SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-15-19905

DATE: 20150726

RE: ALANA JUNG v. AMIR JOHNSON

BEFORE: Michael G. Quigley J.

COUNSEL:
Harold Niman and Richard Niman, for the Applicant

Grant Gold, for the Respondent

HEARD: July 23, 2015

E N D O R S E M E N T

[1] The applicant is 25 years of age and a student at Humber College studying Early Childhood Education. She plans to pursue a university education and to attend Teachers College for the next five years.

[2] The respondent is a professional basketball player who played for the Toronto Raptors Basketball Club until he recently signed a new contract with another team, the Boston Celtic’s. He is 28 years of age. He was born and raised in California.

[3] The applicant claims that she and the respondent were in a romantic relationship and cohabited over the course of a period of approximately a year and a half. The respondent replies in his Answer that their relationship was at best a “casual sexual relationship” and that they were “not in a committed relationship at any time.”

[4] Plainly, the nature of the relationship that they were engaged in is central to the legal issues between these parties, but what is not in issue is that their relationship, whatever it’s nature, produced a child who was born on September 18, 2013; a baby girl named Amelia. The respondent is Amelia’s father and the applicant is her mother.

[5] The motion brought by the applicant is for an order for interim child-support pursuant to the Federal Child Support Guidelines. The applicant claims that she is completely dependent on the respondent from a financial perspective and that she has been the sole caregiver to Amelia. She seeks (i) child support of $50,000 per month retroactive to Amelia’s date of birth, (ii) retroactive and interim spousal support payable pursuant to the Family Law Act, also in the amount of $50,000 per month, (iii) an order that the respondent pay interim costs and disbursements in the amount of $75,000 under section 24(12) of the Family Law Rules, and finally, (iv) her costs of this motion on a full indemnity basis.

[6] The respondent seeks a contested adjournment of that motion. While acknowledging that he is Amelia’s father, and that the applicant is her mother, the respondent asserts that he and the applicant are not spouses within the meaning of the Family Law Act. He claims that they did not at any time cohabit in a relationship of some permanence, and claims to owe her no spousal support.

[7] Consequently, the respondent seeks an adjournment of this motion for a relatively brief period of time, in order to permit questioning on what he says are the two key issues relative to her support claims: (i) the applicant’s childcare budget, and (ii), the issue of whether the applicant and the respondent were “spouses” within the meaning of the Family Law Act.

[8] Counsel for the applicant vigorously opposed the granting of that adjournment on that basis.

[9] However, insofar as the applicant claims a very sizeable amount of spousal support it is obviously relevant to have evidence available when the motion is heard to inform the question and permit a finding on whether or not the applicant and the respondent were actually spouses within the meaning of the Family Law Act. It is needed to determine whether they spent time cohabiting in a relationship of some permanence.

[10] Further, counsel for the respondent insists that questioning is required in order to probe the applicant for information relative to her proposed budget. As indicated at paragraph 12 of the applicant’s affidavit filed on the motion, her proposed budget is approximately $84,000 per month, which yields an aggregate of yearly expenses in excess of $1,000,000. Plainly, this is a significant amount of money.

[11] Equally plainly, however, the respondent is earning a very significant income. The respondent’s salary with the Toronto Raptors was approximately $6,000,000 in U.S. currency. That amounts to a salary of roughly between $7,000,000-$8,000,000 in Canadian dollars based on rates of exchange over the past 6 months. However, his contract with the Raptors ended in April 2015, and he has not been paid since that time.

[12] Nevertheless, one need not worry that he will be impoverished now with the end of that contract, because he has signed a new contract with the Boston Celtics Basketball Club. Under his new deal, he will be earning double that amount, $12,000,000 U.S. with that salary guarantee existing for one year. Based on current rates of exchange, this means that Mr. Johnson will earn an income in the vicinity of $14,400,000 over the next 12 months. He will begin receiving income under that new contract commencing in November 2015 when the next basketball season commences.

[13] Since it is undisputed between the parties that Amelia is the child of the respondent, Amir Johnson will plainly have an obligation to provide for her by paying child support for so long as she continues to be financially dependent upon him.

[14] That leads to the core of the argument today, and the central issue that I am deciding under this Endorsement. As indicated, I am satisfied that the adjournment is necessary to permit questioning under Rule 20, regardless of whether Mesbur J. specifically mentioned it in her very brief endorsement following the case conference, and her granting the parties permission to bring motions.

[15] The issue is on what financial terms will the adjournment be permitted recognizing that the delay occasioned by the questioning prevents the motion from being heard until mid-October 2015, and so a determination of support entitlements is also at least three months away?

[16] Based upon alleged income for child support purposes of $15,633,599.50, counsel for the applicant claims that Mr. Johnson would be presumptively obliged to pay child-support of $113,000 per month, that is, $1,356,000 per year in child support.

[17] That may not be entirely accurate, apart from it being presumptive, because at such elevated income levels, other factors also come to bear. However, in any event, Mr. Niman does not claim that amount, either in his motion materials or as a term for the adjournment being granted.

[18] What he does say, however, is that at least $50,000 per month should be payable, namely less than half of what he says would otherwise be the presumptive child support amount, and that it should be payable retroactive to the date of birth or the date upon which the applicant gave notice of her claim. It should be ordered payable on an interim without prejudice basis as the “cost” to the respondent or the “term,” if you will, simply for an adjournment being granted to permit questioning to take place.

[19] Mr. Gold, counsel to the respondent, also offers a significant amount of child support as a “term” of the adjournment that he requests, but there is a very significant gap between his position and that of counsel for the applicant.

[20] He notes that Mr. Johnson has been paying monthly child support for some time estimated to be $8,622 per month. That consists of cash of $5,000, rent of $2,500 per month, car insurance for the applicant of $445, cable and internet costs of $550, and payment of the applicant’s utilities. In addition, the respondent has paid at least $69,000 on account of other amounts that were due for school, as deposits on properties, to purchase vehicles, by way of an advance for interim disbursements, or for various other sums that were allegedly claimed by the applicant from time to time from September 2013 until September 2014.

[21] However, he excludes these amounts from the calculus for the purposes of determining what the correct amount of child support should be that should now be payable as a condition for the granting of the adjournment, recognizing that the motion itself is not being heard today but will be deferred until a long motion date on October 13.

[22] So in total, counsel for Mr. Johnson offers that he will immediately begin paying child support in the amount of $15,000 per month, retroactive to the October 14, 2014 date upon which the applicant commenced her claim, less $85,000 which has allegedly already been paid by Mr. Johnson.

[23] This would result in a payment for retroactive child support of $65,000 plus an aggregate of $45,000 for the next three months leading up to the motion return date, thus totaling $110,000.

[24] So the question against these competing positions is what is the appropriate amount of child support that this court ought to order on an interim without prejudice basis to be paid retroactively to at least the October 14, 2014 claim commencement date and forward to the return date for the motion, merely as a term of the granting of the adjournment?

[25] Essentially, Mr. Niman argued the motion anyway, and his position is that the court should simply order that the amount of child support that he seeks under the motion itself should immediately be payable. This position is founded upon his claim that the applicant’s child support claim is graciously being discounted to, as he says, only 50% of the presumptive child support in the amount of $113,000 per month that would otherwise be payable by Mr. Johnson given his financial circumstances. He refers extensively to case law in support of his position, but that is case law relating to the fixing of the amount of support on evidence, not what might be ordered as a term on an adjournment.

[26] Although counsel for the applicant claims that there is no up-to-date financial statement that has been provided by the respondent, I accept the explanation of counsel for the respondent that there is nothing new to provide or to tell at this point, where Mr. Johnson is in between contractual arrangements, having completed his contract with the Toronto Raptors, but not having yet commenced his contract with the Boston Celtic’s. Consequently, I do not find any particular fault with him for that, although I would observe that he will be required to file an updated financial statement in advance of the October 13, 2015 return date for this motion.

[27] The applicant’s counsel argues that the child, Amelia, is two years old, that the applicant is a single-parent mother, and that Amir Johnson is not around much to see Amelia. He says that the case law, and in particular Justice Laskin’s decision in R. v. R.[^1], following the decision of the Supreme Court of Canada in Francis v. Baker[^2], explains that in circumstances where the Court is faced with a support payer with income levels of the kind that are present here, there are several principles that must necessarily come into play.

[28] First, it is accepted that the mere magnitude of the income of the payer does not serve as a detriment to child support being payable in accordance with what otherwise might be the appropriate amount determined presumptively under the Child Support Guidelines. In the R. v. R. case, Laskin J.A. recognized that a very significant amount of child support is appropriate to be paid in order to address issues of significant discretionary spending that are different in the circumstances of individuals who live in the affluence of a large amount of income, and also of considerable importance here, in order to permit future savings for the children while the income amounts are available.[^3]

[29] The respondent claims that a payment of $15,000 per month simply does not meet the case law requirements. Moreover, in the circumstances of a professional basketball player, it seems obvious, as Mr. Niman emphasized, that the earning curve for such significant amounts of income will not be forever, but only for the period of years during which his body is supple and powerful enough to permit Mr. Johnson to continue to play professional basketball and command an income in this stratosphere.

[30] As a result, if an appropriate award of child support is not granted at this particular time, then the applicant’s counsel fears that the child will be deprived of the ability to live in the same kind of circumstances as the support-paying parent, when she has an entitlement to do so. It also allegedly exposes her to the risk of having no support in future if the support-paying parent does not carefully, and accurately, manage monies that he is now earning. He needs to do that to ensure that he has the assets in future, not only for his own benefit, but also to pay for the benefit of his child, Amelia, and potentially to pay spousal support to the applicant, if it is determined that they were in a relationship of some permanence, and thus that she was a spouse.

[31] Counsel observes that in Simon v. Simon[^4], where the child was a five-year-old, the Court of Appeal accepted that child support that amounted to 7.9% of the support payer’s income, an individual who was a professional hockey player, was totally appropriate. In contrast, in this case, the applicant is asking for an amount that totals only 3.93% of the estimated income that Mr. Johnson will earn currently and over the next year.

[32] Moreover, the applicant’s counsel submits that the case law is plain that in circumstances like this where there are very significant amounts of income at play, the courts should err on the side of being generous. As such, he claims $50,000 per month retroactive to October 1, 2014, less the amounts that have already been paid. This would also include support in that amount being payable for three months going forward until the motion return day. Based on my rough calculation, that amounts to a total of just over half a million dollars, about $515,000.

[33] The problem with this approach, the respondent’s counsel states, is that Mr. Niman’s adjournment terms would effectively decide the motion for child support at this time, before it is heard, rather than on the return date in October. However, he claims he cannot know what the proper amount of Guideline-based child support is that would properly be payable until such time as the questioning has taken place and until he has probed into the budget elements that comprise the applicants alleged budget of some $84,000 per month.

[34] Moreover, he claims that the amount he has offered to pay amounts to more than two times what the applicant presently claims she now needs to live on, that the period of time of the adjournment is only three months, and thus that there is no pressing need to determine that an amount of child support be payable now, and retroactively, in the amount claimed by counsel for the applicant. Further, he notes that at least in the R v. R. case, the support amount was awarded after trial with cross-examination on all the evidence and thus in an equivalent manner conceptually, such an amount should not be awarded here on an adjournment until the questioning has taken place.

[35] Finally, the respondent’s counsel rejects the notion that Mr. Johnson has in any way ignored the needs of the child. He claims that Mr. Johnson has met all of the expenses claimed to date by the applicant, and under his proposed term for the adjournment being granted, would be paying double that amount.

[36] It may well be that the respondent will be ordered to pay $50,000 per month as a reasonable amount of child support in the circumstances of this case on the October 14 motion return date. Indeed, given the presumptive child support amount of $113,000 based on Mr. Johnson’s income, the support awarded could conceivably be higher, absorbing a larger percentage of his income than 3.93% claimed. But to suggest to me that I ought to order that amount to be payable now and retroactively, prior to the hearing of the motion, and without evidence that has been tested and which is relevant to that motion, is overreaching and premature in my view.

[37] It has nothing to do with the correctness of the legal position that counsel for the applicant claims will be applied to determine the ultimate amount of child support that may be payable by the respondent for Amelia. It is not that the position may not prove to be compelling when that substantive issue is determined. It is rather that it is premature and unnecessary to effectively determine now as an adjournment term exactly what it is that will account for at least half of the focus of the applicant’s motion on the motion return date. No doubt, if I were to make that order now, on the motion return date, only the spousal support issue would remain to be determined, because I would have determined the amount of child support now, when the respondent’s counsel is merely arguing adjournment terms rather than the suitability of any particular amount of child support in these circumstances.

[38] In my view, it is inappropriate to order that quantum of support to be paid:

(i) in the context of simply determining a reasonable term to impose for an adjournment of only three months, an adjournment granted to ensure a full evidentiary record is present to permit argument to be made about should be the full amount of child support that should be payable, prospectively and retroactively; and

(ii) when there has been very substantial child support and other support paid to date, and when there is no denial or resistance of the obligation to provide and pay child support, or indeed spousal support, as it may ultimately be determined by the court.

[39] On the other hand, there are several reasons why the suggested financial terms offered by the respondent are also inadequate and inappropriate, in my view, in the context of what ought to be the financial cost for the adjournment.

[40] The reality is that there is a reasonable likelihood of the applicant succeeding to have an amount of child support ordered payable in favour of Amelia, in amounts that are of the magnitude claimed by the applicant. However, there are other factors that should require the amount offered by the respondent to be increased and to make the respondent start to understand the direction that this case will likely be headed in. These include:

(i) that steps should be taken to start to bring the financial circumstances in which Amelia will be raised up in the direction of the financial circumstances of her father, and start to permit her to enjoy a lifestyle that is consistent with what she would enjoy if she was living with the respondent or if the parents were co-habiting;

(ii) that the applicant should not be in a position where she is struggling financially, as she claims she presently is;

(iii) that there should not be as broad a chasm of disparity in economic circumstances as there is at present; and

(iv) that in circumstances like these, the applicant’s counsel should not be financing her litigation. It is understood, without making any finding on same, that the applicant’s counsel may have needed to actually return some of her retainer amount because she was short of monies for day-to-day living.

[41] I realize these factors will be taken into account by the motions judge in determining the appropriate amount of support, but the pending reality should be brought home to Mr. Johnson through the terms of this adjournment order.

[42] Accordingly, I have determined that the applicant should receive not only the amounts proposed by counsel for the respondent, but in addition an amount to assist her until the motion return date and for the balance of the year in defraying her living costs, her litigation costs, and permitting Amelia’s circumstances to be improved, assuming a decision on the motion is not reached immediately.

[43] Mr. Johnson will pay Ms. Jung $25,000 per month retroactive to the October, 2014 claim commencement, and forward beyond the motion return date to December 31, 2015, or until superseded by further order of the court or on consent. This will result in Mr. Johnson forthwith making a payment to Ms. Jung on account of child support in the amount of $165,000 ($250,000 less $85,000) retroactive to the beginning of October 2014, and $25,000 per month for the next 3 months until the long motion date motion, totals to $240,000.

[44] Since success relative to the terms of the adjournment was obviously divided, and since neither party achieved the terms for the adjournment that they wished to, each part will bear their own costs for the appearance on July 23, 2015.

Michael G. Quigley J.

Released: July 26, 2015

[^1]: 2002 41875 (ON CA), [2002] O.J. No. 1095 (C.A.).

[^2]: 1999 659 (SCC), [1999] S.C.J. No. 52 at para 52.

[^3]: R. v. R., above, at paras. 39-40.

[^4]: 1999 3818 (ON CA), [1999] O.J. No 4492 (C.A.) at paras. 25 and 29-32.