COURT FILE NO.: D-818/11

DATE: 2013-06-27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Diane Mary Sukan

Applicant

• and -

Martin Sukan

Respondent

Counsel:

Kirsten Hughes, for the Applicant

Richard Z. Skibinski, for the Respondent

HEARD: April 11, 13, 15, 16, 17 and 18, 2013

BEFORE: The Honourable Madam Justice J. A. Milanetti

REASONS FOR JUDGMENT

1Diane and Martin Sukan come before me seeking resolution of issues relating to custody, access and support (prospective and retroactive) in connection with their daughter Emma. Ms. Sukan asks that I impute income of $50,000 to Mr. Sukan for support purposes. Equalization requires resolution. They also seek a divorce.

THE FACTS

2Diane and Martin Sukan were married September the 6th, 2003 and were separated October the 15th, 2008. There is one child of the union - Emma, born August 22nd, 2006.

3At the trial of this matter I heard from each of the parties as well as the common-law spouse of Mr. Sukan, Cara McLeod and a friend of Mr. Sukan’s, Sanjay Modi.

DIVORCE

4The parties married on September 6th, 2003 and have been separated since October 15th, 2008. They have no interest in reconciliation and both asked for divorce. A divorce decree shall issue.

EQUALIZATION

5I was told that the only issues in dispute relate to the value of the matrimonial home at separation and the debt to Vinko Sukan (Mr. Sukan’s father) listed in the applicant’s NFP.

Matrimonial Home

6The matrimonial home at 8 Camp Drive, Ancaster, was purchased as a newly constructed home early in 2007 with a completion date of October 5th, 2007.

7An appraisal was obtained by Ms Sukan on November 2nd, 2009 (included in Exhibit 4, Tab 1(b)); approximately one year post-separation. That appraisal set the home value at that stage at $485,000. She bears the onus of proving the value of this asset.

8Mr. Sukan suggests that the appraisal figure ($485,000) is the appropriate value at the valuation date (October 15, 2008) given the large pie shaped lot, upgraded features such as 11 foot ceilings, oversized tiles and island in the kitchen, a larger refrigerator, cupboards to the ceiling, and an oak staircase. He provided no other evidence of value.

9Ms. Sukan introduced MLS listings from the separation date timeframe for homes she says are comparable both in size and location to the matrimonial home. These listings were admitted despite the objection of the respondent, on the understanding that I deal with them by weight (understanding that I would have little else to guide my decision regarding the valuation date value). It is based on these listings (in conjunction with the appraisal itself) that Ms. Sukan suggests a value of $456,000 at separation date.

10While not an expert opinion, the MLS comparables are helpful to my decision – all prices reflect homes with many more upgrades, albeit, smaller lots. On balance, I find that the applicant’s stated value at the valuation date is both realistic and sensible given the preponderance of evidence submitted. I find the home value of $456,000 at separation date to be a reasonable one.

Loan From Vinko Sukan

11Ms. Sukan included a joint personal debt of $125,000 to Mr. Sukan’s father Vinko in her NFP.

12The respondent takes issue with this inclusion as the debt is uncertain. I received evidence from both parties that the money had been advanced to them both on February 14th, 2004. The demand note, acknowledged signed by both parties and Vinko Sukan, was entered as Exhibit 20.

13Both parties accepted the joint indebtedness, but Mr. Sukan did not agree to the inclusion of the debt in the equalization.

14This position is made more precarious by virtue of the demand letter sent by a lawyer for Mr. Sukan Sr. on March 13th, 2013. Mr. Sukan says he no longer has a relationship with his father.

15Counsel for the respondent argues that the demand is clearly statute barred, an argument that will undoubtedly be raised by both parties, if and when a claim is issued. For the time being, however, the debt seems to represent a valid joint debt that ought to be included in the NFP. Certainly it could be suggested that the debt is unlikely to be paid or collected, but the late breaking demand letter makes it a live and current issue for consideration at this stage.

16While the respondent provided case law, I find all to be quite distinguishable – this clearly was a joint debt, acknowledged by both parties, upon which a current demand has been made. The debt shall be included in the equalization calculation.

The $48,000 Marriage Debt

17Ms. Sukan seeks repayment of $48,000 that she says she loaned Mr. Sukan to set up the business. A promissory note was tendered in this regard. While Mr. Sukan did not really dispute this “loan”, he was never really asked about it. I have difficulty making an order in this regard. In the context of the criminal operation affiliated with this bar, I find it an odd loan; not one I have feel comfortable including in any reconciliation of debts between the parties. The loan purportedly was advanced from monies received for wedding and shower gifts. There will be no order in this regard.

Conclusion on Equalization

18In short, given the two findings above, I accept the figures set out in the applicant’s NFP and find that the applicant Diane Sukan pays the respondent Martin Sukan an equalization payment of $4,290.78. This amount must be set off against the advance on equalization paid to Mr. Sukan and acknowledged to be $10,000. The respondent, Martin Sukan, thus owes the applicant, Diane Sukan, reimbursement of $5,709.22.

CUSTODY

19The biggest issue before me for decision relates to the custody and access of 6 year old Emma (born August 22, 2006). In this regard I note that Mr. Sukan commenced trial seeking joint custody; but “after hearing Ms. Sukan’s evidence” he changed his position to seek sole custody.

20It is abundantly clear to me that both of these parents adore young Emma.

21It is equally clear that Emma enjoys each of the constellations that represent family to her. I understand that she enjoys warm and loving relationships with Mr. Sukan’s current partner, Cara McLeod, as well as her 10 year old daughter Karma.

22I heard that prior to her enrolment in school Emma had been cared for largely by her grandparents during the daytime when her parents were at work. Mr. Sukan’s mother Ruza took care of Emma Monday’s, Wednesday’s and Friday’s; Ms. Sukan’s parents cared for her on Tuesday’s and Thursday’s. When they were together the parties shared the pick-up and drop-off at these caregivers’ homes.

23I understand that the time-sharing arrangement continued virtually intact for a time post-separation. I heard from both of the parties that Emma’s time post-attendance at the caregivers was virtually shared by each of them.

24Mr. Sukan suggests this had been a mutually agreed to plan. As such, and for a substantial period of time there seems to have been a fairly even sharing of young Emma between her parents.

25It is Ms. Sukan’s position that Mr. Sukan insisted this be the schedule. She said that prior to separation, Mr. Sukan had virtually no relationship with Emma. Ms. Sukan claims she was forced into this continued equal sharing of Emma; that she and her family were threatened.

26She also contends that while he maintained equal time with Emma, Mr. Sukan would often delegate the responsibility for her care (on his time) to his family members. Ms. Sukan maintains that his level of personal involvement with Emma only increased when he became involved with Ms. McLeod. (I heard from Mr. Sukan and Ms. McLeod that they began to see one another in March 2010 and moved in with one another in the fall of that year.)

27This evidence is refuted by the testimony of Sanjay Modi a neighbor of Mr. Sukan’s on Pearl Street in Burlington since 2008. Mr. Modi had met Emma many times there as she stayed at her dad’s place Mondays, Wednesdays and Fridays. Mr. Modi testified that the two men actually met as neighbours when Mr. Sukan asked him to keep it down because his daughter was sleeping next door.

28Regardless of how it began, this pattern of equal sharing changed quite substantially on April 14, 2011 when Ms. Sukan learned from the front page of the Hamilton Spectator that both Mr. Sukan and his current partner were arrested in “one of the largest meth busts in the province’s history”.

29The police arrested the couple in their home, in the presence of Ms. McLeod’s daughter Karma. Ms. McLeod was apparently permitted to take her daughter to a track meet but Mr. Sukan was taken to jail where he remained for 21 days.

30As a result of arrests, both CAS (for Karma) and CCAS (for Emma) became involved.

31Mr. Sukan states that he was only detained as a result of spurious criminal complaints added by Ms. Sukan to the fray – assault and threatening family members (allegations that predated their separation and resulted in a peace bond ultimately). I have no independent evidence as to the basis for the detention. It does appear that he was still on house arrest at the time of this arrest. That circumstance may well have had something to do with his detention.

32I did hear that Ms. McLeod texted Ms. Sukan to say that she would be picking up Emma as Mr. Sukan was away on business (when he in fact was incarcerated). Ms. McLeod said that while she discussed this approach with Mr. Sukan; it had been her idea not to tell Ms. Sukan the truth. She conceded that she would have been angry if her spouse had acted similarly with Karma.

33April 2011 marked a complete change in the care of Emma and, it seems, in the relationship between the parties. It was at this point that the litigation increased significantly. When Mr. Sukan was released on bail, access recommenced on a supervised basis. Ms. Sukan had custody on a temporary temporary without prejudice basis. That later seems to have changed to a temporary basis.

34As Ms. Sukan would not agree to the list of supervisors suggested by Mr. Sukan (including Ruza Sukan and other family members with whom Emma had historically spent time and was most familiar), the access was held at an institutional setting initially.

35Ultimately, the supervisors became the individuals initially suggested (but for Cara McLeod who never became a supervisor but was allowed by court order to be present with her daughter at the access visits). (See Justice Pazaratz’s orders July 15th and 18th, 2011). The access did not include an overnight until a subsequent order of Justice Steinberg on December 13th, 2011, when an overnight for Christmas at Ruza Sukan’s house was allowed.

36Access continued to be supervised until the order of Justice Pazaratz on September 20th, 2012 eliminated the requirement for supervision. (As such access was supervised pursuant to court order from June 2011 to September 23rd, 2012). Additionally access was expanded to include overnights. As a result, Emma has been in the temporary custody of her mother from April 2011 until the commencement of trial in April 2013.

37At the opening of trial Ms. Sukan indicated that she was looking for sole custody with quite traditional access of every other weekend and one non overnight visit per week. She argues that an overnight visit mid week would be disruptive to Emma as it would involve unnecessary transport from Stoney Creek (her father’s home), to her Ancaster school. I do not find either of these distances, nor the time the transportation would require to be troubling enough to prevent a mid-week overnight visit.

38At the opening of trial Mr. Sukan indicated that he was seeking joint custody and a virtual sharing of time. Midway through trial he changed his position to assert a request that he be granted sole custody/primary custody of Emma with access to Ms. Sukan.

39Mr. Sukan justified this change in position based on the love of his daughter and Ms. Sukan’s evidence at trial.

40He proposes a rotating schedule- four days on, four days off with Emma, so that each parent would have the benefit of both weekend and weekday time with her.

41While this may at first blush seem fair; given the reality of a seven day week, such a plan would be tough to implement and most importantly would be confusing for Emma. It would eliminate the stability that children need and expect. It would not be a workable solution.

42Most importantly I find Mr. Sukan’s substantial change in position midway through trial both surprising and somewhat unsettling. It is inconsistent for a parent who claims to be so motivated by the best interests of his child to suggest that a complete change of what has been her status quo for almost two years could somehow be in Emma’s best interest.

43Mr. Sukan’s counsel argues that custody should be given to Mr. Sukan as Ms. Sukan has been unreasonable in her approach to Mr. Sukan’s role. He points me to Section 16(10) of the Divorce Act which states, and I quote:

16.(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

44I accept that Ms. Sukan’s behaviour has been less than ideal. I have particular concern about such as her reluctance to agree to Ruza Sukan (the grandmother who had cared for Emma three days out of every week) as a supervisor right off the top, for instance. I am also unimpressed by her insistence on changing Emma’s gymnastics from the Burlington gym that her dad initially signed her up for to the Ancaster gym where she argues her neighbours and schoolmates go.

45This approach runs contra to her enrollment of Emma in dance in Stoney Creek – although with some acquaintances, far away from neighbours and her schoolmates. These examples, together with the current resistance to overnight access on school nights, in my view seem somewhat inflexible.

46It was clear from the evidence adduced at trial that joint custody would not be workable between these parents. There is neither communication nor mutual respect demonstrated between them. It is apparent to me that what had started as a workable, (if not amiable) situation vis-à-vis Emma initially (from the date of separation in October 2008 until April 2011) fell apart. At this point, the game changed completely. Pre-April, the parties continued with the care regime that had been in place since Ms. Sukan resumed work after her 14 month maternity leave. That regime included daytime care of Emma on Mondays, Wednesdays and Friday by Mr. Sukan’s mother Ruza; Tuesdays and Thursdays with Ms. Sukan’s parents, the Skrtic’s.

47My job in assessing custody of a child must at all times consider the best interests of the child. While the drug charges were ultimately dropped as against Mr. Sukan (October 26, 2011) and Ms. McLeod, (in relation to drugs found in their home) a new and significant status quo of approximately two years has developed with Emma. This change in pattern was I find, directly related to the drug charges, the period of incarceration and the CAS involvement.

48Justice Pazaratz made a temporary custody order in July 2011. Mr. Sukan never sought to vary that order or have the OCL appointed at any time. He said that he saw no point; preferred to wait for trial.

49While the April 2011 drug charges were withdrawn; there remains a conviction against Mr. Sukan for a grow operation in the basement of the bar that he ran during the marriage. I heard conflicting evidence from each of the parties about the role that Diane Sukan played in this operation. Mr. Sukan said he ran the bar, but Diane owned it. Ms. Sukan said she only got the liquor licence (Mr. Sukan was ineligible owing to his criminal record) and did the payroll for the bar.

50Both Martin and Diane were charged when the grow operation was discovered; Ms. Sukan’s charges were stayed on January 4th, 2010. Mr. Sukan plead guilty sometime between August and the November 2010 commencement of his conditional sentence.

51Mr. Sukan tendered evidence including receipts for liquor purchases as well as cash reconciliations to illustrate Diane Sukan’s complicity in this large scale drug operation that led to their joint charges. While the evidence demonstrated some involvement in the bar operation, it did not demonstrate involvement in the grow operation.

52That being said, regardless of which version of events is accurate I find it impossible to believe that Ms. Sukan had no awareness of the grow operation itself. At minimum, I find she would have been aware of the substantial income derived therefrom and at least should have asked questions. I find it unlikely that she was totally unaware of the situation.

53That being said, I do find it probable that Mr. Sukan was the operating mind of this project. He is clearly quite proud of his substantial expertise. His plea of guilt/conviction supports this finding. Moreover, Ms. Sukan has, over the course of 16 years had stable and responsible full-time employment as the Business Manager at First Canadian Title. It is steady and verifiable by way of Revenue Canada and the courts.

54Mr. Sukan’s income and employment on the other hand, is sketchy and untrackable. He has no credit cards, no line of credit and only recently opened a bank account. He was paid by cash or personal cheque (cashed at the Money Mart for a fee), by all of his former employers. When asked if his failure to have bank accounts was an effort to avoid Revenue Canada due to his $37,000 tax indebtedness (resultant from the drug bust), he said “absolutely”.

55As indicated, Mr. Sukan was proud to show off the knowledge of “his craft”. He was happy to explain the financial details of “12 light, 1,000 watt, hanging light grow operation” for instance. He testified that 12 lights could yield one and half pounds per light “if you are good at your craft”. Such a yield would result in nine pounds per month times $2,000 per pound or $18,000 less about $2,000 expenses per month.

56Mr. Sukan flies under the radar when it comes to income and employment. In the face of his criminal record and his own evidence about his skill set in the production of illicit drugs, I have concern. These concerns are amplified by his wholly inconsistent evidence regarding his employment history and earnings in conjunction with a most comfortable stated lifestyle.

57He did not provide an NFP until he was on the stand. He did not file an updated Financial Statement as is required by the Rules. His evidence in this regard lacked the ring of truth. His evidence at trial relating to his income was tough to accept. A review of his evidence on income reveals the following inconsistencies:

• Mr. Sukan’s income from 2008 forward is anything but clear and straightforward. Although he has worked for various establishments, he seems to have gotten neither T4s nor regular pay cheques (complete with usual statutory deductions) for all of that time.
• In 2009 and 2010 for instance, he says he worked for Gain Restoration as a project manager and/or labourer. He claims both gross and net business income of $37,500, and $34,750 respectively for each of those years. Despite self-employment, he failed to claim any business deductions, something he deems in hindsight to have been “stupid mistakes”.
• He listed improper residential addresses for each of those years. The tax returns say that he lived at Church Street although his evidence at trial was that he did not move there until 2010. He claims these residency errors were “honest mistakes”.
• Mr. Sukan claims to have been unemployed for the 17 months from November 2010 till April 2012, yet did not claim employment insurance. He had no disability from preventing him from working but was under lots of stress due to the charges against him. (He did not explain why the stress continued after the charges were withdrawn in October 2011 and yet he did not resume work until April 2012.)
• The 2011 tax summary filed at trial shows a zero income for that year. When asked about the full return he said that it had been prepared by his accountants but did not say why it was not produced.

58One of the most glaring inconsistencies regarding this period of employment came through cross-examination on his sworn financial statement of June 29, 2011. In his examination in chief he said he was unemployed from November 2010 until April 2012, but his June 2011 financial statement swears he has self-employment income of $2,895.88 per month. Another affidavit sworn that same June 2011 (in support for custody) describes full-time employment at Westroc Construction. When faced with these three different versions of his employment in June 2011, Mr. Sukan said that the two June 2011 sworn statements were wrong, that his trial evidence that he was unemployed was the truth.

59Even more disconcerting, however, was the convoluted explanation provided in re-examination for these significant untruths. Mr. Sukan explained that while he was unemployed at the time he swore the June documents, he had interviewed at Westroc, knew the hours and wages he could expect there, and felt he “would be a lock” to get the job. He thus filled in those sworn June 2011 documents assuming what he would earn. He ultimately did not get hired. This entire sequence is demonstrative of the gaps that pervade Mr. Sukan’s credibility, most particularly as it relates to his sources of income.

60It is clear to me that none of Mr. Sukan’s sworn documents to the court or Revenue Canada accurately describe his earning stream post-separation. While this is indeed relevant to support, it is also most relevant to both Mr. Sukan’s credibility and his sources of income. I have no confidence that he has given up the “craft” of which he so proudly boasts. This causes me tremendous concern in the context of the custody dispute. I do not believe it would be in Emma’s best interests to be in the custody of primary care of her father. While I acknowledge the less than optimum approach taken by Ms. Sukan commencing in April 2011, she does provide the more stable and consistent home life for this little girl. Ms. Sukan shall have sole custody/primary residence of Emma.

Child Support

61The applicant asked that I impute income of $50,000 per year based on the sketchiness of the income data. They additionally point to the applicant’s lifestyle that runs contra to the limited income he asserts. All of Mr. Sukan’s residences post-separation are high end, quite lavish properties. Each has been in expensive communities on the lake.

62Additionally, Mr. Sukan suggested that Emma be enrolled at Hillfield Strathallan at his expense in 2010 (approximately a $20,000 per year investment I was told). At trial he suggested this would have been funded by Ms. McLeod’s mother and quite wealthy boyfriend. I find this quite surprising given that Mr. Sukan and Ms. McLeod had only been dating since March 2010; did not even move into together until October 2010. While Ms. McLeod supported this story; I find it hard to accept given that Emma would have been a virtual stranger to these individuals.

63Applicant’s counsel also raised the use of the boat by Mr. Sukan. He indicated he was given full use of a quite large pleasure craft (whose cabin sleeps six) by his friend Mr. Vandermarel in exchange for one $600 gas fill up per season, half payment of the marina charges of $2,000 as well as responsibility for upkeep and maintenance.

64I note that these boat expenses were covered by Mr. Sukan when his tax debt was unpaid and he paid no child support. Mr. Sukan stated while he hadn’t paid formal child support, he had paid 50% of Emma’s clothes and extracurricular activities. (This is inconsistent with his lawyer’s acknowledgement that he would be responsible for the 33% share of retroactive extraordinary expenses presented at trial.) An order share issue that he pay Ms. Sukan the sum of $1638.71 representing his 33% share of these retroactive expenses.

65Other inexplicable inconsistencies derived from expenses that were not set out in his financial statement – such things as his share of the parenting coordinator, and his car insurance/maintenance expenses. Both Mr. Sukan and Ms. McLeod testified that she had paid these expenses for Mr. Sukan from her $36,000 per year stated income, while Mr. Sukan said Ms. McLeod also paid his legal fees; she did not confirm this. She had legals of her own to pay. At best, all of this seems most unusual.

66Mr. Sukan claims a current income from employment of $44,724 a year from Superior Investment Services (SIS). This Brampton company is owned by his cousin Tony. He has worked there since January 2013 and earns $1,654 gross every two weeks. Mr. Sukan indicated that he opened his first bank account in some time to allow for direct deposits for his pay cheques from SIS. The company covers his gas expenses, although this taxable benefit is not included in his declared income of $44,724.

67The only verification of income for this source was via payroll slips that applicant’s counsel argues are easily available online. I am not sure of this contention, but am aware that I had no verifiable independent evidence for this employment – no T4 slip for instance despite this April 2013 trial commencement (he similarly got no T4 from his employment at Graniddi Group Tile for his work from April 2012 to January 2013). At the end of the day I have no comfort accepting the income levels Mr. Sukan claims from separation forward.

68Section 19 of the Federal Child Support Guidelines allows me to impute income if a spouse is intentionally under employed or unemployed or if he fails to provide income information when he is under a legal obligation to do so. Clearly Mr. Sukan’s disclosure has been less than complete.

69Rule 13(6) of the Child Support Guidelines mandates full disclosure in a financial statement and also requires an individual to provide documents proving income. Mr. Sukan has done little of this in the years post-separation.

70Similarly Rule 13(12) requires that an updated financial statement be filed if the last one prepared was more than 30 days old at the time of trial. This was not done by Mr. Sukan. Applicant’s counsel suggests that I could infer that there was a reason for this non-disclosure and the numerous gaps in his income information. I note that neither financial statement nor NFP were presented at the outset of trial but during the course of his testimony.

71With all of these transgressions and discrepancies as to income in mind, I would thus impute income at the $50,000 proposed. This, in my view, is an abundantly reasonable estimate of income in view of his proudly stated lifestyle and inconsistent/unverified earning streams.

72Child support shall be set at $450.00 per month based on an imputed income of $50,000 per year commencing May 1st, 2013. Additionally, Mr. Sukan shall pay 1/3 of any prorated special/extra expenses.

73I would similarly order retroactive child support commencing April 1st, 2011 but I would put same at the $5,396 suggested by the respondent’s counsel.

74As indicated earlier, Mr. Sukan accepts responsibility for the $1,638.71 of retroactive extraordinary expenses.

75Mr. Sukan shall obtain and maintain a life insurance policy in the face amount of $200,000 and shall name Emma a sole irrevocable beneficiary and the applicant Diane Sukan as the trustee for as long as Emma is a child of the marriage. Proof of purchase of said policy shall be provided to counsel within 30 days of this judgment.

Access

76It is my view that Emma deserves both a normalized, stable care regime as well as significant regular time with her father and his new family. I would thus frame access in a quite traditional form – every other weekend from Friday after school until Sunday at 7:30 p.m. If an access weekend falls on a long weekend – access shall be extended to Monday evening at 7:30 p.m.

77Similarly, if a P.A. day occurs on the Friday of an access weekend, access shall be extended to Thursday after school until Sunday evening at 7:30 p.m.

78In addition to the foregoing, Mr. Sukan shall have one mid-week overnight visit after school, returning Emma to school the next morning. The parties shall agree on which day is the most suitable, either Tuesday or Wednesday. This visit shall occur weekly.

79The parties have agreed to share six of the eight summer holiday weeks equally. Ms. Sukan seeks the remaining two as she takes most of her holidays in the summer. I will not accede to this request. I will divide the summer equally between the parties – each shall have four weeks of vacation time with Emma.

80Mrs. Sukan also asks that she have Emma in her care on the weekend of her dance recitals so long as she continues to dance, regardless of the access regime. She says this is an important time for such as hair, makeup and sleepovers. I will not make such order. Each of Emma’s parents ought to have the opportunity to participate in such special times. I will not change the normal access schedule to facilitate such request.

81Conclusion:

(1) Order to go as per partial minutes dated April 11th, 2013.

(2) Divorce shall issue.

(3) Equalization – Mr. Sukan pays Ms. Sukan $5,709.22.

(4) Custody and access – as aforesaid.

(5) Child support - $450.00 per month commencing May 1st, 2013.

(6) Retroactive child support - $5,396.00.

(7) Retroactive special expenses - $1,638.71.

(8) A $200,000 insurance policy should be obtained by Mr. Sukan within 30 days of this judgment.

82If the parties are unable to agree on costs they may provide 3 pages of written submissions to me within 30 days of the date of this judgment.

Milanetti J.