COURT FILE No.: FS-13-066 DATE: 2016 05 19 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Rose Orsini, Applicant AND Dino Orsini, Respondent

BEFORE: Ricchetti J.

COUNSEL: M. Greenstein for the Applicant C. Levitan for the Respondent

HEARD: May 12, 2016

ENDORSEMENT

The Motions

[1] The motion by the Applicant seeks: a) ongoing interim spousal support in the amount of $2,781.50 per month; b) retroactive spousal support from January 2010 to April 30, 2016 in the amount of $211,394; and c) reimbursement of $61,600 for historic Section 7 expenses.

[2] The Respondent brings a cross motion seeking: a) an accounting of the monies withdrawn by the Applicant from Cartwright Plumbing; b) an accounting of monies withdrawn from a joint GIC; c) an accounting of the sale proceeds of a cottage purchased by the Applicant after the separation and sold; and d) questioning.

Background

[3] The parties were married on April 30, 1988.

[4] The parties had three children: a) Christopher (dob January 19, 1990); b) Daniel (dob Mar 31, 1991); and c) Veronica (dob April 28, 1993).

[5] The parties separated on February 1, 2004. At that time, the Applicant was approximately 41 years old and the Respondent was approximately 42 years old. The Applicant was an office manager and the Respondent was a master plumber.

[6] On May 22, 2005, the parties entered into a written Separation Agreement (“Separation Agreement”). Both parties were represented by counsel.

[7] The provisions of the Separation Agreement include: a) Child Support – based on the Respondent’s agreed upon income of $68,385, the Respondent was to pay $1,190 per month “until the Children are no longer Children of the marriage” defined to include: ii. The child turns 18 years old and ceases to be in full time attendance at school provided that, if a child withdraws from school for less than one academic year and subsequently re-attends full time schooling, the child will continue to be a child of the marriage; b) Extra Child related Expenses – the parties were to share the Section 7 extraordinary expenses (including tuition, medical and other such expenses) of the Children. For medical related expenses of the Children, the Respondent was to have the right to consult in advance with the medical practitioner. With respect to education expenses, “ provided that each Child continues on an uninterrupted course of education and successfully completes each year of that education ”, the parties were to meet to negotiate their respective contributions for post-secondary needs of the Children at an agreed upon educational institution; c) Spousal Support – the Respondent was a master plumber carrying on business through three corporations and the Applicant was “an office manager by profession”, both earning roughly the same $66,000 and $63,000 per year respectively: “Both parties agree that at the time of entering this agreement, there is no claim for spousal support against either party and that either party may, in the future, make an original claim to a court of competent jurisdiction for spousal support…” d) Ongoing Financial Disclosure - There was to be ongoing financial disclosure by both parties while “there is a child who continues to be a child eligible for support”; e) Equalization – Business valuations were recommended by counsel. Instead, the parties chose to agree on the values for the three corporations owned by the Respondent at a total value of approximately $900,000. The matrimonial home owned by the Applicant was valued at $450,000. The Respondent relinquished any claims to the matrimonial home. The Respondent transferred to the Applicant, for no additional consideration, 35% of the shares of Cartwright Plumbing and the parties entered into a Shareholders Agreement in conjunction with the Separation Agreement. All other assets were divided as agreed upon by the parties in accordance with a Net Family Property Statement (a copy of which was attached to the Separation Agreement); f) GIC – the GIC was shown as a joint asset in the NFP and understood by the parties to be shared by the parties when it became payable (only the ultimate use of these monies is in dispute).

[8] After the Separation Agreement, the Applicant continued in her employment at Cartwright Plumbing and was the secretary/treasurer of the company.

[9] The parties were divorced on August 6, 2008.

[10] The Applicant alleges that the Respondent, at an unspecified date, started to pay $1,000 per month for child support. The Respondent alleges that the oldest son, Christopher, left school in 2008 and, as a consequence, upon agreement, the Respondent reduced the child support payable to $1,000 per month. There is no evidence of any written complaint, no proceeding, and no written demands for the higher amount of child support by the Applicant until this proceeding was commenced. The Applicant now submits that it would not be fair to “insist on the strict interpretation of the Separation Agreement”.

[11] In March 2010, the Applicant determined she wanted to be bought out of her interest in Cartwright Plumbing. As a result, the Applicant made enquiries of the company’s accountant. The accountant told the Applicant her interest in Cartwright Plumbing was valued at $204,155.18. The Applicant withdrew the amount of $208,618.88 (although there appears to be some inconsistency as to the exact amount). The Applicant continues to hold 35% of the shares in Cartwright Plumbing, however, the company appears not be carrying on business in 2016 making the shareholdings not significant on this motion. This “pay out” to the Applicant occurred without the Respondent’s knowledge or his consent. This fact is not disputed. Upon finding out about the “pay out” to the Applicant and, since the Applicant refused to return the monies to Cartwright Plumbing, the Respondent terminated the Applicant’s employment in United Mechanical – a related plumbing company paying the Applicant. The Applicant became unemployed.

[12] The Applicant alleges she decided to "cash out" of Cartwright Plumbing because she was concerned there was an effort by the Respondent to reduce the amount of business in Cartwright Plumbing. The Respondent denies such conduct. There is no evidence the Applicant raised this concern at the time or took any steps as a shareholder or officer of the company to prevent this from occurring. There is no explanation why the Applicant took steps to “cash out” without asking, notifying or obtaining the consent of the Respondent. The Applicant’s consent is specifically required by the Shareholders Agreement.

[13] After the pay out, the Applicant purchased a cottage in the Wasaga Beach area. The Applicant started a business in that area. After a year, the Applicant’s business closed as it was not profitable and the Applicant suffered a financial loss.

[14] Subsequently, the Applicant sold the Wasaga Beach cottage and suffered a financial loss on this property.

[15] In 2011, as a result of the “pay out”, Cartwright Plumbing issued a T4A to the Applicant, resulting in certain tax liability to the Applicant. In June 2011, the Applicant commenced a Small Claims Court proceeding in Toronto against the Respondent for the amount of tax payable by the Applicant. This action has been stayed. The Applicant has taken no steps to lift the stay and proceed with this action.

[16] On February 29, 2012, the Respondent commenced an action in Newmarket against the Applicant with respect to her “pay out” from Cartwright Plumbing. The only defence raised by the Applicant is that she was entitled to the monies because of her 35% interest in Cartwright Plumbing or that the monies were taken with the agreement of the accountant, agent for the Respondent. This action continues towards trial in Newmarket.

[17] On October 26, 2012, the Applicant issued an Application in the SCJ Family Branch in Newmarket. The Applicant never served this Application on the Respondent.

[18] On January 8, 2013, the Applicant issued this Family Law Act Application in the SCJ Brampton seeking the relief sought herein and also seeking damages relating to her tax consequences arising from the monies she obtained from Cartwright Plumbing. The Applicant did not serve the Application in 2013.

[19] On December 13, 2013, having not served the Respondent with the Application, the Applicant amended her Application. The Applicant served the Respondent with the Amended Application in January 2014. It is this Amended Application which is before this court.

[20] The Respondent filed an Answer disputing the Applicant’s claims.

[21] A Case Conference in this matter was heard on June 17, 2014.

[22] No other motions have been filed since the Case Conference in June 2014 until these motions were brought in April 2016.

The Financial Evidence

The Retroactive Section 7 Expense Claim

[23] The Applicant states that she incurred approximately $92,000 in Section 7 expenses for the Children from 2009 until early 2013 without any contribution by the Respondent. Included in the claimed Section 7 expenses (set out in Exhibit C to Rose Orsini’s affidavit) are: a) A portion of the expense to purchase vehicles for the Children; b) A significant amount of education related expenses; c) A number of medical related expenses; and d) The education expenses include expenses for Christopher who had left school in 2008 and returned to school in 2011.

[24] The Respondent’s evidence is that he did not agree to the purchase of vehicles, he made ad hoc payments to the Children; he became aware of such a claim for Section 7 expenses for the first time in January 2014 when he received the Amended Application.

[25] The Applicant alleges that she did ask the Respondent for contribution to the children’s education expenses but the Respondent refused. There is no documentary evidence supporting this allegation.

The Retroactive and Ongoing Spousal Support

[26] The Respondent alleges that the first time he became aware the Applicant was seeking retroactive and prospective spousal support was when he received the Applicant’s Amended Application in January 2014. There is no evidence to the contrary.

[27] The Applicant’s explanation for the delay is that she was “overwhelmed” by the 2012 Newmarket proceeding and her “accountant” who had told her he would “take care of it”.

The Means and Needs of the Parties

[28] The Applicant alleges she attempted to obtain employment after 2010 but has not been able to do so except for a short period of about eight months in late 2012 until early 2013.

[29] The Applicant points to her grade 9 education, her age, and health issues as the reason for her continued unemployment.

[30] The medical evidence of the Applicant’s health issues consists of a short family doctor's letter. The letter is vague and does not contain sufficient detail to permit any conclusion regarding the Applicant's employability, even a preliminary conclusion on an interim motion.

[31] The Applicant states that she has exhausted her savings and assets for living expenses and has borrowed substantial amounts of money.

[32] The Respondent denies the Applicant is entitled to spousal support but that, in any event, he does not have the means to support her.

[33] The Respondent alleges that his income has declined dramatically since 2011. He has produced his Notices of Assessment. However, given that the Respondent owns his own businesses and financial documents regarding these businesses is not before this court, it is difficult to reasonably ascertain the Respondent’s income for support purposes and whether it is different from his T4 reported income.

[34] The Respondent points to having cashed in RRSPs in the recent years for his living expenses.

[35] The Respondent alleges that he relies on his family members to assist him with ongoing expenses.

[36] The Respondent points to the assets provided to the Applicant on separation and the subsequent amounts including the additional $208,618 and the entire amount of the GIC of $97,219. The Applicant admits the GIC monies were to be divided, but states that the funds were paid into a joint account and the funds were eventually used to pay expenses and taxes for the Respondent’s company. As a result, the Applicant now submits that the Respondent owes her approximately $48,000 from the GIC monies. The Applicant alleges she has used the $208,000 for taxes, the Children and living expenses.

[37] As for the Respondent’s income, the Applicant points to a failure to disclose mortgage applications as the mortgages require substantial monthly mortgage payments in excess of the Respondent’s alleged income. The Respondent produced a letter, previously sent to the Applicant’s counsel, which purports to include the “entire mortgage files”. It is unclear whether this disclosure is outstanding.

[38] The Applicant submits that this court should impute an income to the Respondent of at least $93,000 per annum.

The Financial Statements

[39] The Applicant filed a sworn Financial Statement dated October 26, 2012. This Financial Statement shows monthly expenses of approximately $8,681.34, a home valued at $600,000 and a mortgage of $454,000. The Applicant shows no other debts and a net worth of $266,000 (although the math suggests it should be $156,000).

[40] The Applicant amended the Application on December 13, 2013 and filed another sworn Financial Statement dated June 2, 2014. This Financial Statement shows monthly expenses of $5,007.96, two owned properties (the same home valued at $600,000 and a cottage valued at $240,000) with a net worth of $674,750.35.

[41] A further sworn Financial Statement, dated March 16, 2016, was filed by the Applicant. In this Financial Statement, the Applicant’s alleged monthly expenses are $11,015.63, property valued at $450,000 (with a total of all property alleged to be $481,437.09), total debts of $103,204.09, resulting in a net worth for the Applicant of $378,233.

[42] The Applicant's SSAG calculation uses the Applicant’s income at $7,500 and the Respondents income of $111,623 after gross up.

[43] She seeks spousal support of $2,781.50 per month being what the Applicant submits is the mid-point of SSAG if $111,623 grossed up income is imputed to the Respondent.

[44] The Respondent’s February 14, 2014 sworn Financial Statement shows the Respondent’s income of approximately $43,000 per annum and a net worth of approximately $800,000.

[45] The Respondent’s sworn Financial Statement of April 2016 shows an income of approximately $33,000 per annum. After deducting the amounts claimed by the Respondent against the Applicant for the return of the $208,698 and ½ the GIC, the Respondent has a net worth of approximately $780,000.

[46] There are considerable unexplained variances in the Applicant's sworn Financial Statements. The Respondent's Financial Statements appear to be generally consistent.

The Issues to be Decided

[47] The issues to be decided are: a) Should this court dismiss the Applicant's motion for non-disclosure by the Applicant or stay this proceeding until the Newmarket proceeding has been decided? b) Should this court make a retroactive order for Section 7 expenses? c) Should this court make a retroactive order for spousal support? d) Should this court order ongoing interim spousal support? e) Should this court order disclosure and/or questioning?

The Position of the Parties

[48] The Applicant submits that spousal support is not precluded by the Separation Agreement, the Applicant has need, the Respondent has means and therefore interim spousal support should be ordered prospectively.

[49] The Applicant acknowledges a higher threshold to establish retroactive support on an interim motion but submits that the Applicant is in desperate need given her lack of income and substantial indebtedness.

[50] The Respondent submits that this motion should not be heard until further disclosure is made by the Applicant and questioning. In any event, the Respondent submits that this proceeding should not be dealt with until after the Newmarket proceeding has been decided.

[51] The Respondent denies that the Applicant is entitled to the claimed Section 7 expenses. In any event, the Respondent submits that there is no or little retroactive Section 7 or support payable to the Applicant.

[52] The Respondent submits that the Applicant is not entitled to retroactive spousal support. As for prospective spousal support, the Respondent submits that the Applicant is not entitled to spousal support and, in any event, is not entitled to retroactive spousal support.

The Law

Retroactive Child Support Orders

[53] The leading cases on making an order for retroactive child support is D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, [2006] 2 SCR 231, 2006 SCC 37:

5.2.2.2 Awarding Retroactive Support Where There Has Been a Previous Agreement Between the Parents

75 A similar, but not identical, situation arises where child support obligations have previously been set out in an agreement between the parents. While many of the same considerations apply to this situation that applied to the situation of a previous court order — e.g., the payor parent’s expectation that his/her support obligations have been fully defined — the difference between an agreement and a court order cannot be ignored.

78 In most circumstances, however, agreements reached by the parents should be given considerable weight. In so doing, courts should recognize that these agreements were likely considered holistically by the parents, such that a smaller amount of child support may be explained by a larger amount of spousal support for the custodial parent. Therefore, it is often unwise for courts to disrupt the equilibrium achieved by parents. However, as is the case with court orders, where circumstances have changed (or were never as they first appeared) and the actual support obligations of the payor parent have not been met, courts may order a retroactive award so long as the applicable statutory regime permits it: compare C. (S.E.) v. G. (D.C.) (2003), 43 R.F.L. (5th) 41, 2003 BCSC 896.

[54] The Supreme Court in D.B.S. stated that each case must be decided on the particular factual matrix of that case (see para 99) and went on to list a number of factors which a court should consider in deciding whether to make a retroactive order: a) reasonable excuse for why support was not sought earlier; b) conduct of the payor parent; c) circumstances of the child; and d) hardship occasioned by a retroactive award.

[55] The failure to consider the factors in D.B.S., even after a trial, may be a reversible error. See Titova v. Titov, 2012 ONCA 864.

[56] Retroactive child support orders, even where entitlement to the original support amount has been found, are not a foregone conclusion after a trial. In D.B.S. the Supreme Court considered the issue of retroactive awards and cautioned as follows, at para. 95:

It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one’s children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed.

Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard.

Retroactive Spousal Support

[57] Clearly, this court has authority to grant retroactive spousal support. See Reddy v. Reddy, 2016 ONSC 807 (Div.Ct.) and s. 34(1) (f) of the Family Law Act. The cases referred to in Reddy, are cases where there was no serious question regarding entitlement, there was little or no delay in seeking spousal support and/or there was no prejudice to the payor in making the retroactive order.

[58] The factors to be considered for granting retroactive spousal support was considered by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269. Cromwell J. noted at para. 207 that:

While D.B.S., 2006 SCC 37, [2006] 2 S.C.R. 231, was concerned with child as opposed to spousal support, I agree with the Court of Appeal that similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support.

Interim Relief

[59] Unlike many of the authorities referred to by counsel, this is a motion for an interim order(s). There has been no prior interim order. There has been no trial. Questioning has not taken place. The evidence consists of affidavits. Facts are in dispute.

[60] The motions court cannot conduct a complete inquiry into all the aspects and details or make final findings of fact regarding entitlement and quantum of support. An interim order is designed to be a “holding order” to get the parties to trial by considering the strength of the claims, on (usually conflicting and incomplete) motion materials and the particular circumstances of the case in an effort to achieve fairness to the parties by balancing financial needs, means and any hardship to the parties should an interim order be made or not made.

[61] By necessity, where the interim relief sought is financial, the motions court must consider the issues of entitlement and quantum in determining whether and what interim order should be made: a) The motions court must consider all the relevant facts and circumstances set out in the motion materials to make a preliminary assessment of the strength of the claim of the moving party for the financial relief sought in the Application; b) If a triable claim has been made out for financial entitlement by the moving party, then the motions judge will have to consider whether interim relief should be granted and, if so, the quantum of interim financial relief by considering all of the circumstances of the case in the motion materials and the factors for support set out in the Family Law Act, with particular attention to the means, needs and any financial or other hardship that would occasion to either party if an interim order was made or refused pending trial; c) Where retroactive financial support is sought on the interim motion, the motions court is not making the ultimate decision as to whether the party is entitled to retroactive financial support in the Application. That is for the trial judge to determine on a complete evidentiary record. The issue for the motions judge is to consider the factors in D.B.S. based on the motion materials and then proceed, if necessary, to ascertain whether and the extent it is fair and appropriate to both parties that such relief is granted on an interim basis in the circumstances of the evidentiary record of the motion.

[62] In Samis (Guardian of) v. Samis, 2011 ONCJ 27, Justice Sherr set out the following regarding the considerations on interim motions including claims for retroactive support:

[43] In Kowalski v. Grant, 2007 MBQB 235, 219 Man. R. (2d) 260, 43 R.F.L. (6th) 344, [2007] M.J. No. 386, 2007 CarswellMan 422 (Man. Q.B.), the court set out the following principles in dealing with temporary spousal support motions:

1. Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial.
2. The court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge.
3. Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage.
4. Interim support is to be based on the parties’ means and needs, assuming that a triable case exists. The merits of the case in its entirety must await a final hearing.

[44] In Robles v. Kuhn, 2009 BCSC 1163, [2010] B.C.W.L.D. 1935, [2010] W.D.F.L. 1330, [2009] B.C.J. No. 1699, 2009 CarswellBC 2239 (B.C.S.C.), the court added the following considerations:

1. On interim support motions, needs and ability take on greater significance.
2. On interim motions, the need to achieve self-sufficiency is of less importance.
3. Interim support should be ordered within the range of the Spousal Support Advisory Guidelines, (Ottawa: Minister of Justice and Attorney General of Canada, July 2008), unless exceptional circumstances dictate otherwise.
4. Interim support should only be ordered where a prima facie case for entitlement has been set out.

[45] This court has jurisdiction to make a retroactive spousal support order. Clause 34(1) (f) of the Family Law Act, R.S.O. 1990, c. F-3, as amended, reads as follows:

34. Powers of court.— (1) In an application under section 33, the court may make an interim or final order, (f) requiring that support be paid in respect of any period before the date of the order;

[46] Many courts have ordered temporary retroactive spousal support where the “circumstances of the case justify immediate relief with some retroactive award of support.” See Lakhani v. Lakhani, 2003 ONSC 2161, 43 R.F.L. (5th) 125, [2003] O.J. No. 4041, 2003 CarswellOnt 3928 (Ont. S.C.), at paragraph [16]; Dickie v. Dickie, 2001 ONSC 28203, 17 R.F.L. (5th) 304, [2001] O.J. No. 2885, 2001 CarswellOnt 2551 (Ont. S.C.); Elgner v. Elgner, 2010 ONSC 794, [2010] W.D.F.L. 3353, [2010] O.J. No. 562, 2010 CarswellOnt 1113 (Ont. Div. Ct.); Trombetta v. Trombetta, 2011 ONSC 394, [2011] O.J. No. 281, 2011 CarswellOnt 318 (Ont. S.C.); and Turk v. Turk, 2008 ONSC 3420, 50 R.F.L. (6th) 211, [2008] O.J. No. 397, 2008 CarswellOnt 512 (Ont. S.C.).

[47] Other courts have been disinclined to back-date temporary support to a date prior to the filing of the motion because of the limited evidence available in proceedings for temporary relief, which are based on affidavit evidence. In Hubbard (Gore-Hickman) v. Gore-Hickman, 2005 SKQB 265, 266 Sask. R. 192, [2005] 11 W.W.R. 489, 19 R.F.L. (6th) 55, [2005] S.J. No. 383, 2005 CarswellSask 402 (Sask Q.B., Fam. Div.), the court wrote at paragraph [23]¶8: 8. . . . Retroactive support can arise on an interim application. Interim applications, by their very nature, are meant to put in place temporary measures pending trial or settlement. They are not meant to determine the ultimate issues between the parties. Courts on interim applications, for the most part, are dealing with affidavit evidence that is often incomplete and contradictory. There is no opportunity for either party to cross-examine the other or adduce further information that may very well sway the ultimate determination. If parties do not proceed with their application beyond the interim order stage, one must assume they are satisfied with the terms of that order. The fact some people never proceed further is not justification for courts to decide ultimate issues of retroactive support on interim applications. Requests for retroactive orders are more properly dealt with at trial or after a hearing where all relevant evidence can be adduced. Variation applications result in final orders and judges dealing with such applications can order the parties be cross-examined on their affidavits or can order viva voce evidence.

Analysis

Should this court dismiss the Applicant's motion for non-disclosure or until the Newmarket proceeding has been decided?

[63] The Respondent seeks the dismissal of this motion on the basis of the Applicant’s non-disclosure and to permit questioning.

[64] Both parties were given the right to conduct questioning at the Case Conference on June 17, 2014, yet neither party has availed themselves of this right for almost two years.

[65] There is no reference to disclosure issues being raised by either party at the Case Conference. Until the Applicant brought this motion, neither party raised any disclosure issues with the court.

[66] Now almost 2 ½ years since the Application was served on the Respondent in January 2014 and these motions were brought, both parties raise concerns regarding the non-disclosure by the other party.

[67] The Respondent’s current complaint regarding the Applicant's non-disclosure and request for questioning appears, in my view, to be a tactic to avoid the Applicant’s motion from proceeding on the merits. Had disclosure been a serious concern to the Respondent, I have no doubt the Respondent could and would have dealt with these issues months, if not years, ago.

[68] The Respondent also seeks an order dismissing this Application or a stay of this Application until after the Newmarket action has been decided. On June 17, 2014 the Case Conference judge noted that there might be an issue of consolidating this proceeding with the Newmarket proceeding “in the future”. Two years later, neither party has brought such a motion. In these circumstances, it is not appropriate to dismiss or stay this proceeding to await the outcome of the Newmarket proceeding.

[69] This part of the Respondent’s motion is dismissed.

Should this court make a retroactive order for retroactive Section 7 expenses?

[70] The Applicant claims retroactive Section 7 expenses for the Children going back to 2009.

[71] The first issue to be considered is whether the Applicant has established a triable claim to the claimed Section 7 expenses. I am not persuaded that the Applicant has met this low threshold.

[72] There are a number of issues regarding the Applicant's claim to the Section 7 expenses, both with respect to entitlement and to the quantum claimed. They include: a) There is a Separation Agreement which provides for the manner to deal with Section 7 expenses. There is no evidence that the Applicant complied with the notice and discussion requirements in the Separation Agreement relating to the education or medical expenses of the Children; b) When he was approximately 18 years old, Christopher left school for approximately 3 years. This is not disputed. Entitlement under the Separation Agreement to support or Section 7 expenses will be a hurdle as a result of Christopher leaving school for more than one year; c) A number of the claimed Section 7 expenses are outside the 3 year period described in D.B.S. There have been other proceedings between the parties in 2011 and 2012 (a total of three proceedings commenced by the Applicant). None claimed or provided notice to the Respondent of the claim for outstanding Section 7 expenses. The Applicant’s claim is weakened by the lengthy delay and lack of notice to the Respondent; d) The factors in D.B.S. cannot be adequately or reasonably determined on the conflicting evidence before this court. For example, the Applicant’s excuse for not providing notice earlier than 2014 and the current circumstances of the Children are unclear from the motion materials; e) Some of the claimed Section 7 expenses are highly questionable. New cars for the three children are not likely “extraordinary” expenses under the Guidelines and, therefore, not recoverable from the Respondent; f) The Applicant’s calculation includes no financial contribution by the Children to their post-secondary education expenses. The Children's income and ability to contribute to their education expenses during the school years is unknown; and g) The Applicant claims 70% of the Section 7 expenses but paragraph 16(a) of the Separation Agreement provides for a 50% division of the medical expenses and a “joint” contribution towards education expenses. The basis for the 70% allocation by the Applicant is not explained.

[73] Given the uncertainty as to whether the Applicant will be entitled to recover the claimed Section 7 expenses or the amount that might be recoverable at trial, I decline to order payment of any retroactive Section 7 expenses on an interim basis. This claim can more properly be dealt with by the trial judge on a complete evidentiary record.

Should this court make a retroactive order for spousal support?

[74] The Applicant claims retroactive spousal support going back to 2010.

[75] There are issues regarding entitlement and quantum of a retroactive spousal support order. They include: a) The Applicant simply looks at the current SSAG calculation, allocates only $7,500 for her current annual income, allocates $111,623 for the Respondent's current annual income and then takes this current financial information, calculates a claim for current spousal support at $2,781 per month and multiplies that by 76 months back to January 2010 without any analysis as to then applicable financial information during the years in question (see paragraph 3 of the Applicant’s Notice of Motion). To make matters worse, when the Applicant’s affidavit in support of the motion is reviewed, there is no specific reference to the issue of retroactive spousal support or any basis for this claim. On this basis alone, this part of the Applicant’s motion should be dismissed; b) The Applicant was approximately 47 years old in 2010, 6 years after her separation and the date from which the Applicant seeks retroactive spousal support. The Applicant had extensive experience as an officer manager at the time; c) The Applicant has, at the very least, contributed to the cause of her unemployment in 2010 when she apparently unilaterally withdrew approximately $208,000 from Cartwright Plumbing. In addition, the Applicant's actions regarding the withdrawal of funds from Cartwright Plumbing has caused her biggest monthly expense - $7,000 per month for legal fees. Granting the Applicant retroactive spousal support requested would result in the Respondent funding the Applicant's defence in the Newmarket proceeding; d) The Applicant started her own business for approximately one year during the period of time when the Applicant claims retroactive spousal support and lost money. The details and financial information regarding this business are not clear on the motion record. The Applicant decided to buy the property in Wasaga Beach and lost money in that real estate transaction. At least this part of the Applicant’s financial problems do not arise from the breakdown of the marriage; e) The Applicant was employed for a period of time in late 2012 until 2013 but there is little information in the motion materials as to this employment or why was it terminated; f) The medical evidence regarding the Applicant's health issues is vague, not helpful, inconsistent with the Applicant's employment from 2004-2010 and in 2012-213 and does not adequately deal with the Applicant's inability to be gainfully employed at some job since 2010; g) The Applicant’s financial information is conflicting. The Applicant has not clearly described her use of the $208,000 or the GIC $97,000 at all in her Financial Statements or with any specificity in her affidavit; h) The factors in D.B.S., as applied to retroactive spousal support, cannot be adequately considered on the record before me. For example, the Applicant does not adequately explain her delay in advancing her spousal support claim and does not explain why she commenced one application, didn’t serve it, commenced a second application and waited one year to serve the Respondent.

[76] This court is not persuaded that this is an appropriate case for a retroactive spousal support where entitlement and quantum are in serious dispute.

Should this court order ongoing interim spousal support?

[77] There is no doubt that the parties reserved their rights to bring a claim for spousal support in the future. The Applicant now does so. Her right to make such a claim is not barred by the Separation Agreement or by law.

[78] However, there are serious questions regarding her entitlement to spousal support: a) The Applicant was 41 years old at the time of separation. This was a 16 year marriage. The parties have been separated for 12 years. The Applicant is an experienced office manager. Substantial assets were divided to the party’s satisfaction on separation. The parties were represented by counsel; b) The Applicant’s income was comparable to the Respondent’s income in 2005. The Applicant continued to earn a significant income until March 2010, when by her own actions, contrary to the provision of the Separation Agreement and Shareholder’s Agreement (both of which were negotiated with the benefit of counsel), she received a further approximately $204,000 to $208,000 without the knowledge or express consent of the Respondent, which led to her termination. The Applicant started her own business and it failed, resulting in a financial loss. The Applicant bought a cottage property and sold it for a significant loss. It is unclear whether the Applicant’s current financial position has much, if anything, to do with the breakdown of her prior marriage; c) The Applicant’s current financial disclosure is somewhat confusing. The Applicant’s Financial Statements fail to disclose the receipt or disposition of the $208,000 payment she received from Cartwright Plumbing or the $97,000 GIC. A significant amount of the Applicant’s current monthly expense in her March 16, 2016 Financial Statement ($7,000 of the Applicant’s alleged monthly expense of $11,015) are legal fees to litigate with the Respondent; d) The Respondent rightly points to the lack of any evidence by the Applicant of her efforts to obtain employment after 2014, although this must be considered in light of the alleged numerous unsuccessful attempts by the Applicant to obtain employment in 2013 and 2014; e) There is some evidence that the Respondent’s financial means at this time are limited but there is other evidence which suggests that, despite his denial, the Respondent has significant assets, substantial monthly expenses requiring a cash flow in excess of his alleged income; and f) To some extent, the actions of the Applicant in the delay in bringing this Application, the delay in serving it, amending the Application, while the Applicant suggests she has been and is in a dire financial position, makes little sense. Her explanation for the delay is not a reasonable or credible explanation. On the other hand, there may be something to the suggestion that the Applicant has brought this claim to gain a tactical advantage over the Respondent in the Newmarket proceeding.

[79] Considering the factors in s. 33(9) of the Family Law Act, this court cannot conclude with any certainty of the Applicant's entitlement or quantum of any prospective spousal support. This court declines to award any prospective spousal support on an interim basis.

Should this court order disclosure and/or questioning?

[80] As set out above, questioning has already been ordered at the Case Conference Order of June 17, 2014. A further order is not necessary.

[81] Given the claims advanced by the Applicant and the provisions of Rule 13, the Applicant is to provide complete disclosure of the receipt and use of the $208,000 from Cartwright Plumbing, the $97,000 from the GIC, the receipt and use of the funds from the sale of the prior matrimonial home, the purchase of the new homes (including Wasaga Beach cottage), the sale of the Wasaga Beach cottage and the financial details of the Applicant's failed business.

Conclusion

[82] Aside from the disclosure ordered in paragraph 81 above, the motions are dismissed.

Costs

[83] Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.

[84] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.

[85] There shall be no reply submissions without leave.

Ricchetti, J. Date: May 19, 2016