Superior Court of Justice - Ontario
CITATION: Santos v. Pantelidis, 2016 ONSC 1804
COURT FILE NO.: FS-15-401573
DATE: 20160314
RE: Debbie Santos, Applicant
AND: Jean-Philippe Pantelidis, Respondent
BEFORE: Kiteley J.
COUNSEL: Not appearing David Anthony, for the Respondent
HEARD: March 10, 2016
ENDORSEMENT ON MOTION
[1] In an endorsement dated January 7, 2016 [2016 ONSC 164] I struck the Application on all issues except custody and access and ordered that the Applicant was not entitled to notice of any further proceedings with respect to issues other than custody and access.
[2] Counsel for the Respondent has brought this motion in which he asks for an order pursuant to s. 20(6) of the Family Law Act, cancelling the matrimonial designation registered by the Applicant against title to the Respondent’s property. Since the Applicant has no right to participate in the disposition of the property issues, I am satisfied that the latter request is appropriate. Counsel did not provide a draft order. I have incorporated the request made in the notice of motion but I expect that counsel will require a formal order directing the Registrar of Land Titles to comply and if so, counsel may forward that draft order to my attention.
[3] The notice of motion also includes a request for an order terminating spousal support retro-active to January 7, 2016. Counsel relied on the reasons for decision by Mullin J. in Kumar v Kumar [2013 ONSC 4014] in which the court terminated the spousal support obligation because the Applicant’s pleading had been dismissed and consequently, her claim for spousal support was not before the court.
[4] I take a different approach. The order that I made was pursuant to rule 1(8) of the Family Law Rules. Pursuant to rule 1(8.4) I directed that she was not entitled to notice or to participate in respect of issues other than custody and access. I did not dismiss the claim she had asserted for spousal support. While the Applicant is not permitted to pursue it, her claim for spousal support is before the court and there is a consent order with respect to temporary spousal support dated May 22, 2015 which is within the jurisdiction of the court to vary. Accordingly I have discretion whether to vary the temporary order, including whether to terminate it, and I required submissions from counsel on those questions.
[5] The Applicant and Respondent lived together from May 2012. Their son was born on July 1, 2013. They married on October 20, 2013 and separated on January 9, 2015.
[6] Prior to cohabitation, the Applicant owned a condominium and the Respondent owned a townhouse. At the time of the separation and until November 30, 2015, the Applicant and the child lived in the townhouse.
[7] The Application was issued on March 23, 2015. On April 9, 2015, the Applicant brought an urgent motion for interim spousal and child support. The case conference was scheduled for May 22, 2015. Penny J. ordered the Respondent to continue to pay the housing and automobile costs pending the case conference; ordered that the Respondent was entitled to return the Porsche and terminate that expense; pending the case conference, the Respondent would drive the KIA and the Applicant would drive the Civic; the Respondent would pay $1,400 per month child support and $2,000 per month spousal support.
[8] At the case conference on May 22, 2015, Stewart J. made an order on consent on a temporary without prejudice basis that required the Respondent to pay $1,422 per month child support and $4,000 per month spousal support to commence June 15, 2015 and continue until further order; and the order required the Respondent to pay the Applicant’s car insurance.
[9] On September 1, 2015, Justice D. Wilson made an order removing the Applicant’s lawyer of record and thereafter she represented herself.
[10] For reasons indicated in the earlier endorsement, the Application on all issues except custody and access was struck. Counsel for the Respondent has brought this motion without notice, as permitted.
[11] At the emergency motion on April 9, 2015 before Penny J., the Respondent had given evidence that between January 9, 2015 and April 4, 2015, he had paid all household bills totaling over $11,000; the Applicant’s cell phone and car insurance and lease payments on the Porsche driven by the Applicant totaling over $4,400; and the credit card purchases and cash advances made by the Applicant totaling almost $7,000 and he had given her a cheque for $2,900.
[12] At the time of the case conference on May 22, 2015, the Respondent had also complied with the interim order. At that point, he had paid almost $39,000.
[13] The Respondent points out that in her case conference brief, the Applicant stated that she would be moving back to her condo at the end of June 2015 and she requested an increase in spousal support to help in that transition. On that basis, the Respondent agreed to temporarily increase the spousal support to $4,000 per month commencing June 15 as well as continue child support in the amount of $1,422 per month and the household bills.
[14] As indicated in the earlier reasons, the Applicant did not vacate the townhouse until the end of November. In his affidavit in support of this motion, the Respondent said that his total support from January to May was $39,000 together with the payments between June and January 2016 in the amount of almost $45,000 for a total of approximately $84,000.
[15] In his affidavit, the Respondent also estimated the cost of property which the Applicant had not returned from the condominium at approximately $11,000 as well as the property removed by the Applicant from the townhouse and the repairs he had to make after she left at approximately $34,000 as well as the total of the outstanding costs awards of $28,439.49. In summary, the Respondent has calculated that he has expended almost $160,000 in the year since the separation. This has caused him significant financial distress as indicated in his depletion of RRSP’s in the amount of 70,000 and outstanding legal fees.
[16] In deciding this motion I do not take into consideration the estimate of value of property not returned and property removed because those appear to be replacement value rather than sale value and I cannot ascertain whether the costs of repairs ought to be attributed to her. In any event, neither is relevant to the issue of spousal support. Without those numbers, I nonetheless find that the Respondent has paid significant amounts for the support of the Applicant, and has met his legal obligation to do so.
[17] The issue is whether that obligation should end. The Applicant does not have a right to participate in proceedings involving financial issues, including spousal support. But that does not mean that automatically the temporary order for spousal support should be terminated, particularly where, at this time, the child resides primarily with her.
[18] The Applicant is almost 44 years old. When they met, she was employed as a legal administrative assistant and she has had 9 years of experience. Her 2011 income tax return showed a line 150 income of $45,286. According to the Respondent, her employment was terminated in the summer of 2012 and she worked as a receptionist at a car dealership from about November 2012 to about March 2013. Her line 150 income in 2012 was $36,000 and in 2013, it was $22,264. A component of that income has been net rental income from the condominium. According to the Respondent, there was discussion at the case conference about when she would return to work. In a letter dated December 29, 2015, counsel for the Respondent asked the Applicant for details of her efforts to find employment and she did not answer.
[19] In applying s. 15.2 of the Divorce Act, I take into consideration the following factors. The period of cohabitation from May 2012 to January 2015 was less than 32 months. When they began to cohabit, the Applicant was employed full time and earning a reasonable income. She has been unemployed since March 2013 or about 2 years at the date of separation and about 3 years to this point in time. She did not respond to the letter about employment from which I infer that she is currently unemployed and made no efforts to obtain employment. There is no evidence that she has made efforts to become economically self-sufficient as she is obliged to do.
[20] The child was born in July 2013 at a time when the Applicant was not employed. The Respondent was employed full time and according to his evidence, he was responsible for the finances of the household. I infer that she has primarily been a homemaker since the summer of 2013 or about 18 months at date of separation and about 30 months to this point in time.
[21] The order made by Penny J. on April 9 was meant to be on a temporary basis pending the case conference at the end of May and consequently is not determinative of her entitlement. The order made at the case conference on May 22, 2015 was intended to provide her with a cushion on the basis that she would move from his townhouse to her own condo within 6 weeks. Instead it took her 6 months during which time she received a significant increase in spousal support.
[22] Even in the absence of the Applicant in this motion, I indicated to counsel that I am not prepared to terminate spousal support at this time and I asked for submissions on a reduction rather than a termination. Counsel for the Respondent helpfully provided SSAG calculations based on the Respondent’s income of $179,231 and imputing income to the Applicant in the amount of $45,286. That indicates that child support should be $1,479 and the range of spousal support is $2,365 to $2,922 and $3,496. He took the position that spousal support should be no more than $1,800 per month.
[23] There will likely be a trial of the outstanding financial issues (in which the Applicant is not permitted to participate) and there will be a trial on custody and access (in which the Applicant will be permitted to participate). I queried whether I ought at this stage to vary the temporary order but I am satisfied that the Respondent has complied with the outstanding consent order that was meant to address circumstances that did not occur as expected and that the current order is too generous and therefore not consistent with his obligation pursuant to the Divorce Act. I conclude that the temporary order should be varied and will be considered again at the trial of the other issues. If for example, custody and primary residence of the child changes to the Respondent, that will necessarily have an impact on both child support and spousal support.
[24] To reflect the fact that the Applicant is not permitted to participate in this motion and the fact that she persuaded the Respondent to be so generous ostensibly because she would leave the townhome and then failed to do so for 6 months, an amount less than the low end of the range is appropriate. I appreciate that she may have no rental income but I agree with counsel for the Respondent that $1,800 is a reasonable amount of spousal support in the circumstances.
[25] In the notice of motion, the Respondent asked that the spousal support change effective January 9, 2016, the date of my order striking her Application on financial issues. Pursuant to the consent order dated May 22, 2015, the payment date for spousal and child support is the 15th of the month. I am not prepared to back date the reduction to 2 months before the hearing of the motion because that will create significant overpayment. Instead, I order that the reduction take effect on March 15, 2016.
[26] The notice of motion includes a request terminating the Respondent’s obligation to pay for the Applicant’s cell phone and car insurance on notice to her. Counsel did not refer to either of those in the factum or in his oral submissions from which I infer that neither is being pursued at this time.
[27] The Respondent has not made a request for costs of this motion.
ORDER TO GO AS FOLLOWS:
[28] The matrimonial designation registered on title to the Respondent’s property as Registration Number AT3801919 on February 2, 2015 shall be cancelled.
[29] Effective March 15, 2016, the consent order dated May 22, 2015 with respect to temporary spousal support shall be varied to provide that the Respondent shall pay to the Applicant the sum of $1,800 per month as temporary spousal support, which order shall be considered at the trial of the remaining issues at which time it may be further reduced or terminated.
[30] Counsel for the Respondent may take out this order without approval from the Applicant. Counsel for the Respondent shall then serve on the Applicant by regular mail a copy of this endorsement along with a copy of the order as signed and entered.
[31] Counsel for the Respondent may forward an amended Support Deduction Order to my attention.
Kiteley J.
Date: March 14, 2016