Court File and Parties

Court File No.: FC-11-038492-00 Date: 2013-01-11 Ontario Superior Court of Justice

Between: Rosa Maria Colivas, Applicant – and – Stivens Colivas, Respondent

Counsel: Harold Niman and Daniel Bernstein, for the Applicant James Singer, for the Respondent

Heard: October 24, 2012

Ruling on Motion for Interim Support

Boswell J.

Introduction:

[1] Occasionally, during the argument of an application, an item of evidence is presented of such an arresting nature that it at once animates and frames the entire exercise. To understand the significance of the evidence I am referring to, some very brief background information is required.

[2] Mr. and Mrs. Colivas are before the Court, litigating issues arising as a result of the breakdown of their 12 year marriage. Mrs. Colivas seeks three interlocutory orders: spousal support, support for the two children (including s. 7 expenses), and a preservation order to prevent Mr. Colivas from dissipating his assets.

[3] At the core of the present dispute is a debate about Mr. Colivas’ income. Mrs. Colivas says it’s the equivalent of about $560,000 per year.[^1] She seeks combined spousal and child support of $20,519 per month. Mr. Colivas says his income more likely falls within the range of $111,000 to $159,000 per year.[^2] Conceding the higher-end of the range, he asserts that his support obligations are $5,183 per month.[^3] As I understand his position, however, he seeks to reduce that amount by $2,000 per month as a credit for what he says has been a gross overpayment in support since the date of separation. According to his calculations, he paid his wife, directly or indirectly, in excess of $200,000 in the first 13 months following the separation in June 2011.[^4]

[4] Mrs. Colivas presents the marital lifestyle as one of wealth, comfort and privilege. Mr. Colivas presents a different picture. He essentially submits that he made a good deal of money on one business deal, involving the sale of his interests in Extreme Fitness. He says the family has supported its lifestyle since 2006 by depleting the sale proceeds. Mr. Colivas now urges restraint and modesty going forward.

[5] I return to that arresting bit of evidence. The materials filed by Mrs. Colivas on the motion include a copy of a letter written by Mr. Colivas in late December 2008 to a third party identified only as “Marty”.[^5] The substance of the letter makes it evident that “Marty” is someone that Mr. Colivas has done business with in the past – specifically referencing the purchase of some rather high-end audio-visual equipment. The following is excerpted from the letter:

Dear Marty,

I have been dealing with you for a number of years now. My first purchases were slightly above entry-level pieces. At that time, you had sold me Martin Logan Speakers, Clasee Processors, and the Single Chip Runco Projector. Although I was very happy with my initial system, I have since become obsessed with having the very best possible audio/video gear money can buy.

Under your recommendation, I purchased the following: [list of equipment omitted]

You would expect that at over $250,000 you would have not only the very best quality sound and picture, but also a system that is bullet proof in terms of its reliability. And this is where you come up short…

As you are aware I entertain regularly with some of the wealthiest and most influential people in the City of Toronto in my Theatre Room. I use my impressive room and system to watch sporting events, concerts and movies and listen to music. You can imagine my embarrassment when half way through a concert or movie I get a crackling sound!

[6] There is a certain voyeuristic thrill associated with reading a letter such as the one written by Mr. Colivas to Marty. It offers a glimpse into a world almost all Canadians are entirely unfamiliar with. A world where private theatre rooms are powered by audio-visual systems worth more than a quarter of a million dollars. Undoubtedly there is a certain element of braggadocio to the letter. Nevertheless, it informs the matter now before the Court for a number of reasons, including:

(i) It demonstrates that the Colivas family lived in rather rarefied circumstances, at least at the end of 2008;

(ii) It further demonstrates that Mr. Colivas considered himself, at least at the end of 2008, to be a wealthy man, who moved in circles of money and influence; and,

(iii) It undermines the credibility of Mr. Colivas’ position that it is his wife who has had an insatiable and unsustainable appetite for spending. He deposed that her “rampant spending was a significant source of friction between us”.[^6] Mrs. Colivas’ spending habits may very well have been profligate. But, clearly, if she had a penchant for extravagant spending, she was not alone.

[7] Before I carry on with a discussion of the particular issues in play on this motion, it is useful to reference some of the basic legal principles that apply to interim support motions.

Legal Principles:

Jurisdiction

[8] The jurisdiction to award child and/or spousal support in this instance flows from sections 15.1 and 15.2, respectively, of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Section 15.1(3) provides that child support is to be awarded in accordance with the Federal Child Support Guidelines (SOR/97-175). Section 15.2 addresses spousal support orders, both interim and final. Section 15.2(4) sets out a number of factors the Court must consider when making an interim or final order for spousal support. It provides as follows:

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

[9] The objectives of a spousal support award apply to both interim[^7] and final orders. They are summarized at s. 15.2(6) of the Divorce Act, which provides as follows:

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should,

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Contextual Approach

[10] The significance of each of the factors to be applied and objectives to be considered will vary from case to case. Each case is different of course and, as a result, a contextual approach is required. In Driscoll v. Driscoll, 2009 66373 (ON SC), 2009 CarswellOnt 7393 (S.C.J.), Lemon J. enumerated a list of principles governing interim support motions. Citing the British Columbia case of Robles v. Kuhn, 2009 BCSC 1163, [2009] B.C.J. No 1699, he set listed the following:

1. On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;

2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;

3. On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;

4. The courts should not unduly emphasize any one of the statutory considerations above others;

5. On interim applications the need to achieve economic self-sufficiency is often of less significance;

6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;

7. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and,

8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

[11] The principles referenced by Lemon J. are not exhaustive, nor could they be when a contextual analysis is required in each case. Nevertheless, reference to them does assist in the contextual analysis to be undertaken.

The Payor’s Means

[12] In the case at bar, a particularly significant matter, as I will develop below, is the assessment of Mr. Colivas’ ability to pay – in other words, his “means”. I am satisfied that for some time, both before and after separation, the parties have been living on substantially more than just Mr. Colivas’ income. It is important, therefore, to recognize that when assessing ability to pay, the word “means”, as referenced in s. 15.2(4), includes “all pecuniary resources, capital assets, income from employment or earning capacity, and other sources from which the person receives gains or benefits”: Leskun v. Leskun, 2006 SCC 25, para. 29.

[13] A party is not generally required or expected to sell capital assets in order to generate funds from which to pay support. Income that could be earned from capital is relevant to the calculation of support, but the liquidation and expenditure of capital is generally not required: see, for instance, Bak v. Dobell, 2007 ONCA 304, paras. 52 and 55. This is not, however, an unassailable rule. There may be circumstances where a payor ought reasonably to be compelled to utilize capital to pay support. Where there has been, for instance, a significant history of use of capital to support a joint lifestyle, a recipient should not necessarily be relegated to a lifestyle appropriate to income only: Jackson v. Jackson, 1997 12392 (S.C.J.).

Disclosure

[14] Assessing Mr. Colivas’ ability to pay is not a simple matter. The parties have divergent explanations for why this is so. Mrs. Colivas’ submissions raise an issue of inadequacy of disclosure. The standard against which disclosure is to be measured is reasonably well settled. The disclosure requirements of a party in Mr. Colivas’ circumstances were the subject of comment by Kitely J. in Meade v. Meade, 2002 2806 (ON SC), [2002] O.J. No 3155 (S.C.J.). I can do no better than to repeat her comments here:

It is inherent in the circumstances of those who are self-employed or who have irregular income and expenses, that they have a positive obligation to put forward not only adequate, but comprehensive records of income and expenses. That does not mean audited statements. But it does mean a package from which the recipient spouse can draw conclusions and the amount of child support can be established. Where disclosure is inadequate and inferences are to be drawn, they should be favourable to the spouse who is confronted with the challenge of making sense out of financial disclosure, and against the spouse whose records are so inadequate or whose response to the obligation to produce is so unhelpful that cumbersome calculations and intensive and costly investigations or examinations are necessary. (para. 81, internal citations omitted).

The Imperfection of Interim Support Orders

[15] It must always be kept in mind that interlocutory orders in family proceedings are not meant to be long term solutions. They are meant to provide “a reasonably acceptable solution to a difficult problem until trial”: see Chaitas v. Christopoulos, 2004 66352 (ON SC), [2004] O.J. No. 907 (S.C.J.) per Sachs J. They are, by their nature, temporary, imperfect solutions. They are based on limited and typically untested information. Nowhere is this more true and apparent than in the case at bar.

[16] With these general principles in mind, I will briefly elaborate on the parties’ respective positions, set out my relevant findings of fact, and then proceed to my analysis of the issues before the Court.

Positions of the Parties:

[17] Mrs. Colivas seeks about $20,500 in combined monthly spousal and child support based on an income she attributes to Mr. Colivas in the range of $560,000. The child support component of that figure is roughly $6,700 and the balance is spousal support. She submits that Mr. Colivas has failed to provide adequate, if any, details of his 2011 and 2012 income. In the absence of helpful information about his current income, the Court is urged to have regard to the family’s expenditures both before and after the date of separation. Mrs. Colivas submits that the parties have had a sustained monthly budget of about $25,000 for many years. She asserts that the lifestyle supported by that monthly budget ought to continue, at least on an interim basis. She submits that the Court should, in the absence of sufficient disclosure, draw an inference that Mr. Colivas has the income to pay support sufficient to maintain the pre-separation standard of living and that such an income should be imputed to him. Alternatively, and in any event, she argues that the support sought is justly payable, even if it means that Mr. Colivas has to utilize capital to maintain it.

[18] Mr. Colivas does not appear to take serious issue with the fact that the parties have historically lived on a monthly budget in the range of $25,000, but he says that “erosion of capital has been the lifeblood of the family’s standard of living.”[^8] He denies any failure to produce appropriate financial disclosure. He claims to have delivered extensive disclosure to his wife’s counsel, but concedes that he has been unable to produce particulars of his 2011 and 2012 income because he continues to await further information from his accountants. He asserts that his income, at its highest, is $159,000, consistent with the report of his expert, Melanie E. Russell, of Kalex Valuations Inc. He urges the Court not to compel him to utilize capital for support purposes, arguing that it is appropriate to do so only in exceptional circumstances. He also seeks a set off of $2,000 per month against ongoing support, by way of reimbursement for what he says has been a significant overpayment of child and spousal support since the date of separation.

Findings of Fact:

[19] I am satisfied that the parties lived a reasonably lavish lifestyle during the marriage and that Mrs. Colivas’ current needs, based on the continuation of the standard of living enjoyed during the marriage, amount to at least $20,000 per month. Both Mr. and Mrs. Colivas have filed sworn Financial Statements, in connection with this motion, that demonstrate a monthly budget in excess of $25,000. Indeed, there appears to be little disagreement that the standard of living enjoyed during the marriage required a monthly budget in the range of $25,000. Mr. Colivas’ letter to “Marty”, referenced above, is sufficient evidence, in my view, to establish that the Colivas family was living a lifestyle during the marriage that was well beyond the means of most Canadians.

[20] The Colivas’ spending habits do not appear to have changed much following the separation. Mr. Colivas states that he paid his wife (voluntarily) in excess of $200,000 in the first 13 months following the separation. In June 2012, he consented to an order that the financial status quo continue. Following the separation, Mr. Colivas moved into his mother’s home. Around the same time, some $500,000 in upgrades were made to her home, including $150,000 in improvements to her basement. Mr. Colivas apparently resides in the basement. Mrs. Colivas described the basement as “state-of-the-art”.[^9] I don’t know what a “state-of-the-art” basement is, but I suspect it is comfortable.

[21] I am satisfied that Mrs. Colivas has no real insight into how much money Mr. Colivas earns, or how he makes it. That comment is not meant as a criticism, but only an observation. She admits as much in her affidavit.[^10] I am critical, however, of her suggestion that Mr. Colivas earns his income by operating a “pump and dump” stock operation, which she describes[^11] as the inflation of the price of an owned stock by word of mouth, often accompanied by false and misleading statements. Once inflated, the stock is sold, resulting in other investors losing most or all of their investment. Her suggestion is a bald allegation only, and it sounds very much like an allegation of fraud. Regrettably, Mrs. Colivas offered no concrete evidence of the alleged “pump and dump” operation.

[22] Mrs. Colivas can hardly be criticized for any lack of real insight into her husband’s income. I find myself in the same position, despite the voluminous materials filed for use on this motion. I am at least in a position where I can identify why I am unable to conclude, even on a balance of probabilities, what Mr. Colivas’ income is. There are at least three reasons:

(i) Insofar as I have been able to discern, Mr. Colivas has provided no disclosure in relation to his income for the years 2011 and 2012. This is problematic, because support is meant to be based on current means and needs. The Court is essentially asked to draw an inference that Mr. Colivas’ income is likely to be on par with an averaging of his income for years 2008, 2009 and 2010. Such an inference is not safe, in my view, because his financial affairs are somewhat volatile. Moreover, I understand Mr. Colivas to be a businessman; an entrepreneur. Presumably he has been attempting to develop new lines of business during the past two years. But I have no idea what those might be;

(ii) Mr. Colivas utilizes a complex corporate and trust structure to hold and manage his assets.[^12] The structure was referenced by Mr. Colivas in his Affidavit as well as in Ms. Russell’s report. In brief, Mr. and Mrs. Colivas and their two children are the beneficiaries of the Colivas Family Trust (the “Trust”). The Trust holds 100% of the issued preference shares of Colivas Investment Corp. (“CIC”). Mr. Colivas’ mother, Helen, owns 100% of the voting common shares of CIC. I am satisfied, however, that she does so only for tax and/or estate planning purposes and that, ultimately, Mr. Colivas controls the interests and undertakings of CIC. CIC in turn owns 100% of the issued and outstanding common shares in Lucosta Investments Inc. (“Lucosta”). Lucosta has been amalgamated with two other corporations: Excite Holding Corporation (“Excite”) and Eagle Claw Holding Corporation (“Eagle”). Excite and Eagle had interests in Extreme Fitness, which were sold and generated total gross revenue, between 2006 and 2009, of $3.7 million. Lucosta presently has assets traceable to the Extreme Fitness sale proceeds, including marketable shares and co-tenancy interests in three commercial properties in southern Ontario. Exactly what revenues are being realized and how they are being distributed among and/or between the corporate and trust entities is not entirely clear. I have no doubt that over time the picture will become more clear and accurate. But for now, this is the type of situation adverted to by Kitely J. when she reflected in Meade, as above, that sometimes disclosure is so cumbersome and complex that it is unhelpful;

(iii) Mr. Colivas has obtained, served and filed an expert’s report regarding the state of his income. I found the report complex and cumbersome, but also incomplete, because information surrounding the activities of Lucosta and any associated corporations is missing for 2011 and 2012. Mr. Colivas’ explanation, as I mentioned, is that he is awaiting further information from his accountants, including how to treat a sum of $100,000 removed from a joint bank account by Mrs. Colivas. I consider his explanation a little weak. The onus is on Mr. Colivas to set out what his income is. His business structure appears to have a measure of complexity to it, at least on the surface. But I believe Mr. Colivas ought to be in a position – more than a year after the separation – to clearly describe what he does to earn a living and what income he derives from his endeavours. He must have some reasonable idea about the money he had coming in during 2011-2012, quite apart from the opinions expressed by his expert.

[23] While I have not been able to come to any conclusion, on a balance of probabilities, as to Mr. Colivas’ actual income in 2012 (or 2011 for that matter), I do find, on a balance of probabilities, that he has been, at least since Extreme Fitness was sold in 2006, funding the family’s standard of living through a combination of income and capital. I accept his statement that erosion of the proceeds of sale of Extreme Fitness has been “the lifeblood of [the] family’s standard of living…”[^13]

[24] How much of the family’s lifeblood has come from income, as opposed to capital erosion, is impossible to know from the Court’s present vantage point. Absent from the evidentiary record are the annual financial statements of Lucosta for fiscal years ending in 2010, 2011 and 2012. Those statements might enable the Court to assess and appreciate what, if any, erosion to capital has occurred in the past several years. Some erosion is, by Mr. Colivas’ admission, attributable to the improvements to Helen Colivas’ home, as well as several hundred thousand dollars lost in bad investments since 2008.[^14] Again, repeating a theme from above, Mr. Colivas must have some reasonable idea about the extent of erosion to his and/or the family’s capital resources. In the absence of such information, the Court is simply unable to come to any satisfactory conclusions about the mix of income and capital being utilized to fund the family’s standard of living.

Interim Support:

[25] There is an existing support order, of sorts, in place. On June 27, 2012, Justice Rogers ordered, amongst other things, that Mr. Colivas was to maintain the financial status quo pending a case conference. Rogers J. candidly admitted that she did not know what the financial status quo was, but the parties consented to that order and she was not inclined to “jump” their consent.

[26] A case conference was held before Nelson J. on August 3, 2012. No change was made to the support order of Rogers J. Indeed, it continues to today’s date. There may be some debate about what was included in the financial “status quo”. It appears to me, however, that it would have involved the maintenance of the pre-separation budget which was in the range of $25,000 per month. Both sides are agreed that a fixed support payment is now preferable.

[27] Fixing interim spousal and child support in this case is fraught with difficulties, which I will elaborate on below. The presence of such difficulties does not permit the Court to shirk its responsibility to fashion support provisions that, insofar as is possible, meet the objectives of the Divorce Act, and adhere to the principles applicable to interim support motions, as described above. In this case, achieving the rough justice characteristic of interim orders will require some thinking “outside the box”.

[28] I start with this: I reject outright Mr. Colivas’ proposal to fix support on the basis of an income of $159,000, subject to a $2,000 per month set-off. His proposal would see net support flowing to Mrs. Colivas of just over $3,000 per month, grossly insufficient to meet the standard of living enjoyed by the parties during the marriage. The amount is so low that it appears to have been carefully gauged to cause significant distress and anxiety – not an objective of the Divorce Act.

[29] I come to this: I do not know what Mr. Colivas’ income is. The floor appears to be in the range of $111,000 to 159,000. The ceiling is unknown, but I do not believe it to be greater than the $560,000 proposed by Mrs. Colivas. The truth, in all likelihood, falls somewhere in the middle. Inevitably, in order to maintain a reasonable approximation of the standard of living enjoyed during the marriage, resort to capital, as well as income, will be required.

[30] I am prepared, in the circumstances of this case, to make an interim award of support that, in all likelihood, will require Mr. Colivas to encroach upon capital to meet. I am entitled to make such an order, in my view, based on the reasoning in Leskun, as above. In assessing “means”, a party’s capital resources are relevant. That said, it is not my intention to trample on the general and well-settled rule that support is generally payable from income and not capital. I consider this case to be exceptional, in that Mr. and Mrs. Colivas have a significant history of utilizing a combination of income and capital to fund their lifestyle. It would be artificial and, in my view, grossly unfair, in the circumstances, to suddenly expect Mrs. Colivas and the children to make the severe adjustment to their lifestyle that would be required if support were paid on income only – at least on the income figures produced by Mr. Colivas. Such an unfairness would be particularly acute in view of Mr. Colivas’ failure to make sufficient disclosure of his financial circumstances.

[31] I recognize that Mrs. Colivas is not without capital of her own. She is the sole owner of the matrimonial home, valued at approximately $1.2 million, though encumbered by a mortgage of about $560,000. She also has significant savings and, according to Mr. Colivas’ disclosure, an interest in the Walker’s Line Co-Tenancy. She is also a beneficiary of the Colivas Family Trust, though it is entirely unclear at this point whether there is any value to that beneficial interest.

[32] A support order similar to the one suggested by Mr. Colivas would put the onus on Mrs. Colivas to utilize her own capital to fund the bulk of her day-to-day living expenses. Such a result would not be in keeping with the status quo, which was that the parties’ expenses were funded by a mixture of Mr. Colivas’ income and capital reductions in the assets owned, managed or controlled by Lucosta. I propose to more or less maintain that scheme.

[33] This is clearly a case where the full appreciation of the evidence and issues that is required to make dispositive findings can only be achieved by way of a trial. In other words, the full forensic machinery of a trial will be necessary to do justice between these parties. A trial will be necessary to accurately assess Mr. Colivas’ income and to determine the equalization of net family property. Only after a trial will it become clear whether Mr. Colivas has overpaid or underpaid support, or whether his capital has been unfairly encroached upon. Only after a trial will it be possible to address any double-dipping issues or set-offs/adjustments for over-payments or under-payments. It will undoubtedly be some time before a trial can be concluded. In the meantime, it is necessary to fashion an order that permits at least a reasonable approximation of the pre-separation financial status quo to continue, without unduly prejudicing one or the other of the parties.

[34] If spousal support was the only support issue engaged, then it would not, strictly speaking, be necessary to fix any particular income to Mr. Colivas. The application of the Child Support Guidelines do, however, require a determination of income. For child support purposes, I am imputing an income to Mr. Colivas of $250,000. I do so for the following reasons:

(i) I am unable to determine his current income, largely due to his insufficient disclosure. I draw an adverse inference against him that he has income greater than the amounts disclosed in 2008, 2009 and 2010 given the lifestyle expenditures he has been making;

(ii) There is, admittedly, an element of arbitrariness to the imputed income. Any such arbitrariness is, however, due to the lack of fulsome disclosure;

(iii) Fixing an absolutely correct amount for child support is impossible at this stage. A correct amount is not, however, a pressing issue, given that the totality of spousal and child support is what is imperative. Adjustments made be made retroactively at trial, as necessary in the interests of justice. The order I make today is expressly without prejudice to any future re-adjustments to child and/or spousal support.

[35] Based on an income of $250,000, table support payable for two children is $3,152 per month, and I order that payable from and after November 1, 2012.

[36] Spousal support is fixed at $16,848 per month, such that the combined amount of child and spousal support payable is $20,000 per month, all commencing November 1, 2012.

[37] This is an extraordinary situation where the support payable is based on a mixture of income and capital. As such, I want to ensure that the trial judge has as much flexibility as possible to re-adjust and/or re-characterize any amounts paid, in order to justly allocate the economic consequences of the marriage between the parties. According, the support orders made today are without prejudice to: (1) the trial judge’s discretion to retroactively vary the allocation of child and spousal support once Mr. Colivas’ income is more accurately determined; and, (2) the trial judge’s discretion to re-characterize some portion of the spousal support payments made by Mr. Colivas pursuant to this order as transfers of capital, or an advance on an equalization payment, as the case may be, so as to fairly equalize the parties’ net family property and to address any issues of double dipping that the trial judge considers appropriate.

Section 7 Expenses:

[38] Mrs. Colivas seeks an order compelling Mr. Colivas to contribute to a wide variety of expenses she claims fall within s. 7 of the Child Support Guidelines. Section 7 provides that the Court may order, above and beyond the amounts set out in the applicable tables, payments to a recipient spouse for certain types of expenses, as set out in the section. Mrs. Colivas seeks a contribution from Mr. Colivas for the following expenses:

(i) An annual reassessment with an audiologist: $495

(ii) Gemm Learning, Fast forWord program: $500

(iii) Occupational Therapy: $150/session

(iv) Summer CAPD therapy: $2,400

(v) Tutor: $150/wk

(vi) Speech Language Pathologist: $135/session

(vii) Karate: $275/mo x 2 children

(viii) Baseball: $186

(ix) Hockey: $650 per child

(x) Uninsured Medical and Dental: $463

(xi) Country Day School: $30,735

[39] A significant number of the s.7 expenses raised by Mrs. Colivas relate to Lucas and addressing his special needs. Mrs. Colivas describes Lucas as having special challenges that include sensory processing disorder, ADHD, OCD, ODD, anxiety disorder, behavioural issues, scoliosis, tics, stuttering and possibly Tourette Syndrome.[^15] There is a debate about what Lucas’ special needs are and what services may be required to meet those needs. As I understand it, there is an ongoing assessment with Linda Chodas. Justice Rogers endorsed on June 27, 2012, “An assessor with such experience will be able to gather input from collaterals and help the parents design a plan that incorporates valid solutions for Lucas. There may also be an issue to the degree of involvement of services. There may be a necessary limit to allow the child some degree of normalcy.”

[40] The special expenses enumerated above as items (ii) through (vi) are items that I consider special or extraordinary expenses that fall within s. 7(1)(c) of the Guidelines. Whether these items are reasonable and necessary in the best interests of Lucas is a matter that has, by virtue of Justice Rogers’ order, been deferred until the assessment is complete. I decline, therefore, to make any order relating to those expenses at this time. To the extent that the assessor recommends any such services for Lucas, in his best interests, they should be shared by the parties on a 50/50 basis.

[41] The expenses claimed for extra-curricular activities (baseball, karate and hockey) are not, in my view, extraordinary within the meaning of s. 7(1.1) of the Guidelines and I decline to make any order in relation to those expenses.

[42] The expense for Country Day School is extraordinary, but it has already been addressed in the order of Kaufman J. dated September 13, 2012. That order remains extant.

[43] Items (i) and (x) are extraordinary expenses within the meaning of s. 7(1)(c) of the Guidelines and should be shared 50/50. Mr. Colivas shall forthwith pay Mrs. Colivas the sum of $231.50 for his half of the outstanding uninsured medical/dental expenses and half of any further such expenses on an ongoing basis. He shall pay for ½ of the annual re-assessment with the audiologist as and when that occurs.

[44] I have provided for a 50/50 sharing of proven s. 7 expenses, more or less as a default, in view of the significant spousal support award that I have made today and in view of the fact that I am otherwise unable to say, on a balance of probabilities, what Mr. Colivas’ actual income is.

Preservation Order:

[45] I am satisfied that Mr. Colivas will need to encroach upon his capital to meet the terms of this order. A preservation order would impair his ability to do so. I do not have anything approaching sufficient evidence to be able to craft a preservation order that defines which assets may be encroached upon and which may not, and how any assets ought to be liquidated to meet the present order. Moreover, I have scant evidence that Mr. Colivas is dissipating assets other than as necessary to support his family. He will need to continue to do so in order to meet the terms of this order. I decline, in the circumstances, to make a preservation order.

Costs:

[46] The parties may make written submissions on costs, on a 14 day turnaround. The Applicant shall file her submissions within 14 days of the date of this ruling and the Respondent shall file his submissions within 14 days of the receipt of the Applicant’s submissions. Submissions are not to exceed 3 pages in length, not including any costs outlines. They are to be filed with the judicial secretaries’ office in Newmarket.

Boswell J.

Released: January 11, 2013

Endnotes

[^1]: Affidavit of Rosa Colivas sworn October 18, 2012 (“Rosa’s Affidavit”), para. 27. [^2]: Affidavit of Stivens Colivas sworn October 19, 2012 (“Stivens’ Affidavit”) para. 25. [^3]: Stivens’ Affidavit, Exhibit “T”. [^4]: Stivens’ Affidavit, paras. 38-44. [^5]: Rosa’s Affidavit, Exhibit “R”. [^6]: Stivens’ Affidavit, para. 32. [^7]: The Divorce Act refers to interim and final support orders. The Family Law Rules use the language “temporary” and final orders. Throughout this ruling, I use the term “interim”, by which I mean both interim and/or temporary. [^8]: Stivens’ Affidavit, para. 4. [^9]: Rose’s Affidavit, para. 25. [^10]: Para. 20. [^11]: Ibid. [^12]: Stiven’s Affidavit, paras. 4-11, Exhibit “E”. [^13]: Supra, note viii. [^14]: Stivens’ Affidavit, paras. 7-21. [^15]: Rosa’s Affidavit, para. 5.