COURT FILE NO.: FS-15-19905
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALANA JUNG, Applicant
** - and -**
AMIR JOHNSON, Respondent
BEFORE: Justice S. M. Stevenson
COUNSEL: Harold Niman/Richard Niman, for the Applicant
Grant Gold, for the Respondent
E N D O R S E M E N T
Introduction
1The applicant, Alana Jung (“Ms. Jung”), seeks an order for interim child support in the amount of $50,000 per month retroactive to the date of birth of the parties’ daughter, Amelia Johnson, born September 18, 2013; interim spousal support in the amount of $50,000 per month retroactive to September 18, 2013; interim costs and disbursements in the amount of $75,000 and costs on a full indemnity basis. Counsel for Ms. Jung advised the court that if the relief sought with respect to interim child and spousal support is granted, Ms. Jung is not pursuing interim costs and disbursements.
2The respondent, Amir Johnson (“Mr. Johnson”), is opposed to paying any interim spousal support and is opposed to paying child support in the quantum that is being sought by Ms. Jung. He is also opposed to paying interim costs and disbursements.
3The parties appeared before Quigley J. on July 23, 2015 to argue the terms of an adjournment. The adjournment had been requested by Mr. Johnson in order to permit questioning on issues related to Ms. Jung's spousal and child support claims. On July 26, 2015, Quigley J. granted the adjournment, but also made an order that Mr. Johnson pay Ms. Jung $25,000 per month child support retroactive to October 2014 (the commencement date and not the quantum of support appears to have been agreed to by Mr. Johnson) and ongoing until superseded by further order of the court or on consent.
Background
4Ms. Jung is 25 years of age and Mr. Johnson is 28 years of age. Ms. Jung is presently a student at Humber College while Mr. Johnson is a professional basketball player, having previously played for the Toronto Raptors and recently signed with the Boston Celtics. The parties do not dispute at this stage that Mr. Johnson's income is $12 million USD per year. While full details have not yet been provided, Mr. Johnson deposes that his contract is for one year with a team option for a second year.
5Ms. Jung takes the position that the parties cohabited for a period of approximately 18 months. Mr. Johnson acknowledges that Ms. Jung was his girlfriend at one point, but he denies that the parties resided together. As indicated by Quigley J. in his endorsement, the nature of the relationship between the parties is central to the legal issues between them with respect to spousal support; however, what is not an issue is that the parties had a daughter together, Amelia, who is now two years of age.
Issues
6The following are the issues for determination:
i) What is the appropriate amount of interim child support that should be paid by Mr. Johnson to Ms. Jung and when should the child support payments commence?
ii) Is Ms. Jung entitled to spousal support on an interim basis? If so, what is the appropriate amount of interim spousal support payable and when should the spousal support payments commence?
iii) Should Mr. Johnson pay interim costs and disbursements to Ms. Jung and if so, in what amount?
Issue #1
What is the appropriate amount of interim child support that should be paid by Mr. Johnson to Ms. Jung and when should the child support payments commence?
Ms. Jung’s Position
7Counsel for Ms. Jung submits that Mr. Johnson's ability to pay is not an issue and that Mr. Johnson's current salary in Canadian dollars is approximately $15,713,280. Mr. Johnson is set to receive this salary commencing November 2015. Prior to his current contract with the Boston Celtics, it is acknowledged that Mr. Johnson was earning approximately $6 million USD with the Toronto Raptors along with additional monies earned from endorsements.
8At Mr. Johnson's current income, counsel for Ms. Jung submits that the presumptive amount under the Child Support Guidelines O. Reg. 391/97, as amended (the “Guidelines”) is $116,431 per month. Counsel submits that Ms. Jung is not seeking full table support but rather she is seeking a much reduced monthly amount of child support in the amount of $50,000.
9Ms. Jung is concerned that given the nature of Mr. Johnson's employment, his income will not remain the same for the foreseeable future. Additionally, she is also concerned that he may suffer a career ending injury that would affect any future income. For these reasons, she contends that child support needs to be in a sufficient amount to account for these factors and to save for Amelia’s future.
10Ms. Jung deposes that Mr. Johnson enjoys a lifestyle in stark contrast to the lifestyle she has with Amelia. She contends that Mr. Johnson has owned various luxury high-end vehicles during the course of their relationship and continues to do so. She deposes that he owns properties in Los Angeles, California and Las Vegas, Nevada. She also indicates that Mr. Johnson enjoys luxurious vacations frequently and buys his mother expensive gifts.
11Prior to the order of Quigley J., Ms. Jung contends that she was struggling financially and was not able to pay for all of her expenses given she was not receiving appropriate support from Mr. Johnson. She is presently unemployed and enrolled full-time in college pursuing an Early Childhood Education diploma. She hopes to pursue further studies in university and eventually pursue a career as a teacher.
12She indicates that initially she was not receiving any funds to assist with the professional care of Amelia while she pursued her education. She was eventually able to retain a nanny in September 2014, but she did not require the services of a nanny while she was off from school during the summer months. She contends that she now requires the services of a nanny on an ongoing basis. Ms. Jung indicates that Amelia is enrolled in a Montessori private school program that commenced this fall. She acknowledges that Mr. Johnson paid for Amelia's tuition.
13Ms. Jung deposes that she would like to start saving money for Amelia and she would like to personally save money so that she can provide Amelia with a lifestyle that Amelia would otherwise enjoy with Mr. Johnson. She indicates that she would like to put approximately $40,000 per month away for this purpose which she has included in her child expense budget submitted for this motion.
14Ms. Jung also deposes that she would like to purchase a home in the Greater Toronto Area. She indicates that she would like to purchase a home with a cost in the range of $1 million to $1.5 million which would be similar to the properties owned by Mr. Johnson. She would also like to take Amelia on vacations similar to the vacations she enjoyed with Mr. Johnson while they were in a relationship. She deposes that another reason for her wanting to put funds away for savings is that she wants to provide Amelia with the highest quality education, sports, dance or other type of program that Amelia may be interested in in the future.
15Counsel for Ms. Jung relies on the Supreme Court of Canada decision of Francis v. Baker, 1999 659 (SCC), [1999] S.C.J. No. 52 at para. 52 wherein he contends that the Court emphasized that the sheer size of a child support award based on a payor’s income is not relevant to the inquiry a court should undertake in deciding upon a child support amount. He further relies on the decision of the Ontario Court of Appeal in R. v. R., 2002 41875 (ON CA), [2002] O.J. No. 1095 (C.A.) wherein Laskin J.A. at para. 39 outlines that Francis v. Baker established general principles for determining how much high income earners should pay in child support which includes allowing for reasonable discretionary expenses:
39Against that legislative regime, the Supreme Court's decision in Francis v. Baker provides further guidance in determining how much high income parents should pay in child support. Francis v. Baker established the following general principles:
-- Trial judges have discretion either to increase or decrease the table amount if they consider that amount inappropriate and instead to order an amount that they consider appropriate.
--The table amount, however, is presumed to be the appropriate amount. A parent seeking an order different from the table amount bears the onus of rebutting the presumption in s. 3 of the Guidelines and must do so by "clear and compelling evidence". The sheer size of the table amount is not by itself an "articulable reason" for departing from it.
-- Although the considerations relevant to an appropriate child support order will differ from case to case, the courts must at least have regard to the objectives of the Divorce Act and the Guidelines, and to the factors expressly listed in s. 4(b)(ii) of the Guidelines. The legislative objectives are intended to ensure "that a divorce will affect the children as little as possible" and the factors in s. 4(b)(ii) further that intent by emphasizing "the centrality of the actual situation of the children".
-- Child support should meet a child's reasonable needs. For children of wealthy parents, reasonable needs include reasonable discretionary expenses. A paying parent who claims the table amount is inappropriate must, therefore, demonstrate that budgeted child expenses are so high that they "exceed the generous ambit within which reasonable disagreement is possible", in short that the budgeted expenses are unreasonable. Table amounts that so far exceed a child's reasonable needs that they become a transfer of wealth between the parents or spousal support under the guise of child support will be inappropriate.
16Counsel for Ms. Jung indicates that at para. 40, Laskin J.A. went on to state that “…where the payer’s ability to pay is not in question, a trial judge should focus on the considerations relevant to determining the amount of support required to meet the children’s reasonable needs.”
17Counsel for Ms. Jung also relies upon the Court of Appeal decision of Simon v. Simon, 1999 3818 (ON CA), [1999] O.J. No.4492 (C.A.) in support of Ms. Jung’s position that the court has endorsed, as was done in Simon, a payee’s request to purchase a home for herself and the child. Counsel further submits that in Simon, MacPherson J.A. also indicated that Mr. Simon (a professional hockey player) supporting his child on the basis of less than 10% of his income did not seem unreasonable. In this case, Ms. Jung submits that she only seeks $50,000 per month based on a budget that includes reasonable expenses for Amelia, some discretionary spending, and savings for the future. She further submits that these expenses are entirely reasonable as the amount sought is only 3.81 % of Mr. Johnson’s monthly income.
18Counsel for Ms. Jung provided the court with a number of cases dealing with high income earners to support Ms. Jung’s position that the amount of 3.81% of Mr. Johnson’s monthly income is entirely reasonable. Counsel provided a chart outlining that in the case law provided by Ms. Jung, the range of child support payable is from 7.9% to 14% of a high income payor’s monthly income.
19Despite his submission that Ms. Jung’s child expense budget is entirely reasonable, counsel for Ms. Jung submits that in Francis v. Baker at para. 49, the Court noted the “inherent imprecision” of child expense budgets and that the “unique economic situation of high income earners must be acknowledged. Child expenses which may well be reasonable for the wealthy may too quickly be deemed unreasonable by the courts.”
20Counsel for Ms. Jung also argues that the short duration of Mr. Johnson’s career must also be considered when the Court takes into consideration the need for discretionary spending and savings for Amelia. Ms. Jung submits that there is more of a need for her to start saving now for Amelia’s future given the short window in which Mr. Johnson will be able to earn this significant income.
Mr. Johnson’s Position
21In contrast, Mr. Johnson argues that the amount of child support sought is unreasonable and excessive. Counsel for Mr. Johnson submits that the parties never lived together and there is no pattern of spending with respect to Amelia as the parties’ relationship was over before Amelia was born.
22While agreeing with counsel for Ms. Jung’s submission that budgets are imprecise, counsel for Mr. Johnson contends that even if everything in Ms. Jung’s budget is accepted at this stage (although Mr. Johnson argues many expenses are excessive and “absurd”) save for the $40,000 per month for savings, the total of the monthly child expense budget provided by Ms. Jung is $18,474. Some of that total he argues, includes monthly expenses of $5,000 for rent or a mortgage, $700 for car insurance, $3,000 for vacation, $2,000 for food and $2,000 for Amelia’s activities despite the fact that she is only two years old. Counsel for Mr. Johnson submits that adding up the total monthly expenses of both Amelia and Ms. Jung as presented in the child expense budget results in expenses of just over $27,000. Again, this does not include the $40,000 per month in savings sought by Ms. Jung.
23Counsel for Mr. Johnson submits that Mr. Johnson agrees to pay $28,000 per month pending a determination of the issue at trial. He contends that this amount would cover all of Ms. Jung and Amelia’s expenses until trial and that Amelia’s needs are met. At that point he submits that Mr. Johnson will know the status of his contract and the issues can be fully canvassed at trial. Counsel further submits that any adjustments can be made at trial.
Discussion
24The relevant sections of the Guidelines for the purposes of this motion are sections 3 and 4 which state as follows:
Presumptive rule
- (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7. O. Reg. 391/97, s. 3 (1)….
Incomes over $150,000
- Where the income of the parent or spouse against whom an order for the support of a child is sought is over $150,000, the amount of an order for the support of a child is,
(a) the amount determined under section 3; or
(b) if the court considers that amount to be inappropriate,
(i) in respect of the first $150,000 of the parent’s or spouse’s income, the amount set out in the table for the number of children under the age of majority to whom the order relates,
(ii) in respect of the balance of the parent’s or spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each parent or spouse to contribute to the support of the children, and
(iii) the amount, if any, determined under section 7. O. Reg. 391/97, s. 4.
25There is a presumption in favour of Guidelines table support. As set out in s. 4(b), in the case of a parent or spouse earning an income in excess of $150,000, if the court considers the amount under the Guidelines to be inappropriate, the court may deviate from the strict application of the Guidelines. The court may look at the condition, means, needs and other circumstances of the children entitled to support and the financial ability of each parent or spouse to contribute to the support of the children.
26On this motion, Ms. Jung is not seeking the Guidelines amount of over $116,000 per month. She seeks $50,000 per month. As Ms. Jung is not requesting the table amount of support, for the purposes of this motion, Ms. Jung is conceding that the table amount would be inappropriate.
27In terms of this motion, the most contentious issue appears to be the amount of $40,000 monthly sought by Ms. Jung for savings to afford her the opportunity to buy a home for Amelia in the $1 million to $1.5 million range and to save for Amelia’s future costs when Mr. Johnson may no longer be earning the high income that he is earning now.
28While Mr. Johnson contends that many of Ms. Jung’s expenses for Amelia are excessive and he is not prepared to pay any spousal support because he takes the position that Ms. Jung is not entitled to spousal support, he is willing to cover Amelia’s expenses as set out by Ms. Jung (with the exception of the savings component) until trial. In fact, he is prepared to pay more than that amount of approximately $18,000 in expenses for Amelia as he is prepared to pay $28,000 which counsel for Mr. Johnson contends covers all of Amelia and Ms. Jung’s expenses set out in her budget except for the savings component of $40,000 per month. In contrast, counsel for Ms. Jung submits that Ms. Jung’s budget as set out in her sworn Financial Statement reflects a monthly budget of $83,000.
29Given that Amelia was born after the relationship ended between Ms. Jung and Mr. Johnson, a pattern of spending involving Amelia was never established. The parties have differing views as to the standard of living to which Amelia is entitled. As this is an interim proceeding, issues such as savings for Amelia and how this issue is affected by the length of Mr. Johnson's career, should be fully canvassed at trial. Contrary to the submission of counsel for Ms. Jung, this matter will not be prolonged as the parties have already completed questioning and are working on fulfilling undertakings. I estimate that a trial of this nature would take approximately 5 days. Trial dates of such duration in Toronto are easily available in early to mid-2016 when all of these issues will be addressed.
30I agree that the amount of $28,000 per month is an appropriate amount of child support for Mr. Johnson to pay pending trial. While I acknowledge that Ms. Jung is seeking an amount of child support below the Guidelines and that budgets can be imprecise, at this stage of the proceedings the proposal by Mr. Johnson covers all of Amelia's expenses outlined by Ms. Jung in her child expense budget. I also note that Mr. Johnson is paying for Amelia’s Montessori school fees. Leaving aside the issue of interim spousal support for a moment, the amount of $28,000 monthly proposed by Mr. Johnson on a without prejudice basis pending the resolution of the issues at trial, more than covers the child expense budget for Amelia prepared by Ms. Jung (without the savings component) and allows for an additional approximately $10,000 per month. How Ms. Jung chooses to use these funds for Amelia pending trial will be up to her, but undoubtedly this will be canvassed fully at trial by both parties when the issues of savings and discretionary spending are addressed in determining the appropriate child support quantum. I agree that it is appropriate for this motion, as was ordered by Quigley J., that this amount commence as of October 2014 which was the date agreed to by Mr. Johnson before Quigley J. and the date of the notice of the claim. Additionally, as agreed to by counsel for Ms. Jung, any claim for child support owing prior to October 2014 will be addressed at trial.
Issue #2
Is Ms. Jung entitled to spousal support on an interim basis? If so, what is the appropriate amount of interim spousal support payable and when should the spousal support payments commence?
Ms. Jung’s Position
31Counsel for Ms. Jung contends that initially Mr. Johnson in his Answer did not acknowledge that he was in anything more than a “casual sexual relationship” with Ms. Jung, however, after questioning Mr. Johnson acknowledged that at one point Ms. Jung was his girlfriend. Counsel for Ms. Jung submits that the evidence is overwhelming that the parties cohabited and spousal support of $50,000 per month should be ordered payable by Mr. Johnson.
32Ms. Jung’s evidence is that the parties lived in Mr. Johnson's condominium commencing in the fall of 2012 to the spring of 2013 for approximately 18 months. She contends that she kept clothing and other items at Mr. Johnson's condominium, the couple attended a wedding together (she submits as evidence an envelope addressed to the parties with the address specified as Mr. Johnson's condominium), her sister’s graduation and they travelled together to visit with her father in St. Kitts. Ms. Jung also deposes that she attended Raptors’ home games and on occasion attended an away game. She submits that she had a Raptors Family Pass which Mr. Johnson gave to her. She also deposes that she attended Raptors charity events with other wives and partners of the players and appeared on a television program “Open Gym” involving the Raptors. Ms. Jung points to text messages between her and Mr. Johnson where they discussed the upcoming birth of their child and where Mr. Johnson states that he “wants to flourish with my woman.” She also submits that the parties discussed marriage. Ms. Jung deposes that the parties went on a number of vacations together and she went to meet Mr. Johnson’s father. She contends that she had a key to Mr. Johnson’s condominium and that the parties purchased a puppy together. She indicates that there are numerous photographs of her and Mr. Johnson attending functions together.
33Counsel for Ms. Jung contends that when questioned, Mr. Johnson denied anything that would be harmful to his case. He insisted that Ms. Jung only occasionally slept at his condominium, she did not have a key, and she did not keep any belongings at the condominium. Mr. Johnson contends that Ms. Jung was never present at his condominium alone and she was either in the presence of Mr. Johnson or his personal assistant Mr. Cornelius who resides with him. Counsel for Ms. Jung contends that the Court is obliged to draw an adverse inference given the failure of Mr. Johnson to have his personal assistant Mr. Cornelius swear an affidavit for this motion. He asks that the Court draw an adverse inference that either Mr. Cornelius’ evidence would not assist Mr. Johnson or would be contrary to Mr. Johnson's case. He contends that the evidence would be contrary to Mr. Johnson’s case and that this is the inference the Court is entitled to draw.
34Counsel for Ms. Jung further submits that Mr. Johnson denied that the parties discussed marriage and in fact would not even acknowledge when the text messages mentioned above were shown to him, that the messages were between he and Ms. Jung. He indicates that at Mr. Johnson’s questioning, Mr. Johnson denied giving Ms. Jung the Raptors Family Pass. Counsel for Ms. Jung submits that it is hard to understand if not through Mr. Johnson, how would Ms. Jung have received the Family Pass. Counsel for Ms. Jung outlines that Mr. Johnson denied that he and Ms. Jung purchased a puppy together, he denied that she received mail at his residence, he denied that a photo shown to him of he and Ms. Jung in St. Kitts was in fact in St. Kitts although he did acknowledge that he met Ms. Jung's father while in St. Kitts with her.
35Counsel for Ms. Jung advised the Court that given Mr. Johnson's denial of a number of questions put to him at his questioning, Ms. Jung swore a supplementary affidavit providing her evidence of the questions put to Mr. Johnson. She contends that she is the one being truthful and the parties resided together for 18 months.
36Counsel for Ms. Jung submits that the court is not to conduct an in-depth analysis on an interim basis and Ms. Jung only has to show that she has a prima facie case. He further submits that the Spousal Support Advisory Guidelines (the “SSAGs) provide for a significant amount of monthly spousal support, in excess of $400,000 per month, which Ms. Jung acknowledges is exceptional. Ms. Jung is not seeking this amount as that it is an exceptional amount but she is seeking $50,000 per month for interim spousal support given her need as set out in her sworn Financial Statement.
37Ms. Jung relies on the decision of the Ontario Court of Appeal in M. v. H., 1996 2218 (ON CA), [1996] O.J. No. 4419 (C.A.) aff’d 1999 686 (SCC), [1999] S.C.J. No. 23 at para. 70 with respect to the factors that a court should consider when determining whether the parties have cohabited in a relationship of some permanence. In reference to those factors, Ms. Jung contends that the parties lived in the same residence and slept in the same bed. Ms. Jung indicates that she kept her belongings in Mr. Johnson's bedroom which is disputed by Mr. Johnson. However, counsel for Ms. Jung contends that Mr. Johnson acknowledged that a pink laundry bag in his bedroom was not his laundry bag. Ms. Jung states that she lived in Mr. Johnson’s home and she was not expected to contribute to the expenses of the home. Ms. Jung contends that the parties had sexual relations and Mr. Johnson agreed that Ms. Jung was his only girlfriend at the time. Ms. Jung deposes that the parties discussed marriage, they ate meals together and she cooked for Mr. Johnson. She further contends as indicated that the parties attended functions together, including events at Christmas, a wedding, and her sister’s graduation. She deposes that the parties vacationed together and visited family members. She outlines that Mr. Johnson paid for flights and accommodations when travelling with her. She deposes that he also purchased gifts for her.
Mr. Johnson’s Position
38Counsel for Mr. Johnson submits that there is no evidence resulting from the questioning of the parties which changes the evidence that was before Quigley J. for the court to conclude that the parties were spouses. Counsel contends that the positions of the parties are diametrically opposed. He submits that Mr. Johnson's evidence is that Ms. Jung lived with her mother, he did not provide Ms. Jung with a key to his condominium, she was never alone in his condominium, and she completed no domestic chores for him. He further contends that there was never a mingling of finances between the parties, Ms. Jung never kept her belongings at Mr. Johnson's apartment and Ms. Jung never changed her address on her driver’s licence or any other important documentation. Counsel for Mr. Johnson submits that most importantly, even though Mr. Johnson admits that Ms. Jung was his girlfriend, the evidence is so conflicting with respect to the issue of whether the parties cohabited, it requires that the matter be decided at trial.
39Counsel for Mr. Johnson disputes Ms. Jung's position that an adverse inference must be drawn against Mr. Johnson for his failure to have Mr. Cornelius swear an affidavit. He contends that Mr. Johnson is not obligated at this interim stage to provide an affidavit from Mr. Cornelius and as such, no adverse inference should be drawn.
Discussion
40Pursuant to section 29 of the Family Law Act, R.S.O. 1990, C. F3, “spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.
41Ms. Jung contends that the parties resided in a relationship for approximately 18 months. As such, she is proceeding on the basis that s. 29(a) does not apply. There are two elements to determine if a party is a spouse under s. 29(b). The parties must have cohabited and they must have cohabited in a relationship of some permanence, if they are the natural or adoptive parents of a child.
42The court need not conduct an in-depth analysis at this stage but considering the conflicting evidence before me, I cannot conclude that Ms. Jung has established a prima facie case for spousal support and I decline to order interim spousal support. There is no question that Ms. Jung and Mr. Johnson had a child together. However, the evidence on which Ms. Jung relies to establish that the parties cohabited and were in a relationship of some permanence is disputed by Mr. Johnson. Although the evidence supports that the parties were in a boyfriend-girlfriend relationship as admitted to by Mr. Johnson on his questioning, the record before me, with so much conflicting evidence, does not allow me to determine whether the parties cohabited at all let alone in a relationship of some permanence.
43Much of the evidence on which Ms. Jung relies could also support Mr. Johnson's position that the parties were in a girlfriend-boyfriend relationship but they never resided together. As an example, many couples in a boyfriend-girlfriend relationship attend weddings and family functions together, meet each other’s relatives, travel together and purchase gifts for one another which is some of the evidence relied upon by Ms. Jung. Most of the evidence of Ms. Jung is disputed by Mr. Johnson. The only issues it appears that the parties do agree on is that they were in a boyfriend-girlfriend relationship, they are the parents of Amelia, Amelia was born after the parties had broken up, and for a short period of time Amelia and Ms. Jung resided at Mr. Johnson’s condominium in his second bedroom after the parties had broken up due to mould issues in Ms. Jung’s mother’s home.
44There are credibility issues that cannot be determined on a motion. Mr. Johnson's failure to have Mr. Cornelius provide an affidavit supporting his position at this interim stage does not lead me to conclude that an adverse inference must be drawn against him. I note also that Ms. Jung did not provide any supporting affidavits from her mother or other family members to support her position. Mr. Johnson deposes that Ms. Jung resided with her mother during the period in question and never cohabited with him. No affidavit from Ms. Jung's mother was provided in support of Ms. Jung’s position. Undoubtedly, both parties will require third-party evidence at trial in order to corroborate their evidence. At this stage the court only has highly conflicting affidavit material and conflicting answers at questioning from the parties. A proper assessment of credibility needs to be determined at trial.
Issue #3
Should Mr. Johnson pay interim costs and disbursements to Ms. Jung and if so, in what amount?
45Ms. Jung seeks interim costs and disbursements in the amount of $75,000. It is acknowledged by Ms. Jung that Mr. Johnson previously advanced the sum of $15,000 to assist with her legal costs. Ms. Jung contends that one-half of that amount was returned by her counsel to her given she was not receiving appropriate support from Mr. Johnson.
46Ms. Jung deposes in her affidavit sworn July 10, 2015 that she cannot afford her legal fees but wishes to have her current lawyers continue to represent her. She further deposes that at the time of the swearing of the affidavit, she owed her lawyers approximately $40,000. She indicates that she will require interim costs and disbursements for the next steps in the proceeding including questioning and a settlement conference.
47Counsel for Mr. Johnson contends that Ms. Jung was questioned on September 24, 2015 and acknowledged that her outstanding bill with her lawyer had been paid. Counsel submits that there is no evidence before the Court of any amount of fees or disbursements that Ms. Jung does or will owe to her lawyers. He submits that counsel for Ms. Jung has attempted to put in evidence improperly through his factum wherein counsel for Ms. Jung states that Ms. Jung will owe another $20,000 after the conclusion of this motion. Counsel for Ms. Jung further indicates in his factum that Ms. Jung has not yet decided whether she will be retaining a valuator or other experts for the purposes of determining Mr. Johnson's true income based on his endorsements and other business interests. Counsel for Ms. Jung contends that an order for interim disbursements is necessary to level the playing field between the parties.
48Counsel for Mr. Johnson submits that he questioned Ms. Jung on why she needed to receive back from her lawyers the sum of $7,500 from the $15,000 that was advanced to her by Mr. Johnson to assist with her legal fees. Counsel for Mr. Johnson contends that Mr. Johnson was paying Ms. Jung's rent, car insurance and utilities plus providing her with an additional $5,000 per month at the time. Mr. Johnson had also previously purchased a vehicle for Ms. Jung to assist with Amelia. Counsel submits that Ms. Jung gave an undertaking to provide her bank statements which undertaking remains unanswered.
49Pursuant to Rule 24(12) of the Family Law Rules, O. Reg. 114/99 the court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.
50I am not prepared to grant the order as requested at this time. I agree with counsel for Mr. Johnson that there is no current evidence before the court as to an amount of fees and disbursements owing by Ms. Jung to her lawyers. The only reference to the current situation was put in Ms. Jung's factum but there is no sworn evidence before the court from her or anyone else on her behalf to assist the court with the determination of this issue. This does not preclude Ms. Jung from revisiting this issue in the future, however, on this motion it would not be appropriate to grant the order requested without proper supporting evidence.
Order
51This court orders as follows:
i) commencing October 1, 2014, the respondent, Amir Johnson, shall pay interim child support to the applicant, Alana Jung, in the amount of $28,000 per month for the child Amelia Johnson, born September 18, 2013, pending trial and until further order of the court. This order is without prejudice to either party arguing for a different amount at trial and without prejudice to the applicant arguing at trial that the payments be made retroactive to Amelia’s birth;
ii) the applicant Alana Jung’s claim for interim spousal support is dismissed without prejudice to her proceeding with her claim for spousal support at trial including any retroactive claim;
iii) the applicant Alana Jung’s claim for interim costs and disbursements is dismissed without prejudice to her advancing this claim in the future;
iv) if not already scheduled, the parties shall schedule a Settlement Conference to be held no later than January 31, 2016 before me; and
v) any party seeking costs shall serve and file written costs submissions, no longer than two double-spaced pages along with any Offers to Settle and a Bill of Costs, by November 16, 2015. Any reply submissions, no longer than two double-spaced pages, shall be served and filed by November 30, 2015.
Stevenson, J.
DATE: October 30, 2015
