BARRIE COURT FILE NO.: FC-11-1611

DATE: 20120813

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LALANYA RIHA, Applicant

AND:

VIKTOR RIHA, Respondent

BEFORE: EBERHARD, J.

COUNSEL:
D. Sindhwani, Counsel, for the Applicant
A. Wilford, Counsel, for the Respondent

HEARD: August 9, 2012

ENDORSEMENT

[ 1 ] The Applicant Mother moved for increased child and spousal support and disclosure. Having received much disclosure on Tuesday of this week the Applicant Mother abandoned that part of the motion. However, the timing of disclosure remained a factor because the Applicant Mother’s counsel had not adequately assessed the new disclosure and it was introduced piecemeal to the court even though the financial documentation was both basic and crucial.

[ 2 ] The Respondent Father’s counsel did not adequately explain the myriad of issues arising from the documentation.

[ 3 ] The motion was in that sense premature but absolutely necessary to hear since the parties remain in financial chaos that will not promote the eventual evaluation of the issues in dispute.

[ 4 ] In the old language of litigation, this was an interim, interim motion. The basic essentials have not only not been conferenced, counsel did not focus on the essential material for me to consider the income of the Respondent Father and whether the children were in fact in his care in a share parenting arrangement in fact as well as on paper. I heard much that could not assist me in those essential questions.

[ 5 ] Because it was necessary, I received into evidence a medical consult note referred to hereafter, financial statements for the Respondent Husband’s company Abenna Court Development Ltd, for Nov 2010 (Exhibit A) and 2011 (Exhibit B) and a printout of the Respondent Husband’s personal CIBC bank account for 2010 and 2011 which show deposits and transfers into the account which counsel calculates at $133,539.64 in 2010, 154,693.92 in 2011.

[ 6 ] The Applicant Mother is living in the matrimonial home to which she holds title. The Respondent Husband’s father is guarantor on the mortgage and has historically made the mortgage payments. His willingness to continue paying on the mortgage has not survived the dispute between the couple but the Applicant Mother’s counsel advises that the mortgagee has been held off expecting payment out upon sale.

[ 7 ] The Respondent Father’s construction business is said to be failing. The many deposits into the company accounts are explained as transfers from the Respondent Father’s father. Indeed, his willingness to help his son is much more apparent on the evidence available for this motion than the Respondent Husband’s effort to maintain his own self sufficiency. It is not apparent that the Respondent Husband is pursing construction contracts. It appears he is content with his father’s contributions to his lifestyle and well-being.

[ 8 ] So, on this interim, interim basis I look to the financial records of the Respondent Father’s company with the disadvantage of having no analysis by counsel or accountants. I approach it with a finding that the Respondent Husband is underemployed in that he is neither pursuing work adequately through his company nor obtaining employment working for someone else in the construction industry.

[ 9 ] On December 7 th 2011 the parties agreed to support of $750 undifferentiated as to spousal support or Child Support Guidelines support. I am not told what income formed the basis for this agreement. It was while the parties were living under the same roof. Care of the children was scheduled on particular days. This schedule remains on paper though patently unsuitable now that the parties live apart. The Respondent Husband was to be responsible for utilities, and groceries for himself and the children on his days, and to pay for the boarding of the children’s horses. Current utilities are calculated at $1293/month.

[ 10 ] Counsel for the Respondent Husband repeatedly focussed on an assertion of overspending by the Applicant Wife. That is frankly unhelpful because the task of the court is to determine what support should be available to her on the basis of principle not, as the Respondent Husband argues through counsel, on what she “deserves”. This approach was further rejected because the Respondent Husband’s assertions, that she acquired a fancy car and spends extravagantly while he budgeted, were put into doubt by informal courtroom response that suggested he is driving a new, unreported vehicle, not the older one he deposes to, and he just got back from a trip to France. The Respondent Husband is going to have to improve indicators of credibility for future litigation events or expect to have his position rejected.

[ 11 ] There was also the assertion that the Applicant Wife was not contributing sufficiently to her own self sufficiency. This was pressed even in the face of a clinical note from Dr. Wilfred Levin at PMH dated August 2, 2012 explaining both history and present complication in her health:

….On February 01, 2011, she had a radical hysterectomy and bilateral lymph node dissection for carcinoma of the cervix. Stage IBl. It is squamous cell carcinoma Grade 3 with lymphovascular space invasion, she received adjuvant radiation therapy to the pelvis plus chemotherapy from April 8 th until May 20, 2011. She was admitted for almost the total duration of her radiation therapy and she had urinary retention.

….ASSESSMENT; Lalanya appears to be in clinic remission with her cancer. However, she is quite debilitated from the complications of treatment, certainly, the upredictability and inconvenience of urinary incontinence and her inability to eat and not having to go to the washroom whilst severely restricting her employment opportunities.

I have urged her to keep her appointments with Dr. Kulkami for reassessment. As well, she should see Dr. Habal regarding the colonoscopy to rule out colitis.

[ 12 ] The Applicant Wife has medication costs of $300/month.

[ 13 ] The Respondent Husband argues that the Applicant Wife has income of $20,000 as declared on her income tax return. This ignores the evidence that she was always an officer of his company, did not do remunerative work at the company and that income was merely split, with her receiving $24,000 gross, less expenses of $4000 for taxable income of $20,000. There is a curious discrepancy between the percentage of deduction from gross claimed by the husband and the wife but that must await further explanation.

[ 14 ] Before even attempting to analyze claimed company expenses for family law calculation of real income, I note that the financial statements show management fees of $49,500 in 2009, $39,000 in 2010 and $21,000 in 2011. The respondent husband’s filed Income Tax returns show total income as the net business income of $28,058 in 2009, 19,330 plus the Child tax benefit in 2010. The financial statements do not explain where the income split is buried.

[ 15 ] The Respondent Husband asserts cash flow fluctuations year to year but without skilled analysis I cannot perform a breakdown.

[ 16 ] Accordingly, there is nothing solid upon which an income calculation can be based. An analysis based on the living expenses asserted by the Respondent Husband and the lifestyle indicators of having had significant income before he became underemployed as I found in paragraph seven and eight, is complicated by the apparent contributions of the Respondent Father’s father.

[ 17 ] That leaves me, on an interim, interim basis, with a determination extrapolating from what the parties agreed at a time when they were living under the same roof.

[ 18 ] The Respondent Husband claimed the $750 month payment on his tax return so he has been treating it as spousal support even though it is undifferentiated.

[ 19 ] He was obligated to pay utilities. I do not propose to calculate whether he has paid those to date. Accounting can occur when figures have been developed.

[ 20 ] Child Support Guidelines support for 3 children if the Respondent Husband’s income is imputed at $80,000 is $1530. A change in the parenting schedule is not sought in this motion and there is insufficient detailed evidence to establish that the schedule is not being followed. However, shared custody leads to a Contino based analysis.

[ 21 ] On an interim, interim basis I order spousal support of $1293 (which is no more than I find he already agree to pay) and $300 due to the special need of the Applicant Wife for medication for a total spousal support obligation of $1593/month commencing August 1, 2012.

[ 22 ] I order interim, interim child support of $1000/month commencing August 1, 2012 to reflect income analysis of unemployment, and cursory analysis of the business records and lifestyle indicators at something like $80,000 but taking into account that he appears to have care of the children in a parenting schedule that falls within shared parenting principle.

[ 23 ] Support Deduction Order to issue.

[ 24 ] Costs may be addressed in writing by the Applicant Wife submitting written argument of no more than 2 pages through the judicial secretaries by August 30, response by Sept 10 and reply by Sept 15.

[ 25 ] I urge the parties to concentrate now on the steps already agreed and to a detailed analysis of the documentation.

EBERHARD J.

Date: August 13, 2012