SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-11-73611-00

DATE: 2013-04-25

RE: SODA v. SODA

BEFORE: JUSTICE VAN MELLE

COUNSEL:
A. ROSEN, for the Applicant

N. DA SILVA, for the Respondent

DATE HEARD: April 18, 2013

ENDORSEMENT

Endorsement

1The matter came before me as a two day motion to determine the issues of custody and access. Fortunately the parties were able to resolve those issues and now have a comprehensive parenting plan in place.

2Prior to the custody motion before me, the parties had been abiding by a schedule that they had agreed to and which agreement was incorporated into an order of Justice Belleghem dated December 16, 2011.

3In addition to dealing with the issues regarding the children, the order also contained provisions relating to financial issues. Paragraphs 14 through 18 are the relevant paragraphs:

14. Long Branch Foundry shall continue to make all payments on the line of credit in favour of RBC, registered against the home, on a without prejudice basis.

15. The parties shall equally share all utility, property insurance and realty taxes with respect to the matrimonial home, by depositing his/her share into the RBC joint account #5005723 and the applicant shall pay the taxes and utilities online from such account. These arrangements are on a without prejudice basis.

16. The applicant shall deposit all rental income of $1,000.00 per month with respect to 6474 Panton Street, Kilbride, Ontario into the joint RBC account and the parties shall equally share the shortfall of any mortgage, realty taxes, insurance or repairs by depositing his/her share for payment into the joint account. The applicant shall make the payments from the joint account.

17. All draws and salaries issued by Long Branch Foundry shall be equally paid to both parties on a without prejudice basis.

18. The parties shall equally share the costs of:

a) All therapy expenses;

b) All tutoring expenses;

c) Gymnastics costs;

d) Cheerleading costs;

e) Skating costs; and

f) Swimming costs.

4Christine moves now for an order for the immediate payment of $40,208.60 from Luigi pursuant to those paragraphs. She asks also for a further $11,600.39 representing half of what she says is further extraordinary expenses. The issue of other extraordinary expenses and the contribution to those expenses will not be dealt by me in this motion, but is to be dealt with by the trial judge.

5Christine deposed that Luigi had not paid anything (except for one Enbridge bill) toward any of the expenses enumerated by Justice Belleghem.

6Luigi takes the position that Christine used joint funds to pay all the expenses claimed. He says in his affidavit sworn April 16, 2013:

5. When the applicant uses our money to pay household bills and seeks reimbursement for half she is attempting to deceive the court. Using money from the jointly owned company or from joint lines of credit or money owed to the company LBF she is using “half” of my money. When it is debt we are jointly and severally liable for the total debt. She therefore takes money I can no longer use such as from LBF or joint credit and then asks me to give back my money. Any payment to her in these circumstances amounts to a double recovery by her.

6. I do not owe money to the applicant despite the Order of Mr. Justice Belleghem, because the applicant has already withdrawn substantial amounts from joint funds and paid herself.

7Luigi says he owes nothing to Christine and asks that paragraph 15 of the Order be varied now that the shared parenting-nesting order is no longer in place. He has not asked for that relief in the motion returnable today. I do not believe that a Court would vary this paragraph pending trial. It does not appear that Luigi has any income from which to pay child support so an equitable sharing of the expenses would make sense.

8There is no question that serious financial issues remain to be dealt with in this proceeding. The parties own a company together and there is an ongoing civil action.

9However, the Order of Justice Belleghem was made on consent and must be followed.

10I am satisfied that Christine made the payments as set out in her affidavit. I am also satisfied on the evidence that these payments came from her share of the funds taken from the company. The Belleghem Order provided that Christine and Luigi were to deposit her or his share of the expenses in the joint RBC chequing account (no. 5005723). Luigi did not contribute any money to the joint account after the Belleghem Order.

11Christine removed $94,565.09 from the parties’ bank account 575058383 in 2011 and Luigi removed $93,990.13. The account was divided almost equally, although Luigi says he later put $45,000.00 into the business from his own funds to pay business expenses and salaries.

12In any event, the parties received an equal amount in the year of the separation (August 14, 2011). They divided the account and subsequently used the money to fund their ongoing living expenses.

13Luigi says that Christine improperly took $43,000 from the RBC account no. 700-091-02. Christine acknowledges that Luigi might be correct but has repeatedly asked Luigi for an accounting of the source of those funds. Today Luigi says that the $93,990.00 that he removed from this account in 2011, was re-deposited by him in January 2012 and that she removed the money from that deposit. If that is accurate, that should not be difficult to prove. Luigi should produce to Christine the paper trail showing these transactions and this matter should be cleared up as soon as possible. I am not satisfied at this time that he has proven this claim, or indeed his claim that Christine used his money to make payments for the items enumerated by Justice Belleghem.

14Christine paid all the utilities, property insurance and realty taxes, except for the one Enbridge bill paid by Luigi. She is entitled to receive $14,222.97 from Luigi.

15Regarding the joint line of credit that was to be paid from Long Branch Foundry, Luigi takes the position that this line of credit should have been paid by the company and not by Christine personally. There is however, no evidence that there is money available from which to make these payments.

16Christine states, and I accept, that the line of credit was registered against the matrimonial home to fund Long Branch Foundry. Therefore the parties are personally responsible to make sure the line of credit is paid. Christine has made all the payments and should be reimbursed for one-half by Luigi. She is entitled to receive $5,161.27.

17Pursuant to the Belleghem Order, Christine was to deposit all the rental income from a property in Kilbride into the joint RBC account and the parties were to share equally the shortfall. Luigi says that as Christine did not deposit the money into the joint account she cannot now ask for a contribution to the shortfall. I do not follow that reasoning. The property was sold with a closing date of August 31, 2012. There was a shortfall that Christine covered. She is entitled to have this money back from Luigi. She is entitled to receive $2,697.35 from Luigi.

18Luigi has also not paid his share of the expenses for the children that he agreed to share. Apart from challenging his obligation to pay the expenses personally he does not challenge the expenses themselves. I accept that Christine paid them from her personal funds and I order Luigi to reimburse her for one half of those expenses. Luigi’s share of the expenses is $14,222.97.

ORDER

Order

19An Order will issue that Luigi pay to Christine the sum of $40,208.60. The funds are to be paid from the money held in trust by Mr. Da Silva’s firm from the sale of the Kilbride property. The money is to be taken from Luigi’s share of the sale funds.

20Christine’s motion for a contribution to other extraordinary expenses is adjourned to trial.

21The relief claimed by Luigi is adjourned to no fixed date returnable on 10 days’ notice.

22I will entertain brief written submissions on costs. The applicant to serve and file cost submissions within 15 days, the respondent has 10 days to reply.

23There is a Trial Management Conference scheduled in this matter in June, 2013. I would ask that the lawyers have someone attend to organize the file and ensure that the Continuing Record is up-to-date.

Van Melle J.