SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-14-511
RE: Felicia Georgina Zigiris – Applicant v. Alexandros Peter Foustanellas - Respondent
BEFORE: Kane J.
COUNSEL: Mary Cybulski, for the Applicant
Leonard Levencrown, for the Respondent
MOTION ARGUED: July 17, 2014
AMENDED ENDORSEMENT
The text of the original endorsement was corrected on September 25, 2014
and the description of the correction is appended
[1] The application is brought under the Divorce Act and the Family Law Act.
[2] In her motion, the Applicant seeks an order:
(a) for temporary sole custody of the 4 children of the marriage who are 11, 10, 8 and 3 years of age respectively,
(b) that the children’s primary presence be with her, and for the exclusive possession of the matrimonial home,
(c) interim access consisting of alternating weekends to the respondent father,
(d) an order that the children not be left in the care of their paternal grandparents,
(e) that the marriage contract be set aside,
(f) advanced equalization payment in the amount of $100,000,
(g) interim disbursements of $15,000 for legal fees and $10,000 for a chartered business valuator,
(h) interim spousal support,
(i) contribution by the parties proportionally for s. 7 expenses,
(j) that child support be payable on the first day of each month,
(k) that the respondent obtain life insurance in the amount of $1,500,000 with the applicant named as sole our irrevocable beneficiary,
(l) that the respondent be prevented from taking further steps in this proceeding until he is in compliance with the disclosure order dated May 12, 2014 and
(m) costs.
[3] It would appear that the respondent has served an answer however it is not in the continuing record.
[4] The respondent filed no cross-motion. His affidavit is dated July 15, 2014. The respondent requests an order for interim joint custody with the children living one week with each parent or alternatively, a nesting order on a week on, week off basis. The respondent requests that the orders sought by the applicant for exclusive possession, interim spousal support, interim disbursements and equalization be dismissed with costs.
[5] The parties were married on October 19, 2002. They separated on January 31, 2014. They have continued to live in the matrimonial home since separation. At the time of marriage, the applicant was 20 years of age while the respondent was 29 years old.
Marriage Contract
[6] The parties signed a marriage contract dated January 30, 2002, some nine months before the wedding. It provides that upon the breakdown of the marriage:
(a) neither party will claim spousal support,
(b) rights of ownership govern property division,
(c) no property owned by either party shall be included in the net family property,
(d) each party shall be entitled to one half of the fair market value of the family residence payable within 60 days, and;
(e) release of any business interest.
[7] The Respondent’s statement of net worth dated December 21, 2001 totals $1,107,000, excluding the net equity in the family residence owned by the husband. The above net worth includes the estimated FMV of common shares in a company started by his father and in which the respondent is now a vice-president and a Director.
[8] It is agreed that the applicant’s net worth as a 20-year-old at the time of this contract was nil.
[9] The above net worth of the parties clearly indicates that the contract was requested by and for the benefit of the respondent. He states the applicant was not manipulated or forced to sign the marriage contract and that she “wanted to go ahead with the marriage”. The applicant alleges that the terms of the contract were a requirement of and set by the respondent who told her that there would be no wedding unless she signed the contract.
[10] Protection from claims like this against the Foustanellas’ family business interests has always been and continues to be a priority for the respondent.
[11] The applicant states that she was unaware that in 2008 the respondent disposed of his shares in the family business for which he declared a $884,000 capital gain.
[12] In late 2013, the respondent established the family trust and then instructed his employer to pay into the trust a $732,000 loan owed to him by that corporation.
[13] It is not disputed that the applicant, other than a two to three month period, has remained at home with the children since 2003.
[14] The respondent’s position is that the applicant mother has training and education and should go back to work. In his affidavit, the respondent states that “Spousal Support should not be subject to a material change of circumstance but rather established for a fixed term”. This is an acknowledgment that the applicant is entitled to spousal support for a fixed term, notwithstanding the provisions of the marriage contract.
[15] Clearly, the applicant, given her age and lack of net worth was more vulnerable than the respondent at the time of signing the marriage contract. Announcing one’s refusal to marry until your future spouse signs the contract you have prepared is a form of pressure.
[16] It is not denied that since their wedding, the applicant has requested and the respondent refused to amend the marriage contract.
[17] Given the subsequent birth of their four children, their young age and the respondent’s agreement that the wife stay home with the children during the last eleven years, the marriage contract as to spousal support is not reflective of the original intention of the parties.
[18] Denying the applicant interim spousal support given the respondent’s current financial capacity, his exclusive control of cash flow during the marriage and the wife’s lack of any income would be unconscionable.
[19] On the basis of Miglin v. Miglin, 2003 SCC 24, 2003, S.C.C. 24 and McCain v. McCain, 2012 ONSC 7344; paragraph 8 of the marriage contract is invalid as to interim spousal support.
Spousal Support
[20] The respondent is required to pay interim spousal support to the applicant on the first day of each month, commencing August 1, 2014. The applicant’s present need and the fact that she has been out of the workforce for the last eleven years entitles her to interim support.
[21] The respondent’s 2013 line 150 income was $367,000 consisting of employment income of $250,000, net rental income of $61,000 and capital gains of $55,000. The respondent has had employment income at this level for a number of years prior to 2013. The capital gain arose in relation to the sale of the rental income property by the respondent and his brother.
[22] The applicant submitted Divorcemate calculations using the respondents total 2013 taxable income of some $323,000 and, for child support, $426,000. These amounts overstate financial reality.
[23] The respondent has not yet fully complied with all of the disclosure order by Master Roger, on consent, on May 12, 2014.
[24] The amount of $250,000 is the proven and appropriate figure to be used for calculation of interim spousal and child support.
[25] Interim spousal support is set at $3,300 per month and is payable on the first of each month commencing August 1, 2014.
Interim Custody
[26] The respondent at two points in his affidavit states that the applicant is a good mother to the children.
[27] The respondent does not dispute his wife’s allegations that his work is a priority for him. He works six days a week and generally does not come home from work until after the children have eaten dinner.
[28] This couple for the past eleven years have had a traditional division of labor pursuant to which the respondent’s primary hours and attention has been his work while the applicant has been the caregiver of the children. This has not changed since the parties separated in January of this year.
[29] This is not to suggest that the respondent does not love or have a meaningful relationship with his children. To suggest however that his business commitments are going to substantially decrease and that the children should have their mother disappear every second week given their ages, is unrealistic on this interim motion.
[30] The best interests of these children is that the status quo that has existed during the last eleven years should continue on an interim basis.
[31] The applicant shall have interim custody of the children.
[32] The respondent shall have interim access consisting of:
(a) every second weekend from Friday at 6 p.m. until Sunday at 7:30 p.m.,
(b) every Wednesday from 5 p.m. until 7:30 p.m.,
(c) the right to attend alone and accompany any of the children at their sporting events provided that he confirms by email to the applicant three hours prior to that event that he will exercise that right.
(d) one week during the month of August, 2014, commencing on the Friday the father has weekend access, to include that weekend and the following five days until following Friday at 5 p.m., provided that the father takes the children out of Ottawa during that period and remains with the children.
[33] The applicant shall provide the respondent with a copy of any school or medical reports received regarding the children within 36 hours of her receipt of the same. Each parent shall notify the other parent in the event of any medical emergency or treatment regarding the children. The respondent may attend and consult any medical or educational service provider.
Child Support
[34] The respondent as of June 1, 2014 paid child support in the amount of $5,000 per month with one half thereof paid on the first and one half on the 15th of the month. This is a cash flow issue. Given the passage of time since May 12, 2014 the respondent shall pay child support on the first of each and every month commencing September 1, 2014 in the amount of $4,850.
[35] Responsibility for s. 7 expenses shall be shared and paid on a ratio of 14% by the applicant and 86% by the respondent. There must be advanced written notice thereof and agreement of the parties thereto, which agreement is not to be unreasonably withheld.
Matrimonial Home
[36] Both parties in their affidavit alleged a high level of verbal animosity between them since they separated and continued to live in the same residence. They each blame one another for the constant arguments which are taking place in front of the children. Being separated in the same home has been tried and is not successful in protecting the children from adult verbal violence or animosity.
[37] Both parents acknowledge the importance of the present matrimonial home to the children as an element of stability and its proximity to schools in the case of the three oldest.
[38] Each parent acknowledges that the animosity level in the home is detrimental to the children and must stop. It is unrealistic to expect that the harm occasioned to these children over the last six months caused by this parental hostility will cease unless one of these two parents vacates the home.
[39] The respondent states that he is prepared to arrange financing of some $500,000 in order to pay the applicant an entitlement, including her interest in the matrimonial home. The respondent’s income and capacity to borrow money is substantial. In comparison, the applicant currently has no such capacity.
[40] The applicant shall have exclusive interim possession of the matrimonial home commencing September 5, 2014. Such possession shall include the furnishings and appliances now in the home and belongings of herself and the children. When vacating the home, the respondent shall remove his clothing, documents, desk and chair together with his personal effects.
Applicant’s Vehicle
[41] The applicant shall have exclusive use and possession of the motor vehicle she has been using during the last 7 months, notwithstanding the respondents registered ownership thereof.
Interim Disbursements
[42] The financial and business affairs of the respondent are complex enough that an analysis thereof by a business valuator will be required.
[43] The respondent acknowledges he will be liable to pay the applicant some $500,000. On the authority of Zagdanski v. Zagdanski 2011 27981 (ON SC), the respondent is ordered to advance the sum of $25,000 to the applicant towards the monies he acknowledges are owing to her by September 1, 2014 to permit her financing of legal and valuation expenses. The estimates of $15,000 and $10,000 for such expenses are appropriate given the level of complexity of the respondent’s business and financial affairs.
Costs
[44] Subject to any offers of settlement, the applicant shall be entitled to her costs of this motion on a partial indemnity basis. Brief written submissions if necessary, in the event of an offer or disagreement as to quantum, shall be sent within 15 days hereof and thereafter replied to within a further 15 days.
Kane J.
Date: September 25, 2014
APPENDIX
September 25, 2014:
The date in paragraph 25 in the original endorsement is changed to August 1, 2014.
COURT FILE NO.: FC-14-511
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Felicia Georgina Zigiris
Applicant
AND
Alexandros Peter Foustanellas
Defendant
BEFORE: Kane J.
COUNSEL: Mary Cybulski, for the Applicant
Leonard Levencrown, for the Respondent
AMENDED ENDORSEMENT
Kane J.
Released: September 25, 2014