ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-04-020043-01

DATE: 20131113

BETWEEN:

Grace Mondino
Applicant

– and –

John Mondino
Respondent

John M. Freeman, for the Applicant

Judith Holzman, for the Respondent

HEARD: May 14, 15, 16 and 17, 2013

McDermot J.

Introduction

[1] John Mondino and Grace Mondino married in 1984. They lived together for 23 years, ultimately separating on September 8, 2003. They had two children, Stefanie, who was then 20 years of age and attending university, and Jonathon, who was 16 and in high school.

[2] Within a year of separation, the parties participated in a four day equalization and support trial heard under the Family Law Act[1] before Sachs J. in Toronto. On August 30, 2004, she issued her reasons for judgment. In addition to ordering an equalization payment and payment of certain post separation adjustments, she ordered Mr. Mondino to pay child support of $635 per month for the two children based upon his income at that time of $45,000 per annum. Mr. Mondino was also ordered to pay spousal support of $1,300 per month to December 1, 2004, decreasing to $1,000 per month thereafter. Spousal support was retroactive to November 1, 2003, several months after the date of separation. Other than a distribution of funds from the sale of the matrimonial home as well as several lump sum payments collected by the Director of the Family Responsibility Office, Mr. Mondino has since made no voluntary support payments and there are now significant child and spousal support arrears of approximately $70,000.

[3] This is a motion brought by John Mondino to change child and spousal support under the Sachs J. order of August 30, 2004. The request is that the order be changed effective April 15, 2005 and that all arrears that have accrued under that order be rescinded.

[4] Although Mr. Mondino was the named Respondent in the court order and this proceeding, he was the moving party in this motion to change. Grace Mondino, the named Applicant, responded to the motion to change by acknowledging that child support could be terminated when the children completed their post-secondary education, Stefanie as of June, 2008 and Jonathon as of July, 2010. She also agreed that spousal support be reduced to $500 per month based upon imputation of income of $60,000 per annum to Mr. Mondino. Other than agreeing that the child support could come to an end when each of the children completed university, Ms. Mondino disagreed with any retroactive variation of support or rescission of arrears.

[5] Considering the history of this matter and the present circumstances of the parties, the major issue issue is retroactivity. This is not first time since the Sachs J. order that Mr. Mondino has attempted to eliminate his support obligations. In response to a motion brought by the Applicant in 2006 to distribute funds from the sale of the matrimonial home, Mr. Mondino brought a motion to terminate child and spousal support and, in fact, to request spousal support from Ms. Mondino. Both parties’ motions were returnable before Swinton J. in Toronto on April 6, 2006. On that date, she determined that the Respondent had failed to provide sufficient evidence to consider the motion to change and ordered him to make disclosure regarding his new business, including business and personal bank accounts, as well as an updated financial statement. She ordered that the Respondent’s motion to change support be adjourned to a case conference to be set “following disclosure.” Mr. Mondino acknowledges that he did not provide any of the disclosure ordered by Swinton J.; notwithstanding this, he attempted to schedule a case conference on December 15, 2006. Paisley J. ordered the case conference adjourned, “not to be re-scheduled unless financial disclosure is completed.” Mr. Mondino did nothing further until bringing this motion to change on February 23, 2012: he apparently did so in response to the Director’s attempt to remove his driver’s license. Much of the disclosure ordered by Swinton J. in 2006 has still not been provided.

[6] By order of McGee J. dated July 30, 2012, child support has now been terminated for each of the children as of the dates noted above. On November 20, 2012, Kaufman J. stayed enforcement of the Sachs J. order without prejudice while setting the matter down for the May, 2013 sittings.

[7] For the reasons set out below, I have made an order varying the Sachs J. order to terminate spousal support effective October 13, 2011, being the date Mr. Mondino raised the issue of reduction of support and elimination of arrears with his wife. I have not varied the termination of child support under the order of McGee J. dated July 30, 2012. Any further claim for a retroactive rescission of arrears prior to the date of the commencement of this motion to change is dismissed. Arrears are to be paid at the rate of $700 per month until repaid in full.

Background Facts

[8] Mr. Mondino is 56 years of age. For much of his working life, he had worked in the plastics extrusions industry; he began working in plastics when he was 15 years of age. He now works in sales at Altwood Garage Doors Limited / Metropolitan Garage Doors (together, “Altwood”), which appear to be two related companies operating out of the same address. He also owns and operates a small plastics extrusions company, Truplast Inc. (“Truplast”) although he testified that this company is largely inactive today. He appears to be in good health, although he states that he suffers from a herniated disc and arthritis in his back. He owns his own home located at 38 Fountainbleau Drive in Toronto although it is heavily encumbered; he testified at trial that his mortgage was about seven months in arrears. Mr. Mondino purchased that home in 2007.

[9] Ms. Mondino is also 56 years of age. She is a bookkeeper and works at Wasero Construction (1981) Ltd. Her income, according to her financial statement is about $46,000 per annum. She has worked at that company on a full time basis since January 10, 2005. She has had some health issues: she has arthritis and has undergone two knee replacements. She also owns her own home located at 302 Carlissa Run in Newmarket which she purchased in 2006. Her home is also heavily encumbered, and she has had to consolidate her debts at least once.

[10] These parties married on September 20, 1984. There are two children of the marriage, Stefanie, born November 24, 1982 and Jonathon, born May 2, 1986. Stefanie took seven years to obtain an undergraduate degree which she finally received from Trent University in 2008. Jonathan left Trent University in 2010, one credit short of an undergraduate degree.[2] Stefanie presently works full time as a child and youth worker for the York Region District School Board. Jonathan apparently works full time at a soccer club. Both Stefanie and Jonathon live with Ms. Mondino, and do not pay rent or expenses to her; neither is a dependent within the meaning of the Family Law Act.

[11] The substantial wealth that this family had accumulated at separation came through a plastic extrusions business established by Mr. Mondino called Accord Plastics Corp. (“Accord”). Originally founded with the assistance of both parties’ fathers, Mr. Mondino’s father eventually transferred his shares in the business to the Applicant’s father, Mantuccio Fasciani. In 1996 Mr. Mondino took on a partner, his wife’s brother, Robert Ciancio; Mr. Mondino worked in sales while Mr. Ciancio worked in production. Two corporations were formed to hold each partner’s shares in Accord: Mr. Mondino owned 1200648 Ontario Limited while Mr. Ciancio owned 1200649 Ontario Limited.

[12] Accord eventually became quite prosperous, allowing each partner a good standard of living. Mr. Mondino testified that in its best year, the company earned gross income of some $10 million. The company had a large facility with 17 extrusion machines. Mr. Mondino’s income averaged approximately $200,000 per annum. Apparently, both partners took advantage of the ability to split incomes with spouses. Ms. Mondino worked part time in the company as a bookkeeper and she testified that she earned an income of about $40,000 per year.[3] Mr. Ciancio’s wife also drew a salary from the business even though she did not show up for work. The parties drove luxury vehicles and, in fact, purchased similar vehicles for their children when they obtained driver’s licenses. Stefanie was given a Volvo M60, Jonathon an Audi TT. Ms. Mondino drove a Jaguar.

[13] Mr. Mondino and Mr. Ciancio each had two children, and in 1996, they agreed to set up family trusts to pay for their children’s education. These family trusts were given shares in the numbered companies which held the common shares of Accord. Mr. Mondino, along with his business partner and his father-in-law were the trustees of his family trust (the “Mondino Family Trust”). Although the purported reason for the formation of the trusts was to benefit the partners’ children and to pay for their education through a contribution from the business of up to $26,000 per annum on a tax free basis, Mr. Mondino testified that the parties habitually borrowed from the family trust to supplement their income, also on a tax free basis. Sachs J. noted that when the business was sold, Accord owed the Mondino Family Trust $84,456.00 which was repaid on closing. The trust eventually was, in fact, used to fund the children’s education and this has become key to the Respondent’s claim that child support arrears should be rescinded in total.

[14] In August, 1993, the parties purchased a large home located at 179 Treegrove Circle in Aurora; the home was placed in Ms. Mondino’s name because the Respondent had previously gone bankrupt. Ms. Mondino testified that after the children were born, she was their primary caregiver. She said that she only worked three days per week; otherwise, it was her job to take care of the household, take care of the children and to ferry them to and from activities and appointments. Although Mr. Mondino would not admit to this on the witness stand,[4] it is apparent to me that this was the case; he did not deny that he worked six days per week and travelled extensively because of his job in sales at Accord. Ms. Mondino did acknowledge that her husband was, however, involved in the children’s activities when he was available and home.

[15] Although the parties were comfortable enough financially, their relationship had deteriorated substantially by 2002. The marriage broke down: Ms. Mondino testified that the parties went through a period of separation between March and November, 2002, when Mr. Mondino moved out of the matrimonial home. In July of that year, Mr. Mondino’s business partner approached him to buy him out of the business. Mr. Mondino states that it was never a given fact that he would be bought out; he would have preferred to continue with the business and purchase Mr. Ciancio’s shares. Mr. Mondino states, however, that he agreed to a buyout only after talking to Ms. Mondino, who he says urged him to do so in order for him to spend more time with her and the children. He says that he agreed to the buyout to save his marriage; his comment was “so much for keeping the marriage together.”

[16] Ms. Mondino denies this to be the case. She says that the reason that her brother wished to buy out Mr. Mondino was because of his behavior at the office, which was becoming increasingly difficult. She denies having urged him to accept a buyout and recalled the meeting in July, 2002 at which the purchase of Mr. Mondino’s shares was negotiated; she described that meeting as being “tense” because the parties were separated at the time. She said that the parties did not then reconcile; nor were they then discussing reconciliation. She says that Mr. Mondino did not move back into the home until December, 2002, well after the buyout of Mr. Mondino’s shares were negotiated in July, 2002 and the Share Purchase Agreement was signed on September 20, 2002.

... (continues verbatim in the same structure through paragraph [117] and the footnotes exactly as in the source text) ...

McDERMOT, J.

Released: November 13, 2013