COURT FILE NO.: FS-11-4809-00
DATE: 2010-10-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GIANNI (JOHN) MIGNELLA
Self-represented
Applicant
- and -
MARIA TERESA FEDERICO
Self-represented
Respondent
HEARD: June 22, 2012,
at Brampton, Ontario
Price J.
Reasons For Order
NATURE OF MOTION
[1] Mr. Mignella and Ms. Federico separated in January 2010, after a nine and a half year marriage. Both have experienced adversity since then. In July 2011, Mr. Mignella was injured in an automobile collision which he says left him unable to work. Ms. Federico has developed cancer for which she is currently undergoing treatment.
[2] Both parties represent themselves in the present motions. Mr. Mignella seeks an order for sale of the matrimonial home, which he left when the parties separated. He also seeks to enforce a parenting agreement that the parties negotiated in March 2011, which gives him mid-week access to their son, Sebastian. Ms. Federico moves for interim spousal support and for interim child support for Sebastian and for Ms. Federico’s son from a previous relationship, Christian, for whom she says Mr. Mignella stood in place of a father.
BACKGROUND FACTS
[3] Mr. Mignella and Ms. Federico are both 42 years old. They married on July 13, 2000, and separated January 11, 2010, when Mr. Mignella moved out of the matrimonial home.
[4] Each of the parties has a son from a previous relationship. Mr. Mignella’s son, Nicholas Mignella, is now seventeen years old (born December 15, 1994), and lives with him. Ms. Federico’s son, Christian Federico, is seventeen (born April 3, 1995) and lives with her. Mr. Mignella and Ms. Federico have one child together, Sebastian Mignella, who is nine (born February 8, 2003), and lives primarily with Ms. Federico.
[5] With the help of a mediator, the parties negotiated a parenting agreement, which they signed on March 29, 2011. It provides that Mr. Mignella may have access to Sebastian’s on alternate weekends and on one night mid-week.
[6] Ms. Federico works as a receptionist and earned $22,384.00 in 2011. Mr. Mignella earned over $100,000.00 per year until 2010. His income declined from 127,000 in 2009 to $85,000 (after union dues) in 2010. In May 2011, he was injured when a loose tire from a tractor trailer struck the windshield of his car on the highway. He began receiving Income Replacement Benefits from his automobile insurer and stopped paying any child or spousal support to Ms. Federico. His income was $45,416.00 in 2011.
[7] In January 2012, Mr. Mignella’s insurer concluded that he was capable of returning to work and stopped paying Income Replacement Benefits to him effective January 9, 2012. Mr. Mignella asserts that he is still incapacitated by his injuries and that he will be receiving social assistance beginning June 2012.
[8] Mr. Mignella began the present proceeding on December 9, 2011, by an Application in which he seeks custody of Sebastian and child support for him, equalization of net family property, and sale of the matrimonial home. Ms. Federico delivered an Answer on January 17, 2012, in which she seeks a divorce, custody of Sebastian and Christian, child support for them, spousal support for herself, equalization of net family property, and insurance coverage for herself and the children.
[9] Fragomeni J. made an Order on April 25, 2012, requiring Ms. Federico to deliver her Financial Statement, together with her tax returns for 2009 to 2011, within thirty days. She produced these documents with her motion material. Justice Fragomeni also ordered Mr. Mignella to produce the medical information from his litigation arising from the motor vehicle accident to Ms. Federico. He has produced some, but not all of this documentation.
[10] The trial is scheduled to begin November 19, 2012, and is expected to last four days. Mr. Mignella moves for sale of the matrimonial home pending the trial. He also requests enforcement of the parties’ parenting agreement and production of half the family photographs and video-tapes. Ms. Federico has responded with a cross-motion in which she seeks interim spousal support and interim child support for both Sebastian and Christian. I will address the most pressing of the issues raised and will leave the remainder to the trial.
[11] Ms. Federico requests, as a preliminary remedy, an order striking a number of paragraphs of Mr. Mignella’s affidavit and some of the documents he has attached to his affidavit. She says that these paragraphs and documents refer to settlement discussions between the parties, which are privileged and should not form part of the evidence.
ISSUES
[12] The motion raises the following issues:
a) Should paragraphs of Mr. Mignella’s affidavit and attachments that refer to settlement be struck out?
b) Should the matrimonial home be sold pending trial?
c) Should Mr. Mignella be required to pay interim child support for Christian?
d) Should Mr. Mignella be required to pay interim child support for Sebastian and interim spousal support and, if so, on what income amounts should it be based?
e) Is Mr. Mignella’s mid-week access discretionary?
f) Is an order for sharing of family photos needed now?
PARTIES’ POSITIONS
a) Sale of matrimonial home
[13] Mr. Mignella argues that if Ms. Federico cannot afford to carry the matrimonial home on her own, it should be sold now. Ms. Federico says that she is undergoing cancer treatments and caring for her two children, who need the continued security of the home at this time. She hopes to buy Mr. Mignella’s interest in the home from the retroactive support and equalization payment that she says he owes her and therefore asks that the sale be postponed until these issues are resolved at trial.
b) Child support for Christian
[14] Ms. Federico acknowledges that she receives support from Christian’s biological father in the amount of $150.00 per month but says that the father has had minimal involvement in Christian’s life. She submits that Mr. Mignella, on the other hand, stood in the place of Christian’s father during their marriage and should be required to pay child support for him now that they have separated.
[15] Mr. Mignella refuses to pay child support for Christian, arguing that Christian did not accept discipline from him in the months before the parties separated and that it would be unfair for him to be required to pay child support for him now on the basis that he stood in the place of Christian’s father during his marriage to Ms. Federico.
c) Mr. Mignella’s obligation to pay child support for Sebastian and spousal support for Ms. Federico
[16] Mr. Mignella submits that he is still incapacitated from working by reason of his automobile collision, and that because his automobile insurer has discontinued his Income Replacement Benefits and that he has now exhausted his Employment Insurance benefits, his only income is from social assistance, which is insufficient to enable him to pay spousal and child support at this time.
[17] Ms. Federico acknowledges that Mr. Mignella suffered a trauma in his automobile accident but submits that he is not totally incapacitated from working. She argues, somewhat rhetorically, that if he were incapacitated from work, he would also be incapable of caring for Sebastian on his own. She asks that he be required to pay her spousal and child support pending the trial based on his Line 150 income in 2011, which amounted to $85,000.00 after deducting union dues.
d) Mr. Mignella’s mid-week access to Sebastian
[18] The parties’ parenting agreement provides that Mr. Mignella “may” exercise mid-week access to Sebastian. He interprets this as giving him an absolute right to access, while Ms. Federico argues that it requires her consent. She also seeks an order requiring Mr. Mignella to allow the children to visit her in hospital when they are with him.
e) Family photos
[19] Ms. Federico acknowledges that Mr. Mignella is entitled to half their family photos and videos, but says that she has not been able to make a copy for him yet because she has lacked the funds to do so.
ANALYSIS AND EVIDENCE
a) Striking paragraphs from Mr. Mignella’s affidavit
[20] Both parties are self-represented and both have made reference in their evidence to the settlement discussions that they have had. Because the trial is imminent, rather than striking their material, which would require them, in effect, to begin their motions again, I have simply disregarded the references to settlement in their evidence.
a) Sale of the matrimonial home
Statutory provisions
[21] The Court may order sale of a jointly owned property pursuant to the Partition Act, R.S.O. 1990, c. P. 4, but Mr. Mignella has not pleaded the Partition Act in his Application or in his Notice of Motion.
[22] The Family Law Act also gives the court a limited jurisdiction to order the sale of a matrimonial home in certain circumstances, as where the ownership of the property is in issue or the sale of the home is necessary to satisfy an order for equalization of net family property. Section 9(1) of the Act[^1] states:
9(1) In an application under section 7 [for equalization of Net Family Property], the court may order,
(d) that, if appropriate to satisfy an obligation imposed by the order,
(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or
(ii) any property be partitioned or sold.
Jurisprudence
[23] In Goldman v. Kudeyla,[^2] in 2011, McGee J. gives a helpful summary of the law governing judicial orders for sale of a matrimonial home pending trial. She notes that an owner of property, whether sole or joint owner, has a prima facie right to have it sold. However, when the property is a matrimonial home, one joint owner’s right to sell it is subject to any competing right of the other owner under the Family Law Act that would be defeated if the property were sold.
To make a pre-trial order for the sale of a matrimonial home, the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails. If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party. [Emphasis added]
[24] As McGee J. noted, there have been a number of cases in which the Court has denied interim motions for sale.[^3] In each, there were compelling circumstances favouring the resisting party, such as the availability of trial within a short period, prejudice to the resisting party’s right to an equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might retain the home at trial.[^4]
[25] In Silva v. Silva,[^5] in 1990, the wife obtained an interim order for sale of the home under the Partition Act. The husband appealed, alleging that the Partition Act did not apply in family law matters. Finlayson J.A., speaking for the Court of Appeal, stated:
The F.L.A. authorizes the Court to do whatever is necessary with the collectivity of spousal assets to bring about an equal division of them. It should be the statute of first resort in matrimonial disputes, but it is not necessarily the only one…In my opinion, it is wrong to say, as it was said in Scanlan v. Scanlan, that the F.L.A. ousts the jurisdiction of the Partition Act when dealing with jointly owned spousal property. The two statues are not incompatible, but where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A. Putting it more broadly, an application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A. [Emphasis added]
[26] In Arlow v. Arlow,[^6] in 1991, the wife obtained an order for interim exclusive possession of the parties’ matrimonial home under s. 24 of the Family Law Act, 1986. Some months later, the husband applied for sale of the home pursuant to the Partition Act. The motions court judge rescinded the wife’s interim exclusive possession and ordered that the home be sold pursuant to s. 10 of the Family Law Act, 1986, although he gave the wife a right of first refusal on the sale. The wife appealed to the Court of Appeal on the ground that the motions court judge had erred in terminating her exclusive possession. When the appeal was heard, the trial was imminent ant the Court of Appeal restored the wife’s interim exclusive possession order until trial.
[27] In Martin v. Martin,[^7] in 1992, the parties separated after a twenty-five year marriage. The husband continued living in the jointly owned matrimonial home. He wanted to remain in the home and the wife wanted it sold. The wife applied for an interim order for sale of the home pending the trial pursuant to the Partition Act. The motions court judge ordered the sale, granting the husband a right of first refusal, and the wife appealed. The Divisional Court confirmed the court’s jurisdiction to order the sale and the wife appealed to the Court of Appeal. She argued that a motions court judge may not order a jointly owned matrimonial home to be sold on an interlocutory application under the Family Law Act. Osborne J.A., writing for a unanimous Court, concluded that the motions judge had no power to order the sale of the home before trial under s. 10 of the Family Law Act, 1986, unless the parties’ ownership or possession of the property was in dispute. He stated:
In this case, the parties have not raised any question of ownership or possession. There is no doubt that s. 10 of the Family Law Act, 1986 permits the court to order that property [the matrimonial home] “be sold for the purpose of realizing the interests in it” (s. 10(1)(c)). However, the basis upon which the court’s power may be exercised is clearly set out in s. 10(1), which, in my view, limits the scope of the section to those cases where there has been an application to determine a question of ownership or possession. In my opinion, s. 10(1)(c) does not, in the circumstances, provide authority to order the sale of the parties’ matrimonial home.[^8] [Emphasis added]
[28] While finding that a court has jurisdiction to order sale of a jointly owned matrimonial home pursuant to s. 2 of the Partition Act, Justice Osborne pointed out the limited circumstances under which an order for sale should be made under that Act. He stated:
Orders for the sale of a matrimonial home made before the resolution of Family Law Act, 1986 issues (particularly the determination of the equalization payment) should not be made as a matter of course. See Binkley v. Binkley (1988), 1988 8717 (ON CA), 14 R.F.L. (3d) 336 (Ont. C.A.) In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be taken into account.[^9] [Emphasis added]
[29] In Walters v. Walters,[^10] in 1992, the husband moved, pursuant to the Partition Act, to have the jointly owned matrimonial home sold pending trial. The wife resisted the motion, arguing that she wanted the house as a home for their children and that the issue of exclusive possession should be decided at trial. She hoped to buy the husband’s interest with the equalization payment she claimed was owing to her, and argued that the husband had not shown an immediate need for the proceeds of sale. Justice Wright stated that, while the court had jurisdiction to order the sale, it should not make such an order unless the moving party demonstrated that there was no sufficient reason why it should not do so. He noted that because there is a prima facie right to partition and sell jointly owned property, the onus is normally on the resisting party to show why such an order should not issue, but where the property is a matrimonial home, the onus shifts to the moving party, as the Family Law Act provides that both parties have an equal right to possession of the matrimonial home.
[30] In Justice Wright’s view, the test to be applied is the same as under Rule 20 applications for summary judgment, namely: “Is there a genuine issue for trial?” Polowin J. applied this test in Kereluk v. Kereluk,[^11] in 2004. In that case, the parties had separated after a nine year marriage and the wife sought an order for sale of the matrimonial home pending trial. The husband had remained in the matrimonial home and the wife, who had moved in with her parents, wanted it sold. The parties had joint custody of the parties’ child, who was 12 years old and resided with both parties on a week-about basis. The husband was paying child support and wanted to buy the wife’s interest in the home in order to give the child, who had lived there since she was three years old, the stability of continued residence when she was with him.
[31] Polowin J., after reviewing the law, concluded that the court had no jurisdiction under s. 10 of the Family Law Act to order partition and sale of the matrimonial home pending trial. The wife had not pleaded the Partition Act nor brought her motion pursuant to that Act. While noting that, technically, that could end the matter, she continued, stating that even if the wife had applied pursuant to the Partition Act, she would not have granted the order sought. She stated:
It may very well be that after a trial of the issues, including the value of the assets, which [the husband] brought into the marriage, the Court will determine that the equalization payment he will have to make to [the wife] will be modest. If he bought the property at this interim stage, after an order for partition and sale, he might well be paying more than he would have to after a determination of the equalization issue. To paraphrase Justice Wright [in Walters v. Walters] “I cannot say there is no genuine issue for trial.”[^12] [Emphasis added]
Applying the law to the facts
[32] Mr. Mignella did not apply pursuant to the Partition Act. He also has not raised an issue as to the ownership of the home or established a prima facie right to an equalization payment from Ms. Federico. He is therefore not entitled to an order for sale of the home pursuant to section 9(1)(d) of the Family Law Act. His motion should therefore be dismissed.
[33] Even if Mr. Mignella had applied pursuant to the Partition Act, the court would not have exercised its discretion to order the property sold pending the trial, which is now only two months away. As noted above, an order for interim sale of a matrimonial home under the Partition Act will normally not be made where it would prejudice the other spouse’s right to assert an ownership or possessory interest in the property at trial. Mr. Mignella has not established that there is no genuine issue for trial as to whether his wife is entitled to retroactive support or an equalization payment from him that may justify an order permitting her to buy his interest and remain in possession of the home.
[34] The parties take widely different positions as to the amount of support Ms. Federico is entitled to receive. Mr. Mignella calculates that his child and spousal support obligation since January 2010 should be $800.00, and says that he owes Ms. Federico nothing for equalization of their net family property. Ms. Federico calculates that she is owed $33,000.00 for accrued support and $9,000.00 for equalization of net family property. Ms. Federico’s ability to purchase Mr. Mignella’s interest in the matrimonial home and continue her possession of the home depends on how these issues are determined at trial. Her right to possession of the home should not be foreclosed by an order at this time directing its sale of the home pending trial.
[35] Ms. Federico’s right to possession of the home is especially important to her at this time, as she is caring for two children while she undergoes treatment for cancer. The importance to Mr. Mignella of having the home sold pending trial, on the other hand, is diminished by the fact that the trial is scheduled to take place in only two months. For these reasons, Mr. Mignella’s motion for interim sale of the matrimonial home will be dismissed.
b) Child support for Christian
Statutory provisions
[36] Section 2(2)(b) of the Divorce Act[^13] defines a child of the marriage to include:
… any child of whom one is the parent and for whom the other stands in the place of a parent.
[37] Section 31 of the Family Law Act[^14] provides that:
31(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.
(2) The obligation under subsection (1) does not extent to a child who is sixteen years of age or older and has withdrawn from parental control.
[38] Section 1(1) of the Family Law Act defines “parent” as “a person who has demonstrated a settled intention to treat a child as a child of his or her family…”
Jurisprudence
[39] In Chartier v. Chartier,[^15] in 1999, the Supreme Court of Canada considered the issue of when a spouse “stands in the place of a parent.”Justice Bastarache reviewed the conflicting jurisprudence and observed that the common law meaning of “in loco parentis” was not helpful in determining the meaning of the words “in place of a parent” in the Divorce Act. He set out the following test for determining the issue:
Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship. The Divorce Act makes no mention of formal expressions of intent. The focus on voluntariness and intention in Carignan was dependant on the common law approach discussed earlier. It was wrong. The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child’s relationship with the absent biological parent. The manifestation of the intention of the step-parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly. Once it is shown that the child is to be considered, in fact, a “child of the marriage”, the obligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act. The step-parent, at this point, does not only incur obligations. He or she also acquires certain rights, such as the right to apply eventually for custody or access under s. 16(12) of the Divorce Act.[^16]
[40] In Bell v. Bell,[^17] in 2006, Shaw J. held that the length of the parties’ relationship, while not expressly mentioned in Chartier, was another factor to take into consideration. In that case, the parties were together for four years, cohabiting from January 2000, marrying in August 2001, and separating in November 2004. Mr. Bell’s visits with the child had ended nine months later. Justice Shaw observed that the duration of the relationship was not insignificant.
[41] Ms. Federico seeks an order for interim child support to include Christian as well as the parties’ own child, Sebastian. The parties were together for nine and a half years, from the time Christian was seven years old to the time he was sixteen. Mr. Mignella argues that to include Christian in an interim order for child support would unfairly pre-determine the issue of whether he stood in the place of Christian’s father, without the benefit of having heard viva voce evidence, and that such a decision should be left to the trial judge.
[42] In Lopez v. Lopez,[^18] in 1993, the wife applied for interim child support, alleging that her husband had stood in the place of a parent for her children. Justice E. Macdonald held that it was inappropriate in the circumstances of that case, where the parties’ evidence was contradictory in many respects, to decide the issue without hearing and weighing the evidence to be given at trial. Although she did not order interim child support, she ordered generous interim spousal support to be paid to the mother (in the amount of $7,250.00 per month, which was $2,500.00 more than the mother had requested), which she would use to meet her children’s needs, as well as her own.
[43] McIntyre J. of the Saskatchewan Court of Queen’s Bench, in Butzelaar v. Butzelaar,[^19] in 1998, considered whether the court should make an interim determination of whether a spouse stood in the place of a parent. He noted that in Lopez, the only undisputed facts were that the husband had financially assisted the mother and her children while they cohabitated. He agreed that where status and entitlement are in issue, it is sometimes best to leave the issue to the trial judge. In determining whether an interim order was appropriate in the case before him, he applied a test which the Alberta Court of Appeal had set out in Theriault v. Theriault,[^20] in 1994 (which the Supreme Court cited with approval in Chartier on the test to determine whether a spouse stood in place of a parent). In that case, Kerans J.A. stated:
A full inquiry into the issue of support is neither necessary nor possible when interim relief is sought: Blackmore v. Blackmore (1978), 1978 1360 (ON SC), 7 R.F.L. (2d) 263 (Ont. Master). Nevertheless, the judge hearing the application for interim relief must decide at least whether there is a prima facie case for entitlement: McGill v. McGill, [1988] B.C.J. 2375 (B.C.S.C.), and the cases there cited.[^21] [Emphasis added]
[44] Justice McIntyre, in Butzelaar v. Butzelaar, points out that a determination made on an interim motion is not fixed and does not bind the trial judge.[^22] The test is whether or not the moving party has made out a prima facie case for entitlement.
[45] In Land v. Aitchison,[^23] in 2005, Pedlar J. of this Court held that on a motion for interim child support, where the issue is whether a spouse stood in place of a parent, the moving party need only establish a prima facie case. This low threshold of proof is consistent with Professor Nicholas Bala’s opinion that, for policy reasons, courts should be more flexible in applying the definition of “stand in the place of a parent” at the interim stage, to allow the child and the biological parents time to transition.[^24]
[46] The question, therefore, is whether Ms. Federico’s bald statement that Mr. Mignella stood in place of a parent to Christian satisfies the requirement for prima facie proof. In Fortyn v. Canada,[^25] Lemieux J., in the Federal Court, Trial Division, granted a motion for security for costs on the basis that the plaintiff’s bald statement that he was impecunious did not satisfy his onus of establishing, prima facie, that he was unable to post the security requested. Justice Lemieux stated:
The problem I see for the plaintiff is that he, in his affidavit, has simply made a bald statement that he is impecunious. He does not spell out in any detail his impecuniosity. Such a statement, even in an affidavit, without backup, does not satisfy the rule. The plaintiff has to do more; he has to establish prima facie the facts which would enable this Court to determine that, in fact, he is impecunious. If the matter is controverted by the defendant, the plaintiff's burden is to establish his impecuniosity on the balance of probabilities. In this case, it is my view the plaintiff, in his affidavit, did not pass the prima facie gate.[^26] [Emphasis added]
[47] In Tylon Steepe Homes Ltd. v. Pont,[^27] a builder’s lien case, the Supreme Court of British Columbia held that the plaintiff’s bald statement that monies were owing was insufficient to support an order that the amount of the lien be posted as security, even though the onus was less than prima facie proof. Burnyeat J. stated:
The onus is on the Plaintiff to establish that the full amount of the Lien should be posted as security: Strata Plan LMS2262 v. Belgrove Construction Ltd. [2003] B.C.J. (Q.L.) No. 756 (B.C.S.C.), where Master Barber stated:
When the question arises at the time of posting security with respect to the amounts claimed, the onus shifts to those who want full security posted to provide at least the barest of details which would be something more than a bald statement that the monies are owing and something less than prima facie proof of the claim. (at para. 10)[^28]
I am satisfied that the Plaintiff has not met that onus. Homes only provided the barest of materials as to what is owing, including a “bald statement” of the monies owing…. [Emphasis added]
[48] Justice Arnold-Bailey cited this passage with approval in 2005 in Pleasantview Homes Ltd. v. Hari Chand et al.,[^29] as did Justice Wedge in 2010 in Tylon Steepe Homes Ltd. v. Landon, when ordering that the lien in that case be discharged.[^30]
[49] In the marine insurance case of Parrish & Heimbecker Ltd. v. Burke Towing & Salvage Co. Ltd.,[^31] the majority of the Supreme Court of Canada upheld the decision of the President of the Exchequer Court dismissing a claim against a ship-owner based on the unseaworthiness of his vessel at the beginning of its voyage, contrary to the dissenting view of Davis J. who would have held that the bald statement of fact that the ship had sank within a few hours after leaving port was sufficient to raise a prima facie case for the ship-owner’s liability.
Applying the law to the facts
[50] The only evidence that Ms. Federico has offered as prima facie proof that Mr. Mignella stood in the place of a parent to Christian is the following statement which she makes in her affidavit dated June 15, 2012:
I also have a son from a previous relationship, namely, Christian Federico, born April 3, 1995. Christian has always resided primarily with me and his biological father does not see him much at all. Throughout our 9.5 years of cohabitation and marriage, the Applicant has always stood in the place of a parent to Christian. Since separation, however, both the Applicant and his son, Nicholas, have turned their backs on Christian and abandoned him. Both have refused to have any contact with Christian and it has devastated him.
[51] A bald statement like this, without any details supporting it, is insufficient to establish, prima facie, the disputed fact that would determine Mr. Mignella’s obligation to pay child support for Christian.
[52] In Lopez, this Court declined to make an interim finding that the father had stood in place of a parent where the facts were in dispute. In the present case, Mr. Mignella does not, in his affidavit, dispute Ms. Federico’s statement that he stood in the place of Christian’s father. He states, in his Reply, that in the months before separation, Christian often told him that he could not tell Christian what to do as he was not his father, and that he did not have to listen to Mr. Mignella. However, he does not give evidence of this in his affidavit, and I would not regard this fact as determinative in any event, since it referred only to the time preceding the parties’ separation.
[53] The key weakness in Ms. Federico’s position is that she failed to offer even prima facie proof that Mr. Mignella stood in the place of a parent to Christian. In the absence of such proof, there was no case for Mr. Mignella to meet. Ms. Federico did not offer evidence that Christian participated in the extended family as Sebastian did, or that Mr. Mignella provided financially for Christian, or disciplined Christian as his son, or represented to Christian, or the family, or the world, either explicitly or implicitly, that he was responsible, as a parent, for Christian. She also offers scant evidence as to the absence of a parent-child relationship between Christian’s biological father and Christian, although, again, she makes the bald statement that the relationship was minimal.
[54] In the absence of such detail, there is no sufficient basis upon which the Court can find that Mr. Mignella stood in the place of Christian’s father during the parties’ marriage, and no justification for an order requiring him to pay interim child support for Christian now. For these reasons, Ms. Federico’s claim for interim child support for Christian will be dismissed, without prejudice to her right to assert her claim at trial based on better evidence.
c) Child support for Sebastian and spousal support for Ms. Federico
Legislative provisions
[55] The Family Law Act,[^32] provides, in part, as follows:
(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.
(1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.
(7) An order for the support of a child should,
(a) recognize that each parent has an obligation to provide support for the child;
(b) apportion the obligation according to the child support guidelines.
(11) A court making an order for the support of a child shall do so in accordance with the child support guidelines.
[56] The Family Law Act also provides, in section 30, that every spouse also has an obligation to provide support for him/herself and for the other spouse, in accordance with need, to the extent he or she is capable of doing so. Section 33(9) sets out factors that the court should consider when determining the amount of spousal support to be paid. These include:
a) The dependant’s and respondent’s current assets and means;
b) The assets and means that the dependant and respondent are likely to have in the future;
c) The dependant’s capacity to contribute to his or her own support;
d) The respondent’s capacity to provide support;
e) The dependant’s and respondent’s age and physical and mental health;
f) The dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
g) The measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
l) If the dependant is a spouse:
(i) The length of time the dependant and respondent cohabited;
(ii) The effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation; [Emphasis added]
[57] Both the Family Law Act[^33] and the Divorce Act[^34] direct the court to base its determination as to the amount of child and spousal support on a payor spouse’s income. They also provide[^35] that the amount of child support is to be determined in accordance with the Federal Child Support Guidelines.[^36]
[58] Section 3 of the Child Support Guidelines provides that, presumptively, child support, including interim child support, is to be calculated based on the payor’s income:
- (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought;
[59] The Guidelines provide, in section 2, that a payor spouse’s income means his annual income, as determined by reference to the methodology set out in sections 15 to 20 of the Guidelines. Those sections direct the court through a series of alternative methods for determining income, until a fair one is found. Section 15 provides that where spouses do not agree in writing on a spouse’s annual income, it shall be determined by considering the remaining methods, set out in sections 16 to 20.
[60] Section 16 provides that the court should, first, consider a parent’s or spouse’s income to be the “Total Income” as set out on line 150 of his Income Tax Return:
- Calculation of annual income. -- of Subject to sections 17 to 20, a parent’s or spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.
[61] Section 17(1) of the Guidelines provides that if the spouse’s total income for the previous year would not be the fairest way of determining his income for purposes of support, the court may average his income over the last three years to 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.[^37]
[62] Section 19 of the Guidelines provides, in appropriate circumstances (that is, where the previous methods have been found not to be fair), the court may impute a different amount of income to a spouse:
- Imputing income. – (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
[63] The Spousal Support Advisory Guidelines[^38] (Spousal Support Guidelines), while advisory in nature, have been held to be a useful starting point when determining the appropriate amount of spousal support.[^39] It has further been held that the court, once it establishes entitlement, must take the Spousal Support Guidelines into account when determining the amount of spousal support.[^40]
[64] Like the Child Support Guidelines, the Spousal Support Guidelines allow the court to impute income to a payor spouse. They do not expressly provide for how this should be done. Rather, they adopt the methodology prescribed by the Child Support Guidelines. The Spousal Support Guidelines provide, in this regard:
The starting point for the determination of income under both formulas is the definition of income under the Federal Child Support Guidelines, including the Schedule III adjustments....
The Advisory Guidelines do not solve the complex issues of income determination that arise in cases involving self-employment income and other forms of non-employment income. In determining income it may be necessary, as under the Federal Child Support Guidelines, to impute income in situations where a spouse’s actual income does not appropriately reflect his or her earning capacity.[^41]
[65] Effective December 31, 2011, the Federal Child Support Guidelines[^42] were amended to update the Federal Child Support Tables used to determine child support amounts. Ontario Regulation 463/11, which came into effect the same day, incorporated the updated federal amounts for the purposes of the Ontario Guidelines. These new Table amounts apply for child support owing after December 31, 2011.
Jurisprudence
[66] The Supreme Court of Canada in Moge v. Moge,[^43] in 1992, held that the purpose of spousal support is to relieve economic hardship that results from marriage or its breakdown. MacLachlan J. stated:
… the judge’s order should…grant relief from any economic hardship arising from the breakdown of the marriage. The focus here, it seems to me, is not on compensation for what the spouses have contributed to or gained from the marriage. The focus is rather post-marital need; if the breakdown of the marriage has created economic hardship for one or the other, the judge must attempt to grant relief from that hardship. [Emphasis added]
[67] The Supreme Court further held, in M v. H.,[^44] in 1999, that the spousal support provisions of the FLA help protect the economic interests of individuals in intimate relationships. When a relationship breaks down, the support provisions help ensure that a spouse who has contributed to the couple’s welfare in intangible ways will not find himself or herself “utterly abandoned”.
[68] The courts, in applying the Spousal Support Guidelines, apply the methodology set out in the Child Support Guidelines[^45] for determining a payor spouse’s income. Olah J. noted in Rilli v. Rilli[^46] that the test for imputing income for child support purposes applies equally to claims for interim spousal support.[^47] In Pagnotta v. Malozewski[^48], the Divisional Court, after setting aside a final order for spousal support on the ground that the motions judge had no jurisdiction to make a final support order on a motion for interim support, nevertheless continued the order appealed from, as one for interim spousal support, based on income imputed to the husband using the methodology in the Child Support Guidelines.
[69] The Court of Appeal for Ontario has held that, in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart child support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances.
[70] In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances. The court should consider the age, education, experience, skills and health of the party, his past earning history and the amount of income that he could reasonably earn if he worked to capacity.[^49]
[71] In determining a party’s capacity to earn income, the court applies the following principles, among others:
a. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children.[^50]
b. Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.[^51]
c. When a parent experiences a sudden change in their income, they may be given a “grace period” to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities in order to satisfy their obligation to contribute to the support of their children.[^52]
d. The fact that a parent is receiving social assistance benefits is not determinative of the parent’s income. The court is not bound by the decision of social assistance professionals respecting the parent’s ability to earn income, but rather must consider all of the relevant evidence to determine whether an imputation of income to the parent is appropriate.[^53]
e. The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the court’s discretion is that there must be some basis in the evidence for the amount that the court chooses to impute.[^54]
Applying the law to the facts
[72] In determining the amount of Mr. Mignella’s support obligation, the court must consider Ms. Federico’s need for support and Mr. Mignella’s ability to pay.
[73] Ms. Federico is employed as a receptionist for Trinity Rehab. She Line 150 Income increased from $12,616.00 in 2010 to $22,384.00 in 2011. The amount of her income is not disputed. It is also not disputed that Ms. Federico cannot afford to carry the cost of the former matrimonial home and care for Sebastian without support from Mr. Mignella. She is clearly living a reduced lifestyle since the breakdown of the marriage and faces immediate financial demands associated with maintaining the home.
[74] As Ms. Federico and Mr. Mignella do not agree on the amount of Mr. Mignella’s income for purposes of support. The court therefore must, in accordance with section 15 of the Child Support Guidelines, look to sections 16 to 20 of the Guidelines to determine its amount.
[75] Ms. Federico submits that it would not be fair to base Mr. Mignella’s support obligation on his 2011 income ($45,416.00) because he was capable of returning to work after his accident in May 2011 and his failure to do so kept his income that year artificially low. She asks the court to impute income to him based on his 2010 income ($85,000.00) by applying s. 19(1)(a) of the Child Support Guidelines.
[76] In order to impute a higher income to Mr. Mignella than his Line 150 income for 2011, as Ms. Federico requests, the court must be given an evidentiary basis for doing so. It cannot impute income without such evidence.[^55]
[77] In O’Halloran v. O’Halloran,[^56] in 2010, Gilmore J. imputed income of $33,519.00 to a payor spouse (father), a trucker who had suffered a back injury at work, finding that he had shown insufficient evidence of his inability to work or of his efforts to secure lighter employment as his condition permitted. Income of $78,000.00 had been imputed to him before his injury and he had, at times in the past, earned over $200,000.
[78] In coming to her conclusion, Justice Gilmore relied on Corbett J.’s decision in Iddon v. Iddon,[^57] in 2006, in which the court had found the payor spouse (father) was underemployed and imputed income of $36,000.00 to him. The father had not provided medical evidence of his claimed disability nor taken meaningful steps to retrain or seek new employment during the two years he had received disability benefits. The Court found that he had not taken sufficient steps to regain employment given his ability to earn income in the range of $60,000.00 per year prior to his wrist injury in an industrial accident.
[79] In O’Halloran, Justice Gilmore considered the following factors in concluding that income should be imputed to the husband:
(a) The husband’s physical limitations did not appear to affect his lifestyle. He was able to care for his household and his children with minimal difficulty.
(b) The husband had not provided any reasonable explanation for his having failed to follow up on efforts to become re-employed.
(c) The husband’s long term disability insurer had denied him benefits, finding that he was not totally disabled and had failed to follow up or provided them with an up-date from a specialist.
(d) The husband had shown minimal documented efforts to find employment.
(e) The husband’s financial circumstances were in disarray. He was at the maximum limit for his line of credit, credit card and bank account overdraw. This had not motivated him to take any steps to change his financial situation, instead simply waiting to be retrained by WSIB. Justice Gilmore found this attitude inconsistent with the husband’s obligation to support his children.
[80] Mr. Mignella’s Notices of Assessment for the past three years establishes that his income as a mobile crane operator declined from $127,000 in 2009 to $88,211.00, plus a small amount of Employment Insurance, in 2010, the year the parties separated ($85,000 after deducting union dues). After his automobile accident on July 20, 2011, Mr. Mignella took a leave of absence from work and began receiving Income Replacement benefits. He had stopped paying child and spousal support two months earlier, in May 2011. His Line 150 income in 2011 was $45,416.00.
[81] Mr. Mignella has produced medical records to substantiate his injuries, although the issue of whether his injuries incapacitate him from working is in dispute both as between Mr. Mignella and Ms. Federico and as between Mr. Mignella and his Accident Benefits insurer. Following his automobile accident, Mr. Mignella reported experiencing tinnitus as well as pains in his neck, back, shoulder and foot. He was able to exit the vehicle independently. He has transported by ambulance to a hospital where multiple x-rays were taken which revealed no fractures. He had suffered a cut to the bottom of his left long finger which required suture repair.
[82] Mr. Mignella followed up the following day with his family physician, Dr. S. Finkelstein, who gave him pain medication and referred him for an ultrasound of his left shoulder. Dr. Finkelstein, issued a disability certificate dated October 18, 2011, which contained a diagnosis of Mr. Mignella’s injuries as a cervical strain, left shoulder sprain, temporal mandibular joint pain, anxiety disorder, and a laceration of the left hand.
[83] Mr. Mignella later reported severe headaches. He underwent a CT scan on August 31, 2011, a month after the collision, which disclosed no hemorrhage or other abnormalities. His neurologist, Dr. V. Basile, referred him for an MRI of his brain and of his cervical and lumbar spine, which were performed on December 2 and 7, 2011. He was subsequently advised that he had a post-concussion syndrome. He attended for five or six sessions of physiotherapy at one facility and, later continued treatments, twice per week, at another, consisting of exercise, massage therapy, chiropractic treatment, acupuncture and TENS.
[84] Mr. Mignella’s Accident Benefits insurer notified him by letter dated January 3, 2012, that his Income Replacement Benefits would be terminated on January 9, 2012. The letter explains that the insurer had required him to undergo an examination under Section 44 of the Statutory Accident Benefits Schedule as it had been unable to determine his continued eligibility for Income Replacement Benefits or whether the assessments and treatment recommended by his proposed treatment providers were reasonable and necessary.
[85] The insurer’s specialist, Dr. Urovitz, had reported on December 14, 2011, that Mr. Mignella’s injuries were within those described in the Minor Injury Guideline. Dr. Urovitz had concluded that he did not require further orthopaedic treatment and that he no longer suffered a substantial inability to perform the essential tasks for his pre-accident employment. The insurer therefore found that he was no longer eligible for Income Replacement Benefits.
[86] Ms. Federico notes that Mr. Mignella’s employer has been very good in the past in accommodating injured employees, and had offered Mr. Mignella lighter duties in the past following a previous car accident in which he had broken his tailbone. She further notes that in his most recent accident, Sebastian and Mr. Mignella’s other son, Nicholas, were also in the vehicle, were physically unharmed, and Sebastian, at least, had suffered no psychological harm.
[87] A report from Allcare Assessment states that Mr. Mignella intends to return to work but that his headaches make it difficult for him to do so at the present time. A Neurology Note/Report from Dr. Basile states that his headaches are “rebound” headaches from medication over-use, and that they are unlikely to subside until Mr. Mignella takes at least a 4-month “medication vacation”.
[88] Ms. Federico notes that Allcare Assessment Group Inc., in its report on the extent of Mr. Mignella’s injuries, notes that he refused to take many of the tests. Mr. Mignella has not provided any documentation to the Court of any efforts he has made to secure lighter duties from his employer, or to retrain himself or to secure alternative employment elsewhere.
[89] After Mr. Mignella’s Accident Benefits insurer terminated his Income Replacement Benefits on January 9, 2012, he began receiving Employment Insurance benefits in the amount of $1,846.00 per month. He estimates that, on an annualized basis, these amounted to $22,152.00, but he has not provided records of this income. He has stated that his entitlement to Employment Insurance benefits will have ended by June 2012, and that he will then begin receiving social assistance in the amount of $852.00 per month, which would translate to $10,224.00 per year. He argues that his spousal support obligation should be based on this income but he has not produced evidence of his entitlement to social assistance, or of the income he has received since December 2011. The best evidence the court has as to his current income is his Notice of Assessment for 2011, which discloses Line 150 income of $45,416.00.
[90] The new Table amount for one child, based on an income of $45,416.00 is $409.91 per month, which I am rounding up to $410.00. Mr. Mignella shall therefore pay interim child support to Ms. Federico in the amount of $410.00 per month commencing January 1, 2012, based on an imputed income of $45,416.00. This support shall be without prejudice to either party’s right to seek an adjustment of the amount at trial based on better evidence, whose production will be ordered below, and without prejudice to Ms. Federico’s right to seek retroactive child support from an earlier date.
[91] Mr. Mignella has paid only $1,020.00 in child support in 2012. The only spousal support he paid, beyond the carrying costs of the matrimonial home, were $373.00 in each of June and August 2011. He will be given credit for these amounts.
[92] The matter is scheduled to proceed to trial in two months. Given the fact that the sale of the house is being postponed until trial based on Sebastian’s needs and Ms. Federico’s cancer treatments, and Ms. Federico needs, in the short-term, to continue making ongoing payments for the house, Mr. Mignella shall pay Ms. Federico spousal support at the high-point of the range produced by the Advisory Spousal Support Guidelines, ($68.00, according to my Divorce-Mate calculation, based on Mr. Mignella’s Line 150 income of $45,416.00 from 2011, and Ms. Federico’s Line 150 income of $22,384.00) increased by his half-share of the mortgage (the total being $1,162.90) and home insurance (the total being $306.16), as Ms. Federico has deferred paying the property taxes pending trial. The total monthly spousal support will therefore be $802.53 ($68.00 + 581.45 + 153.08) beginning January 1, 2012, and continuing until a further order is made at trial. If the trial does not proceed by November 2012, either party may bring a motion to vary this order for interim support on further and better evidence of both parties’ financial means and ability to support themselves.
[93] I will make no retroactive order for support earlier than January 2012, as the trial judge will be in a better position to make a determination as to Ms. Federico’s entitlement for this period based on a more complete evidentiary record. I am also not reducing spousal support by Mr. Mignella’s claim for occupation rent. This is also an issue best left to the trial judge.
[94] Mr. Mignella continues to assert a claim against his Accident Benefits insurer for Income Replacement Benefits under the Accident Benefits Schedule of his automobile policy, arguing that his May 2011 accident has incapacitated him from returning to work. He may also be claiming damages for lost income against the owner or driver of the transport truck whose wheel struck his windshield. If he is successful in these claims, the award will benefit both him and Ms. Federico.
[95] In Strang v. Strang,[^58] in 1992, Cory J., for the majority of the Supreme Court, held that “means”, as the term is used in section 33(9) of the Family Law Act, includes, “…all pecuniary resources, capital assets, income from employment or earning capacity, and other sources from which the person receives gains or benefits.”
[96] The question of whether the claim Mr. Mignella is making against his Accident Benefits insurer or the tortfeasor in his litigation against them should be included in his “means and circumstances” for the purpose of determining his ability to pay spousal or child support is different than the question of whether his claim is an asset that should be included in his Net Family Property. It is difficult to establish the capitalized value of a claim in pending litigation so as to permit it to be included in an NFP calculation. It is much easier to quantify a stream of income that results from a judgment or settlement of such a claim for purposes of determining a spouse’s support obligation.
[97] In Greenglass v. Greenglass,[^59] in 2009, Allen J. refused to allow a husband to deduct his future legal fees in pending litigation as a contingent debt in calculating his Net Family Property because he had not included the value of his claim as a contingent asset. Justice Allen stated:
The wife argues, and I accept, if I were inclined to allow the husband a deduction for a contingent liability in relation to his legal fees, the husband’s cross and counterclaims should have been valued and included in the husband’s net family property calculation as a contingent asset. I received no expert opinion as to the present value of the husband’s claims.[^60] [Emphasis added]
[98] Similarly, in Sheikh v. Sheikh,[^61] in 2010, Justice Allen refused to allow the wife to include the husband’s claim in pending litigation as a contingent asset in the calculation of his Net Family Property. He stated:
However, the evidence before the court is clearly not an adequate basis from which to find a contingent asset. Even if more information about the law suits were available the court would need the assistance of an expert valuation to arrive at the present value of any judgment or settlement on the valuation date. [Emphasis added][^62]
[99] In both these cases, Justice Allen regarded the difficulty of establishing a present value for a claim made in pending litigation as a factor that weighed against including its capitalized value as an asset when calculating the party’s NFP. The Court of Appeal held in Lowe v. Lowe,[^63] in 2006, that disability benefits “in pay” could be considered for purposes of determining a spouse’s ability to pay support even if they should not be capitalized as an asset in the calculation of NFP. In finding that the husband’s entitlement to receive workers’ compensation benefits should not be capitalized and in NFP for the purpose of equalization under s. 4 of the Family Law Act,[^64] Sharpe J.A., speaking for the Court, stated:
I also agree with the point made by Lally J. in Mead v. Mead, (1990), 1990 6777 (ON SC), 2 O.R. (3d) 49 (Gen. Div.) (adopted in Hamilton[^65] at para. 111) that disability benefits are distinguishable from other pensions in that they cannot realistically be valued if not in pay as of valuation day. It would be anomalous to include as property a disability benefit in pay the day before separation but to exclude a disability benefit not in pay until the day after separation. It seems to me that this serves to reinforce the point that disability benefits are, for purposes of family property and support, more readily dealt with as income rather than as property. They should be taken into account in relation to spousal support but excluded from consideration in relation to equalization of family property.[^66] [Emphasis added]
[100] If the court were to conclude in the present case, based solely on Mignella’s insurer’s denial of IRB’s beyond January 9, 2012, that Mr. Mignella was capable of returning to work and imputed income to him on this basis, it would be pre-judging an issue that should be determined in the litigation between him and his insurer. This could potentially harm both Mr. Mignella’s ability to recover benefits owed to him and Ms. Federico’s ability to have her spousal and child support determined based on those benefits, and to recover payment of them from those benefits.
[101] Mr. Mignella, while experiencing a temporary decline in his actual income, is accruing an increasing claim for lost earnings against his Accident Benefits insurer, and possibly against the owner and driver of the transport truck whose wheel struck his automobile. Mr. Mignella’s income for support purposes from the date when his Income Replacement Benefits were discontinued to the present is as yet undetermined. The amount of income that is imputed to him will therefore be without prejudice to the right of either party to seek an adjustment at trial based on better evidence.
d) Mid-week access
[102] Ms. Federico states:
The Applicant interprets out Parenting Plan, which states that the Applicant MAY have overnight access on Thursday evenings to mean that he SHALL have the said access. I believe that the term “may” is permissive and requires consent from both of us. I would be more than willing to be flexible in this regard if I received the same courtesy from the Applicant. Unfortunately, I do not, and each attempt I have made to be flexible and generous for the sake of our son has been met with obstinacy from the Applicant. It is not a matter of “nitpicking” but rather of respect for the terms of our agreement and for each other. For example, the Applicant has withheld out son from me on Fridays, when Sebastian is supposed to be with me and has failed to contact me with respect to same, including but not limited to keeping him out of school without notification to the school or myself, and failing to return Sebastian to my care at the appropriate time. [Emphasis added]
[103] The expression “may exercise access” is an expression that is commonly used both in separation agreements and court orders to signify that the parent has the right to exercise access to his child if he wishes. The word “may,” in this context, is not meant to confer a discretion in the other parent as to whether to permit such access, since this would deprive the words of their intended effect, namely, to confer on Mr. Mignella a right to exercise access if he wishes.
While it is desirable that both parties exercise flexibility in relation to access, Mr. Mignella’s failure to do so does not deprive him of the right to exercise such access as the agreement gives him. If Ms. Federico believes that Mr. Mignella encroaches on the periods when the agreement provides that Sebastian is to be with her, she has her remedies, just as Mr. Mignella does. The order that follows will provide for police enforcement to make this clear.
e) Family photos
[104] Because of the very limited support that is being paid to Ms. Federico, her obligation to copy the family photos and video films will be deferred to trial, when an order respecting the expense can be made part of the order regarding equalization, retroactive support, and disposition of the matrimonial home.
CONCLUSION AND ORDER
[105] In summary:
(a) Mr. Mignella has not applied for sale of the matrimonial home pursuant to the Partition Act and there is no issue as to the ownership of the home that would support an Order made pursuant to the Family Law Act. Even if Mr. Mignella had relied on the Partition Act, there is a genuine issue for trial as to Ms. Federico’s right to continued possession of the matrimonial home and her ability to purchase Mr. Mignella’s interest in the home from him. These rights should not be foreclosed by an interim order for sale and Mr. Mignella’s motion for this remedy is therefore being dismissed.
(b) Ms. Federico has not offered prima facie proof that Mr. Mignella stood in the place of a parent to Christian. Her motion for an Order requiring him to pay interim child support for Christian is therefore being dismissed, without prejudice to her right to re-apply at trial based on better evidence.
(c) Ms. Federico is entitled to spousal support for herself and to child support for Sebastian. The amount of child support will be $410.00 per month based on the best evidence available as to Mr. Mignella’s income, which is his Line 150 income in 2011. My order will be without prejudice to Mr. Mignella’s right at trial to seek a re-adjustment of support based on better evidence, which shall include an up-dated Financial Statement, a record confirming his social assistance, and the file from any litigation he has undertaken against his Accident Benefits insurer and the tortfeasor responsible for the automobile accident that injured him in May 2011.
(d) The amount of spousal support will be $802.53, based on the high-end of spousal support from a Divorce-mate calculation plus Mr. Mignella’s one-half contribution to the monthly mortgage and home insurance payments on the matrimonial home.
(e) Because of the very limited support that is being paid to Ms. Federico, her obligation to copy the family photos and video films will be deferred to trial, when an order respecting the expense can be made part of the order regarding equalization, retroactive support, and disposition of the matrimonial home.
(f) Mr. Mignella’s interpretation of the parties’ parenting agreement is correct. Ms. Federico will therefore be ordered to comply with the provisions of the agreement giving Mr. Mignella mid-week access to Sebastian. The agreement will be enforced by the police if necessary.
[106] Based on the foregoing, it is ordered that:
Mr. Mignella’s motion for interim sale of the matrimonial home is dismissed.
Ms. Federico’s motion for interim child support for Christian is dismissed, without prejudice to her right to re-apply at trial.
Mr. Mignella shall pay interim child support to Ms. Federico in the amount of $410.00, beginning January 1, 2012, for the support of Sebastian Mignella, based on his Line 150 income for 2011 in the amount of $45,416.00, without prejudice to the parties’ right to seek a re-adjustment in the amount of such support at trial, and to Ms. Federico’s right to seek retroactive child support for the period from the date of separation to the end of December 2011.
Mr. Mignella shall pay interim spousal support to Ms. Federico in the amount of $802.53 beginning January 1, 2012, based on his Line 150 income of $45,416.00 in 2011 and her Line 150 income of $22,384.00, without prejudice to the parties’ right to seek a re-adjustment of such support at trial, and to Ms. Federico’s right to seek retroactive spousal support for the period from the date of separation to the end of December 2011.
A support deduction order shall issue for enforcement of interim child and spousal support.
Ms. Federico shall comply with the parties’ parenting agreement, including the provision which grants Mr. Mignella interim access to Sebastian. The provisions of the agreement shall be enforced, if necessary, by the Peel Police Service or such other police force as have jurisdiction in the place where Sebastian may be found from time to time.
The parties shall exchange updated Financial Statements, evidence of all income received to date in 2012, with supporting documentation, on or before October 15, 2010.
Mr. Mignella shall produce to Ms. Federico by October 15, 2012, copies of all applications, reports, communications and social assistance received and his entire litigation file in connection with any claim he has made for damages in tort and Accident Benefits arising from the collision on July 2011.
As success in these motions was divided, there shall be no order as to costs.
Price J.
Released: October 9, 2012
COURT FILE NO.: FS-11-4809-00
DATE: 2010-10-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GIANNI (JOHN) MIGNELLA
Applicant
- and –
MARIA TERESA FEDERICO
Respondent
REASONS FOR ORDER
Price J.
Released: October 9, 2012
[^1]: Family Law Act, R.S.O. 1990, c. F.3, s. 9(1)
[^2]: Goldman v. Kudeyla, 2011 2718 (ONSC), 5 R.F.L. (7th) 149
[^3]: Arlow v. Arlow, (1990), 1991 12940 (ON CA), 33 R.F.L. (3rd) 44 (OCA,); Walters v. Walters, 1992 8599 (ON SCDC), [1992] O.J. No. 1564, 1992 CarswellOnt 811; Kereluk v. Kereluk, 2004 34595 (ONSC)
[^4]: Goldman v. Kudeyla, above, at paras. 17 to 19
[^5]: Silva v. Silva, 1990 6718 (ON CA), 1990 1 O.R. (3d) 436 (Ont. C.A.)
[^6]: Arlow v. Arlow, 1990 12267 (ON SCDC), 27 R.F.L. (3d) 348 (Ont. Dist. Ct.), varied (1991), 1991 12940 (ON CA), 33 R.F.L. (3d) 44 (Ont. C.A.)
[^7]: Martin v. Martin, 1992 7402 (ON CA), 1992, 38 R.F.L. (3d) 217 (Ont. C.A.)
[^8]: Martin v. Martin, above, at para. 22
[^9]: Martin v. Martin, above, at para. 26
[^10]: Walters v. Walters, 1992 8599 (ON SCDC), [1992] O.J. No. 1564, 1992 CarswellOnt 811, 92 D.L.R. (4th) 398 (Ont. Gen. Div.)
[^11]: Kereluk v. Kereluk, 2004 34595 (ONSC)
[^12]: Kereluk v. Kereluk, above, at para. 21
[^13]: Divorce Act
[^14]: Family Law Act, R.S.O. 1990, c. F.3
[^15]: Chartier v. Chartier, 1999 707, [1999] 1 S.C.R. 242
[^16]: Chartier v. Chartier, above, at paragraph 39
[^17]: Bell v. Bell, 2006 23927 (ON SC), at para. 37
[^18]: Lopez v. Lopez, (1993), 1993 16085 (ON SC), 48 R.F.L. (3d) 298 (Ont. Gen. Div.)
[^19]: Butzelaar v. Butzelaar 1998 13423 (SKQB), 174 Sask. R. 125 (Sask. Q.B.)
[^20]: Theriault v. Theriault 1994 ABCA 119, 2 R.F.L. (4th) 157 (Alta. C.A.)
[^21]: Theriault v. Theriault, above, at p. 160
[^22]: Butzelaar v. Butzelaar, at para. 7
[^23]: Land v. Aitchison, [2005] Carswell Ont. 372 (Ont. S.C.J.)
[^24]: Nicholas Bala, “Who is a ‘Parent’? ‘Standing in the Place of a Parent’ and the Child Support Guidelines s. 5,” Law Society of Upper Canada, Special Lectures on Family Law, April 3, 2006, Toronto.
[^25]: Fortyn v. Canada, 2000 17133 (FC), [2000] 4 FC 184, at para. 21
[^26]: Fortyn v. Canada, above, at para. 21
[^27]: Tylon Steepe Homes Ltd. v. Pont, 2009 253 (BCSC)
[^28]: Tylon Steepe Homes Ltd. v. Pont, above, at para. 31
[^29]: Pleasantview Homes Ltd. v. Hari Chand et al., 2005 1235 (BCSC), at para. 48
[^30]: Tylon Steepe Homes Ltd. v. Landon, 2010 192 (BCSC), at para. 57
[^31]: Parrish & Heimbecker Ltd. v. Burke Towing & Salvage Co. Ltd., 1943 40 (SCC), [1943] SCR 179, Davis J. dissenting at p. 185 on the basis that the bald statement should have raised a prima facie liability of the shipowner.
[^32]: Family Law Act, R.S.O. 1990, c. F. 3
[^33]: Family Law Act, R.S.O. 1990, c. F.3, as amended
[^34]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended
[^35]: Family Law Act, above, section 31(1); Divorce Act, above, section 15.1(3)
[^36]: Federal Child Support Guidelines, O.Reg. 391/97
[^37]: Federal Child Support Guidelines, O.Reg. 391/97, s. 17(1)
[^38]: Spousal Support Advisory Guidelines, (Ottawa: Department of Justice, 2008), by Carol J. Rogerson and D.A. Rollie Thompson
[^39]: Fisher v. Fisher, 2008 11 (ONCA), 2008 ONCA 11, (2008), 88 O.R. (3d) 241, 232 O.A.C. 213, 288 D.L.R. (4th) 513, 47 R.F.L. (6th) 235, [2008] O.J. No. 38, 2008 CarswellOnt 43 (Ont. C.A.)
[^40]: Gagne v. Gagne, 2011 188 (ON CA), para. 9
[^41]: Online at: http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/p3.html#a332
[^42]: Federal Child Support Guidelines, SOR/97-175, as amended.
[^43]: Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813
[^44]: M v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3 at para 66
[^45]: See, for example, Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413 at para. 66.
[^46]: Rilli v. Rilli, [2006] O.J. No. 2142. See also: Pellerin v. Pellerin, 2009 60671 (ON S.C.).
[^47]: Drygala v. Pauli, 2002 41868 (ON.C.A.), (2002), 61 O.R. (3d) 711 (C.A.).
[^48]: Pagnotta v. Malozewski, 2008 14800 (ON S.C.D.C.).
[^49]: Drygala v. Pauli, Supra.; Lawson v. Lawson, 2006 26573 (ON CA), 2006 CarswellOnt 4789 (Ont. C.A.).
[^50]: Drygala v. Pauli, Ibid.; L.(N). V. P. (B.), 2000 22516 (ON SC), 2000 CarswellOnt 2487 (Ont. C.J.).
[^51]: West v. West, 2001 28216 (ON SC), [2001] O.J. No. 2149 (Ont. S.C.J.).
[^52]: Barta v. Barta, 2005 CarswellOnt 74 (Ont. S.C.J.); M.(S.D.) v. M.(K.F.), 2004 CarswellBC 70 (B.C.S.C.); Quintel v. Quintel, 1997 CarswellOnt 3213 (Ont. Ct. Gen. Div.).
[^53]: Pontius v. Murray, 2011 CarswellSask 679 (Sask. C.A.); Poursadeghian v. Hashemi-Dahaj, 2010 CarswellBC 2740 (B.C.C.A.).
[^54]: Korwin v. Potworowski, 2007 CarswellOnt 6852 (Ont. C.A.).
[^55]: Homsi v. Zaya, 2009 ONCA 322, 2009 CarswellOnt 2068 (C.A.) and Bekker v. Bekker, 2008 CarswellOnt 173 (S.C.J.)
[^56]: O’Halloran v. O’Halloran, 2010 571 (ONSC)
[^57]: Iddon v. Iddon, 2006 1450 (ON SC), 145 A.C.W.S. (3d) 282, [2006] O.J. No. 237 (S.C.J.)
[^58]: Strang v. Strang, 1992 55 (SCC), [1992] 2 S.C.R. 112, at para 15
[^59]: Greenglass v. Greenglass, 2009 39995 (ON SC)
[^60]: Greenglass v. Greenglass, above, at para. 112
[^61]: Sheikh v. Sheikh, 2010 1407 (ONSC)
[^62]: Sheikh v. Sheikh, above, para. 47
[^63]: Lowe v. Lowe, 2006 804 (ON CA)
[^64]: Family Law Act, R.S.O. 1990, c. F.3
[^65]: Hamilton v. Hamilton, 2005 25183 (ON SC), [2005] O.J. No. 3050 (Sup. Ct.),
[^66]: Lowe v. Lowe, above, at para. 17