ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-373947
DATE: 20140324
B E T W E E N:
tatiana Maria olha masnyk
Applicant
- and -
robert lundy wolff
Respondent
Wolfgang J. Pazulla, for the Applicant
Fareen L. Jamal, for the Respondent
HEARD: February 3,4,5,6,7,10,11,12,13 and 14, 2014
STEVENSON J.
REASONS FOR DECISION
Introduction
[1] The applicant, Tatiana Maria Olha Masnyk ("Ms. Masnyk") issued an Application on November 26, 2011 wherein she was seeking a divorce, custody of the child of the marriage, Anastasia Maria Wolff ("Anastasia"), born June 5, 2011, child and spousal support retroactive to the date of separation, proportionate sharing of section 7 expenses under the Federal Child Support Guidelines. SOR/97-175 (the "Guidelines"), an order that the respondent, Robert Lundy Wolff ("Mr. Wolff") provide life insurance coverage, an order dispensing with Mr. Wolff's consent to the issuance of a passport and to travel with Anastasia, a restraining/non-harassment order and costs.
[2] Mr. Wolff filed an Answer, dated February 2, 2012, wherein he was seeking a divorce, custody of and access to Anastasia, a restraining/non-harassment order and leave for paternity testing. At the time Mr. Wolff filed his Answer, he stated that he was not attorning to Ontario's jurisdiction as he was a resident of New York State and Anastasia's habitual residence at the time of birth was New York. He later abandoned this position. At the commencement of trial, Mr. Wolff conceded custody to Ms. Masnyk, although he is seeking certain provisions in an order, including sharing of information and consultation with him.
Facts
[3] Ms. Masnyk is 39 years of age and Mr. Wolff is 37 years of age. Anastasia is approximately 2 years and 9 months old.
[4] The parties met in approximately 2005 while working for the same employer. Ms. Masnyk, a lawyer, was working in the legal department in London, England, while Mr. Wolff, who has worked predominantly in the banking industry, was working in the New York City office. In 2008, Ms. Masnyk returned to Toronto. She commenced employment as in-house counsel. Mr. Wolff was still working and residing in New York City. The parties began dating in 2009 and would spend time together on weekends. Ms. Masnyk became pregnant, but unfortunately suffered a miscarriage in July of 2010. The parties were subsequently married in Mississauga, Ontario on October 17, 2010. Shortly before the marriage, Ms. Masnyk discovered that she was pregnant again.
[5] After the marriage, Ms. Masnyk resided in Etobicoke, Ontario with her parents. Mr. Wolff continued to reside in New York City. Both parties acknowledge that shortly after marriage their relationship began to deteriorate. The parties had frequent discussions as to where they would reside. Ms. Masnyk went to New York City on April 4, 2011 to be with Mr. Wolff. She left New York City on May 5, 2011 after more disagreements between the parties. Both parties acknowledge that this is the date of separation. Anastasia was born on June 5, 2011 in Mississauga Ontario. Subsequent to Anastasia's birth, Ms. Masnyk continued to reside at her parents' home with Anastasia.
[6] Prior to the birth of Anastasia, both parties were aware that Mr. Wolff was to lose his employment in approximately June of 2011. Mr. Wolff received employment income until October of 2011. He has not had employment income since. Mr. Wolff now resides on a farm in Schaghticoke, New York. Ms. Masnyk continues to be employed by her same employer in Toronto. She took a maternity leave after Anastasia was born.
[7] Mr. Wolff sought paternity testing. He indicates that he never doubted paternity, but he wanted confirmation. Ms. Masnyk viewed this as very hurtful. After testing, Mr. Wolff was confirmed to be Anastasia's father.
[8] Mr. Wolff's access has been supervised since the order of Sanderson J., dated July 3, 2012. Subsequent orders have also dealt with access. The access visits were supervised by three different supervisors. The parties had great difficulty agreeing to supervisors and both blame the other for these difficulties. Mr. Wolff had 14 visits with Anastasia from July of 2012 to December 2012. Most of the visits had Mr. Wolff spending a few hours on a Saturday and Sunday of a weekend with Anastasia. Mr. Wolff travelled from New York State for the visitations. Most visits took place within Ms. Masnyk's parents' home. During some visits Mr. Wolff was able to take Anastasia to the park or for a walk outside in the presence of the supervisor. There were problems with some of the visits. The parties present differing versions as to the reasons for the difficulties then and ongoing.
[9] In March 2012, Mr. Wolff was charged with driving while under the influence of alcohol in New York State. On January 23, 2013, Mr. Wolff entered a guilty plea and received a one-year conditional discharge. Ms. Masnyk found out about the charge by conducting her own research as she questioned why Mr. Wolff was no longer driving to the access visits. She contends that Mr. Wolff's charge was not immediately disclosed to her or the Court. As a result of Mr. Wolff's guilty plea, he became inadmissible to Canada. He contends that he still pursued access to Anastasia. The access would have to take place in Buffalo, New York. Ms. Masnyk did not agree to facilitate this access. Mr. Wolff has not exercised access to Anastasia since December 2012.
[10] By order of Sanderson J., dated July 3, 2012, Mr. Wolff was ordered to pay monthly child support commencing July 1, 2012 on a without prejudice basis, in the form of a bank draft in the amount of $1,633 per month. This was based on an imputed income of $200,000 per year which amount was to be readjusted after Mr. Wolff found employment based on his actual income and from the date of the start of his new employment. Disclosure provisions were also set out in the same order.
[11] Mr. Wolff has paid $1,633 per month child support as ordered. Ms. Masnyk contends that many payments have been late and not in the form of a bank draft. Mr. Wolff has paid by personal cheque. Payment for the months of August 2013 to January 2014 was made on December 13, 2013. The last payment was for the month of January 2014.
[12] Pursuant to the order of Czutrin J., dated April 25, 2013, Mr. Wolff was ordered to pay $15,000 to Ms. Masnyk to be credited either to retroactive, ongoing or section 7 expenses as ultimately determined. Mr. Wolff made the payment of $15,000 to Ms. Masnyk.
[13] Ms. Masnyk seeks to impute an income to Mr. Wolff of $300,000 gross per year as she contends that Mr. Wolff is intentionally unemployed. She contends that Mr. Wolff has chosen not to work and has acknowledged this to the Court. She seeks a proportionate contribution towards nanny expenses and nursery school expenses from Mr. Wolff based on this imputed income. She also seeks spousal support for the period June 1, 2011 to March 31, 2012 when she was off on maternity leave.
[14] Mr. Wolff indicates that he has high access costs considering he must travel from New York State and secure accommodations for his weekend visits. He submits that proof of any nanny expenses has not been provided, but if any nanny costs are payable by him, these expenses should be set off against his high access costs or alternatively, child support should be reduced. He does not agree that Ms. Masnyk's income is approximately $150,902 gross per year, but submits that it is in excess of $200,000 for the calendar year 2013. He is not opposed to contributing towards nursery school expenses for Anastasia but he submits that his income should be imputed at $100,000 gross per year not $300,000 gross per year.
(continues exactly as in the source judgment…)
Stevenson J.
Released: March 24, 2014
COURT FILE NO.: FS-11-373947
DATE: 20140324
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
tatiana Maria olha masnyk
Applicant
- and -
robert lundy wolff
Respondent
REASONS FOR DECISION
Stevenson J.
Released: March 24, 2014