SUPERIOR COURT FILE NO.: FS-13-388250-00
DATE: 20151020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Catherine Elizabeth Politis
Applicant
– and –
Themistocles Politis
Respondent
Herschel Fogelman and Erin Chaiton-Murray, for the Applicant
R. Avery Zeidman, for the Respondent
HEARD: July 28, 2015
Harvison Young J.
[1] The applicant wife, Catherine Politis, seeks an order for interim spousal support from the respondent Themistocles Politis as well as an order for an advance to fund her litigation expenses. The husband seeks an advance of $25,000 on account of legal and accounting costs. His notice of motion also seeks “full and complete financial disclosure by the applicant within 30 days, including without limitation for disclosure from the applicant’s common law spouse Andrew Burleigh”.
[2] Mr. and Ms. Politis separated in 2008 after a 25 year marriage. They are both presently 56 years old. Their three children are now adults ranging in age between 22 and 30 and are not entirely independent. It is common ground that since the separation, Mr. Politis has paid various and significant amounts to or on behalf of Ms. Politis and the children, although the quantum of such amounts is not agreed upon. There has not, however, been any agreement or court order in relation to spousal support. While Mr. Politis has not been entitled to deduct any of these amounts paid, it appears that the parties continued to split income as they had in the course of the marriage after their separation in 2008. However, when Ms. Politis did not declare any such income for the 2012 taxation year, Mr. Politis, who was accordingly required to declare that income himself, stopped making payments to her, which triggered the events leading to this motion.
[3] There is no dispute that Ms. Politis is cohabiting with her partner, Andrew Burleigh, although the parties do not agree when Ms. Politis and Mr. Burleigh began to live together.
[4] There are three grounds of relief sought in the motions before the court:
a. Interim spousal support;
b. An advance for litigation costs sought by both parties;
c. the husband’s claim for disclosure by the wife.
[5] I will address these in turn.
The Wife’s Claim for Interim Support
[6] The issues of entitlement and quantum are both at play in this motion for interim support.
[7] Ms. Politis submits that given the length of the marriage, and the fact that she was out of the workforce for a long period of time and raised three children, there is no way that she could make up for that disadvantage. She also submits that her diagnosis with Lyme Disease in 2012 has exacerbated her challenges in reentering the workforce. Moreover, she swears that she has been depleting capital and has no income. While she acknowledges that she has been cohabiting with Mr. Burleigh since 2009 and that he contributes his disability pension of about $5205 per month to her support as well as some amounts taken from his savings, she states that he is suffering from cancer and disputes Mr. Politis’s assertion that Mr. Burleigh has income in excess of $500,000 per year.
[8] Mr. Politis disputes the applicant’s entitlement to support, claiming that although the marriage was traditional “at times”,
the wife worked during the marriage when she wanted to, including operating a business as recently as 2004. The wife is able to work and is intentionally under-employing herself. She also receives support from Mr. Burleigh…. The wife is overstating the husband’s income and attempting to circumvent completion of a joint expert’s report on income by wrongly alleging the husband has delayed the process when the expert admitted he has not.
[9] The central factual issue between the parties has been the determination of Mr. Politis’s income. He is a civil engineer whose income is earned through his professional corporation. A joint expert, Ms. Glazman, was appointed in 2013 to prepare a report as to his income for the years 2008 and 2013. The report has still not been produced. Each party claims that this is due to the delinquency of the other party in providing information required by Ms. Glazman. Mr. Fogelman for the applicant submits that the motion was not brought earlier because it was anticipated that the expert report would be quickly completed and the matter would be settled on that basis. I will return to this below, but the record confirms that the matter, regrettably, has been plagued with disclosure issues that have prevented a timely completion of the report.
[10] Ms. Politis claims $8,506 per month based on the husband’s income for support purposes which she submits to be $200,500 per annum. She arrives at this amount by taking his $185,000 line 150 2014 income plus $15,500, which latter amount is comprised of approximately 20% of the $90,000 in expenses that Mr. Politis ran through his business in 2013.
[11] In response, Mr. Politis disputes the basis for all these claims. First, he disputes her entitlement to spousal support, claiming that she worked during the marriage and earned income from running her own business such that no disadvantage was caused by the marriage. Second, Mr. Politis takes issue with the applicant’s position as to his current income, submitting that it should be based on a three-year average, partly on the basis that his doctor has ordered him to slow down. Finally, he submits that she has not demonstrated need for the purpose of this application, particularly in light of the means and contribution of her current partner to her support.
Issues
[12] There are, then, three main issues to be considered in this motion for interim support which will be considered in turn:
a. Has the applicant demonstrated an entitlement to spousal support?
b. If so, what is the husband’s income for support purposes?
c. What quantum of support should be payable to the applicant as interim support, particularly in light of her current partner’s means and contribution to her support?
Applicable Principles
[13] The starting point for a consideration of the principles to be applied is s. 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). The portions most pertinent to this application provide as follows:
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
15.2 (2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).
15.2(4) Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
15.2(6) Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[14] At the outset, it is important to underline the principles applicable to an interim motion for support. As the respondent submitted, these principles are set out clearly in the case of Driscoll v. Driscoll, 2009 66373, at para. 14, and are not in dispute. That case cites an earlier decision, Robles v. Kuhn, 2009 BCSC 1163, which set out the principles in useful summary form as follows:
- On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;
- An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;
- On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;
- The courts should not unduly emphasize any one of the statutory considerations above others;
- On interim applications the need to achieve economic self-sufficiency is often of less significance;
- Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
- Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;
- Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.
(continues verbatim in the same structure through paragraph [68])
Harvison Young J.
Released: October 20, 2015
COURT FILE NO.: FS-13-388250-00
DATE: 20151020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Catherine Elizabeth Politis
Applicant
– and –
Themistocles Politis
Respondent
Harvison Young J.
Released: October 20, 2015