SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.: FS-12-377455
Date: 20130628
RE: Bryan James Seaton, Applicant
- and -
Xiao Qiu Zheng (aka Jenny Zheng), Respondent
BEFORE: Justice S. M. Stevenson
COUNSEL: Joel Skapinker for the Applicant
Andrea L. Di Battista for the Respondent
DATE HEARD: June 20, 2013
E N D O R S E M E N T
Introduction
[1] The respondent Xiao Qiu Zheng (aka Jenny Zheng) ("Ms. Zheng") has brought a motion seeking an order for child support payable by the applicant Bryan James Seaton ("Mr. Seaton") for the two children of the marriage, Matthew Seaton, born July 19, 2003 and Joshua Seaton, born August 14, 2005 retroactive to November 1, 2012. She seeks an order imputing a gross annual income to Mr. Seaton in the amount of $100,000 and an order for section 7 expenses for the two children. She also asks for an order for disclosure of quarterly mortgage funds and interest held by the parties in the US. She further seeks that interest payments withheld from her by Mr. Seaton be paid to her immediately.
[2] Mr. Seaton also brought a motion but by order of Horkins J. dated June 4, 2013, Ms. Zheng's motion was to take priority and Mr. Seaton's motion would follow only if time allowed, otherwise a new date would be required for Mr. Seaton's motion. Time did not allow for Mr. Seaton's motion and a new date will need to be set.
Facts
[3] The parties were married on April 21, 2002 and separated on April 5, 2012. The children have resided with Ms. Zheng full-time since approximately October 24, 2012. Previous to this, the parties had shared time with the children on a week about basis.
[4] The parties entered into a marriage contract and as part of these proceedings, Ms. Zheng is challenging the validity of the contract. Mr. Seaton continues to reside in the home where the parties resided at the date of separation. The home was purchased from funds from his parents and has a current value of approximately $1.6 million with no mortgage.
[5] Ms. Zheng contends that Mr. Seaton has not paid any child support save for a cheque of $1,787 which he indicated covered child support from October 24, 2012 to February 28, 2013 based on an imputed gross annual income to Mr. Seaton of $29,000.
[6] Mr. Seaton has not been employed since 2007 and is currently 52 years of age. His position is that he has been a stay-at-home parent since 2007 given Ms. Zheng's work schedule and an agreement between the parties. Ms. Zheng contends that Mr. Seaton is employable, he earns income from interest and other investment income, he has retained the Child Tax Credit, and he receives annual tax-free gifts from his parents which she contends should be included in his income.
[7] Ms. Zheng is employed as a flight attendant with Air Canada and earns an income of approximately $55,000 gross per year. Mr. Seaton contends that Ms. Zheng earns additional income which is undisclosed from the sale of illegally imported counterfeit goods from China.
[8] During the marriage, the parties received funds from Mr. Seaton's parents. Mr. Seaton contends that his parents have had to loan him over $400,000 since the date of separation for legal fees as he is facing criminal charges due to allegations made by Ms. Zheng, for the ongoing matrimonial dispute, issues relating to the children and tax issues. He states that his parents are requesting that payment be made on these loans and that his parents are no longer gifting him any funds.
[9] The parties have invested in second mortgages in the US and earn interest from these investments. The children also have an interest in the mortgages. Ms. Zheng contends that there has not been proper disclosure of the interest payments on these mortgages by Mr. Seaton and that he has improperly retained her interest payments.
Issues
i) What is Mr. Seaton's income for support purposes and should income be imputed to him? What is the amount of table child support payable by Mr. Seaton and what is his contribution to s. 7 expenses?
ii) What should be the disclosure requirements for the Fidelity investments/mortgages and should Mr. Seaton be ordered to provide Ms. Zheng's interest income from these investments to her?
Issue #1 What is Mr. Seaton's income for support purposes and should income be imputed to him? What is the amount of table child support payable by Mr. Seaton and what is his contribution to s. 7 expenses?
[10] Ms. Zheng submits that Mr. Seaton swore in his Affidavit dated March 15, 2013 that he could earn $12 an hour which amounts to a total gross annual income of $24,960. It is her position that he has made absolutely no efforts to secure employment and he is capable of working in some form of employment. She contends that he earned income of approximately $70,000-$80,000 gross in the past and that it is untrue that he was the primary caregiver of the children since 2007 as the parties employed a full-time live-in nanny during the marriage. She further contends that the parties paid approximately $1,200-$1,400 per month for the nanny and each party contributed 50% towards the costs.
[11] Ms. Zheng further contends that Mr. Seaton has admitted that he pays for all of his household expenses including property taxes. She points to the fact that throughout the parties' relationship, Mr. Seaton's parents regularly provided a tax free gift in the amount of approximately $25,500 per year to the parties until 2011. She contends that it is not believable that Mr. Seaton is no longer receiving these funds and that these funds are now treated as loans rather than gifts. She disputes Mr. Seaton's claim that the $434,000 provided to Mr. Seaton post separation from his parents is a loan. She argues that Mr. Seaton's parents have been very generous in the past and their tax-free gifts have been consistent and regular. Mr. Seaton's parents provided the funds to purchase the home in which the parties resided. The home has a value of approximately $1.6 million and is mortgage free.
[12] She further submits that she herself has received generous monetary gifts from Mr. Seaton's parents in the past and that it is inconceivable that Mr. Seaton now alleges that any funds from his parents are loans.
[13] Counsel for Ms. Zheng submits that this annual tax-free gift from Mr. Seaton's parents that he regularly receives is $25,500 with the automatic gross up, and should be imputed as additional income to Mr. Seaton.
[14] Ms. Zheng further contends that there is no proof that the $25,500 annual tax-free gift from Mr. Seaton's parents has stopped except for Mr. Seaton's own evidence which is self-serving. There are no sworn Affidavits from Mr. Seaton's parents and only in the year of separation did the gifts stop. Ms. Zheng argues that there is a reasonable inference that the gifts would continue.
[15] Ms. Zheng also submits that Mr. Seaton has been in receipt of the Child Tax Benefit despite the fact that she has had the children residing with her primarily since October 24, 2012. As such, counsel has included this figure of $3,156 as income for Mr. Seaton when determining child support.
[16] Ms. Zheng disputes the allegations made by Mr. Seaton that his lifestyle has decreased since separation and that he has used up almost all of his savings. There is no mortgage on the matrimonial home and Mr. Seaton's assets have actually increased since the date of separation. Further, she has questions concerning Mr. Seaton's investments as he held one at the date of separation in the amount of $67,869 which is now shown on his recent sworn Financial Statement as having a nil value. Ms. Zheng states that no documentation has been produced with respect to this investment at Charles Schwab and no evidence has been provided as to whether this investment earned income for Mr. Seaton.
[17] Counsel for Ms. Zheng also questions other assets and their value set out in Mr. Seaton's most recent Financial Statement sworn June 17, 2013 received just prior to the motion. Mr. Seaton's Fidelity mortgage investment has increased from $184,000 at the date of separation to $224,585. She has included this increase in her calculation of Mr. Seaton's income for child support purposes as she suspects Mr. Seaton has earned interest income of $40,585 from his investments. She does acknowledge that there has been insufficient time to ask the relevant questions concerning this increase as she only recently received the Financial Statement. She acknowledges that Mr. Seaton has indicated that his interest from the Fidelity investments is approximately $18,000.
[18] Ms. Zheng also submits that the parties were always able to afford extras as in addition to their full-time nanny they had a cleaning lady twice per week and the children were in many extracurricular activities including swimming, skating, karate, soccer, baseball, Hebrew School and Sunday School. She indicates that Mr. Seaton has not had to borrow to pay for the household expenses and he has not had to draw upon his investments. He continues to contribute to Hebrew School, to pay the property taxes and his assets have increased over the last year. In contrast to this, she contends that she has had to draw upon her own savings and her assets have decreased.
[19] When taking into consideration the $24,960 gross per year that Mr. Seaton admitted he could earn at $12 per hour, the Child Tax Benefit that Mr. Seaton retained in the amount of $3,156, interest and other investment income of $40,585 plus the annual tax-free gift from Mr. Seaton's parents with auto gross up of $25,550, Ms. Zheng submits that Mr. Seaton's total gross annual income for support purposes is $110,918 but that she is agreeable to using an income of $100,000 gross to determine child support.
[20] In contrast to this, Mr. Seaton contends that he is unemployable as he is 52 years of age and has been out of the workforce since 2007. He submits that he became a stay-at-home parent in 2007 as Ms. Zheng was travelling as a flight attendant to China for two weeks at a time and it was in the best interests of the children that he be at home to care for them.
[21] Attached to Mr. Seaton's sworn Affidavit dated March 15, 2013 is an Employability Assessment that was completed in February 2013 by Joanne Elek of Ambit Search. Ms. Elek concluded that it was her opinion that Mr. Seaton is extremely unlikely to find future employment again even at the most basic level. She also states that even if Mr. Seaton were to secure another job, the chances of keeping the job would be poor. She based this on the fact that Mr. Seaton has been "... fundamentally unsuccessful in developing or maintaining any progressive employment over the past three (3) decades.” She also expressed her belief that Mr. Seaton would be unsuccessful in terms of reference checks given he has a criminal conviction from the United States from the 1980's.
[22] Mr. Seaton also attached to his Affidavit of March 15, 2013, a letter from a Dr. Dias dated October 30, 2012. Dr. Dias stated that there had been "... a marked deterioration in Mr. Seaton's emotional well-being, which would, in my opinion, severely interfere with him being able to concentrate and prevent him from looking for employment or holding a job." Mr. Seaton relies on these two documents to substantiate his position that he is unemployable.
[23] It is Mr. Seaton's position that his income has been extremely low as he earned approximately $3,000 to $4,000 per year for the last several years until 2012 when his income was $18,922. He explained that the parties had not been declaring the income they were earning in the United States from their interest in the Fidelity investments in Canada and as a result of voluntary disclosure, this income is now reported. He disputes that he earned interest income of $40,000 and submits that the interest earned in 2012 is $18,922 as evidenced by his tax return. For child support purposes, he is agreeable to using an income of $29,000 gross per year which would include the $18,922 interest earned plus some additional imputed income to him.
[24] Mr. Seaton is agreeable to signing any necessary paperwork to ensure that the Child Tax Benefit is transferred to Ms. Zheng and as such he submits that the Child Tax Benefit should not be included in the calculation of his income.
[25] Mr. Seaton contends that neither party is receiving any monies from his parents (other than monies for his legal fees) as there has been a breakdown in the marriage. These monies were previously gifted to the parties when the marriage was intact and Mr. Seaton submits that the reality is that since separation Mr. Seaton's parents have had to loan him over $434,000 for legal fees. He states that this is evidenced by a letter written to him from his father dated March 20, 2013 and a subsequent letter dated June 8, 2013. He submits that as of June 8, 2013 the total owed to his parents is $381,373 as evidenced by his father's June 8, 2013 letter and that this is as a result of ongoing legal fees with respect to defending criminal charges arising out of allegations made by Ms. Zheng, legal fees for matrimonial matters, for matters involving the children and for professional fees and expenses dealing with voluntary disclosure.
[26] Mr. Seaton contends that his expenses are modest and that despite his lack of income he continues to pay for one half of the children's section 7 expenses. He submits that Ms. Zheng has not fully disclosed additional income she earns from importing counterfeit goods from China which income would be relevant to the determination of the contribution to section 7 expenses. It is his position that he has continued to pay for 50% of the children's religious schooling which is approximately $1,100 per year, 50% of the children's activities which is approximately $1,000 per year and 50% of the children's summer camp of approximately $1,500 per year. Mr. Seaton states that he has no difficulty contributing to 50% of the section 7 expenses as long as the expenses are reasonable and he is advised of the expense before it is incurred. He questions why Ms. Zheng would still require the services of a nanny as this expense is not reasonable.
Analysis
[27] Ms. Zheng submits that Mr. Seaton is capable of working but chooses not to do so. She contends that Mr. Seaton acknowledged in his Affidavit sworn March 15, 2013 that he can earn $12 per hour by taking an entry level position within the service industry. I note that he qualified this by stating that this assumed that he could even find employment based on his age, lack of marketable skills, or employment record, past criminal conviction and current outstanding criminal charges.
[28] Section 19(1)(a) of the Federal Child Support Guidelines (SOR/97-175, as am.) ("Child Support Guidelines) states as follows:
- (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
[29] In the Ontario Court of Appeal decision of Drygala v. Pauli, 2002 41868 (ON CA), [2002] O.J. No. 3731 (C.A.), the court set out at para. 23, the three-part test in applying the provision under s. 19. The first part of the test is to determine whether the spouse is intentionally under-employed or unemployed. If so, the second part of the test asks is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs, the needs of a child or reasonable health needs? If the answer to the second part of the test is negative, the third part of the test is what income is appropriately imputed in the circumstances?
[30] In Drygala at para. 28, the court determined that "intentionally" means a voluntary act. The Court also stated that: "[t]he parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning.... The word ‘intentionally’ makes it clear that this section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work." The court also found that there was no requirement of bad faith.
[31] As stated in the Ontario Court of Appeal decision of Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552, at para. 28: "The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding."
[32] Mr. Seaton has presented an Employment Assessment from February 2013 and a letter from his doctor that is not current as it was prepared approximately 8 months ago. I acknowledge that neither document is presented in sworn Affidavit form and able to be tested on cross-examination. However, there is no question that Mr. Seaton has been out of the workforce for a substantial period of time, that he has struggled with his employment for years, and that he has a criminal record which may prevent him from obtaining employment. He is also currently facing criminal charges. It is apparent that Mr. Seaton has not worked outside of the home since 2007 and no matter what the reason for this is, as the reason for this is clearly disputed by the parties, it appears that Mr. Seaton face challenges in obtaining employment.
[33] I do not find at this stage that the court can properly determine the issue of imputation of income to Mr. Seaton and it is best left for trial. There is insufficient evidence on which to conclude that Mr. Seaton is intentionally unemployed. Additionally, there is insufficient evidence before the court on which to conclude that Mr. Seaton has interest and other investment income of $40,585 as alleged by Ms. Zheng. Further investigation must take place with respect to this recent disclosure but it is apparent based on Mr. Seaton's recent 2012 tax return that he did receive interest income of $18,922 which should be taken into consideration with respect to the determination of Mr. Seaton's income for child support purposes. I acknowledge that Mr. Seaton has agreed to include this interest income in the determination of his income for support purposes and that he has agreed to impute additional income to himself for a total of $29,000 gross per year.
[34] Ms. Zheng's submits that Mr. Seaton's parents historically provided support to the family by way of gifts on a regular basis. She seeks to have the sum of $25,500 imputed to Mr. Seaton as income given the regularity of the gifts that Mr. Seaton has received from his parents and she contends that it is inconceivable that these gifts would have stopped as of the date of separation.
[35] Herman J. succinctly summarized the law in this area in the decision of Yunger v. Zolty [2011] O.J. No. 4459, 2011 ONSC 5943 as follows:
[64] As a general proposition, the grandfather has no obligation to provide support and the court cannot order him to do so.
[65] This issue was addressed by the Court of Appeal in Bak v. Dobell, 2007 ONCA 304, [2007] O.J. No. 1489 (C.A.). In general, gifts are not considered to be part of a person’s income. However, as Lang J. noted at para. 74, there may be “circumstances surrounding the particular gift [that] are so unusual that they constitute an ‘appropriate circumstance’ in which to impute income”.
[66] In determining whether it is appropriate to include gifts in income, the court will consider a number of factors, including: the regularity of the gifts; the duration of their receipt; whether the gifts were part of the family’s income during cohabitation that entrenched a particular lifestyle; the circumstances of the gifts that earmark them as exceptional; whether the gifts do more than provide a basic standard of living; the income generated by the gifts; whether the gifts are provided to an adult child through a crisis or period of disability; whether the gifts are likely to continue; and the true purpose and nature of the gifts (Bak v. Dobell at para. 75).
[67] The issue was also considered in Whelan v. O’Conor, 2006 13554 (ON SC), [2006] O.J. No. 1660 (S.C.J.), a case in which the court declined to impute income to the payor on the basis of gifts. After reviewing s. 19 of the Child Support Guidelines and the cases, MacKinnon J. distilled the following principles:
The court should be cautious in imputing income on the basis of gifts when so doing would have the effect of transferring a child support obligation to someone who, legally, does not have that obligation.
Income is generally imputed where a parent is not properly utilizing earning capacity or other resources to support his or her children.
Factors supporting income imputation on the basis of gifts include:
a. the gifts represent a significant portion of the recipient’s overall income;
b. the gifts are part of a planned or intentional diversion of income or substitution for income previously earned from this source; and
c. there is reliance upon the regular and ongoing nature of the gifts as an income source in lieu of pursuing other remunerative employment commensurate with the abilities of the respondent.
- Failure to make full disclosure is a frequent factor in cases where income is imputed.
[36] While it is clear that the parties received funds from Mr. Seaton's parents during the course of their marriage, the court does not have the benefit of evidence from Mr. Seaton's parents with respect to the frequency and regularity of these payments and the reason for the payments. The only information before the court from Mr. Seaton's parents are the two letters from his father indicating that Mr. Seaton's parents have loaned him over $400,000 since the date of separation for legal fees which appear to be significant given the ongoing matrimonial litigation, issues surrounding the children's custody and residency and Mr. Seaton's defence of the criminal charges laid against him.
[37] I do find that it is conceivable that Mr. Seaton's parents stopped providing monetary gifts to the parties upon separation as there was a breakdown in the marriage. There is no doubt that the parties and the children benefited from the generosity of Mr. Seaton's parents throughout their relationship. However, there is no evidence before the court that Mr. Seaton had any control over the flow of monies from his parents. This issue must be canvassed further at trial where the parties will have the benefit of cross-examination and where undoubtedly one or both of Mr. Seaton's parents will testify.
[38] I echo the comments made by Herman J. in the decision of Yunger v. Zolty, that grandparents have no obligation to provide support and the court cannot order them to do so. Whether monies received from Mr. Seaton from his parents post separation are to be construed as income cannot be determined on a motion with the limited information currently available.
[39] At this stage of the proceedings, I find that it is reasonable to impute an income to Mr. Seaton of $29,000 gross per year and to use that income to determine the appropriate quantum of child support prior to a determination at trial. I also decline to impute the Child Tax Benefit income to Mr. Seaton as he has agreed to sign all necessary paperwork to transfer the eligibility for the benefit to Ms. Zheng. As such, in accordance with the Child Support Guidelines, the table amount of support that Mr. Seaton shall pay for two children is $423 per month which payment shall be retroactive to November 1, 2012 with Mr. Seaton to be credited for child support payments he has made since that date.
[40] Mr. Seaton has been contributing 50% of the costs towards the children's activities, Hebrew School and summer camp. Ms. Zheng seeks that Mr. Seaton also contribute to the costs for childcare while Ms. Zheng is required to work. Mr. Zheng submits that she now only works day flights and that her childcare costs have been reduced. She estimates that her childcare costs for a babysitter, not a nanny, are approximately $1,100 per month. I find that the section 7 expenses sought by Ms. Zheng are reasonable and necessary. These childcare costs are incurred so that Ms. Zheng is able to work. Counsel for Mr. Seaton indicated that Mr. Seaton did not have a difficulty contributing 50% towards the children's section 7 expenses as long as the expenses were reasonable and he was advised of an expense before it was incurred. Proof of the childcare expenses shall be provided to Mr. Seaton. I order that Mr. Seaton contribute 50% towards the children's section 7 expenses including childcare expenses but that his contribution be calculated after taking into consideration any tax deductions or subsidies available to Ms. Zheng with respect to the children's activities, camps, Hebrew School and childcare expenses.
[41] The issue of whether Ms. Zheng earns additional income by importing and selling goods from China is best determined at trial where the issue can be fully canvassed and explored by cross-examination as the evidence at this stage is conflicting.
Issue #2
What should be the disclosure requirements of the Fidelity investments/mortgages and should Mr. Seaton be ordered to provide Ms. Zheng's interest payments from these investments to her?
[42] The parties and the children each have interests in US second mortgages referred to by Ms. Zheng as the Fidelity funds. Ms. Zheng is seeking a full accounting of the Fidelity funds as she maintains that Mr. Seaton has had control of the funds and that he receives cheques every two weeks with respect to these funds. She contends that the parties own the Fidelity funds jointly and that the children are entitled to a significant portion of the funds.
[43] Ms. Zheng submits that Mr. Seaton has withheld monies owed to her with respect to the mortgages and that he has provided no accounting since February 2013. She submits that only one bank statement was provided and a few copies of cheques. The rest of the information that has been provided has been Mr. Seaton's own calculations. She seeks a proper and adequate accounting of these funds for both herself and the children. In particular, Ms. Zheng seeks a complete accounting of the Fidelity mortgage funds including any income or interest earned and disclosure of all bank statements with respect to these funds including those of the children.
[44] It is Ms. Zheng's position that Mr. Seaton has inappropriately withheld interest payments owing from these funds to Ms. Zheng. She submits that in his own documentation filed with the court, he acknowledges that Ms. Zheng as of February 28, 2013 was entitled to an interest payment of $25,376 but that Mr. Seaton deducted the sum of $14,148.25 as he alleged that Ms. Zheng had removed items from the matrimonial home owned by him without his consent. Ms. Zheng seeks an order that Mr. Seaton pay to her the outstanding interest payment of $14,148.25 and any further interest accrued since March 1, 2013 to present. She also seek an order that the children's funds be managed by the Office of the Public Guardian and Trustee or the Office of the Children's Lawyer.
[45] Mr. Seaton submits that any issues regarding the Fidelity mortgages are a property matter which should be dealt with at trial. He acknowledges that he withheld interest payments from Ms. Zheng with respect to these funds as she improperly removed items from the home that belonged to him in accordance with their marriage contract. He acknowledges that he indicated that if Ms. Zheng brought back the items, she would receive her interest payment.
[46] It is Mr. Seaton's position that as Ms. Zheng is on title as 50% owner of the Fidelity mortgages, she has the ability to obtain any records or information concerning these mortgages. He indicates that he is willing to disclose what he receives on a quarterly basis and can pay Ms. Zheng her interest payments on a quarterly basis but he is seeking a mutual preservation order of all property including the items that he alleges Ms. Zheng removed from the home improperly. Ms. Zheng indicated that she was seeking a preservation order with respect to the interest income earned by the children only.
Analysis
[47] Based on the evidence before me, it is apparent that Mr. Seaton has had control of the Fidelity mortgages/second mortgages/investments of the parties for some time. It is also evident that he has withheld interest payments owing to Ms. Zheng as he feels that Ms. Zheng improperly removed items from the home belonging to him. Although Mr. Seaton may feel that these items were improperly removed, I agree with his counsel's submission that any property items should be dealt with at trial. However, the interest payments withheld by Mr. Seaton are owed to Ms. Zheng. I do not find that it was proper for Mr. Seaton to withhold these funds from Ms. Zheng especially given Ms. Zheng has had to take on the primary responsibility for supporting the children since they came to reside in her care. The funds that have been withheld from Ms. Zheng are funds that she could have used to support the children. These funds must be returned to her immediately and any future funds must be provided to her whenever they are received by Mr. Seaton. The issue with respect to Mr. Seaton's allegation that Ms. Zheng has removed household contents and items belonging to him shall be dealt with at trial.
[48] As Mr. Seaton has maintained control of these mortgages, it is incumbent upon him to provide all banking statements and records pertaining to these mortgages that have not yet been disclosed by him and he shall provide disclosure with respect to these funds including the children's funds to Ms. Zheng on a quarterly basis. I am not prepared to order that the children's funds be maintained by a third party, however, Mr. Seaton must ensure that the children's funds are preserved and that any and all information with respect to these funds including interest earned shall be provided to Ms. Zheng also on a quarterly basis.
[49] Both parties have raised concerns with respect to dissipation of assets by the other. I order that both parties shall be restrained from depleting any family property in his or her control and shall preserve said property pending further order of the court or written agreement between the parties. This shall include all household contents and items presently held by Ms. Zheng that Mr. Seaton has alleged have been improperly removed from him and more particularly described as the items set out in Exhibit "E" to his Affidavit sworn March 15, 2013. This non-depletion/preservation order shall also extend to any and all assets or funds owing to the children through any trusts or mortgage investments held in trust for them.
Order
[50] I order the following:
Based on an imputed income of $29,000, Mr. Seaton shall child support in the amount of $423 per month to Ms. Zheng for the children, Matthew Seaton, born July 19, 2003 and Joshua Seaton, born August 14, 2005 commencing November 1, 2012 with Mr. Seaton to be credited for any child support payments that he has made since that date to current;
Mr. Seaton shall contribute 50% towards the children's section 7 expenses including childcare expenses. Proof of childcare expenses shall be provided to Mr. Seaton by Ms. Zheng. Mr. Seaton's contribution shall be calculated after taking into consideration any tax deductions or subsidies available to Ms. Zheng with respect to the children's activities, camps, Hebrew School and childcare expenses;
Mr. Seaton shall immediately provide all Fidelity mortgage/investments/second mortgages held in the US or any other mortgage interest payments owing to Ms. Zheng and he shall provide any future interest payments owing to Ms. Zheng upon receipt of the payments by him;
The issue with respect to Mr. Seaton's allegation that Ms. Zheng has removed household contents and items belonging to him shall be dealt with at trial;
Mr. Seaton shall provide all bank statements and records pertaining to the Fidelity mortgages/investments/second mortgages held by the parties in the US to Ms. Zheng within 14 days that have not yet been disclosed to her and he shall provide disclosure with respect to these funds including the children's funds to Ms. Zheng on a quarterly basis;
Both parties shall be restrained from depleting any family property in his or her control and shall preserve said property pending further order of the court or written agreement between the parties. This shall include all household contents and items presently held by Ms. Zheng that Mr. Seaton has alleged have been improperly removed from him and more particularly described as the items set out in Exhibit "E" to his Affidavit sworn March 15, 2013. This non-depletion/preservation order shall also extend to any and all assets or funds owing to the children through any trusts or mortgage investments held in trust for them;
Mr. Seaton's motion shall be adjourned to a date mutually agreed upon by the parties;
A Support Deduction Order shall issue; and
I urge the parties to agree on costs; however, if the parties are unable to agree, any party seeking costs shall do so by serving and filing written costs submissions, not to exceed two double-spaced pages within 14 days, along with a Bill of Costs and any Offers to Settle. A party wishing to respond shall do so by serving and filing written costs submissions, not to exceed two double-spaced pages, 14 days thereafter.
Stevenson J.
DATE: June 28, 2013