Court File and Parties
Court File No.: FS – 13 - 00387989 Date: 2013-12-31 Superior Court of Justice - Ontario
Re: Janusz Kozicki, Applicant And: Wieslawa Kozicki, Respondent
Before: Kiteley J.
Counsel: Marek Z. Tufman, for the Applicant Nicola Savin, for the Respondent
Heard: November 7, 2013
Endorsement
[1] This motion was originally launched on behalf of the Respondent in December 2012 and was returnable January 24, 2013 in Brampton. Since then, many affidavits have been served and filed.
[2] On April 25, 2013, the endorsement in Brampton indicates that the motion was adjourned on consent to July 24, 2013 for a long motion scheduled for 2 hours and that counsel for the Applicant had undertaken to provide cheques to counsel for the Respondent for support payments for the months of April, May, June and July, 2013. Costs were reserved to the judge hearing the long motion. The motion did not proceed on July 24th perhaps because the file was being transferred from Brampton to Toronto.
[3] On August 28, 2013, the Respondent’s counsel served a notice of motion returnable October 15, 2013 in which she indicated that she was relying on the Respondent’s affidavits sworn December 20, 2012 and sworn April 22, 2013 as well as the affidavit of Leah Allison sworn April 22, 2013. She also indicated reliance on the Applicant’s unsworn financial statement dated June 3, 2001, the Respondent’s Amended Answer, a consent dated October 12, 2012, the order of Justice Mossip dated May 7, 2001 and the order of Justice Bielby dated October 13, 2010. The relief sought included the following:
(a) An order imputing income to the Applicant in the amount of $99,230;
(b) An order requiring the Applicant to pay the Respondent temporary table child support in the amount of $874.00 per month for their daughter Samantha born July 20, 1993 commencing November 1, 2012;
(c) An order requiring the Applicant to pay his proportionate share of Samantha’s post-secondary expenses and specifically that he pay $9584 within 30 days representing 81% of her expenses incurred for the years 2011-2012 and 2012-2013;
(d) An order pursuant to rule 24(12) of the Family Law Rules that the Respondent pay interim disbursements to obtain an expert income analysis report for support purposes;
(e) Costs on a substantial indemnity basis.
[4] Also on August 28, 2013, counsel for the Respondent served a second notice of motion, this one returnable November 5, 2013 in which she indicated reliance on the same documents referred to in the motion returnable October 15th together with the Petition for Divorce issued on behalf of the Applicant on October 20, 2000 and her Answer and Counterpetition. The relief sought in that notice of motion was as follows:
(a) An order pursuant to rule 1(8)(b) of the Family Law Rules striking the Applicant’s pleadings from the record with prejudice for failing to provide the disclosure required by the orders made by Mossip J. dated May 7, 2001 and Bielby J. dated October 13, 2010;
(b) In the alternative, an order requiring the Applicant to produce the disclosure required in those orders within 30 days, failing which his pleadings will be struck with prejudice;
(c) An order requiring the jointly-owned rental property municipally known as 45 Ben Machree Drive, Mississauga, Ontario (rental property) to be immediately listed for sale and sold and an order that the net proceeds of sale be held in an interest-bearing trust account by the Respondent’s solicitor pending further court order or agreement;
(d) An order that any interest penalty charged by the bank to discharge the existing mortgage registered against the rental property be paid out of the Applicant’s share of the net proceeds of sale of the property;
(e) Costs on a substantial indemnity basis.
[5] Counsel for the Respondent served and filed an affidavit of the Respondent sworn October 3, 2013.
[6] Mr. Tufman indicated that he was unavailable on October 15th and he sought an adjournment. He was represented by an agent on October 15, 2013 when Justice Stevenson adjourned both motions to November 7, 2013 because the motion returnable October 15th would exceed the 1 hour time limit and because neither motion should be on a regular motions list. Stevenson J. directed the Applicant to serve and file any responding materials by October 28, 2013. She reserved costs of that day to the judge hearing the motions.
[7] In addition to relying on the Applicant’s affidavit and financial statement sworn February 25, 2013, counsel for the Applicant served and filed an affidavit of the Applicant sworn October 24, 2013. On November 4th, counsel for the Respondent served an affidavit of the Respondent and an affidavit of Samantha both sworn October 31st. Counsel for the Applicant served and filed an affidavit of the Applicant sworn November 5th.
[8] On November 7th, counsel reached a partial consent and I heard submissions on the remaining issues. The endorsement I made on that occasion was as follows:
Submissions heard on applicant’s motion for interim disbursements, temporary child support and other relief. Counsel agreed that the jointly owned rental property will be sold. They also agree that Mr. Kozicki has provided 4 authorizations so that counsel for Ms. Kozicki may obtain disclosure at his cost of disbursements. Counsel also agree that Mr. Kozicki will provide additional specified disclosure. They don’t agree on the time period for the additional disclosure. Ms. Savin asks for 30 days. Mr. Tufman suggests almost 6 weeks. Counsel also don’t agree on the consequences of his possible failure to comply. He has not filed a reply to the amended Answer so striking his pleadings is not an option.
Counsel agree that this action and the civil action launched by the applicant should be “tried together” but they have not agreed as to the logistics of such an order. When they do they may send a consent 14B motion to me for my consideration.
Order to go:
In accordance with consent attached. Husband shall pay disbursements charged by the financial institutions on 4 authorizations.
Husband to provide the disclosure by December 13, 2013.
The Husband may not file a Reply to the Amended Answer until he has complied with parag. 2.
All other matters including costs are reserved.
Background
[9] The Applicant was born May 15, 1968. The Respondent was born July 5, 1964. They were married on August 9, 1990. Their daughter Samantha was born July 20, 1993. According to the Applicant, they separated on May 3, 1998. According to the Respondent, they separated on May 1, 2000.
[10] The Applicant caused a Petition for Divorce to be issued in Brampton on October 20, 2000 at which time he sought only a divorce based on separation. At case conferences, Mossip J. and Bielby J. made orders for disclosure on May 7, 2001 and October 13, 2010 respectively.
[11] On November 28, 2000, the Respondent served and filed an Answer and Counter-Petition in which she sought orders for custody, exclusive possession of the matrimonial home, equalization of net family property and other relief. Pursuant to a consent dated October 12, 2012, the Respondent served and filed an Amended Answer dated October 19, 2012 in which she asked for an order for sale of the jointly owned rental property on Ben Machree Drive in Mississauga. The Applicant has not filed a Reply to the Answer and Counter-Petition or to the Amended Answer.
[12] As a result of a consent order made on May 29, 2013 in Brampton, the divorce action was transferred to Toronto and the file number above was assigned.
[13] The Applicant owns and resides at 36 Ben Machree Drive, Mississauga, which he purchased in November 2008.
[14] The Respondent and Samantha reside at the former matrimonial home municipally known as 2564 Trident Avenue.
[15] The Applicant and Respondent are joint owners of the rental property municipally known as 45 Ben Machree Drive in Mississauga but the Applicant has managed that property since the separation. In her October 3rd affidavit, in connection with her request for an order for interim disbursements, the Respondent said that her principal assets are the matrimonial home and the jointly owned rental property. She said that in the past she had asked the Applicant to consent to a sale of the rental property but he had refused to consent unless she agreed to sell the matrimonial home. She refused to sell because it was also Samantha’s home and she wanted to purchase his interest.
[16] In his affidavit sworn October 24, 2013, the Respondent indicated that he was in favour of sale of both the rental property and the former matrimonial home and that, once the former matrimonial home was sold, he would seek an order that one half of the net proceeds be placed in court as security for his claims in the civil litigation (to which reference is made below).
[17] As indicated above, on November 7th, the Applicant had finally agreed to list 45 Ben Machree for sale.
Ownership of the former matrimonial home
[18] In 1993 or 1994, the Applicant and Respondent purchased the matrimonial home municipally known as 2564 Trident Ave., Mississauga.
[19] On December 30th, 1998, a transfer of a 50% interest was registered from the Applicant and the Respondent to Teresa Dabrowska (the Respondent’s sister). On April 14, 1999, a second mortgage was registered against title in favour of Jadwiga Sopinska and Jan Sopinski, (the parents of the Respondent) in the principal amount of $140,000. On February 9, 2006, Teresa Dabrowska transferred her 50% interest to the Respondent. That appeared to leave the Respondent with 75% ownership and the Applicant with 25% ownership.
[20] In a civil action commenced by the Applicant on October 13, 2009 in Toronto against the Respondent, her sister, her mother as estate trustee for her father, the Applicant seeks a declaration that the mortgage, the transfer dated December 30, 1998 and the transfer dated February 9, 2006 are null and void and a declaration that he is the owner of 50% of the property. He asked for a certificate of pending litigation. He also made claims against the Respondent for occupation rent, partition and sale and an accounting of the monies had and received by the Respondent. Although not in the prayer for relief, the Applicant seeks punitive or exemplary damages against the Respondent and her sister.
[21] The Applicant alleges that the 1998 transaction was done without his knowledge and was accomplished by the Respondent and her sister conspiring to defraud him. He asserts that the signature attributed to him is a forgery and he has obtained an expert report that supports that allegation. In his statement of claim, he alleges that no funds were advanced pursuant to the mortgage registered on April 14, 1999. The Applicant asserts that he found out about the 2006 transfer in May 2009 when his lawyer searched title.
[22] The Respondent caused a notice of motion in the civil action to be returnable on February 26, 2013 in which she sought summary judgment based on expiration of a limitation period and lack of merit.
Disclosure by the Applicant
[23] In his affidavit sworn February 25, 2013, the Applicant indicated that he had served two volumes of documentation with the affidavit and that “those are all documents which I was able to collect. I have nothing else. I would like to explain that I am working as a construction worker, self-employed, I have no Canadian education (except for a course which I took at a community college for three months) and in my native Poland I have finished the grade school (grade 7) and then a three year trade school to be trained as a lathe operator. My English is sufficient to communicate on daily basis, but certainly not adequate to deal with the required disclosure, the banks, and with the financial documents which I was required to collect. This is now done.”
[24] In her affidavit sworn April 22, 2013, Leah Allison (law clerk) outlined some of the Applicant’s failure to disclose including: failure to comply with the order made by Mossip J. dated May 7, 2001 and the order made by Bielby J. dated October 13, 2010; and failure to serve and file a sworn financial statement with details provided in all of the categories. At paragraphs 4 and 5 of that affidavit, Allison lists 13 areas where his financial statements sworn May 12, 2010 and sworn February 25, 2013 were deficient. At paragraph 6, Allison provides a chart of almost six pages in which she details what the Applicant had produced and had not produced. The disclosure outstanding as at the date of that affidavit was substantial. In addition, the Applicant had not fully disclosed receipt in 2013 of damages arising from a personal injury law suit which the Respondent understood from Samantha was in the amount of $75,000. It was as a result of the Applicant’s litigation counsel inviting Samantha to make a claim that Samantha had received $2000 as damages for loss of care and companionship and disclosure of this recovery had been made.
[25] In his affidavit sworn October 24, 2013, the Applicant said that he had provided complete and comprehensive financial disclosure and that he had delivered two volumes of hundreds of pages of documents along with his affidavit sworn February 25, 2013. He insisted that he had no further documents.
[26] In his affidavit sworn October 24, 2013 the Applicant tried to explain his financial circumstances by referencing financing he had obtained to make mortgage payments; that between 2008 and 2011 he had received from Manulife tax free disability payments in the total amount of $28,000; and that on March 4, 2009 he had been involved in a skiing accident and had suffered a “reasonably serious injury” which had made it impossible for him to work at all for periods of time and then he had to reduce his work. He said he had commenced an action and had claimed loss of income. He provided a copy of a letter dated October 22, 2013 from his litigation counsel to Mr. Tufman which indicated that the action had settled at the mandatory mediation on November 29, 2012; that the Applicant had reported an income of more than $30,000 on his 2008 income tax return which dropped to $26,000 in 2009 and to $24,000 in 2010 and to $25,700 in 2011. In his affidavit he pointed out that it was in his interest to have reported as much pre-accident income as possible and, had he been earning more, he would have reported it and claimed the loss. I observe that although he insisted that he had provided complete and comprehensive disclosure prior to the October 24th affidavit, he provided important new disclosure attached as exhibits A, B, C, D and G.
[27] In her affidavit sworn October 31st, the Respondent pointed out that despite being required by a previous court order to provide copies of his mortgage applications for the mortgages he had obtained, he had failed to do so. She observed that it was “inconceivable” that a bank would loan him $600,000 as he had said in his affidavit on the basis of his stated income. She pointed out that although he said he had suffered a “reasonably serious injury” he had not provided any medical evidence and had not indicated that his alleged injuries had any bearing on his ability to earn income. She reported that when the Applicant had recently picked up Samantha, he was driving a new car.
[28] In his affidavit sworn November 5th, the Applicant confirmed that his income is no more than what his Notice of Assessment shows; that the bank did loan him money on his income as stated; that he does not have a new car but drives a 2008 Dodge pick-up truck and he has a 1991 Pontiac and a 1959 Jaguar both of which he described as “off road”. He insisted again that he does not have any other documents that are considered relevant to the issues. He said that his lawyer had redrafted the authorizations permitting the Respondent to obtain documents and information from the bank and he had executed them.
[29] Notwithstanding his repeated insistence about having made comprehensive disclosure, he clearly had not done so. On the day of the motion, he agreed to provide additional important disclosure which I ordered him to do by December 13, 2013. He also finally agreed to sign the directions to the financial institutions that had been sought for months. In his submissions, Mr. Tufman conceded “that there were holes in his explanations”.
[30] The persistent failure by the Applicant to disclose documents and information has created conflict and provoked the Respondent and her counsel to conclude that he had hidden income. When he did provide disclosure, the preliminary analysis by Allison reinforced the concern that he had hidden income because of undisclosed cash deposits and expenditures significantly greater than his stated income.
[31] As a result of the consent reached on November 7th, the Applicant has committed to compensating for the inadequacies of his past disclosure. I expect that the cost of pursuing the disclosure will be an issue when counsel make submissions as to costs of the motion.
Income of the Applicant
[32] In his financial statement sworn February 25, 2013, the Applicant indicates that in the prior year, his gross income from all sources was $28,254. He indicated that he is self-employed and carries on business under the name of ACD EXT & INTERIORS CONSTRUCTION LTD. In the list of current income, he shows self-employment income monthly before expenses in the amount of $2,000 and rental income of $354 for a total monthly income of $2354 and an annual total of $28,254. He lists expenses that total $4,423 per month or yearly $53,076. He indicates that his wife earns $35,000 per year and she contributes $30,000 to their household and that they have three children.
[33] The Applicant’s income tax returns indicate as follows:
| Year | Gross rental income | Net rental income | Gross business income | Net business income | Line 150 income |
|---|---|---|---|---|---|
| 2010 | $4,000 | -$2,176 | $24,000 | $24,000 | $21,823 |
| 2011 | $6,400 | $980 | $15,700 | $15,700 | $16,680 |
| Year | Gross rental income | Net rental income | Employment income | N/A | Line 150 income |
|---|---|---|---|---|---|
| 2012 | $9,600 | $4,254 | $24,000 | $28,254 |
[34] For 2010 and 2011, the Statements of Business or Professional Activities included in the tax return provide no details other than the net and gross income in the same amount.
[35] For 2011, the General Index of Financial Information indicates trade accounts receivable from related parties in the amount of $35,930 and retained earnings at the end of the year in the amount of $34,725. For the same year, a second General Index of Financial Information indicates the total revenue of $75,100, the cost of sales in the amount of $55,344 and gross profit in the amount of $19,756. Included in the cost of sales is an expenditure of $23,832 on account of trades and sub-contracts. The operating expenses (including vehicle) total $18,641 leaving a net income of $1,115.
[36] For 2012, the General Index of Financial Information indicates retained earnings at the end of the year in the amount of $33,561. The second General Index of Financial Information indicates total revenue of $65,889, the cost of sales in the amount of $45,804 (with no amount on account of trades and sub-contracts), and operating expenses in the amount of $46,968 (including management salary of $24,000) leaving a net loss in the amount of $1,164. I could not find any explanation for the decision to treat the Applicant as an employee for the year 2012. There was no T4 slip to confirm the salary of $24,000.
[37] In view of the persistent failure to disclose and the inferences drawn from the documents he did eventually provide, the Respondent does not accept the Applicant’s line 150 income on his tax return. The Respondent takes the position that the income of the Applicant should be $99,230 based on the following calculation:
Employment income Line 101: $24,000 Net rental income Line 126: $4,254 Other income: $47,522 Total: $75,776
[38] According to Exhibit G to the affidavit of Allison, that total, grossed up for tax on the “other income” portion, equates to $99,230. The Respondent pointed out that that did not include $33,561 in retained earnings of ACD Exteriors & Interiors Construction Ltd.
[39] S. 15 of the Federal Child Support Guidelines provide that a spouse’s annual income is determined in accordance with sections 16 to 20. Pursuant to s. 16, a spouse’s annual income is effectively the line 150 income. Pursuant to s. 19, the court may impute such amount of income as it considers appropriate in the circumstances including enumerated grounds. Counsel for the Respondent relies on the failure to provide income information and the appearance that income has been diverted which would affect the level of child support to be determined under the guidelines. In her factum, she relies principally on the failure to disclose information.
[40] There is no question that the Applicant’s financial disclosure has been inadequate. He lives beyond his stated means. He has substantial unexplained deposits in his accounts. Notwithstanding repeated insistence that he had provided comprehensive disclosure, he conceded on November 7th that there were serious omissions. He has settled the personal injury law suit in which he claimed a loss of income although there is no medical evidence in this proceeding that the injury affected his ability to work. If it did affect his ability to work, it is likely that his earnings will increase given that he has probably recovered from the injury he sustained almost 5 years ago.
[41] I agree that it is appropriate pursuant to s. 19(1)(f) to impute income to the Applicant. The question is how much to attribute to him. He persists in maintaining that his income is his Line 150 income. Yet he spends considerably more than that. Even if I accept that his wife contributes to the household and he uses credit to meet his obligations, in the absence of income information that is his obligation to produce, I consider it appropriate to impute income to him equivalent to the total amount of his yearly expenses on the financial statement sworn February 25, 2013, namely $53,076.
Income of the Respondent
[42] The income of the Respondent is relevant to the sharing of s. 7 expenses. In her affidavit sworn December 20, 2012, she summarized her employment history and her modest earnings. At that time she said she was self-employed cleaning houses and that her gross annual income was $22,500 including net rental income of $630 per month derived from rental of an apartment in the basement. In her affidavit sworn October 3, 2013, she indicated that there had not been a material change in her income. The Respondent’s 2012 tax return reflects gross rental income of $10,800, net rental income of $6,696 as well as gross business income of $19,530 and net business income of $16,130 and a line 150 income in the amount of $22,827.
[43] The Applicant alleges that the Respondent’s income is approximately $100,000 per annum. He attached as an exhibit a bank statement from an account for the Respondent’s company Europrecision with the address at the former matrimonial home that indicates that during the month of November 2005, she deposited over $18,000.
[44] In her affidavit sworn October 31, 2013, the Respondent explained that Europrecision is a company that sold dental equipment and that she had worked in the warehouse doing clerical work as she had indicated in her affidavit sworn December 20, 2012. She said that the bank statement showed deposits to the corporate account but also showed debits of over $15,000 in the same period.
[45] For purposes of this motion, I am satisfied that it is reasonable to rely on the Respondent’s Line 150 income for 2012. I find her income to be $22,827.
Child Support for Samantha
[46] Samantha was born July 20, 1993 and after she turned 18 years old in July 2011 the Applicant stopped making payments of child support.
[47] Samantha graduated high school in June 2011 and began full-time undergraduate studies at the University of Toronto in September 2011. The Respondent said that she had incurred $12,336.88 in post-secondary expenses for the years 2011-2012 and 2012-2013 but was only able to provide documentation that she paid $11,789.06. On this motion, on the basis of the Applicant’s share being 81%, the Respondent asked for an order that he pay $9,584 for the years 2011-2012 and 2012-2013.
[48] In his affidavit sworn October 24th, the Applicant said that he had been estranged from Samantha for a long period of time and that the Respondent and her lawyer had refused to provide any information as to whether she continued her education. He attached copies of correspondence dated March 29, 2012, April 11, 2012, June 4, 2012, July 4, 2012 in which Mr. Tufman repeatedly asked for information about her situation. In a letter dated October 3, 2012 counsel for the Respondent confirmed that Samantha was still in school. The Applicant said that as soon as he received the information that she was still in school, he resumed his support payments. He indicated that he was willing to pay his share of the s. 7 expenses but repeated that the Respondent earned “very substantially” more than he did. He also said that he was delighted that Samantha and he had re-established their relationship and Samantha had met her five year old half sister. He also said that Samantha understands that he had been paying money into her account over a period of time and that he had been paying a lot of her expenses. He noted that the tuition fees included by the Respondent in her affidavit had been paid by the education savings plan that he had established some years ago.
[49] In her affidavit sworn October 31st, the Respondent said that she was not aware of any deposits to Samantha’s bank account other than on her birthdays. She said that she had started the RESP and she was the only contributor after the separation. She said that all of the funds had been transferred to Samantha to pay her university expenses except for $2,381. The Respondent also said that she had borrowed $7266 from her line of credit on August 29, 2013 to pay for Samantha’s tuition and she attached a copy of her line of credit statement showing the withdrawal. The Respondent also denied that the Applicant had resumed paying support after he was informed in the letter dated October 3rd that she was in university. She said that after receiving Mr. Tufman’s letters dated March 29 and April 11, she contacted the Applicant and arranged a meeting which took place in the summer of 2012. She said that they talked about Samantha’s university expenses and she had asked him to assist. She said that he did not start paying any child support until after the motion which was returnable in January, 2013.
[50] In her affidavit sworn October 31st, Samantha referred to specific paragraphs of her father’s affidavit sworn October 24th. She said that she had not seen her father for approximately three years prior to her contacting him in June of 2013. When they met, she told him she was studying at the University of Toronto and doing a specialty in digital enterprise management with a minor in English. She asked if he would be willing to pay for her tuition for the semester commencing January 2014 and he agreed. Samantha referred to his evidence that he had been paying monies into her account and that he had been paying for a lot of her expenses. She said that the only money she had received from him was $1,000 on her birthday in July 2013 as well as $50 when they had dinner in July and a restaurant gift card earlier in the fall.
[51] In his affidavit sworn November 5th, the Applicant said that he had quickly collected as many receipts as he could that verified that he had paid for expenses for Samantha. He confirmed that he would pay Samantha’s tuition for the next term and that he planned to use some of the damages for his injury claim to pay for it.
[52] At the time of the case conference before Bielby J. in October, 2010, it appears that the Applicant agreed to pay $445 per month based on assumed income of $48,192.
[53] At the time of the first adjournment of the motion in January, 2013, it appears that the Applicant agreed to pay $329 per month based on assumed income of $37,392. When the motion was adjourned on April 25, 2013 to July 24th, the endorsement indicated that counsel for the Applicant would provide cheques for child support for the months of April, May, June and July 2013 but did not indicate the amount.
[54] The Applicant concedes that he is obliged to pay support for Samantha. Having found his income to be $53,076, the table amount that he is required to pay is $479.90.
[55] The Respondent asks that the order be made retroactive to December 1, 2012, the month in which the motion for temporary child support was launched. I agree that that is an appropriate starting point for the order for temporary support.
[56] As for the s. 7 expenses, the Applicant’s affidavit sworn November 5, 2013 includes dozens of receipts or invoices for expenditures which he says he has made. Since that affidavit was served immediately before the motion, the Respondent had not had an opportunity to respond. I have reviewed the receipts and invoices and most appear to pre-date Samantha’s university program. On the record before me, I am not persuaded that he made any direct or indirect contributions to her post-secondary education costs.
[57] Having found that the Applicant’s income is $53,076 and the Respondent’s income is $22,827, the ratio is 70% to 30%. I accept the Respondent’s evidence about expenses paid for 2011-2012 and 2012-2013 in the amount of $12,336.88. The Applicant shall pay 70% of those past expenses. He agreed to pay 100% of her tuition and related educational expenses for the term commencing January 1, 2014.
Interim disbursements
[58] In her affidavit sworn October 3, 2013, the Respondent explains the request for an order for interim disbursements in the amount of $20,000 which represents the high end of the range estimated by Steve Ranot to conduct an investigation and complete an income report. I agree with the submission on behalf of the Respondent that the persistent failure by the Applicant to provide disclosure, the inferences that may be drawn from the documentation he has provided that he has undisclosed income or capital, the fact that he is self-employed and therefor his circumstances are more complex than a salaried employee all lead to the conclusion that an income report is essential.
[59] In his affidavit sworn October 24, 2013, the Applicant said that he had no difficulty with the expert assessment of his income for support purposes. He said “my income is what I say it is, and it is sheer nonsense that it is $99,000 per annum or anywhere close to it.” He said that he “welcomed the expertise” which the Respondent wants to engage. He said that he has no money to provide interim disbursements but he was happy to assist the Respondent in obtaining financing using her equity in the former matrimonial home, or her equity in the rental property, provided that such payments are counted as against her equity, subject to an order otherwise.
[60] In his submissions, Mr. Tufman indicated that his client consented to the Respondent using her equity in the matrimonial home or in 45 Ben Machree to retain an expert. Mr. Tufman also said that if his client was required to provide an income report, he would do it but that he would need access to his equity in Ben Machree.
[61] The obligation is on the Applicant to provide an income report. There is no motion before me for an order compelling him to do so. Ms. Savin did not accept Mr. Tufman’s spontaneous offer that his client would provide such a report. In light of his persistent failure to provide disclosure I understand why she would be less than enthusiastic. I will make an order that requires him to make the payment for the preparation of the income report. Under the circumstances where he has failed to fulfill his obligation to provide an income report, if equity in 45 Ben Machree is used, it will be allocated to his share, subject to a trial judge ordering otherwise.
[62] The Respondent has asked for the high end of the range suggested by Mr. Ranot. I see no reason not to order the amount at the low end of the range.
The Civil Action
[63] As indicated above, the Applicant had started an action against the Respondent, her sister, and her mother as estate trustee for her father as a result of transactions involving the former matrimonial home. On November 7th, counsel in the divorce action agreed that the civil action and the matrimonial action should be “tried together”. In the course of hearing submissions from counsel, it was apparent that they had not considered the logistics associated with that agreement such as: would the two actions proceed independently with respect to examinations for discovery or questioning, other disclosure and motions, if any, and be joined only at trial? Would the pleadings in both actions remain intact or would fresh pleadings be created that incorporated all of the allegations? What would the timetable be for completing the pleadings since, as of November 7, 2013, the Applicant had not yet filed a Reply to the Amended Answer? Were the other defendants in the civil action represented? Was it necessary that they be consulted before finalizing the order that the actions be “tried together”? Would the civil action be heard first or would all of the evidence be heard relevant to all of the issues?
[64] In order not to occupy unnecessary court time while counsel explored those and other issues, I indicated that counsel should send a consent 14B motion to my attention.
[65] Mr. Tufman forwarded a letter dated December 11, 2013 in which he wrote that the matrimonial action had been commenced in Brampton and it had been recently brought to Toronto for the purpose of being combined with the civil action. He referenced the endorsement I had made on November 7, 2013. He wrote that unbeknownst to the parties the civil action was administratively dismissed on November 17, 2013. He advised that a motion to have the administrative dismissal order set aside would be opposed by the defendants, despite the fact that they wanted to have the actions combined. He asked for a date for counsel to appear before me in order that he could bring a motion to have the matter restored so that both matters could proceed without delay. He provided a copy of the letter to Ms. Savin and to Mr. Craig Colraine who I assume acts for some or all of the defendants.
[66] It is not appropriate for counsel to contact the judge directly, particularly when a matter is under reserve.
[67] Mr. Tufman indicated that “the defendants” would oppose a motion to set aside the administrative dismissal order. Since Ms. Savin had consented to the cases being tried together, I assume that she is not opposing such a motion but that Mr. Colraine is opposing it, presumably on behalf of Dabrowska and Sopinska and Sopinski. Given that Mr. Colraine was not present on November 7th, he has a right to be heard. Mr. Tufman should bring the motion to set aside the administrative dismissal order in the ordinary course. It is not necessary that I hear such a motion. I am assuming that Mr. Tufman will provide a copy of this endorsement to Mr. Colraine.
ORDER TO GO AS FOLLOWS:
[68] Commencing December 1, 2012 the Applicant shall pay to the Respondent child support for Samantha Kozicki born July 20, 1993 the sum of $479.70 per month on the basis of annual income in the amount of $53,076 provided that the Applicant shall receive credit for any payments made directly to the Respondent since that date.
[69] On consent, the Applicant shall pay 100% of Samantha’s tuition and related educational costs for the term commencing in January 2014.
[70] The s. 7 expenses incurred by the Respondent for 2011-2012 and 2012-2013 are $12,336.88. Based on the Applicant’s income of $53,076 and the Respondent’s income of $22,827, the ratio is 70% to 30%. The Applicant shall pay to the Respondent s. 7 expenses for 2011-2012 and 2012-2013 in the amount of $8635.82.
[71] The Applicant shall pay the arrears of table amount of child support ordered pursuant to paragraph 68 and s. 7 expenses ordered pursuant to paragraph 70 no later than (a) February 14, 2014 and (b) the closing of the sale of 45 Ben Machree provided that the arrears if any shall be paid out of his share of the net proceeds.
[72] Support Deduction Order to issue.
[73] The Applicant shall pay $15,000 as interim disbursements to enable the Respondent to obtain an income report for purposes of the support claims. The Applicant shall pay that amount no later than February 14, 2014 provided that he may use his equity in 45 Ben Machree in order to raise those funds. The trial judge is at liberty to allocate the responsibility for this payment otherwise.
[74] Counsel shall make written submissions as to costs and forward them to the Trial Co-ordinator as follows:
(a) by January 17, 2014, counsel for the Respondent shall make written submissions not exceeding 3 pages plus costs outline together with offers to settle, if any.
(b) by January 31, 2014, counsel for the Applicant shall make written submissions not exceeding 3 pages plus offers to settle, if any.
Kiteley J.
Date: December 31, 2013