SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

COURT FILE NO.: FC-12-42147-00

DATE: 20151007

RE: Florentina Iofcea, Applicant

-and-

Valentin Nicolae Dinoiu, Respondent

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL:
John P. Schuman, for the Applicant

Rob Y. Moubarak, for the Respondent

HEARD: September 29, 2015

ENDORSEMENT

Introduction

[1] The applicant mother brought this motion to require the respondent father to increase the level of child support for her son and to provide spousal support. On June 12, 2015, on consent, Justice Kaufman scheduled this motion for September 29, 2015. The parties also agreed to a schedule for the exchange of motion materials and factums which became part of Justice Kaufman’s order. The applicant has complied with this schedule and is ready to proceed with the motion today. The respondent has been unable to obtain his expert report in time for today’s motion and is requesting an adjournment. On September 29, 2015, I heard the submissions of counsel with respect to the requested adjournment and I agreed that the motion should be adjourned to January 21, 2016 (for a full day) to permit the respondent to complete his expert report, which he now expects to receive by the end of October, 2015. I also indicated that I would impose terms as a condition of the adjournment and reserved on the terms in order to consider the voluminous material provided by the parties. These reasons set out the terms I have imposed with respect to the adjournment.

Background

[2] The parties began cohabiting in 1996 or 1998 (there is a dispute in the material before me) and separated in April 2012. They were never married. They have one son, born April 23, 2002.

[3] The respondent (pursuant to a consent order dated June 2, 2013) is currently required to pay $4,000 per month. This payment is intended to cover child support, Child Support Guidelines (CSG) s.7 expenses, 50% of the mortgage on the family home and 50% of property taxes. The respondent reported an income of $187,000 on his last financial statement.

[4] The applicant takes the position that the respondent has underestimated his income by failing to include income from corporate interests. To support her claim she retained KPMG to provide a forensic audit of the respondent’s corporate income. The KPMG Report (the “Report”) was completed on June 5, 2015 and provided to the respondent on that same day. The Report concludes that the respondent’s total income for the purposes of s.16 of the CSG was as follows:

(a) 2009 - $220,686

(b) 2010 - $272,014

(c) 2011 - $446,306

(d) 2012 - $291,195

(e) 2013 - $400,560

(f) 2014 - $431,828

[5] Based on this Report, the applicant is seeking a temporary order that child support be fixed at $3,349 per month, s.7 expenses of $1,878 per month, retroactive child support of $13,063.17, retroactive s.7 expenses of $62,577.06 (which relate primarily to private school tuition), spousal support of $10,308 per month, and retroactive spousal support of $331,503.42.

[6] The parties participated in a case conference before Justice Kaufman on June 12, 2015 to deal with the applicant’s proposed motion. As indicated, a copy of the Report was provided to the respondent’s counsel before this case conference. At that case conference counsel for the respondent agreed to a long (half day) motion date of September 29, 2015 and agreed to a detailed schedule for the exchange of motion material, which included a requirement that the respondent provide his valuation report by September 1, 2015 and responding motion material by September 15, 2015.

[7] The respondent did retain a forensic accountant in the first week of July, 2015. That accountant has indicated that he will not have his report completed until the end of October, 2015, but has provided a “Limited Critique Report” in an affidavit sworn on September 11, 2015. The respondent claims that his material has also been delayed because, soon after agreeing to the schedule, he had to go to Romania for three months to attend to his sick father. I am, frankly, sceptical with regard to this latter excuse. In this age of instant communication, there is no reason why the accountant could not complete the responding valuation report even with the respondent in Romania. Be that as it may, the respondent’s counsel now takes the position that the schedule he agreed to in June was overly optimistic and it would be unfair to proceed without a responding valuation.

[8] I am prepared to accept the respondent’s counsel’s explanation for this delay. I understand that sometimes expert reports take longer than expected and I agree that the respondent should have an opportunity to file a responding report. Given that the respondent retained an expert in July, he has made good faith efforts to comply with the schedule. That being said, the delay in hearing the motion is exclusively to the benefit of the respondent, and it would be unfair to the applicant, who has complied with the timelines in the agreed schedule, to adjourn the motion without some terms to ensure that she is not prejudiced by the delay.

[9] The applicant has requested, as a condition of the adjournment, that she be provided with the monthly child support, s.7 expenses and spousal support claimed in her motion, on a temporary and without prejudice basis, pending the resolution of this motion. Her calculations are premised on the attribution of $431,828 income to the respondent and the high end of the Spousal Support Advisory Guidelines (SSAG). This figure represents the 2014 income proposed in the KPMG Report. While this may prove to be the correct figure, for the purposes of a temporary order as a condition of an adjournment, I believe that a more conservative estimate is appropriate.

[10] Accordingly, I will base my temporary, without prejudice order on the average income set out in the KPMG Report, which is approximately $343,000, and spousal support at the low end of the SSAG. Based on those numbers, the CSG is $2,691 per month and the SSAG is $5,844 per month, for a total of $8,535. For the purposes of this temporary, without prejudice motion I will round it down to $8,000 per month, which is $4,000 per month more than the respondent is currently paying. These payments will commence on October 30, 2015 and will continue until the court issues its ruling on the motion of January 21, 2016, unless the court hearing that motion orders otherwise. This order is made on a without prejudice basis. If the court hearing the motion on January 21, 2016 dismisses the motion or decides on a lower amount, any surplus paid by the respondent will be set off against amounts owed by the respondent, first from retroactive payments, if any, next from future payments.

Orders

[11] This court orders that:

(a) This motion is adjourned to one full day on January 21, 2016;

(b) The case conference scheduled for October 8, 2015 is vacated;

(c) A settlement conference is scheduled for January 5, 2016 at 9:30 a.m.;

(d) As a condition of granting the adjournment requested by the respondent, the respondent will pay to the applicant a total of $8,000 per month commencing October 30, 2015;

(e) This payment will continue until the court issues its ruling on the motion of January 21, 2016, unless the court hearing that motion orders otherwise;

(f) Support deduction order to issue;

(g) This order is made on a without prejudice basis. If the court hearing the motion on January 21, 2016 dismisses the motion or decides on a lower amount, any surplus paid by the respondent will be set off against amounts owed by the respondent, first from retroactive payments, if any, next from future payments; and,

(h) If the parties cannot agree to the costs for today’s adjournment, they may make submissions in writing. The applicant’s submissions (maximum three pages) are due fifteen days from the release date of this endorsement and the respondent’s submissions are due ten days after he receives the applicant’s submissions.

Justice R.E. Charney

Released: October 7, 2015