SUPERIOR COURT OF JUSTICE– ONTARIO
COURT FILE NO.: FS-11-72735-00
DATE: 2012-04-12
RE: Karen Stockwell, Applicant (Wife/ Mother)
AND:
Frank Dalcin, Respondent (Husband/Father)
BEFORE: Ricchetti, J.
COUNSEL:
P. Buttigieg, Counsel, for the Applicant
H. Cho, Counsel, for the Respondent
HEARD: April 5, 2013
ENDORSEMENT
THE MOTIONS
[1] The Wife seeks the following interim relief:
a) imputation of income to the Husband of $100,000 per annum for interim support purposes;
b) interim child support for Zachary Edward Dalcin (March 3, 1998) and Savannah Rose Dalcin (November 8, 2002) (the "Children") in the amount of $1,416 per month commencing January 1, 2013;
c) interim spousal support in the amount of $1,908 per month commencing January 1, 2013;
d) the primary residence of the Children with the Wife;
e) the parties and Children to attend counselling to be paid by the parties (90% by the Husband);
f) the Husband to return the personal belongings of Zachary to the Wife;
g) an Order requesting the involvement of the Office of the Children's Lawyer;
h) interim disbursement of $30,000 from the net proceeds of the matrimonial home;
i) financial disclosure as to the disbursement of $36,608.53 from the sale of the Collingwood condominium; and
j) costs.
[2] The Husband seeks the following interim relief:
a) Zachary's primary residence to be with the Husband with specified access to the Wife;
b) Savannah's primary residence to be with the Wife with specified access to the Husband;
c) an order for a custody assessment;
d) disclosure of the Wife's medical records;
e) support obligations of the Husband to be determined using $61,000 as his annual income;
f) interim disbursements to each party from the net proceeds of sale from the matrimonial home; and
g) costs.
THE FACTS
[3] The Wife is 48 years old. The Husband is 49 years old.
[4] The parties were married on November 5, 1988. They separated on May 19, 2011. This was a 22 1/2 year marriage.
[5] The Husband is an accountant and business consultant.
[6] After the birth of Savannah the Wife worked part time for awhile but the parties agreed that the Wife remain at home.
[7] Upon separation, the Husband moved out of the matrimonial home at 94 Valleycreek Dr. Brampton (the "Matrimonial Home"). The Children initially remained in the Matrimonial Home with their Mother.
[8] This Application was commenced by the Wife in August 2011.
[9] In the fall of 2011, Zachary got into an argument with his Mother. The Wife was charged with assault. Zachary left the Matrimonial Home and went to live with his Father. Savannah continued to live with her Mother.
[10] The Wife brought a motion in the spring of 2012 seeking temporary relief. However, the motion did not proceed. Prior to the motion being heard, on June 25, 2012 the parties, both represented by counsel, entered into Minutes of Settlement ("Minutes of Settlement"). These Minutes of Settlement were negotiated and executed while Zachary was living with his Father.
[11] The Minutes of Settlement provided:
a) The Husband was to pay temporary spousal support of $1,851 per month without prejudice commencing July 2012;
b) The Husband was to pay temporary child support for Savannah of $846 per month without prejudice commencing July 2012;
c) The support was based on the Husband's average income of $95,849 and the Wife's income of $0;
d) The support could be varied by further order of the court or agreement of the parties.
[12] There is no court endorsement with respect to the Minutes of Settlement. No order was taken out with respect to the Minutes of Settlement.
[13] It should be noted that the income of $95,849 used to establish the Husband's support was suggested by the Husband's counsel based on the Husband's 2008 through 2011 Income Tax Returns. The Husband's income varies considerably from year to year even if one were to accept Line 150 amounts from the Income Tax Returns.
[14] Until the fall of 2012, the Wife had supervised access with Zachary. The assault trial took place in the fall of 2012. The Wife was acquitted.
[15] During the 2012 Christmas break, Zachary moved back in with his Mother. There is no explanation as to why Zachary moved back with his Mother.
[16] Despite Zachary having moved back with his Mother, the Husband refused to return most of Zachary's personal belongings to the Wife. The Husband still retains Zachary's personal belongings.
[17] For reasons not entirely clear and disputed by the parties, Zachary and his Father have not communicated or seen each other since Zachary moved back with his Mother. The Wife suggests Zachary doesn't want to see his Father. The Husband suggests that the Wife is alienating Zachary against him. There is no evidence supporting either of these statements.
[18] Both parties agree that family counselling is warranted. They have discussed this possibility for some time. The Husband wants the cost of the family counselling to be paid from the proceeds of sale of the Matrimonial Home. The Wife wants the Husband to bear most of the cost of family counselling. Shockingly, the parties have permitted this financial impasse to overtake what is clearly necessary and in the Children's best interests.
[19] Zachary's return to reside with his Mother has upset the Father. The Husband has unfortunately taken some drastic and unreasonable self help. The Husband decided to ignore the Minutes of Settlement and, commencing February 2013, started paying the Wife $618 per month for child support and $0 for spousal support. The Husband would have known this would put financial pressure on the Wife and would have a detrimental impact on his Children.
[20] The Husband’s actions resulted in the Mother’s motion.
[21] The Husband continues to be employed. The Wife is unemployed.
[22] The Wife wants a report from either family counselling or the Office of the Children's Lawyer prior to any Children’s access by the Husband.
[23] The Matrimonial Home was sold and in excess of $200,000 remains with real estate counsel until agreement of the parties or order of this court.
THE ANALYSIS
The Office of the Children's Lawyer
[24] Both parties agree this court should request the assistance of the Office of the Children's Lawyer ("OCL"). I agree this would be highly beneficial for the Children and to this court.
[25] I recognize that Justice Fragomeni's request for OCL involvement on April 24, 2012 was not accepted by the OCL. However, the subsequent events place a very different picture on the issues to be addressed by this court.
[26] There is clearly internal conflict, at least as it relates to Zachary. The facts and circumstances of the Children's decision to reside with one parent, then the other, is very troubling and requires independent review to determine the reason and to establish the wishes of the Children.
[27] The allegations by each parent are serious and need to be delved into as quickly as possible by a third party with the Children's interests first and foremost.
[28] I ask that the OCL reconsider accepting this request. The parties will file Intake Forms as required by the OCL.
The Wife's Medical Records
[29] The Husband has now received consent forms from the Wife permitting the Husband to obtain directly any medical records he seeks. I am not persuaded that further medical evidence is necessary to determine the Children’s best interests at this time.
The Cottage and Interim Disbursement
[30] The parties acquired, during the marriage, a cottage on Grey Road in Blue Mountains. It was registered solely in the name of the Husband. The Husband denied the Wife access after the separation. The Husband sold the cottage. The net proceeds were $36,608.52. The Husband didn't tell the Wife he was selling the cottage. The Husband may have represented that he did not have a spouse in the real estate transfer documentation - a commonly requested representation requested of vendors. The net proceeds have been disbursed by the Husband, but the documentation regarding the disbursement have not been produced by the Husband.
[31] There is no dispute the cottage was family property.
[32] The Husband's position is that he used the net proceeds to repay a loan to his mother. There is no proof of this loan. There is nothing in the Husband's Financial Statements consistent with such a loan to his mother or repayment. Despite being requested to produce the documentation regarding the loan and disbursement of the net proceeds, the Husband has not produced such documentation.
[33] The Wife seeks an interim disbursement from the net proceeds from the Matrimonial Home in the amount of $30,000 to offset the financial advantage the Husband received from the sale of the cottage.
[34] The Husband does not oppose the interim disbursement to the Wife but insists that he also receive an interim disbursement of $30,000 from the Matrimonial Home.
[35] The Wife's Financial Statement shows that she has no liquid assets. The vast majority of her assets are tied up in the net proceeds of the Matrimonial Home. The Wife has considerable expenses and no income, particularly now since the Husband terminated spousal support and reduced child support.
[36] The Husband, on the other hand, had substantial assets on Valuation Date and has received approximately $36,000 under highly questionable circumstances from the sale of the cottage.
[37] I am satisfied it is reasonable and necessary that an interim disbursement be made immediately to the Wife of $30,000 from the net proceeds of the Matrimonial Home. This is without prejudice and subject to the accounting that will be done at trial for any equalization payment.
Family Counselling
[38] The parties agree on family counselling.
[39] The parties agree to use Stella Kavoukian for family counselling (See the Husband’s counsel’s letter of November 23, 2012).
[40] The only issue is payment for the family counselling. Given the significant amount of the net proceeds available to the parties and the importance to the best interests of the Children, this will not be a deterrent to immediate family counselling. Family counselling has already been delayed more than it should have been over this financial dispute.
[41] The parties, with the Children, shall attend family counselling with Ms. Kavoukian. Payment for the family counselling shall be made from the net proceeds of sale from the Matrimonial Home. Payment from these funds shall be without prejudice to a final determination at trial as to which party should bear this cost or how the cost should be allocated between the parties.
Primary Residence of the Children
[42] The primary residency and access to the Children has been a significant and continual dispute between the parties since separation.
[43] Savannah chose to remain with her Mother. She has done so since separation. There is no disagreement that Savannah’s primary residence should continue with the Wife. I agree.
[44] The issue is Zachary's primary residence. The Husband submits that Zachary's primary residence should be with him. The Mother submits that Zachary's primary residence should continue with her.
[45] Zachary is 15 years old. Given the history of this matter, Zachary appears to be capable of making up his own mind as to where he will reside. He chose to live with his Mother until the assault took place. Then he chose to live with his Father. Then he chose to move back in with his Mother. Although with some bitterness and disagreement over access, the parties have, until now, respected Zachary's wishes as to his primary residence.
[46] The Husband is no longer content to permit Zachary to determine with which parent he resides. The Husband now seeks to take Zachary away from the Mother, a decision which Zachary made on his own.
[47] The Father's tying this decision by Zachary to financial support to the Wife and to child support is somewhat troubling and may be an indication there may be financial issues behind the Father's motivation to get Zachary back to reside with him.
[48] The Husband states that he has concerns regarding the Wife’s psychiatric and emotional state. He submits the Wife has a history of volatile and emotional behaviour problems resulting in erratic and sometimes violent behaviour.
[49] There are several difficulties with the Husband’s allegations:
a) There are no medical reports supporting the Husband’s allegations. The Wife has produced medical documentation and offered to obtain anything else the Husband required (see May 3, 2012 letter from Wife’s counsel). The Husband’s counsel had ample time to request, obtain and produce any additional medical evidence. What medical evidence has already been produced does not support the Husband’s allegations. The Husband disagrees with the medical opinions. From my review of the medical documentation, some of the incidents referred to by the Husband were described by the doctors as the Wife going through manic depression “induced by antidepressant medications”. However, more importantly and more recently, the Wife's psychiatrist’s only comment was that the Wife was undergoing significant stress from the circumstances of her divorce. The Wife’s other doctor stated he had “no concerns regarding her mental status in her ability to manage her self-care and that of her children’s care;
b) In late 2011, the Children’s Aid Society was involved but found no child protection issues. It is unknown whether the Husband raised the alleged Wife's psychiatric issues. If he did, the CAS did not have any concerns. If he didn't, the psychiatric concerns he now raises could not have been that significant to the Husband;
c) The Husband had, at one point during the exchange between counsel, agreed the Children would reside with the Wife after separation. The unresolved issue was access. (See the Husband’s counsel’s letters of September 12 and September 23, 2011). The Husband, if he truly believed the Wife had the psychiatric and emotional problems, would never have agreed to this;
d) Subsequent to Zachary moving back in with the Wife in December 2012, the Husband has been asking for access. The Husband did not bring any motion for access or the change the primary residence of Zachary or Savannah because of the Wife’s alleged psychiatric and emotional conditions. He only brought his cross motion in response to the Wife's motion seeking an order for primary residence for Zachary and reinstating support for herself and the Children;
e) The Husband has no difficulty with Savannah’s primary residence being with her Mother. How can he truly believe that this would be good for Savannah if the Husband believed the Wife suffers from the psychiatric and emotional conditions he now alleges?; and
f) In November 2012, the Husband suggested a week about with for Zachary. Again, there was no concern expressed by the Husband, at that time, about the Wife's psychiatric or emotional issues.
[50] The Wife on the other hand suggests that Zachary wishes to avoid all contact with his Father. No explanation has been given as to why Zachary would now take this position after living with his Father for such a long period of time. There is no other evidence that this is Zachary’s wishes.
[51] The Husband suggests the Wife is alienating Savannah. However, there is no evidence supporting this.
[52] A careful review of the correspondence exchanged between the parties and their counsel suggests that both parties are attempting to “use” the Children in this family law proceeding. The parties simply do not appreciate the harm caused to the Children by this “tug of war”. While both parties suggest they want the Children to have a positive and loving relationship with the other parent, there is little evidence that either parent has actually demonstrated this in their conduct.
[53] Zachary’s primary residence shall remain with his Mother. Should Zachary wish to change his primary residence, either of the parties may bring this matter back before this court. However, I wish to make it clear to the parties, the reason for any proposed change to Zachary’s primary residence will be carefully scrutinized to determine the reasons for the change. Neither party should, in any way, encourage Zachary to change his primary residence or discourage Zachary from changing his primary residence.
Parenting Time
[54] There is no cogent reason why the Children cannot spend time with their Father. A positive and strong relationship with their Father is in their best interests.
[55] The Father shall have parenting time alternating weekends commencing at Friday after school or 6 pm (whichever is earlier) until Sunday evening at 8 pm. The Father’s alternating weekend parenting time shall commence on April 19, 2013.
[56] The Father shall also have parenting time each Wednesday (or such other day as both parties may agree) each week for dinner (5 pm to 8 pm).
[57] Both parties shall ensure that this parenting time is strictly complied with.
Children not to be brought into their parent’s conflict
[58] The parties shall refrain from telling the Children any information about these proceedings, speak disparagingly about the other party or discourage the Children from complying with this order.
The Husband's Income for Interim Support Purposes
[59] In the Minutes of Settlement, the Husband agreed to use approximately $95,859 as his "average" annual income. He now seeks to use $61,000 as his annual income.
[60] The difficulty is that the Husband is self-employed. The Husband has not produced financial documentation to support his income and deductions which would permit a proper determination of his income for support.
[61] The Husband's gross sales income for 2012 was $100,570. The Husband deducted $11,570 as HST and then proceeded to deduct another approximately $30,000 in other expenses.
[62] The Wife's counsel requested financial disclosure on January 25, 2013 which would substantiate the Husband's alleged self-employment income in 2012 as well as the deductions applied by the Husband.
[63] The Husband failed to produce the requested documents. In addition, knowing that this issue was expressly raised in the Wife's motion, dated February 22, 2013, the Husband didn't include any of the requested documentation or to include it in his responding materials. This documentation should have been readily available and produced.
[64] The Wife requests this court to impute the Husband's annual income at $100,000 for interim support purposes.
[65] The Husband's counsel submits I should not do so but, instead, adjourn this matter to give the Husband an opportunity to make the requested financial disclosure to verify his income.
[66] I will not do so. In my view, the Husband has had ample time to produce the requested financial documentation. Counsel's suggestion that this matter return before the court at a later date is simply not practical or efficient.
[67] There will no doubt be some legitimate business deductions from the Husband's gross income which should properly be deducted to determine his income for support purposes. I will use the Husband's own agreed upon "average" annual income of $95,849. The reasons for this include:
a) The Husband agreed there was considerable fluctuation in his annual income and agreed to use an “average approach” for support purposes (See Husband Counsel’s letter of June 11, 2012). In the years 2008 through 2011 the Husband’s income (presumably net income) ranged from $60,799 to $191,257. An average approach is consistent with the Guidelines where unfairness would arise to use the last Line 150 income. I am satisfied unfairness would arise to the Wife and Children if I were to use Line 150 form the Husband’s “draft” 2012 Income Tax Return information;
b) This amount is generally consistent with the Husband's proposed 2012 income tax return showing a gross income of $100,570 from which there would no doubt be some legitimate business deductions from the Husband's gross income which should properly be deducted to determine his income for support purposes.. However, it is impossible to determine these amounts. The onus is on the Husband, as a self-employed person, to produce meaningful supporting documentation with respect to his deductions. See Wilson v. Wilson, 2011 ONCJ No. 1088 at para 22:
A self-employed person, or a commissioned salesperson such as Boyd Wilson, has the onus of clearly demonstrating the basis of his net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes: See Whelan v. O’Connor, 2006 13554 (ON SC), 28 R.F.L. (6th) 433, [2006] O.J. No. 1660. Such payors have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See Meade v. Meade, 2002 2806 (ON SC), 31 R.F.L. (5th) 88, [2002] O.J. No. 3155, (Ont. S.C.). The onus rests upon the parent seeking to deduct expenses from income to provide meaningful supporting documentation in respect to those deductions, failing which an adverse inference may be drawn. See Orser v. Grant (2000), 96 A.C.W.S. (3d) 644, [2000] O.J. No. 1429, (Ont. S.C.).
c) This is interim support. Any appropriate or necessary adjustments between now and trial, if any, will be considered by the trial judge at trial when further financial information and documentation is available.
The Wife’s Income for Interim Support Purposes
[68] The Husband does not suggest any imputation of income for the Wife. I accept that the Wife has no income.
Interim Child Support
[69] Given that the primary residence of the Children will be with the Wife and my determination of the Husband’s income at $95,849, the Husband’s child support obligation is $1,366 per month payable on the first of each month commencing February 1, 2013 and each month thereafter. The Husband shall have credit for the amount of $618 per month for child support he has paid since February 1, 2013.
[70] The arrears for February, March and April 2013 shall be paid within 3 months.
[71] Payment of $1,366 per month shall commence on May 1, 2013.
[72] A Support Deduction Order shall issue.
Interim Spousal Support
[73] The Husband has paid no spousal support since February 1, 2013 despite the Minutes of Settlement requiring him to pay $1,851 per month. However, this amount was based on paying child support for Savannah of $856 per month.
[74] Given the increase in the interim child support awarded, the spousal support set out in the Minutes of Settlement needs to be varied. Neither party made any submission as to what this amount should be.
[75] There is no doubt that the Wife has need and the Husband has means to pay spousal support.
[76] Neither party has suggested an amount or provided me with SSAG print
[77] SSAG guidelines provide for a range of $1,234 to $1,656. I choose to utilize the mid-point of $1,444 per month.
[78] I do note that the total amount of support (spousal and child) ordered herein is $2,810 per month which is not significantly different from the total monthly amount the Husband had agreed in the Minutes of Settlement of $2,696. As a result this is a very modest increase notwithstanding that Zachary is now residing with the Mother.
[79] The Husband shall pay, on an interim basis, spousal support in the amount of $1,444 per month commencing February 1, 2013. The spousal support arrears from February, March and April, 2013 shall be paid within 3 months.
[80] Payment of this child support amount shall commence on May 1, 2013.
[81] A Support Deduction Order shall issue.
Zachary’s Personal Belongings
[82] Despite the fact Zachary has been living with his Mother since Christmas, the Husband continues to retain Zachary’s personal belongings, including school uniforms, winter coat and health card. I am not persuaded the Husband was thinking of Zachary’s best interests when he took this action.
[83] The Husband shall immediately permit the Wife or someone on her behalf, to retrieve Zachary’s personal belongings in his possession.
Assessment
[84] There is insufficient evidence to make such an order at this time.
Financial Disclosure
[85] The Husband shall produce within 30 days all documents showing the sale of the cottage, the receipt of the net proceeds and disbursement of those net proceeds. The Husband shall also produce all documents evidencing the alleged loan with his mother, including when the loan was made, any debt servicing and repayment.
COSTS
[86] Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.
[87] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.
[88] There shall be no reply submissions without leave.
Ricchetti, J.
Date: April 12, 2013
COURT FILE NO.: FS-11-72735-00
DATE: 2012-04-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Karen Stockwell
Applicant (Wife/ Mother)
- and –
Frank Dalcin
Respondent (Husband/Father)
ENDORSEMENT
Ricchetti J.
Released: April 12, 2013