ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-12-75097-00
DATE: 20140627

B E T W E E N:

ADRIANO EDUARDO SCURCI

No one appearing

Applicant

• and -

ANNA SCURCI

R. Avery Zeidman, for the Respondent

Respondent

HEARD: April 25, 2014

REASONS FOR JUDGMENT

Fragomeni J.

1This matter proceeded by way of an uncontested trial. Prior to reviewing the facts that give rise to the order being requested by the respondent wife, it is important to set out the chronology of the litigation that resulted in this matter proceeding as an uncontested trial.

2On November 19, 2013 the Applicant husband’s pleadings were struck out by Price J. with respect to the financial issues only. The husband appealed Justice Price’s order to the Court of Appeal. The husband also brought a motion to stay the order of Justice Price. The wife consented to the stay order pending the determination of this matter in the Court of Appeal on April 2, 2014.

3On March 31, 2014 the parties resolved the issues relating to custody and access and a Consent was signed in the form of a separation agreement on those issues.

4The husband’s motion was heard on April 2, 2014 in the Court of Appeal and the motion’s judge reserved her decision. On April 3, 2014 Justice Benotto of the Court of Appeal released her endorsement in which the husband’s motion for a stay of Justice Price’s order was dismissed. At paras. 10 and 11 of her endorsement Justice Benotto states:

10. For these reasons alone, I would dismiss the application. However, I add that the test for a stay pending appeal is not, in any event met on these facts. The test for a stay pending appeal is articulated in RJR – Macdonald Inc. v. Canada (Attorney General) [1944] 1 S.C.R. 31. The appellant must demonstrate a serious question to be tried. The appellant’s position that the orders for production do not amount to a requirement to produce but rather provide a framework for how production is to take place runs contrary to both a plain reading of the orders and the rules in every family law case.

11. The prejudice and balance of convenience branches of the test are also not met where, as here, the moving party is in default of multiple court orders.

5On or about April 7, 2014 the Ontario Court of Appeal released an order in which the registrar dismissed the husband’s appeal on account of delay. The Registrar’s endorsement states:

ORDER DISMISSING APPEAL FOR DELAY

The appellant has not perfected this appeal in accordance with Rule 61.09 and has not cured the default, although given notice under Rule 61.13 to do so.

IT IS ORDERED that this appeal be dismissed for delay, with costs fixed in the amount of $750.00.

Date: April 7, 2014
Sandra Theroulde
Deputy Registrar & Manager of Court Administration
Court of Appeal for Ontario
130 Queen Street West
Toronto, Ontario M5H 2N5

6The uncontested trial was heard by me on April 25, 2014.

BACKGROUND

7The parties were married on August 26, 1989. They separated September 1, 2008. There are two children, Alessio Antonio Scurci born January 20, 1997 and Matteo Massimo Scurci born April 12, 1999.

8The wife seeks the following orders:

1. Child Support for the two children in the sum of $1,714 per month based on the husband’s total gross annual income of $188,406.00. The commencement date of this support order to be set at May 1, 2014;

2. Section 7 expenses to be paid by the husband fixed in the sum of $100.00 per month commencing May 1, 2014 representing his contribution to the respondent for the two children;

3. Spousal Support in the sum of $3,002 per month commencing May 1, 2014 indexed annually;

4. A finding by the Court that as of April 25, 2014 the husband owes to the wife $297,456.12;

5. That the husband owes to the wife an equalization payment of $62,018.52 together with interest thereon of $10,388.10;

6. An order that the wife shall have exclusive possession of the matrimonial home and contents;

7. A finding that the net equity in the home is $369,500 resulting in each party’s net equity at $184,750;

8. That the husband’s interest in the home be transferred to the wife in satisfaction of the equalization payment owing and title to the home shall be transferred to the wife. The husband shall receive a credit of $184,750 against the equalization payment of $72,406.62 owing with the balance of $112,343.38 to be applied to the other money owing by the husband to the wife pursuant to this order;

9. The husband shall continue to pay his proportionate share of the s. 7 expenses based on his income at $188,406.00 and the wife’s income at $49,549.00;

10. On the basis that the wife has contributed $26,300 into the childrens’ RESP since the date of separation, the husband is to pay to the wife his proportionate share of that in the amount of $20,823.59;

11. The husband is to receive a net credit of $840.95 against the support amounts owing on account of the difference in payments he made to third parties on behalf of the wife compared to payment made by the wife on behalf of the husband for repairs to the home and for storage of the husband’s belongings.

Income of the Husband

9The wife sets out a table that summarizes the husband’s base salary, non-taxable benefit, grossed up benefit and total income compared to the wife’s income at paragraph 10(h) of her Affidavit sworn February 27, 2014. The chart sets out the following:

Year
Applicant Base Income
Non-tax Benefit
Applicant Total Income
My Total Income

2008
$62,937.00
$28,562.05
$110,628.00
$44,400.00

2009
$41,710.00
$20,849.97
$72,573.00
$44,679.00

2010
$63,019.00
$38,761.97
$128,850.00
$46,795.00

2011
$92,175.03
$50,904.27
$185,111.00
$49,535.00

2012
$88,216.00
$55,097.49
$188,406.00
$49,549.14

2013
$88,216.00
$55,097.49
$188,406.00
$49,549.14

10The husband is still with the same employer in the same position at this time according to the wife’s Affidavit at paragraph 10(i).

11The consent with respect to custody set out that there would be a shared residence, that is a week about for each parent. On that basis the wife calculates the child support as follows at paragraph 10(k) of her February 27, 2014 Affidavit:

Based on the current shared residence, ongoing child support would be $1,714.00 in accordance with the Child Support Guidelines, based on setting off the applicant’s obligation of $2450.00 and my obligation of $736.00. Apportioning of special expenses would be 66.5% to the applicant and 33.5% to me based on the mid-range of spousal support, or 64.0% to the applicant and 36.0% to me based on the high range of spousal support. I attach SupportMate calculations later to support these numbers.

12The wife seeks retroactive child support to the date of separation.

13The wife also seeks spousal support retroactive to the date of separation.

14The wife points to the following factors in support of her claims for retroactive child and spousal support:

• the husband has attempted to hide his income during this proceeding, and an adverse inference should be drawn as a result;

• the husband has refused to provide disclosure that was ordered by this Honourable Court related to his finances, and an adverse inference should be drawn as a result;

• the husband has refused to provide any evidence whatsoever to show that his income has changed from its levels in 2012 despite having multiple opportunities to do so, and an adverse inference should be drawn as a result;

• the husband has refused or neglected to provide any confirmation from his employer about any change to his remuneration or status of employment despite having multiple opportunities to do so, and an adverse inference should be drawn as a result;

• the husband avoided paying child and spousal support for over five years despite having an absolute obligation to do so, and an adverse inference should be drawn as a result; and

15At para. 14 of her April 16, 2014 Affidavit the wife sets out two tables with the calculations for the retroactive amounts as follows:

... (tables reproduced verbatim)

16At para. 17 the wife sets out the total amount. She states:

As I previously claimed, my husband owes me an equalization payment of $62,018.52 plus interest. This is based on not allowing his alleged exclusions for the claimed inheritance that he used to pay down our joint mortgage on the matrimonial home and that he deposited to our joint account with Citizens Bank prior to separation. The following table incorporates that payment into the total owing by my husband on account of retroactive support:

... (tables reproduced verbatim)

17At para. 18 of her April 16, 2014 Affidavit the wife states:

I am proposing that this Honourable Court order that my husband’s net interest in the matrimonial home be transferred to me to satisfy a portion of the substantial amounts owing by my husband to me on account of an equalization, retroactive child support, retroactive spousal support, and accumulated interest since our separation more than five and half years ago...

... (table reproduced verbatim)

18I have not reviewed all of the contents of the Affidavits filed in these reasons but I have considered them in determining the appropriate order to make. In addition to the Trial Record filed, the three Affidavits relied on by the wife are as follows:

1. February 27, 2014
2. April 16, 2014
3. April 24, 2014

19The parties separated on September 1, 2008. The Application commenced by the husband is dated May 29, 2012. In that application the husband was seeking custody of the children, child support from the wife including her proportionate share of the s. 7 expenses, exclusive possession of the home and contents or in the alternative an order for the sale of the home.

20The wife filed an Answer dated June 28, 2012 seeking a divorce as well and seeking numerous court orders including custody of the children, child support, spousal support and other relief as well.

21Throughout the litigation, which essentially commenced with the husband’s application in May 2012, the husband has been continually in default of disclosures orders culminating in the ultimate order of Price J. striking the husband’s pleadings with respect to the financial issues.

22The difficult aspect of this case relates to the issue of retroactivity as it relates to both child support and spousal support.

23The Supreme Court of Canada dealt with the issue of retroactive child support in five cases, namely: S. (D.B.) v. G.(S.R.); W.(L.J.) v. R.(T.A.); Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] S.C.J. No. 37:

... (quoted passages reproduced verbatim)

24Another difficult issue to resolve in the circumstances of this case relates to the quantum of arrears that should be ordered paid considering the totality of the circumstances.

25There are many factors that the Court should consider in determining whether to award retroactive support and to what extent. The jurisprudence has held that such factors include:

1. Reasonable excuse for why support was not applied for or sought earlier.
2. Conduct of the Payor Parent.
3. Circumstances of the child or children.
4. Hardship occasioned by a retroactive award.

26With all of those factors in mind what is the appropriate amount and what is the appropriate date of retroactivity.

27In her Affidavit sworn February 27, 2014 the wife states the following at para. 11 (a) to (e):

... (affidavit excerpts reproduced verbatim)

28On page 7 of the same Affidavit she states the following:

... (affidavit excerpts reproduced verbatim)

29The wife does explain the difficulties she had in proceeding and why she was delayed in doing so. However, I cannot find with any certainty that these circumstances prevented her from proceeding to Court...

30In the circumstances of this case I am satisfied that the conduct of the husband is also a factor...

31As I indicated I take into account the delay in proceeding by the wife, however this factor and the wife’s delay in proceeding cannot fall entirely at the feet of the children. In these circumstances I am satisfied that for the child support the retroactive date is properly and reasonably set at September 1, 2010. However, for the wife, the retroactive start date will be set at three years, namely May 1, 2011.

32The wife states that the children have been living with her in the matrimonial home yet the husband only paid her approximately $1,500 for the support of the children...

33The Financial Statements filed by the parties show that there was no mortgage on the home at the time of separation...

34I am satisfied that the equalization payment is $72,406.62. I am also satisfied that the balance owing to the husband from his share of the home, namely $112,343.38 is to be credited against the amounts owing pursuant to this order.

35The spousal support arrears and the child support arrears will be recalculated by counsel for the wife to reflect my order and to reflect the mid-range number.

36The ongoing child support is $1,714.00 per month commencing May 1, 2014 based on the husband’s gross annual income of $188,406.00.

37The spousal support order shall be $2,523 per month commencing May 1, 2014 indexed annually.

38The wife shall have exclusive possession of the matrimonial home and its contents. The net equity of the home for each of the parties is fixed at $184,750.00 each.

39The husband’s interest in the matrimonial home and its contents shall forthwith vest in the wife in satisfaction of the equalization payment and the arrears of support now calculated pursuant to my order.

40The terms set out at para. 12 of the Draft Order file, namely

a) Each party shall contribute proportionately towards the Children’s reasonable and necessary Special or Extraordinary Expenses. Currently such proportions shall be based on the applicant’s income being $188,406.00 and the respondent’s income being $49,549.00

b) The respondent has contributed $26,300 into the Children’s RESP account since separation. The applicant shall pay to the respondent his proportional share of such contributions based on the parties incomes in the previous paragraph herein, namely a total of $20,823.59.

c) The applicant shall receive a net credit of $1,840.95 against the support amounts owing on account of the difference in payments he made to third parties on behalf of the respondent compared to payment made by the respondent on behalf of the applicant for repairs to the matrimonial home and for storage of the applicant’s belongings.

shall issue.

Costs

41On June 23, 2014 the Court received amended cost submissions on April 25, 2014...

42The wife seeks costs of the uncontested trial in the total sum of $34,185.00 plus disbursements of $2,513.63...

43The uncontested trial proceeded on the basis of the Affidavits and Exhibits filed...

44I am not satisfied that the amount being requested for costs as it relates to the uncontested trial is reasonable...

45I am prepared to fix costs in this matter, considering all of the circumstances of this case, and the issues dealt with at the uncontested trial, in the all-inclusive sum of $20,000.

46There is no need to incorporate Justice Price’s cost award in my order as it is an order that has already been made and enforceable as such.

47Counsel for the wife shall prepare an Amended Draft Order for my review incorporating the terms of this order.

Fragomeni J.