidence that would enable the court to assess what income he was capable of earning while securing his real estate licence or establishing himself in his new occupation. In the absence of such evidence, the court must look to the income that he earned in the past and either impute that income to him or, if he has provided evidence as to what time his education required and what time remained for employment, impute a percentage of that past income. The Court of Appeal stated in Drygala:

When imputing income, the court must consider the amount that can be earned if a person is working to capacity while pursuing a reasonable educational objective. How is a court to decide that when, typically, there is little information provided on what the parent could earn by way of part-time or summer employment? If the parent does not provide the court with adequate information on the types of jobs available, the hourly rates for such jobs and the number of hours that could be worked, the court can consider the parents’ previous earning history and impute an appropriate percentage thereof. [Emphasis added]

[68] In the present case, Mr. Gupta has not provided evidence of what time he was required to spend obtaining his realtor’s licence and what time remained for employment. The court is therefore left to impute an income to him based on his previous earnings. The method by which it does so is set out in the Child Support Guidelines.

[69] The Guidelines define a spouse’s income, in section 2, as the income arrived at by applying sections 15 to 20. Section 15 to 20 of the Guidelines provide the following methodologies for the court to consider, one by one, until it finds a fair means of determining the spouse’s income for purposes of calculating his support obligation.

Where the spouses agree on the amount of the payor’s income, that amount should be the basis for calculating support.
Where the payor spouse’s income is disputed, as it is here, his annual income can be determined in one of three ways:

(a) The court should first determine the amount using the sources of income set out under “Total income” in the spouse’s Income Tax Return, as adjusted in accordance with Schedule III. The court must rely on the most current information.[^37]

(b) Where that would not be the fairest way of determining income, the court should determine a fair and reasonable amount having regard to the payor’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income, or receipt of a non-recurring amount during those years.[^38]

(c) In appropriate circumstances, the court may impute an amount of income to a spouse. Under s. 19 of the Guidelines, appropriate circumstances include where the spouse:

• is intentionally under-employed or unemployed (other than where it is required by the needs of a child);

• has diverted income that would affect the level of child support;

• is not reasonably using his property to generate income;

• has failed to provide income information;

• has unreasonably deducted expenses from his income (and here, the reasonableness is not governed solely by whether the expenses can be deducted for income tax purposes).

[70] In the present case, as Mr. and Ms. Gupta do not agree, I have considered the income set out under “Total income” in Mr. Gupta’s most recent Income Tax Returns, as adjusted in accordance with Schedule III.

[71] While Mr. Gupta’s Line 150 income in 2011 is his presumptive income provided for by sections 2(3) and 16 of the Federal Child Support Guidelines, Mr. Gupta has not produced his income tax return for 2011. Additionally, he is likely to have reported a Line 150 income that is significantly less than what he earned until recently from his parents’ business. It would be unfair, in these circumstances, to determine Mr. Gupta’s income for support purposes based on his Line 150 income in 2011.

[72] It would also be unfair to average the income Mr. Gupta reported from 2009 to 2011, since this average is likely distorted by his departure from his parents’ business and the time he has spent in the past two years qualifying for his commercial real estate licence.

[73] While I must generally use the most current information, Mr. Gupta’s most recent income, even for the past three years, would not be a fair basis for determining his spousal support obligation. I rely principally on two factors in coming to this conclusion:

Mr. Gupta has failed to comply with the Order of Baltman J. dated December 5, 2011, which provides:

The Respondent/father, Tarun Gupta, shall provide the following if available or existing:

a. As per paragraph 13 of the Respondent/father’s (Tarun Gupta’s) Answer: documentation sufficient to corroborate both the gross sales and net sales of TAJ Gifts and Jewellery from 2006 to 2011;

b. A breakdown of all commissions earned by the Respondent/father, Tarun Gupta, with TAJ Gifts and Jewellery from January 1, 2006, to present; and

c. A summation of all gifts received by the Respondent/father, Tarun Gupta, from his parents, from January 1, 2006, to present.

Mr. Gupta has also not produced an up-dated financial statement, or his Income Tax Return for 2011, or any evidence as to what his income was in 2011, or any evidence as to his year-to-date income in 2012. He also has failed to comply with paragraph 4(a) of Justice Baltman’s Order, which required him to produce statements for all bank accounts which he holds, alone or with others, from the date of separation to the present. These statements may disclose how much money has passed through his accounts each month, and what his cash flow has been.

In order for Mr. Gupta to rely on TAJ’s decline in profitability as a reason why his career change is warranted, he should produce the disclosure required, so that his wife and the court can assess the truthfulness of his assertions. I therefore draw an adverse inference against Mr. Gupta for his failure to produce the disclosure required of him pursuant to Justice Baltman’s Order.

I reject, for the following reasons, Mr. Gupta’s characterization as “gifts” of the funds he has received from his parents since at least the beginning of 2011:

a. Mr. Gupta continues to send and receive e-mail messages from and to his TAJ e-mail account, tarun@import-world.com. As Ms. Gupta points out, there is no apparent reason why he continues to use this account if he is no longer working for TAJ.

b. Mr. Gupta continues to operate a cellular telephone in the U.S. Ms. Gupta has produced a copy of his most recent account statement for that phone, with the same telephone number he used to conduct TAJ business.

c. Mr. Gupta’s Citi Financial credit card statement for the period ending March 21, 2012, discloses an expenditure of $769.87 in February 2012 at Allen Edmonds, a men’s footwear store, and an expenditure of $1,050.00 for a stay at the Mandalay Bay resort in Las Vegas.

[74] In determining what income to impute to a payor spouse, the court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. The best evidence as to what Mr. Gupta is capable of earning is the evidence as to what he has earned in the past.

[75] The Court of Appeal has held that a trial judge was justified, based on a husband’s failure to make full financial disclosure and the absence of medical evidence confirming that he was disabled, in finding that he was either deliberately unemployed or hiding income. The Court upheld the trial judge’s decision to impute the income to him that he had earned when he had been healthy and able to work, and ordered retroactive support. See Klerides v. Klerides.[^39]

[76] Mr. Gupta has not produced the records of the income he earned in 2011 but he has produced the net revenues that his parents’ business earned that year. Net revenues have been the basis for Mr. Gupta’s income in the past and are a relevant consideration in determining what income he is earning, or capable of earning, now. In 2011, Mr. Gupta’s parents’ business earned net revenues of $1,240,950.00. The statements for 2007 show net revenues of a similar amount, namely, $1,310,813.00. Mr. Gupta’s income in 2007 was $130,773.00, or approximately 10% of net revenues. The same percentage of net revenues earned in 2011 would be $124,095.00.

[77] I find that Mr. Gupta’s income in 2007, when net revenues earned by his parents’ business were similar to what they were in 2011, is the fairest basis for determining his present income for purposes of calculating his support obligation. Based on this evidence, I find that Mr. Gupta should be capable of earning an income of $124,000.00 per year, whether from his parents’ business, or from real estate commissions, or from a combination of both. I am satisfied that this income should be imputed to Mr. Gupta at the stage of a motion for interim support (Stoyshin v. Stoyshin, 2007)[^40] and s. 19 of the Federal Child Support Guidelines.

[78] It may not be realistic to expect that Mr. Gupta was able to maintain an income of $124,000.00 while he was obtaining his real estate licence or, indeed, for a period after he obtained it, until he developed a clientele in his new business. Seppi J. noted in Stiver v. Mercer, in 2000:

Although I have found that the applicant has not acted reasonable in becoming intentionally under-employed, the purpose of s. 19(1)(a) of the Child Support Guildelines is not to punish a parent who is intentionally under-employed, but rather to provide that children receive the support to which they are entitled. “Appropriate” requires that the amount be realistically achievable, with a view to enabling the applicant to comply with his child support obligations. [Emphasis added][^41]

[79] In the absence of adequate disclosure from Mr. Gupta that might have enabled the court to track the levels of income that he was actually able to earn during the period when he was obtaining his real estate licence and since, I am not prepared to impute an income of $70,000.00 to him as he requests. To do so would be to shift the burden of proof from him to his wife to correct any inadequacy of support based on the true facts. As the Court of Appeal noted in Drygala, he bears the burden of proof because he is the party with greatest access to the evidence needed to establish the income he was capable of earning.

[80] I am also mindful of the fact that Mr. Gupta appears to have some influence over the funds he receives from his parents to supplement the income he is earning from his nascent real estate business. The Court of Appeal in Bak v. Dobell,[^42] in 2007, addressed the issue of whether gifts the payor spouse receives should be regarded as income for purposes of calculating his support obligation. In general, gifts are not considered to be part of a person’s income. However, as Lang J. noted at para. 74, there may be “circumstances surrounding the particular gift [that] are so unusual that they constitute an ‘appropriate circumstance’ in which to impute income”.

[81] In determining whether it is appropriate to include gifts in income, the court will consider a number of factors, including: the regularity of the gifts and the duration of their receipt; whether the gifts were part of the family’s income during cohabitation that entrenched a particular lifestyle; the circumstances of the gifts that earmark them as exceptional; whether the gifts do more than provide a basic standard of living; the income generated by the gifts; whether the gifts are provided to an adult child through a crisis or period of disability; whether the gifts are likely to continue; and the true purpose and nature of the gifts (Bak v. Dobell, at para. 75).

[82] Mr. Gupta asserts that he has received the gifts for the past two years to supplement the income he has earned from his real estate practice until he brings that income to the level he earned previously, while employed by his parents. I do not regard these funds strictly as gifts, since Mr. Gupta’s parents were formerly his and his wife’s employers. The evidence supports an inference that Mr. Gupta may still be performing some of his previous duties for their business. In any event, because of his previous employment by his parents, and the fact that they are providing the funds to bridge his transition from employment by them to self-employment, I regard the character of the funds they are providing as fluid and likely to continue, at least until his income from self-employment reaches an adequate level.

[83] The issue of whether to characterize gifts to a payor spouse as income was considered in Whelan v. O’Connor,[^43] in 2006. In that case, the court declined to impute income to the payor on the basis of gifts. After reviewing s. 19 of the Federal Child Support Guildelines and the cases, MacKinnon J. distilled the following principles:

The court should be cautious in imputing income on the basis of gifts when so doing would have the effect of transferring a child support obligation to someone who, legally, does not have that obligation.
Income is generally imputed where a parent is not properly utilizing earning capacity or other resources to support his or her children.
Factors supporting income imputation on the basis of gifts include:

a. the gifts represent a significant portion of the recipient’s overall income;

b. the gifts are part of a planned or intentional diversion of income or substitution for income previously earned from this source; and

c. there is reliance upon the regular and ongoing nature of the gifts as an income source in lieu of pursuing other remunerative employment commensurate with the abilities of the respondent.

Failure to make full disclosure is a frequent factor in cases where income is imputed.

[84] I am not satisfied by the evidence before me that Mr. Gupta has adequately used his capacity to earn income from his parents’ business to support his wife and children. The funds he has continued to receive from his parents have represented a significant portion of his overall income for the past two years. He is relying on the regular and ongoing nature of the gifts as an income source in lieu of continuing his previous employment in his parents’ business. The gifts are admittedly a substitute for income that Mr. Gupta previously earned from his parents, and Mr. Gupta has failed to make full disclosure of the evidence that would clarify whether he was performed services for his parents since leaving their employ and how his parents are accounting for the funds they have continued to pay to him.

[85] In De Zen v. De Zen,[^44] in 2001, the payor spouse worked for his father’s business. McWatt J. imputed income to him on the basis of her findings that the father was intentionally underemployed, gifts from his parents made up for the shortfall in his remuneration, and the level of his income was tied to his desire to control the level of child support he would be required to pay. In the present case, the evidence does not persuade me that Mr. Gupta left his parents’ employ in order to avoid paying spousal or child support. He may, as he asserts, have had an honest intention to establish a more secure source of income for himself and his family in the future. However, his failure to make adequate disclosure of the evidence that both the court and his wife require to make this assessment leaves the court with little choice but to draw the inference, until such is forthcoming, that the evidence would not support his position that it was necessary to leave his parents’ employ, or that his income has declined as much as he says it has, or that the funds he has since received from his parents are purely gifts.

[86] While Mr. Gupta has invited the Court to impute an income of $70,000.00 to him, based on both his income as a realtor and the gifts he has received from his parents, I am imputing income to him at the higher amount commensurate with what he would have earned from his parents’ business were he still employed there. In the unsatisfactory state of the evidentiary record, this will keep the burden of proof on Mr. Gupta to produce the necessary evidence if the level of support being set now needs to be adjusted at trial in order to reflect more accurately what he has been or is capable of earning.

(iv) Ms. Gupta’s income

[87] Section 33(8) and 33(9) of the Family Law Act, R.S.O. 1990, c. F.3 describe the purposes of an order for support and the factors the Court is to take into account in determining amount and duration, if any, of support. These include, of course, the dependent’s capacity to contribute to her own support,[^45] the measures available for her to become able to provide for her own support,[^46] and the length of time and the cost involved to enable a dependent to take those measures. Mr. Gupta, as I have noted, has argued that if his wife is entitled to spousal support, the amount should be reduced on the basis that she has not made any efforts to become self-sufficient.

[88] Mr. Gupta asserts that his wife has a professional engineer designation. Ms. Gupta acknowledges that she graduated from Queen’s University with a Bachelor of Applied Science (B.Sc.) in electrical engineering but denies that she is a professional engineer.

[89] Ms. Gupta’s last “full-time employment” was as Manager of Market Development at Nortel Networks from February 2000 until June 2001. She left that position to work part-time in her husband’s parents’ business, where she was responsible for delivery of products from the head office in Texas to stores in Canada. She left that position in January 2003 to become Project Manager for IceBoard Sports Systems in Toronto. Her Notice of Assessment for 2010 records her Line 150 income that year as $16,175.00. Her income in 2009 was $16,858.00. Her T-1 Income Tax Return for 2011 reports her Line 150 income that year as $48,551.40. These average of her reported income for those years is $27,294.80

[90] Ms. Gupta asserts that the income she has reported for income tax purposes was the result of tax splitting with her husband and that she has, in fact, been unemployed since the parties separated. Without more detailed information from her explaining how the income she has reported since leaving the employ of Mr. Gupta’s parents in 2003 was arrived at, or the disclosure which Mr. Gupta has been ordered to produce, or his response to Ms. Gupta’s assertion, the court is unable to assess her evidence satisfactorily.

[91] Ms. Gupta asserts that she has been seeking employment in the telecommunications industry, the field in which she was employed immediately prior to when she began working for Mr. Gupta and his parents. She invites the court to impute an income of $35,139.79 calculated as the average of her income from 2005 to 2010, although she states that she will not be earning this amount in the current year.

[92] In Hotte v. Robertson, MacDougall J. set out a four-step analysis to determine the parties’ needs and the means on a motion for interim support. He concluded: “The court should not, at an interim application stage, place too much emphasis on the submission by the payor spouse of the spouse’s failure to pursue self-sufficiency.”[^47]

[93] The test established in Hotte v. Robertson was followed by O’Connor J. in Ferreira v. Ferreira,[^48] and by Platana J. in Wilson v. Wilson.[^49] While the objective of self-sufficiency is a factor which must be considered when making a determination as to the appropriateness and quantum of spousal support under the Family Law Act, I agree with MacDougall J. that the Court should not, at an interim stage, place too much emphasis on the dependent spouse’s failure to pursue self-sufficiency.

[94] Because the present proceeding has not yet progressed to the point of generating, either from an equalization payment or a distribution of net proceeds of sale of the matrimonial home, the funds Ms. Gupta requires to establish herself independently, I conclude that the quantum of her support should not be reduced by reason of her failure to achieve self-sufficiency.

[95] It is well established that marriage is not a guarantee of support upon separation or divorce. As L’Heureux-Dubé, J. stated in Moge v. Moge, at paragraph 74: “[m]arriage per se does not automatically entitle a spouse to support” and the support provisions of the Divorce Act are not a “…general tool of redistribution which is activated by the mere fact of marriage.” [^50] Nor does the law relating to spousal support guarantee to either spouse the standard of living which they had during the marriage. However, in a medium-term marriage, particularly where, as in the present case, one party took on primary responsibility for child care and other domestic matters, a significant disparity in standards of living absent support will be a strong indicator that a support order would be appropriate.

[96] As L’Heureux-Dubé, J. stated in Moge at paragraph 84:

As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution…[citation omitted]

[97] Based on the forgoing, I impute an income to Ms. Gupta in the amount of $28,000.00, an amount slightly higher than the average of her Line 150 income for the past three years.

f) Amount and commencement of interim support

[98] The factors and objectives require a balancing of the parties’ circumstances, including the following:

• The 10 year duration of their marriage;

• His age of 47 and hers of 42 years of age;

• Their incomes and prospective incomes;

• The effects of future equalization;

• The stages of their careers;

• Their contributions to the marital standard of living;

• Their participation in household responsibilities and child-care obligations;

• Their respective costs of living;

• The parties’ reasonable expectation, based in part on Mr. Gupta’s income during the marriage;

• Ms. Gupta’s claim for compensatory support and her greater need for transitional support owing to the dependence of the children on her.

[99] The British Columbia Court of Appeal has characterized the Spousal Support Guidelines as a “useful tool.” It has recognized that, unlike the Child Support Guidelines, the Spousal Support Guidelines are neither legislated nor binding; they are only advisory. The parties, their lawyers, and the courts are not required to employ them. As well, the Guidelines continue to evolve; they are a “work in progress” subject to revision. See Yemchuk v. Yemchuk.[^51]

[100] The Guidelines do not apply in many cases. As the Court of Appeal noted in Fisher v. Fisher, they will not help in atypical cases.[^52] In all cases, as the Court noted in Fisher, the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.

[101] The Guidelines are a useful “cross-check” for spousal support, on the basis that they “help in the long run to bring consistency and predictability to spousal support awards”, encourage settlement, and allow parties to “anticipate their support responsibilities at the time of separation.” [^53] Based on the income of $124,000.00 that I impute to Mr. Gupta and the income of $28,000.00 I impute to Ms. Gupta, Mr. Gupta is obliged to pay interim child support, in accordance with the Guidelines, in the amount of $1,709.00 per month for the support of his two children. His spousal support obligation, according to a Divorce-mate calculation, ranges from a low amount of $1,464.00 per month, to a mid-point of $1,876.00 per month, to a high amount of $2,248.00 per month.

[102] The mid-range of spousal support produced by a Divorce-mate calculation, based on the Spousal Support Advisory Guidelines, are the fairest basis for calculating spousal support, having regard to the following:

a. This was a marriage of medium duration.

b. Ms. Gupta interrupted her career as a professional engineer to a large extent to devote herself to raising the parties’ children, but she did not absent herself from the workforce altogether, and this will make it easier for her to re-enter the workforce now.

c. There is a large discrepancy between the parties’ respective income and circumstances but the discrepancy is reduced, to some degree, as yet unascertained, by Mr. Gupta’s change of career.

[103] Ms. Gupta had access to the parties’ joint bank account until June 2011. While there is some doubt as to whether Mr. Gupta continued depositing his income fully to this account during the period from January to June 2011, this issue can best be determined by the trial judge based on a more complete evidentiary record.

[104] I am ordering that support be paid retroactively to January 2012. I refrain at the present time from ordering that support be paid retroactively to January 2011 for the following reasons:

a) It is not clear from the evidentiary record when Mr. Gupta ceased depositing his earnings to the parties’ joint bank account or when Ms. Gupta ceased to have access to them. Mr. Gupta relies on the fact that on April 11, 2011, his wife withdrew $14,400.00 from the U.S. account at Citi Financial into which he deposited his employment income. Ms. Gupta asserts in her affidavit she has been surviving on draws from a $100,000.00 line of credit. At the hearing, she asserted that Mr. Gupta ceased depositing his income to the U.S. account in January 2011. There are no records before the court at this time from which to determine when Mr. Gupta ceased depositing his income to the parties’ joint account and to what extent Ms. Gupta has been able to draw on those earnings since the parties separated.

b) Where the extent of a payor spouse’s support payments is in dispute, the court may refrain from making a retroactive order, deferring that determination to the trial judge, who will have the benefit of a more complete evidentiary record.[^54]

c) I have imputed an income to Mr. Gupta based on his past earnings, in an amount that is almost double what he says he is currently receiving from his real estate practice, supplemented by gifts from his parents. This approach is made necessary by the incomplete evidentiary record. Although the deficiency in the record was brought about largely by Mr. Gupta’s failure to comply with Justice Baltman’s order requiring him to make full financial disclosure, I am giving him a final opportunity to provide the required disclosure before the full weight of a retroactive support order is imposed on him. If he fails to provide the required disclosure within the time specified in the present Order, he can expect the court on a further motion by Ms. Gupta to draw the same adverse inference, for the purpose of a retroactive support order, as I am drawing now.

d) I am hopeful that when the remaining disclosure is provided, the parties will resolve the issue of support on a final basis.

CONCLUSION AND ORDER

[105] Based on the foregoing, it is ordered that:

Mr. Gupta shall pay interim child support to Ms. Gupta in the amount of $1,709.00 per month, commencing January 1, 2012, based on an imputed income of $124,000.00 per year to him, for the support of the two children of the marriage:

a. Sachin Gupta, born December 18, 2005;

b. Akshay Gupta, born February 26, 2008.

Mr. Gupta shall pay spousal support to Ms. Gupta in the amount of $1,876.00 per month, commencing January 1, 2012;
Mr. Gupta shall be entitled to credit for such support as he has paid from January 1, 2012, to the present.
This Order is without prejudice to the right of the parties to seek adjustments to the amount, duration and retroactivity of support on a future motion or at trial.
Mr. Gupta shall comply with all outstanding disclosure orders by June 30, 2012, failing which Ms. Gupta may return her motion before me, on notice to Mr. Gupta, at 9 a.m. on a date when I am presiding, for the sole purpose of seeking support for the period from January 1, 2011, to December 31, 2011. If such a motion becomes necessary, the parties have leave to file further material, limited to the issue of what funds were deposited to the parties’ joint account or otherwise made available to Ms. Gupta during the period in question.
This Order shall be enforced by the Director of the Family Responsibility Office unless the Order is withdrawn at the request of the parties.
I urge the parties to resolve the issue of costs between them. If they are unable to reach agreement, Ms. Gupta may submit written argument, not to exceed four pages, with an accompanying Costs Outline, by June 15, 2012. Mr. Gupta may submit his response, also not to exceed four pages, with an accompanying Costs Outline, by June 30, 2012.

Price J.

Released: June 5, 2012

[^1]: Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, at para. 74. [^2]: Moge v. Moge, above, at para. 84 [^3]: Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R.813. [^4]: Moge v. Moge, Ibid, at para 45 [^5]: Divorce Act R.S.C. 1985, C 3. [^6]: Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420. [^7]: See Moge v. Moge at para. 52; Bracklow v. Bracklow at para. 35; and Miglin v. Miglin at para. 39. [^8]: Moge v. Moge [^9]: Fisher v. Fisher, 2008 ONCA 11 para. 49. [^10]: See Linton v. Linton, (1990), 1990 2597 (ON CA), 1 O.R. (3d) 1 (C.A.) at 27-28. [^11]: Fisher v. Fisher, [^12]: Moge v. Moge, , citing Rogerson, “Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)”, at pp. 174-75. (p. 870). [^13]: see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra. [^14]: Thomas v. Thomas, 2003 64346 (ON SC), [2003] O.J. No. 5401. [^15]: Family Law Act, R.S.O. 1990, c. F.3. [^16]: Mann v. Mann, 2009 23874 (ON S.C.). [^17]: Hotte v. Robertson, [1996] O.J. No. 1433 (Ct. J. (Gen. Div.). [^18]: [1998] O.J. No. 3302 (Ct. J. (Gen. Div.) [Ferreira]. [^19]: [2002] O.J. No. 3519 (S.C.J.) [Wilson] at para. 15. [^20]: Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, at para. 36. [^21]: See Andrews v. Andrews, (1999), 1999 3781 (ON CA), 50 R.F.L. (4th) 1 (Ont. C.A.); Adams v. Adams, (2001), 2001 8527 (ON CA), 15 R.F.L. (5th) 1 (Ont. C.A.); Desramaux v. Desramaux,, (2002), 2002 45030 (ON CA), 28 R.F.L. (5th) 25 (Ont. C.A.). [^22]: Driscoll v. Driscoll, 2009 66373 (ON S.C.). [^23]: Robles v. Kuhn, 2009 BCSC 1163, [2009] B.C.J. No. 1699 (BC S.C.). [^24]: Gibson v. Gibson, 2009 55342 (ON S.C.), para. 13 citing McLeod and Mamo, Annual Review of Family Law, 2008, (Toronto: Thomson Carswell 2008), at p. 421. [^25]: Rilli v. Rilli, [2006] O.J. No. 2142. See also: Pellerin v. Pellerin, 2009 60671 (ON S.C.). [^26]: Drygala v. Pauli, (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.). [^27]: Pagnotta v. Malozewski, 2008 14800 (ON S.C. Div Crt). [^28]: See, for example, Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413 at para. 66. [^29]: Drygala v. Pauli, (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711, , 219 D.L.R. (4th) 319, [^30]: Drygala v. Pauli, (2002), 2002 41868 (ON CA), 29 R.F.L. (5th) 293 (Ont. C.A.). [^31]: Donovan v. Donovan, 2000 MBCA 80 (. [^32]: Mullen v. Mullen, 2004 SKQB 65. [^33]: Hunt v. Smolis-Hunt, 2001 ABCA 229 [^34]: See Hanson v. Hanson(1999) , 1999 6307 (BC SC), 92 A.C.W.S. (3d) 1024, (B.C. S.C) The payor must prove that any medical excuse for being underemployed is reasonable. See Rilli v. Rilli, 2006 34451 (ON SC), [2006] O.J. No. 4142, (Fam. Ct.). [^35]: Perino v. Perino 2007 46919 (S.C.J.) [^36]: Perino v. Perino , ibid, at para. 28. [^37]: Child Support Guidelines, ss. 2 (3), 16. [^38]: Child Support Guidelines, s. 17(1) [^39]: Klerides v. Klerides, 2002 44967 (ON C.A.). [^40]: Stoyshin v. Stoyshin, 2007 15478 (ON SC), [2007] O.J. No. 1772 (ON. S.C.) at para. 13-14 [^41]: Stiver v. Mercer 2000 CarswellOnt 487, [2000] W.D.F.L. 159, 95 A.C.W.S. (3d) 118, at para. 7 [^42]: Bak v. Dobell, 2007 ONCA 304, [2007] O.J. No. 1489 (Ont. C.A.) [^43]: Whelan v. O’Connor, 2006 13554 (ON SC), [2006] O.J. No. 1660 (Ont. S.C.J.) [^44]: De Zen v. De Zen (2001), [2002] O.J. No. 5827 (Ont. S.C.J.) [^45]: Family Law Act, s. 33(9)(c). [^46]: Family Law Act, s. 33(9)(g). [^47]: Hotte v. Robertson, [1996] O.J. No. 1433 (Ct. J. (Gen. Div.), at para. 19 [^48]: Ferreira v. Ferreira [1998] O.J. No. 3302 (Ct. J. (Gen. Div.) [^49]: Wilson v. Wilson, [2002] O.J. No. 3519 (S.C.J.), at para. 15. [^50]: Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813. [^51]: Yemchuk v. Yemchuk, 2005 BCCA 406, (2005), 16 R.F.L. (6th) 430 at para. 64 (B.C.C.A.). [^52]: Fisher v. Fisher, 2008 ONCA 11, para. 96. [^53]: Fisher, supra, para. 100. [^54]: See Gould v. Zimmerman, 2011 CarswellOnt 14083 (S.C,.J., at para. 12; Yunger v. Zolty, 2011 CarswellOnt 10343 (S.C.J.), at para. 82; McGuire v. Jean, 2011 CarswellOnt 10075 (S.C.J.) at para. 15, and Rathnam v. Yogarajah, 2011 CarswellOnt 11984 (S.C.J.), at para. 30.