COURT FILE NO.: FS-12-18079

DATE: 20120807

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KIMBERLY GLASCO

AND:

CHRISTOPHER BILZ

BEFORE: PENNY J.

COUNSEL: Stephen Bookman and Gillian Bookman for the Applicant

Lawrence S. Crackower for the Respondent

HEARD: July 24, 2012

ENDORSEMENT

[1] This is a motion by the applicant, Kimberly Glasco, for interim child support, contribution to section 7 expenses including payment of outstanding private school tuition, interim spousal support, payment of a percentage of certain rental income and orders prohibiting the respondent, Christopher Bilz, from disposing of properties, requiring him to preserve all assets and to make full and complete financial disclosure.

[2] The applicant and the respondent began living together in 2000 and separated in April 2012. There is one child of the relationship, K, born August 2, 2001.

[3] When the applicant and respondent met, the applicant was a principal dancer with the National Ballet of Canada. She had substantial assets and savings, she says. Throughout their cohabitation, however, the applicant did not work outside the home. The applicant has no income. The applicant says that she turned all of her pre-relationship assets over to the respondent to manage and invest when they began living together. Now, she does not know what has become of those assets.

[4] According to the applicant, during the period of their cohabitation, the parties lived very comfortably. They drove expensive cars, lived in excellent neighborhoods, and dined out and traveled extensively. Their daughter attended private school.

[5] At the time of separation, the parties lived in a rented home in Forest Hill. Since separation, the applicant and her child have continued to live in their home. Monthly rental is $6,000. The rent, however, has not been paid by the respondent. The respondent has also paid nothing by way of interim child or spousal support. The rent is in arrears and the applicant and child risk being evicted.

Respondent’s Income/Interim Child and Spousal Support

[6] The respondent’s income and assets are very much in issue in this proceeding.

[7] The respondent claims that his 2011 gross income was $240,000. He says that at the time of separation, he owned assets valued in excess of $3 million but says that over $2.2 million of these assets were owned by him before he started living with the applicant.

[8] From the time they met until about 2010, the respondent was employed by RBC Royal Bank. In 2006 and 2007, his gross income reached $450,000 per year. The respondent says that he went on short term disability for a period of time following an operation and then suffered from arthritis. Although he returned to RBC, his income did not reach the 2006 and 2007 levels again.

[9] In about 2011, the respondent decided to pursue opportunities investing in the U.S. real estate market. There were various aspects to this enterprise, including offering seminars teaching other Canadians how to buy U.S. real estate and purchasing real estate for investment in the U.S. The respondent claims that he and his partners in this business have parted company and that he is now entirely dependent on rental and investment income from his own real estate investments in the U.S. There has, at this stage, been essentially no disclosure of his U.S. corporations and real estate holdings. The applicant claims an ownership interest in the U.S. corporations.

[10] There is also evidence that the respondent, jointly with the applicant, owns properties at 1186 and 1188 Woodbine Ave. which generate income which is received by the respondent. The applicant seeks half of the rent.

[11] The respondent claims that his financial circumstances are and continue to be diminished. He says he is incapable of supporting the lifestyle which he and the applicant enjoyed for many years. He says he is ready to provide interim child and spousal support but that he cannot support the applicant’s alleged “lavish spending” on “frivolous items.”

[12] The applicant says that the respondent’s claims of diminished circumstances are false. She maintains that, until their separation, the respondent never had any trouble paying for anything in support of their comfortable lifestyle. She alleges that his disclosure of U.S. income is not forthright, maintaining that he earns many hundreds of thousands of dollars from investment income there which is not being disclosed.

[13] In support of this position, the applicant points to a credit application found in the applicant’s papers at their home, signed by the respondent on January 14, 2012, in which he claims his income from his company, rental income and other income exceeds $708,000, with expenses of only $146,000 and that his net worth exceeds $3.7 million.

[14] She also points to the respondent’s sworn financial statement which, while claiming to have income from all sources of only $240,000, shows annual expenses of $362,400.

[15] There are also allegations, as yet untested, that the respondent lacks credibility because he falsified notices of assessment in connection with his financial disclosure in earlier divorce proceedings involving the respondent’s ex-wife.

[16] Interim support is a short-term remedy meant to ensure that a dependent has sufficient means to maintain a reasonable lifestyle until trial. Because of the nature and purpose of an interim support order, the court does not conduct an in-depth analysis of entitlemen; however, the claimant must establish a prima facie case. At the preliminary stage, the court does not embark on a detailed examination of the merits of the case. The scope of the inquiry on a motion for interim support is more limited than at trial and with rare exceptions proceeds on affidavit evidence and is summary in nature.

[17] In determining the amount and duration of support in relation to need, the court is required to consider all the circumstances of the parties including the matters listed in s. 33(9) of the FLA. Those factors include: the dependent’s and respondent’s current assets and means; the assets and means that the dependent and the respondent are likely to have in the future; the dependent’s capacity to contribute to his or her own support; the respondent’s capacity to provide support; the dependent’s and respondent’s age and physical and mental health; the dependent’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together; and the desirability of the dependent or respondent remaining at home to care for a child.

Analysis

[18] At this early stage, there is a significant disparity in the conflicting evidence about the respondent’s income and capacity to pay support. There is little doubt, however, in the short term at least, of the applicant’s need and of her inability to support herself and their child.

[19] The respondent’s credit application, claiming an income of over $700,000, (the respondent did not respond to the applicant's evidence on this issue although, in argument, the authenticity of the document was not denied), is troubling in light of his sworn financial statement that his income is only about $240,000.

[20] In addition, the respondent’s sworn financial statement discloses annual expenses exceeding $360,000. Expenses at that level would require income in excess of $700,000 to support. The respondent’s financial statement, while showing mortgage debts associated with the purchase of real estate, does not contain evidence of consumer debt incurred to support his level of annual personal expenditures.

[21] On the available evidence, I am unable to accept the respondent’s claimed income of $240,000 at face value. At this stage it appears likely that the respondent’s income significantly exceeds this amount. The problem is in determining, for interim purposes, what the appropriate amount is.

[22] The applicant’s notice of motion seeks interim child support, based on an imputed income of $300,000, in the in the amount of $2,373 per month. In the circumstances, I am prepared to accept the applicant’s submission that income of $300,000 per year be imputed to the respondent on an interim basis. Accordingly, the respondent shall pay to the applicant interim child support in the amount of $2,373 per month retroactive to April 1, 2012.

[23] While the SSAGs are guidelines (unlike the Table amount for child support), they are important guidelines which require consideration.

[24] In this case, the applicant asks for the high end of the guideline amount ($8,894 per month) as well as the cost of rent on the Forest Hill home for a total of $14,894 per month.

[25] The precise basis for this approach was not argued although it appears to be a submission based on the applicant’s needs (she needs a place to live), the parties’ pre-separation lifestyle (this is where the parties lived before separation) and capacity to pay (the applicant asks me to deem income to the respondent of $300,000 but points to the credit application and the respondent’s own sworn expenses to argue that the respondent’s income is likely to be much higher than $300,000).

[26] The respondent argues that he simply cannot afford the Forest Hill home anymore. He is living with his parents. He agrees that the applicant is entitled to some support but argues that she must find more modest, affordable accommodation. The evidence before me from the respondent is that “the lease will not be renewed after the end of July.”

[27] I have carefully considered the SSAG amounts for spousal support associated with an imputed income of $300,000.

[28] The applicant's budget contained in her sworn financial statement amounts to about $13,000 per month or $156,000 per year. This includes the amount of $6,000 per month for rent. The applicant’s budget, in my view, contains some amounts which are unreasonably high in the context of a motion for interim spousal support: monthly groceries and dining for one adult and one child of $1,390, clothing for the applicant of $1,250 and entertainment/vacations for the applicant of $1,433. The amount for rent, however, is a fixed obligation under a lease entered into when the parties were still together.

[29] In my view, the respondent ought to have paid the rent of $6,000 per month. That was a commitment he made while the parties were still together. It was apparently affordable then. I see nothing in the evidence to suggest that the timing of the separation was the same as the timing of the respondent’s alleged diminished circumstances such that he suddenly could no longer afford the rent as of April 1, 2012.

[30] I find that the applicant’s budgeted needs, taking into account the interim nature of these proceedings, the prior lifestyle and reasonable amounts for her monthly expenses, as well as the other s. 33(9) factors, fall in the range of about $11,000 per month. If adjustment is made for the child support ordered above, the appropriate amount is quite similar to the high end of SSAG spousal support of $8,894 per month. Accordingly, I order interim spousal support to be paid by the respondent to the applicant of $8,894 per month, retroactive to April 1, 2012.

[31] It may well be that the applicant will have to find more modest accommodation now that the couple has separated. The evidence on the end date of the lease was inconclusive and there was no evidence at all about the cost or availability of alternate accommodations suitable for the applicant and her daughter. If the lease was indeed up at the end of July, 2012, and the applicant is obliged to find alternate accommodation, there may have to be an adjustment downward to reflect a lower level of rent but there was insufficient evidence before me to resolve this issue.

Section 7 Expenses

[32] The child attends a private school in Toronto. The applicant recently received notice from the school’s financial administrator indicating that the payment due at the end of May 2012, for 2011/2012, in the amount of $11,931.23, had not been paid by the respondent.

[33] In my view, this is an entirely legitimate section 7 expense reflecting commitments made by the respondent, as well as the applicant, when this couple was a still together. I can find no basis in the respondent’s evidence for relieving him of the obligation to pay this amount. Accordingly, the respondent is ordered to pay the outstanding amount of $11,931.23 in respect of the child’s 2011/2012 tuition.

[34] The same argument applies to the child’s orthodontistry bills. The respondent is ordered to pay the amount of $250 per month on account of the child’s orthodontistry, until the orthodontist’s bill is paid off.

[35] It is not clear to me whether the applicant is seeking a prospective order with respect to continued private school fees in the future. In any event, the evidence was insufficient to make any determination on that issue at this time.

Gross Rentals on Woodbine

[36] The applicant argues that because she is a joint owner of the Woodbine properties, she is entitled to half of the gross rentals to be paid directly to her.

[37] It may well be that the applicant has some entitlement to some share of the rental from these properties. However, at this stage, it is not possible to determine what amount, if any, should be payable to her. This is in part because any entitlement would be based on net, not gross revenues, which are not in evidence. In addition, by virtue of deeming income to the respondent for interim support purposes, I am satisfied that the economic effect of the respondent’s receipt of this rental income is reflected in the interim support award. Accordingly, on an entirely without prejudice basis, this request is dismissed.

Disclosure

[38] The applicant has excluded the respondent from the Forest Hill home. All of the respondent’s financial records are located in the Forest Hill home. I understand that the parties have agreed to a process by which the respondent would be entitled to recover all of his personal belongings, including his financial records. I therefore make no order in this regard. However, if I am wrong, the respondent is at liberty to return to court for an order permitting him access to his financial records.

[39] On the assumption that the respondent has access to his financial records, the respondent is ordered to provide full and complete financial disclosure in accordance with the disclosure list attached to the applicant’s notice of motion, Schedule “A,” within 30 days.

Non-dissipation Order

[40] The applicant seeks an order that the respondent be prohibited from disposing of any properties in either Canada or the United States which are owned by him either directly or indirectly or through corporate entities controlled by him. The applicant is also seeking an order that the respondent preserve all assets owned by him or which are under his control or owned by a corporation owned or controlled by him.

[41] In his evidence, the respondent made a point of saying that his business is not buying and selling real estate but, rather, buying and holding real estate for investment purposes.

[42] Given that admission, the applicant’s claims for an ownership interest in certain properties and corporations and the tracing of her pre-relationship funds, and the fact that virtually no disclosure has been made of the respondent’s real estate holdings or the respondent’s corporate holdings and structure, I find that an order of this kind is warranted.

[43] Accordingly, the respondent is prohibited from disposing of any properties in either Canada or the United States owned by him either directly, indirectly or through corporate entities owned or controlled by him. The respondent shall also take all necessary steps to preserve all assets owned by him or which are under his control or that of a corporation owned or controlled by him.

Costs

[44] The parties shall seek to reach an agreement on the disposition and quantum of costs. Failing agreement, a party seeking costs shall do so by filing a Bill of Costs together with a written submission not to exceed two typed, double-spaced pages within 10 days of the release of these Reasons. A party wishing to respond to a request for costs shall do so by filing a written submission, subject to the same page limit, within a further 10 days.

PENNY J.

Date: August 7, 2012