SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
COURT FILE NO.: F1610/12
DATE: December 20, 2012
RE: L.M., applicant
AND:
M.C., respondent
BEFORE: HENDERSON J.
COUNSEL:
William Clayton for the applicant
Lawrence Blokker for the respondent
HEARD: December 12, 2012
ENDORSEMENT
[ 1 ] The respondent brings this motion seeking an order that the applicant pay temporary child support in accordance with the Ontario Child Support Guidelines , O. Reg. 391/97 [as amended], plus a contribution to the child’s s. 7 expenses. In addition, the respondent seeks an order that the applicant pay temporary spousal support.
Background
[ 2 ] The parties had a brief relationship from 2009 until September 21, 2012 when the applicant was charged as a result of allegations that he sexually and physically assaulted the respondent.
[ 3 ] There is one child of the relationship, namely, B.L.M., born […], 2009. He is in the care of the respondent as a result of separate child protection proceedings.
[ 4 ] The respondent has been living with her grandmother but this arrangement will end shortly as the grandmother is aged and has recently experienced a recurrence of cancer.
[ 5 ] The respondent receives Ontario Works in the amount of $804.79 per month, which includes $500 which she pays as rent. She did not work during the relationship. She has been recently diagnosed with Rheumatoid Arthritis Lupus.
[ 6 ] The applicant has owned and operated a nutraceutical manufacturing company called N[…] Inc. for the past 11 years. The company employs four or five people and produces health supplements. The respondent also states that the applicant has started a nightclub in London. The applicant denies this, saying it is his father who has invested in it. He says that he arranges entertainment periodically but does not manage it.
[ 7 ] The respondent is unaware of the applicant’s income but points to his home which she estimates to be worth $1.2 million (which the applicant disputes) but which, in any event, is subject to a mortgage of $600,000 for which he pays $1,700 per month. He also owns at least one other property in London, subject to a mortgage of $115,000. He owns at least two BMWs, a 38 foot cigarette-style racing speed boat and a 2004 Ferrari.
[ 8 ] The applicant replies that while at one time his income was sufficient to support his lifestyle, he has been suffering hard times. In 2010 and 2011, he was being investigated by the RCMP for alleged criminal activities. In the end, no charges were laid but the investigation itself impacted negatively on his business. His financial statement sworn November 13, 2012 shows that he is unable to meet his liabilities as they come due and his debt load is increasing. He estimates his income for 2012 to be $50,000.
Discussion
[ 9 ] Counsel for the respondent argued that his client is entitled to child and spousal support. He asked me to base the quantums on an imputed income pursuant to s. 19(1) of the Guidelines . Counsel suggested a range of $100,000 to $130,000 per year.
[ 10 ] Counsel for the applicant replied that because of his cash flow problems, his income of $50,000 was the best his client could do.
[ 11 ] Section 19(1) of the Guidelines permits the court to impute income to the payor. I am not satisfied on the evidence before me that I should impute income to the applicant in the range requested by the respondent. However, I will impute an income of $72,000, being his projected budget, for the following reasons:
His legal issues with the RCMP have concluded and there appears to be no impediment to his company’s recovery.
If the applicant was in the straitened financial circumstances he claims, he has the ability to unload some of his assets, specifically the luxury items such as the Ferrari, to improve his position.
The applicant claims a $500,000 “private loan” for which no particulars are provided.
The applicant is only now finalizing his business records back to 2009, making it impossible to determine with any certainty his income.
[ 12 ] Therefore, based on an income of $72,000 per year, child support for one child is $682 per month. The respondent has need and is entitled to support. Using this income, a mid range of spousal support pursuant to the Spousal Support Advisory Guidelines is $1,478 per month. Based on this level of support, with the respondent not having any other source of income, the applicant’s share of s. 7 expenses is 75 percent. The respondent, in her affidavit sworn November 5, 2012 at paragraph 16, lists what she claims to be special expenses. It is difficult to calculate on the evidence the total annual cost of these programmes. I will allot an annual cost of $3,500, of which the applicant shall pay $220 per month (rounded).
[ 13 ] In summary, the following order shall issue:
Commencing October 1, 2012, the applicant shall pay $682 per month as temporary support for the child, B.L.M., born […], 2009. The applicant shall receive credit for $950 already paid and any further support paid in December.
In addition to the child support set out in paragraph 1, the applicant shall pay s. 7 expenses in the sum of $220 per month commencing October 1, 2012.
Commencing October 1, 2012, the applicant shall pay the sum of $1,478 per month for the temporary support of the respondent.
[ 14 ] The parties shall have 30 days to make short submissions regarding costs.
“Justice Paul J. Henderson”
Justice Paul J. Henderson
Date: December 20, 2012