SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-14-36779-00 (Milton)
DATE: 2014 11 25
RE: AUTUMN MARIE BARBINI v. JOSEPH BRIAN EDWARDS
BEFORE: EMERY J.
COUNSEL:
Deborah MacKenzie, for the Applicant
Steven Speropoulos, for the Respondent
HEARD: August 22, 2014
ENDORSEMENT
[1] The applicant wife, Autumn Marie Barbini seeks comprehensive relief on this motion relating to interim custody and access, child support, spousal support, disclosure relating to equalization issues and financial information for all purposes. Ms. Barbini also seeks exclusive possession of the matrimonial home, an order that the respondent husband Joseph Brian Edwards contribute to matrimonial home expenses, and an order preserving assets.
[2] Mr. Edwards brought a motion that was heard at the same time as the motion brought by Ms. Barbini. In his motion, Mr. Edwards seeks temporary orders for his care and access to the child of the marriage, Jaxon Barbini Edwards each week, a Christmas holiday schedule for Jaxon, and orders enabling either parent to take Jaxon on vacation during the summer months.
[3] Like many motions for an order granting interim relief, the number and breadth of the orders sought are as great and wide as the issues for trial, if not greater because of orders requested to preserve property and to obtain disclosure.
[4] For the purposes of the motion before me, I consider the following issues to be those that will largely determine the outcome of the motion:
Does the respondent Joseph Brian Edwards stand in loco parentis to the children Hope McCleary, born on June 2, 1996 and Quintin McCleary, born on May 13, 1998?
Who is to have interim custody of Jaxon Barbini Edwards, born October 31, 2008 and what access arrangements should there be for the non-custodial parent?
What income should be imputed to the respondent Joseph Brian Edwards and should there be any income imputed to the applicant Autumn Marie Barbini for the purposes of interim child support or interim spousal support respectively?
What disclosure and preservation issues should be ordered?
[5] This motion will also determine what issues are best left for trial because of conflicting evidence on the record.
BACKGROUND
[6] Ms. Barbini and Mr. Edwards met in March 2004. By August 2004 they had moved into Mr. Edwards’ home in Vaughan, Ontario.
[7] In June 2011, the parties purchased the matrimonial home at 2047 Rebecca Street, in Oakville, Ontario.
[8] The parties were married on July 27, 2012.
[9] Ms. Barbini and Mr. Edwards have one child born of the marriage, Jaxon Barbini Edwards born on October 31, 2008. There are two other children, Hope McCleary, born June 2, 1996 and Quintin McCleary, born May 13, 1998 from Ms. Barbini’s previous marriage. Hope and Quintin resided with the parties in the matrimonial home during their relationship.
Ms. Barbini’s Position
[10] On November 26, 2013, Ms. Barbini asked Mr. Edwards to leave the matrimonial home. He subsequently moved into a rented townhouse in Oakville on December 3, 2013.
[11] Ms. Barbini has deposed in her affidavit that Mr. Edwards reacted to her request that he leave the matrimonial home by cutting off her access to funds. According to her affidavit, Mr. Edwards is the owner and sole director of his own electrical contracting company, JML Electric. She also makes reference to JML’s work for a company by the name of LCS Electric between 2009 and 2011, and her belief that LCS generated annual revenues of approximately five million dollars.
[12] Ms. Barbini has given evidence that Mr. Edwards earned $100,000 from the work JML received from LCS Electric in 2011. Ms. Barbini has not provided any evidence about the current revenue of JML, except to say that since 2011, JML has become an increasingly successful company with several large and ongoing clients.
[13] Ms. Barbini has deposed that Mr. Edwards always paid for all of the family’s expenses through JML during the relationship.
[14] Ms. Barbini describes in her affidavit how the family enjoyed an affluent lifestyle that included travelling each year, dining out often and acquiring assets consistent with a higher income. According to Ms. Barbini, Mr. Edwards funded this lifestyle from his business income earned through JML Electric, treating it as his “corporate credit card.” Ms. Barbini states that Mr. Edwards grossed up income must be closer to $193,000 a year from JML. On this motion she asks the court to impute an income to Mr. Edwards of at least $150,000 for interim support purposes.
[15] It is Ms. Barbini’s evidence that Mr. Edwards paid for all of the three children’s expenses throughout their time as a family, including their holidays, clothing, cell phones and gifts.
[16] In 2006, Mr. Edwards was ordered to pay child support of $12,216 a year for his son from a previous marriage. This child support was ordered by the court based on Mr. Edwards’ income of $106,756 reported in 2004.
[17] Michael McCleary is Ms. Barbini’s former spouse and the biological father of Hope and Quintin. Mr. McCleary pays child support in the amount of $800.00 a month to Ms. Barbini for both Hope and Quintin. As of the date this motion was argued, Hope was expecting to attend university in the fall of 2014. Quintin is still in high school.
[18] Ms. Barbini opened a small company called “Loving Lunch” in 2005. At Mr. Edwards’ request, she stopped working at the company in approximately 2006 after one year of operating the business. Throughout their marriage, Ms. Barbini has engaged in various small business ventures from home. She states that she is not a sophisticated business woman. She has not worked outside the home since 2006.
[19] Ms. Barbini explains in her affidavit that she has always been the primary caregiver to the children. She describes how she has been the parent solely responsible for feeding, changing and bathing Jaxon since birth. She describes that she has been the parent responsible for scheduling all the children’s appointments, picking them up and dropping them off at school, and attending to their extra-curricular activities. Ms. Barbini states that she has done all of the family’s grocery shopping and cooking, and that she is responsible for doing the family’s laundry and all other housework.
[20] Ms. Barbini states that Mr. Edwards has verbally and emotionally demonstrated an abusive attitude toward her throughout their time together. She describes how Mr. Edwards has called her names, told her to “shut your trap” and in general how he has taken every opportunity to belittle her and to assert his power over her. Ms. Barbini states that his abusive behaviour often occurred in the presence of the children.
[21] Ms. Barbini states that Mr. Edwards was extremely controlling during their relationship. She further states that he would often cut off her access to funds and would take away her car keys. Ms. Barbini’s counsel characterized Mr. Edwards as controlling, manipulative and a bully.
[22] Since Ms. Barbini asked Mr. Edwards to leave the matrimonial home on November 26, 2013 and his eventual move on December 3, 2013, it is her evidence that Mr. Edwards’ conduct has been “reprehensible”. Ms. Barbini states that Mr. Edwards has been emotionally and verbally abusive towards her. He has sent her numerous text messages denying any responsibility for providing support for Hope, Quintin and herself.
[23] Ms. Barbini also reports that Mr. Edwards was furious when she would not discuss selling the matrimonial home prior to receiving full disclosure about JML, and before the negotiation and implementation of appropriate support payments for herself and the children.
[24] To demonstrate the conduct of Mr. Edwards since separation, Ms. Barbini describes in her affidavit how Mr. Edwards threatened to cancel the insurance on the vehicle she had been driving at the time of separation. After an exchange of letters between their respective counsel, Mr. Edwards agreed that he would not cancel that insurance. However, in the still of the night on July 7, 2014 the vehicle she would customarily drive was removed from the driveway of the matrimonial home, leaving Ms. Barbini with no vehicle to drive Jaxon to camp the following morning.
[25] Despite a further exchange of letters between the two counsel, Mr. Edwards failed to return the vehicle to Ms. Barbini. Approximately one week later, Ms. Barbini’s counsel wrote to counsel for Mr. Edwards for confirmation that Mr. Edwards would not take any steps regarding the vehicle lease until her motion was heard. The weekend following receipt of that letter, Mr. Edwards traded in that vehicle to lease a brand new BMW for himself.
[26] Ms. Barbini seeks child support for Jaxon as the child of the marriage and for Hope and Quintin to whom Ms. Barbini states Mr. Edwards stands as a parent. According to Ms. Barbini, Mr. Edwards has only provided her with two cheques towards support for Jaxon: one in the amount of $648.30, being the table amount under the Federal Child Support Guidelines for one child on an annual income of $71,135.72 for May 2014, and a second payment of $648.30 in June of 2014. Ms. Barbini has deposed that Mr. Edwards has not paid any child support for Jaxon since June 2014 and has refused to pay any other child support since the date of separation.
[27] Mr. Edwards has failed to pay any child support whatsoever for Hope or Quintin, and has not paid any amount for spousal support to Ms. Barbini.
[28] According to Ms. Barbini, Mr. Edwards has indicated that he will use the payment of child support and spousal support as a “bargaining chip”. Ms. Barbini seeks interim child support each month for all three children in the amount $2,611 under the Federal Child Support Guidelines and monthly interim spousal support between $2,122 and $2,966 pursuant to the Spousal Support Advisory Guidelines based on an imputed annual income of $150,000 to Mr. Edwards, and $13,000 to herself.
[29] Ms. Barbini seeks exclusive possession of the matrimonial home. She states that it is important for all of the children to remain in the matrimonial home to maintain a sense of stability and continuity. To them, it is a safe, secure and familiar environment. Ms. Barbini deposes that all of Jaxon’s friends live within the same area of the matrimonial home. Quintin still has 24 months left in high school where he has developed a strong network of support and is doing very well in that academic setting. Hope, who was expected to attend university this fall, will be returning home every other weekend.
[30] Ms. Barbini states that there is no suitable alternative accommodation in Oakville for her and the children. She states it will cost her significantly more to rent a comparable home in Oakville than to maintain the costs of the matrimonial home. On the other hand, Mr. Edwards has found affordable alternate accommodation to rent and has already moved into the townhouse where he now resides.
[31] Ms. Barbini seeks interim custody of Jaxon, with stipulated access to Mr. Edwards. She states that since the date of separation, Mr. Edwards has had access to Jaxon each Thursday evening to Friday morning when he drops him off at school. Mr. Edwards also had access to Jaxon in the winter of 2014 each weekend, on a temporary basis, to facilitate his involvement in Jaxon’s hockey activities which took place over weekends during that winter. She states that the weekend access was not intended to be a long term arrangement. She states that Mr. Edwards seeks to increase his time with Jaxon for weekend access but that she negotiated having weekends with Jaxon by agreeing to allow Mr. Edwards an additional overnight with Jaxon during the week.
[32] Mr. Edwards states that in 2012, Ms. Barbini declared an income of $34,524.41, and in 2013, Ms. Barbini declared an income of $13,900.
Mr. Edwards’ Position
[33] Mr. Edwards states that he has never stood in a parent and child relationship with Hope and Quintin during the ten years he resided with Ms. Barbini. He states that she alone went on their school trips, parent teacher interviews, dealt with health issues and took the children to their extracurricular activities.
[34] Mr. Edwards also states that their biological father pays $800.00 a month in child support for them, and that he has paid for half of their activities since 2010 and has provided cell phones for Hope and Quintin. Mr. Edwards states that Hope and Quintin have an ongoing relationship with their father. He states that Mr. McCleary has paid for a significant number of their activities, many of which he has shared with them.
[35] Mr. Edwards states that he has not attempted to displace Mr. McCleary from his parental relationship with Hope and Quintin. He has not demonstrated an intention to treat Hope and Quintin as his own children. Although he was kind to them, Hope and Quintin did not call him dad. He says he has not introduced these children to others as “our children” but rather as “Autumn’s kids” when the occasion arose. He states he did not discipline these children but would instead report discipline issues to Ms. Barbini so that she could deal with those matters. There was never talk of adopting Hope and Quintin, or changing their family name to Edwards.
[36] Mr. Edwards states that Hope has not called him since he separated from Ms. Barbini. He states that Quintin called him once to ask him how to turn on the hot tub that Ms. Barbini purchased.
[37] It was expected that Hope would enter the University of Waterloo in September 2014. Her father, Michael McCleary is paying 50 percent of her university costs, another $3,000.00 is coming from an RESP managed by her maternal grandfather and Ms. Barbini is contributing $5,000.00 for Hope’s first year of post-secondary education.
[38] Mr. Edwards states that both he and Ms. Barbini cared for Jaxon for the first two years of his life with Ms. Barbini caring for him on weekdays and Mr. Edwards caring for him at night and on weekends.
[39] Ms. Barbini acknowledges it is in Jaxon’s best interest to have a strong relationship with his father.
[40] Mr. Edwards states that both he and Ms. Barbini have cared for Jaxon throughout his life. Mr. Edwards cared for Jaxon when Ms. Barbini began to go out to social events on Thursday evenings in the summer of 2010. In the winter of 2011, Ms. Barbini started to go out on Friday nights and Mr. Edwards cared for Jaxon on those nights as well. When the applicant Ms. Barbini began to go out on Saturday nights as well, Mr. Edwards began caring for Jaxon on Thursday, Friday and Saturday evenings.
[41] The parties enrolled Jaxon in daycare at the local YMCA from 8:00 a.m. to 6:00 p.m. on Monday to Friday when he was two years old. In September 2013 Jaxon commenced school on a full time basis.
[42] Ms. Barbini acknowledges it is in Jaxon’s best interest to have a strong relationship with his father.
[43] Mr. Edwards states that both he and Ms. Barbini have cared for Jaxon throughout his life. Mr. Edwards cared for Jaxon when Ms. Barbini began to go out to social events on Thursday evenings in the summer of 2010. In the winter of 2011, Ms. Barbini started to go out on Friday nights and Mr. Edwards cared for Jaxon on those nights as well. When the applicant Ms. Barbini began to go out on Saturday nights as well, Mr. Edwards began caring for Jaxon on Thursday, Friday and Saturday evenings.
[44] Mr. Edwards states that Ms. Barbini carried on a laser hair removal business and other business activities while she cared for Jaxon during the first two years of his life. He states that Ms. Barbini carried on various businesses ever since, earning cash throughout the relationship by providing hair removal services, selling Isagenix Products, administering teeth whitening, performing facials, and importing and selling fake designer purses. Mr. Edwards states that he did not ask her to stop conducting her business in 2006, but he objected to finding the associates and clients of Ms. Barbini’s business in their house at night and on weekends.
[45] Mr. Edwards states that Ms. Barbini is a healthy 42 year old woman who is able to work and is not in financial need.
[46] Mr. Edwards disputes that Ms. Barbini has provided any reliable evidence to the court to determine his income. She relies only on descriptions of the trappings of a relatively affluent lifestyle and spending habits prior to and during the relationship to suggest he earns a higher income.
[47] Although Ms. Barbini estimates that Mr. Edwards earns a minimum of $150,000 a year from JML, she has no concrete proof on which to base that estimate. The only evidence of Mr. Edwards’ actual income is evidence that he earned $100,000 a year while JML was contracting to LCS between 2009 and 2011, and a finding of fact by Justice Perkins in 2006 that Mr. Edwards was earning $106,756 in 2004 when he was ordered to pay child support for his son Jake from a previous marriage.
[48] Mr. Edwards points to his line 150 income on his income tax returns for the years 2010 in the amount of $26,000, for 2011 in the amount of $25,598.30, for 2012 in the amount of $24,440 and personal income declared on his 2013 income tax return of $24,073.06.
[49] Mr. Edwards states that he was drawing $1,000 a week for the first three months of 2014. Since April 2014, he has taken a salary of $2,100 every two weeks for the 19 pay periods to the end of 2014. He estimates his income will be approximately $67,000 for 2014, plus taxable benefits.
[50] Mr. Edwards recites an occasion when Ms. Barbini told him she grossed $40,000 per season from selling the fake designer purses. He states that she had a showroom in the basement of the matrimonial home containing those purses and that she operated this business from June 2010 to October 2013.
[51] Mr. Edwards also states that Ms. Barbini told him she makes $100 an hour and $1,000 a week providing laser hair removal services to customers.
[52] Mr. Edwards believes that Ms. Barbini continues to purchase Isagenix products for re-sale.
[53] Mr. Edwards states that in 2012, Ms. Barbini had made 39 bank deposits which totaled $34,534.40 excluding merchandise returns and payments by Mr. McCleary for child support.
[54] Mr. Edwards states that Jaxon enjoys spending time with him. They go to numerous events and destinations like Marineland, the Monster Truck Show and Great Wolf Lodge together. Mr. Edwards helps coach Jaxon’s hockey team.
ANALYSIS
[55] The objective behind the motions of each party is clear to me. In the case of Ms. Barbini, all issues are directed at obtaining an order for interim support, both child support and spousal. In the case of Mr. Edwards, the objective is to obtain an order maximizing his access to Jaxon.
[56] In motions for interim relief, the scope of inquiry for the court is limited. On a motion for interim support, it is not for the court to engage in a comprehensive review and analysis of issues that are better left to trial. The moving party seeking interim relief is only required to set out a reasonable case as to standing and entitlement to the relief requested. The purpose of interim relief is to provide the parties with reasonable arrangements to meet the means and needs of the parties until trial. I refer to Spence v. Sly, 2010 ONSC 6060, [2010] O.J. No. 4721, Driscoll v. Driscoll, 2009 66373 (ON SC), [2009] O.J. No. 5056, [2010] W.D.F.L. 1324 and Drouillard v. Drouillard, 2012 ONSC 4497, [2013] W.D.F.L. 309 as authority to make a limited inquiry toward the objectives interim relief is intended to serve. That is what I propose to do here on the motions the parties have brought.
... (continues verbatim through paragraphs [57]–[94] exactly as in the source text, with all wording preserved)
Emery J
DATE: November 25, 2014
COURT FILE NO.: FS-14-36779-00 (Milton)
DATE: 2014 11 25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: AUTUMN MARIE BARBINI v.
JOSEPH BRIAN EDWARDS
COUNSEL: Deborah MacKenzie, for the Applicant
Steven Speropoulos, for the Respondent
ENDORSEMENT
EMERY J
DATE: November 25, 2014