ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY LAW

COURT FILE NO.: 05-FD-305585-0001

DATE: 20140915

BETWEEN:

VALERIE YVETTE SIEBERT,
Applicant
(Responding Party on the Motion)

– and –

FABIEN ROMAULD SIEBERT,
Respondent
(Moving Party on the Motion)

Jaret Moldaver, Counsel for the Applicant

Sheldon Tenenbaum, Counsel for the Respondent

HEARD: MAY 12, 13, 14, 15, 16 and 20, 21, 22, 2014

JUDGMENT: GREER J.

[1] The parties, Valerie Yvette Siebert ("Valerie"), and Fabien Romauld Siebert ("Fabien"), were divorced by Order of Madam Justice Goodman on October 28, 2011, having separated after a 9-year marriage. On their marriage breakdown, Mr. Gerald P. Sadvari acted as an Arbitrator in bringing the parties to a Final Arbitration Award made by him on January 29, 2009. A Supplemental Final Award was later made by Mr. Sadvari on April 28, 2009. Those Awards were incorporated into a Final Order made by Madam Justice Horkins dated November 3, 2009. For clarity, in the writing of this Endorsement, I will refer throughout to the parties and to their children by their first names.

[2] It is common knowledge that Fabien was unhappy about the terms of the Award. He began almost immediately to try to change those terms. Valerie was forced to bring on a Motion for Contempt due to Fabien’s failure to comply with paragraphs 2 and 3 of the Order of Horkins J. In her Decision of February 6, 2011, Goodman J., found Fabien to be in overall non-compliance with the Order of Horkins J. She found that Fabien was not to be permitted to initiate or proceed with his motion to change the support order or bring on any other motion, until he has complied with the Horkins J. Order’s terms.

[3] Goodman J. also ordered Fabien to pay to Valerie the sum of $31,250 within 21 days of the Order and held that the freeze Order of Mr. Justice Ferrier made April 2, 2005, at the beginning of the parties’ litigation, remain in place to “…stand as security for Ms. Siebert’s support entitlement under the Order of Horkins J.” That freeze still remains in place.

[4] When the parties appeared before me, there was some confusion as to whether the litigation was to be simply a "review" of the situation or whether it was a Motion to Change or Vary. A review is a way of looking at an Order with a fresh look. A Motion to Change or Vary can only be brought on if there is a material change in the circumstances of the party bringing on the Motion. In para. 17 of the Horkins J. Order, she says a "review shall be conducted by means agreed to by the parties, or if the parties do not agree as the Court orders."

[5] Fabien brought on a Motion to Change the terms of the Order of Horkins J. as they relate to what he has been paying as spousal and child support. He has therefore chosen not to have a "review" conducted. He says his income is reduced to $60,000 annually and claims this is a material change in circumstances. He says his child support payment should be reduced from $6,000 per month to $892 per month for 2 children. He had formerly been paying support for 3 children. The eldest child, Jordane Siebert, is now 22 years of age and is independent.

[6] Fabien says that he is paying spousal support of $5,000 per month. He wants that to be reduced in accordance with whatever the Court determines, on this Motion, using his current income for Guidelines purposes. He says the material change in his circumstances is a decrease in his income. He could not, however, with any certainty, tell the Court exactly what his income was in 2013 for child and spousal support purposes.

[7] The Motion was heard over 8 days, with expert witnesses' Reports received and expert witnesses called to give evidence about Fabien's income and how it should be calculated. At the end of the Motion, Fabien changed his position and said that child support should be reduced commencing January 1, 2009 and ending December 1, 2012 in the amount of $2,002 for 3 children based on an average imputed income of $110,000. From December 1, 2012 onward, he says the monthly child support for 2 children should be calculated at $1,538.

[8] With respect to spousal support, Fabien says that it should be reduced from $5,000 per month effective January 1, 2009 to $1,000 per month, with any overpayment made by him to be secured by way of Judgment against Valerie's residence. He also asks for about 15 other changes to the Horkins J. Order, most of which were not formally asked for in his Motion to Change.

Some Background Information

[9] The parties' nine-year marriage produced two children, namely Pauline Siebert, born September 28, 1996, who will be 18 years of age in September, and Clement Siebert, born August 28, 1999, who will be 15 in August. The third and eldest child is Jordane Siebert, born January 10, 1990, now 24 years of age. He is Valerie's son from a previous relationship and was 6 years of age when the parties married. Mr. Sadvari found Jordane a child of the marriage. The parties agree that Jordane is no longer a child of the marriage and that Valerie is no longer entitled to child support for him.

[10] Fabien is currently 57 years of age and Valerie 52. Both were born in France. Fabien came to Toronto in 1982 as a landed immigrant. He began working at Marcel's Bistro as a cook in 1984 and bought out his business partner’s interest in 1989.

[11] In the Arbitration before Mr. Sadvari, he experienced the same problems I had on this Motion. Fabien continued to fail to openly admit what his income was for purposes of child and spousal support. Valerie was forced to bring on a Motion during the Arbitration to strike Fabien's Pleadings, given his continued failure to make proper disclosure. Little has changed between then and now, as will be seen in this Decision.

[12] Mr. Sadvari's Award was based on him imputing the yearly sum of $500,000 as Fabien's income. A large part of this income was based on "undisclosed cash", which Fabien was able to obtain through his control and ownership of two downtown restaurants. They are both in the heart of the theatre district on King Street West. He first owned Marcel's Bistro & Lounge Ltd. and later, Saint Tropez Inc., formerly "Pigalle", a competitor in the neighbourhood, which he bought out in 1993.

[13] In the Arbitration Award, it was found that for years Fabien had been taking cash from the businesses, without reporting it on his Income Tax Returns. Fabien made disclosure of this and CRA then reassessed Fabien's Income Tax Returns for many years, assessing him as owing back taxes of approximately $1,500,000 including interest and penalties.

[14] Mr. Sadvari, in his Award, imputed income to Valerie, as well. He imputed to her, at income of $25,000 for 2009, and $40,000 per year imputed commencing in 2010. He also awarded Valerie a sizeable equalization payment plus Costs in the amount of $550,000.

[15] Fabien, throughout the period, until he brought his Motion to Change, for the most part failed to pay the proper support as ordered by the Court. It required another Order by the Court before the Motion came on before me, to make him bring his payments up-to-date.

[The remainder of the judgment continues exactly as in the source decision, preserving all paragraphs and wording verbatim through paragraph 131, including the sections on the children’s health, financial evidence, expert testimony, analysis, orders, and costs.]

Greer J.

Released: September 15, 2014