NEWMARKET COURT FILE NO.: FC-14-46186-00
DATE: 20151015
CORRIGENDA DATE: 20151015
CORRIGENDA DATE: 20151023
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Mikhail Rayzberg Applicant
– and –
Polina Bakhmatch Respondent
Ernst Ashurov, Counsel for the Applicant Respondent, Self-represented
HEARD: September 30, 2015
RULING ON MOTION
(TEXT OF ORIGINAL DECISION HAS BEEN AMENDED – CHANGES APPENDED)
JARVIS J.:
[1] This is a Motion by the respondent mother, to change a temporary Order of Gilmore J. dated October 22, 2014 dealing with custody and child support. Also requested are a restraining Order and one that the applicant be compelled to comply with an earlier disclosure Order. The applicant father opposes the relief sought. There is no cross-motion. For the reasons following only that part of Gilmore J.’s Order dealing with child support will be changed.
[2] A Settlement Conference is scheduled to proceed on December 8, 2015.
Prior Court Orders
[3] The issues raised by the parties have been previously addressed by temporary Orders of this court. On October 24, 2014 Gilmore J. made an Order dealing with, among other things, residency of the parties’ biological daughter (“Diana”) and child support. Lengthy written reasons were given. On November 12, 2014 McGee J. made an access Order that included Diana and her half-sister Alevtina, the respondent’s child from a prior relationship. An Order was also made appointing the Children’s Lawyer (“OCL”) which appointment was accepted, a section 112 Investigation undertaken and a Report filed with the court dated July 23, 2015. That Report recommended sole custody and primary residence of the children in favour of the respondent and defined terms of access to the applicant. A comprehensive Dispute to the OCL Report was filed by the applicant.
[4] On January 28, 2015 Gilmore J. made minor variations to the access Order made by McGee J.
[5] As for changing the temporary support Order of Gilmore J., both parties agree that there has been a material change affecting how Gilmore J. structured the applicant’s support payment obligation, although they disagree how that change impacts support, and its amount.
[6] The applicant argues that he had complied with his disclosure obligations and that no restraining Order is warranted.
Temporary Custody
[7] The respondent relies extensively on the custody recommendation made by the OCL. In essence, she seeks summary judgment in circumstances now, as before noted by Gilmore J., where the evidence of the parties is “diametrically opposed” and (“[i]t is impossible for the court to make a determination related to credibility.” However one may choose to characterize the relief sought by the respondent, the history and evidentiary record in this case in no way satisfy the test for summary judgment as determined by the Supreme Court of Canada in Hryniak v. Mauldin[^1].
[8] The Respondent maintains that she needs sole custody to arrange treatment for Diana’s behavioural issues. These were referenced by Gilmore J. and investigated, and reported, by the OCL. When this Motion was argued, Diana was being counselled by a therapist (Grinev) chosen by the respondent and agreed by the applicant, although the respondent blamed the applicant for delaying the therapist’s engagement. Both parties attend Diana’s counselling sessions on a bi-weekly basis. In response to a direct question from the court the respondent admitted that there has been no deterioration in Diana’s health. Certainly there was no evidence before the court otherwise.
[9] Several observations made by the OCL are pertinent,
“Mr. Rayzberg and Ms. Bakhmatch are unable to communicate in an effective and cooperative way regarding the children…”
“Throughout the course of the investigation, information and evidence was brought forward by both parties that would provide some merit to their respective positions and that negatively impact their ability to work cooperatively…”
…The elements of power and control between the parents has persisted past separation and impacts their ability to effectively co-parent the children. This struggle between them appears to be so pervasive that the parents are unable to make decisions jointly about the children’s needs. The dispute between the parents has and will have a profound impact on the children if the parents do not take immediate steps to address issues individually. It is important that both parents fully understand the impact of domestic violence on children as well as be provided tools to learn about parenting after violence. It is essential for the best interest of the children that both parents interact and address issues in a child-focused manner that is free of their personal opinions regarding the character of the other parent. The parents are currently unable to work and communicate in a cooperative and constructive manner that would promote and support a shared, co-parenting arrangement.”
[10] Despite some issues involving the applicant’s access, he has brought no cross-motion on that issue. No urgency is noted in the OCL’s Report and, as already noted, a Settlement Conference is scheduled to proceed on December 8, 2015. There is no reason in my view to change either of the existing court Orders dealing with custody and access.
Support
[11] Paragraphs 5 and 6 of the temporary child support Order made by Gilmore J. provided as follows:
The Applicant shall continue to pay $800.00 a month, plus the car loan of $502.00 a month, which shall satisfy his child support obligation for two children based on an income of $90,000.00 per annum. This Order is made without prejudice with respect to any adjustments to the Applicant’s income after the receipt of all disclosure, and without prejudice to the Applicant arguing that he does not stand in loco parentis to the child Alevtina.
The Applicant shall pay his proportionate share of Section 7 expenses once the exchange of disclosure is complete, and proper corroborating documentation has been provided by the Respondent for such expenses. This Order is without prejudice to the Applicant’s ability to argue whether or not such expenses are reasonable and/or necessary in the circumstances.
[12] When the Order was made the applicant was already paying the respondent $800 monthly child support and $502 monthly for a loan relating to a jointly-owned automobile in the respondent’s possession. As for section 7 expenses, these were not specified in the Order so, despite his concerns about the choice, reasonableness and proper documenting of those expenses for which the respondent demanded his contribution, the applicant decided to pay $570 monthly beginning in December 2014. This continued to April 2015 after which it appears that a (disputed) $500 payment was made in May 2015.
[13] No further section 7 payments were made by the applicant because in late April 2015 the respondent was involved in an automobile accident, the consequence of which was that the automobile was written off and a $10,319.74 insurance payout made to the respondent representing the net proceeds of the automobile’s residual value after payment of the loan. When, not surprisingly in the circumstances of this case, the parties did not agree how to divide those proceeds, the respondent retained them and, in response, the applicant paid nothing further for section 7 expenses. There is no dispute, though, that apart from the issue about the disputed $500 May payment, the applicant has been paying $1,293 monthly child support based on a $90,000 income. From a purely practical, and enforcement, standpoint it is clear that paragraph 5 of the Order of Gilmore J. must be changed to reflect this change of circumstances.
[14] In her Motion the respondent has claimed, before accounting for the applicant’s contributions and her retention of the automobile insurance proceeds, that the applicant owes her $14,848.53 for section 7 expenses she incurred from October 2014 to August 2015.
[15] There are a number of complications to changing the support Order, other than as already noted:
(a) In October 23, 2014, the day after the Order of Gilmore J. was made, McGee J. made an Order in favour of the respondent requiring Alevtina’s biological father to pay table child support of $385 and $315 monthly for section 7 expenses effective November 1, 2014. What those section 7 expenses include was not specified but it is clear from the expense receipts produced by the respondent in this case, and for which she seeks reimbursement from the applicant, that those expenses include Alevtina. There is no accounting by the respondent in the evidence before this court for the impact of the Order of McGee J. on the section 7 expenses now claimed from the applicant, especially as regards Alevtina;
(b) The section 7 calculations made by the respondent estimated her 2015 income in allocating the parties’ proportional shares. There is considerable dispute between the parties about the respondent’s qualifying support income and the disclosure of her 2015 employment details. The respondent has maintained that “her employment is not [a] condition of Justice Gilmore’s order” and, in any event, no updated Financial Statement or Affidavit dealing with any changes to her last Financial Statement sworn July 11, 2014 was filed by the respondent, contrary to Rule 13 (12.2) of the Family Law Rules;
(c) There is considerable conflict in the evidence not only about what should qualify as a contributory section 7 expense, in addition to those mandated in the legislation, but also the reasonableness of the expense being incurred. The applicant contends that the expenses are excessive relative to the parties’ incomes;
(d) No DivorceMate calculations accompanied the respondent’s Motion and there is no evidence about the tax deductible component (if any) of the private nanny costs that the respondent claims;
(e) It is plainly clear from what continues to be, as Gilmore J. astutely observed, “diametrically opposed affidavits” from the parties, that it is impossible for the court to sift through the mountain of e-mails, allegations and denials, many of which involve credibility issues, to satisfactorily determine what should, in the end, be paid for child support. That is for trial.
[16] There is no cross-motion by the applicant to reduce the amount of child support that he is now paying, even though that request was made in his filed affidavit. He agreed to pay child support before the Order of McGee J. was made and to the extent that, in light of that Order, he may be overpaying child support to the respondent, this is an issue that can be addressed at trial whether as a retroactive adjustment to the table support paid or as a credit toward whatever contributory amount that may be determined as owing for section 7 expenses. The applicant has already paid anywhere between $8,010 to $8,510 on account of those expenses as of August 31, 2015 based on the evidence filed (this includes his half share of the automobile insurance proceeds). Also taken into consideration is the support Order of McGee J. in the respondent’s favour. I am, however, prepared to order that he contribute to certain health care costs as set out later in this Ruling.
Disclosure
[17] The respondent also seeks an Order “compelling the Applicant to follow the Court order to provide full and frank disclosure.” The reference is to an Order of Rogers J. dated September 8, 2014. In particular the respondent alleges the applicant’s breach of paragraphs 1 (e) and (h) of that Order requiring the applicant to provide copies of all credit card applications made by him for three years from and after September 8, 2011 (1 (e)) and complete details (including copies of receipts) of all business expenses claimed by the applicant from and after January 2013 (1 (h)). The respondent also requests, and appends to her Motion, a schedule of 20 additional information requests, some of which duplicate the Order of Rogers J.
[18] Attached as exhibits to the applicant’s Affidavit sworn September 23, 2015 are letters from his counsel to the respondent dated October 9, 2014, January 12, 2015 and September 17, 2015 enclosing financial disclosure and providing, in several instances, detailed explanations about the disclosure. The applicant did not provide copies of his credit card applications but did provide (in his lawyer’s September 17, 2015 letter) authorization for the respondent to herself obtain the applicant’s credit applications to BMW Financial and the Royal Bank, each of which organization the respondent was informed had earlier advised the applicant that the applications could not be found. Also provided were business expense receipts and detailed explanations.
[19] Disclosure in family law cases is critical to a fair and expeditious resolution of a case, and is the responsibility of each party: Roberts v. Roberts[^2]. It must be meaningful and proportionate to the issues pleaded: Kovachis v. Kovachis[^3].
[20] In this case the applicant has provided extensive financial disclosure. No chart co-relating the respondent’s disclosure requests to the disclosure provided was provided by her. That would have been helpful and, in my view, is essential when alleging non-disclosure by a party, particularly where there has already been, as here, extensive disclosure already including some explanation why the disclosure requested is material to the issues in the case.
[21] Even so, the applicant should forthwith take steps to obtain the applications he made for those credit cards that he acknowledges having. Those will be identified below.
[22] One further comment on the issue of disclosure.
[23] The applicant is self-employed as a Software Development Consultant. The issue of his qualifying income for support determination purposes is hotly contested. There is no evidence, and the court is unsure, whether the respondent will tender any third party expert evidence analysing his Guideline income. As McGee J. said in Sharma v. Sunak, 2011 ONSC 7670,
[21] It will be the uncommon case that will not require some level of expert assistance to value income per section 18 of the Federal Child Support Guidelines and a party’s own interests in an incorporated, or unincorporated company.
I echo these comments. Given the expenses of a trial, balancing those against the cost of some kind of expert income analysis, and the risk of adverse inferences being drawn unless the applicant’s qualifying support income is plainly clear, serious consideration should be given by the applicant, or by him and the respondent jointly, to commission expert valuation assistance.
Restraining Order
[24] The respondent seeks an Order restraining the applicant from coming within 500 metres of her residence or anywhere else that the respondent may be known to be, except for child exchange purposes. She claims that she suffers from PTSD as a result of years of physical and mental abuse by the applicant. This is not a new claim: it was referenced in the respondent’s Answer, extensively canvassed by Gilmore J. and repeated in the respondent’s materials filed before Gilmore J. and McGee J. but in none of those court appearances was a restraining Order requested.
[25] In support of her request, the respondent alleges stalking behaviour by the applicant, in particular his inclusion of her Facebook postings about her international travel. To the respondent this “demonstrate[s] and confirm[s] his stalking behaviour” although, contextually, the applicant filed the respondent’s Internet postings as exhibits in response to the respondent’s claim that she was significantly indebted. The source (or sources) of the respondent’s evidence about the applicant being seen in his car or on his bicycle in the vicinity of the respondent’s residence at a time when he would not ordinarily be accessing the children is not disclosed contrary to Family Law Rules 14 (18) and (19). The applicant’s parents reside nearby the respondent’s residence (“in the same neighbourhood” according to the applicant). In an Endorsement made on January 28, 2015 dealing with adjustments to the access Order of McGee J., Gilmore J. noted the respondent’s “somewhat controlling nature.”
[26] I am not prepared, on the evidence, to make a restraining Order.
Disposition
[27] The Settlement Conference is scheduled for December 8, 2015. Voluminous material has already been filed by each of the parties and it is clear that there will be significant challenges to the court then in productively dealing with the outstanding issues. This Ruling will include directions to the parties for that Conference.
[28] Accordingly, an Order shall issue as follows:
(1) The respondent’s Motion for temporary custody is dismissed;
(2) Paragraph 5 of the Order of Gilmore J. dated October 22, 2014 shall be changed to provide that the applicant shall pay to the respondent child support in the amount of $1,293 monthly effective October 1, 2015 based on an income of $90,000 a year, with credit to the applicant for payments made since that date. The balance of that paragraph shall continue to apply;
(3) The applicant shall pay to the respondent as reimbursement for the children’s dental care and eyeglass wear the sum of $1,963.11 effective October 1, 2015 in equal monthly installments of $300 until paid. This is based on the expenses incurred by the respondent as set out in paragraphs 85-87 of her affidavit sworn September 18, 2015 and is calculated, without prejudice to either party’s position about the other’s qualifying support income, as representing 60% of the combined costs;
(4) The parties shall be responsible to pay for their own counselling sessions involving Diana and the therapist Grinev;
(5) Paragraph 6 of the Order of Gilmore J. shall be changed to provide that neither party shall incur a section 7 expense for the children for which they seek a contribution from the other parent without first obtaining the other parent’s consent to the expense, and the sharing of its cost. This Order is without prejudice to each party’s ability to argue whether or not such expenses are reasonable and/or necessary, and the proportionate contributory payment responsibility of each party since they separated. Further direction with respect to these expenses shall be reserved to the Settlement Conference judge;
(6) The respondent’s request for a restraining Order is dismissed;
(7) The applicant shall provide as soon as obtainable copies of his credit card applications to the respondent with respect to the following issuing institutions, namely RBC Visa Business Platinum Avion (ending in #6732); RBC Personal Signature Reward Visa (ending in #9995); RBC Personal Visa Platinum Avion (ending in #7714) if any such application was made; RBC Personal Visa Infinite Avion (ending in #1895); RBC Cashback Mastercard (ending in #0166); Capital One Mastercard (ending in #1092) and American Express Credit Card (ending in #1227). If he is unable to obtain copies of these applications the applicant shall provide to the respondent satisfactory proof that these are unavailable by November 30, 2015;
(8) On or before October 30, 2015 the applicant shall provide the respondent with satisfactory proof of compliance with (7) and shall forthwith upon his receipt of any response provided a copy of that to the respondent;
(9) On or before October 30, 2015 each party shall provide to the other a Disclosure list identifying what disclosure each claims may be outstanding and not already provided by the other party. Each party shall answer that list by November 23, 2015 indicating their position whether that disclosure is outstanding, or relevant, as the case may be and, where it is disputed whether the disclosure has already been provided, identifying when, and the manner by which, that disclosure was provided. This answering list shall be included by each party as a tabbed appendix to their Settlement Conference Brief. In the event there is a dispute whether the disclosure has already been provided, the party to whom the request was made shall bring copies of that disclosure to the Conference. That disclosure is not to be filed though, as part of the Brief;
(10) On or before November 23, 2015 the respondent shall provide to the applicant, and shall later file as an appendix to her Settlement Conference Brief, a current statement from the Director as to the support ordered by McGee J. to be paid by Alevtina’s biological father;
(11) The respondent’s request for an Order compelling the applicant to comply with the Order of Rogers J. dated September 8, 2014 dealing with disclosure is dismissed without prejudice to the respondent to challenge whether the applicant has complied with that Order;
(12) In addition to the prescribed components of the parties’ Settlement Conference Briefs as required by the Family Law Rules and paragraphs (9) and (10) of this Order, the applicant shall file as appendices to his Brief, copies of the OCL Report, his Dispute and this Order;
(13) Each party shall comply with the continuing financial disclosure requirements in the Family Law Rules, specifically Family Law Rules 13 (12) and (13.1) and file copies of those documents as part of their Settlement Conference Brief;
(14) A new SDO shall issue.
[29] If the parties are unable to resolve the issues of the costs of this Motion by October 30, 2015, then each shall submit their submissions as to costs by November 16, 2015 limited to three double-spaced pages, together with copies of any Offers to Settle, Bills of Costs, and Authorities upon which they may be relying.
Justice D.A. Jarvis
Date Released: October 15, 2015
AMENDMENT
Paragraph 28 (3) has been amended to say: The applicant shall pay to the respondent as reimbursement for the children’s dental care…
Paragraph 21 has been amended to say: Even so, the applicant should forthwith take steps to obtain the applications he made for those credit cards that he acknowledges having.
[^1]: 2014 SCC 7, [2014] 1 S.C.R. 87. [^2]: 2015 ONCA 450. [^3]: 2013 ONCA 663.```