NEWMARKET COURT FILE NO.: FC-15-49795-00 DATE: 20160803 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KAMRAN GHANAI Applicant – and – ASAL SAHABI Respondent
Counsel: Elena Elnaz Mazinani, for the Applicant Brahm D. Siegel, C.S., for the Respondent
HEARD: June 30, 2016
RULING ON MOTION
DOUGLAS, J.
Overview and Preliminary Issues
[1] This is Respondent mother’s motion upon which she seeks the following:
a. Temporary custody of the children of the marriage, namely Lilia Ghanai born April 7, 2009 and Vanda Ghanai born May 3, 2012 (hereinafter “the children”); b. An order permitting the Respondent mother to travel outside Canada with the children for up to 14 days without the Applicant father’s consent or permission, which consent or permission is dispensed with. c. An order that the Applicant father pay temporary child support to the Respondent mother for the support of the children in the amount of $4,292.00 per month retroactive to September 15, 2015 based upon an imputed income of $350,000.00 per annum. d. An order that the Applicant father pay $2,710.00 per month as his contribution to the children’s special/extraordinary expenses commencing July 1, 2016 and monthly thereafter; e. A temporary order that the Applicant father pay spousal support to the Respondent mother in the amount of $6,914.00 per month retroactive to September 15, 2015 and payable on the 15th day of each month until further order; f. An order that the parties are joint owners of the matrimonial home; g. An order that the matrimonial home shall be listed for sale and sold with a mutually agreed upon agent at a mutually agreed price; h. An order that the Applicant father’s one half share of the net proceeds of sale of the matrimonial home be held in trust pending written agreement of the parties or court order on reasonable notice; i. An order that until the matrimonial home is sold paragraph 9 of the order dated March 14, 2016 shall continue (i.e. requiring that the Applicant father continue to maintain all expenses pertaining to the matrimonial home including but not limited to mortgage, property taxes and utilities); j. An order that until the matrimonial home is sold the Respondent shall have exclusive possession. k. An order that the Applicant father pay to the respondent $50,000.00 within 30 days by way of interim disbursements; l. An order pursuant to Rule 1(8)(e) of the Family Law Rules that the Applicant father not be entitled to any further order from the court until he fully complies with Justice Roger’s order dated March 30, 2016; m. An order that the Applicant provide to the Respondent within 30 days: i. a signed and irrevocable authorization/direction in favour of TD Canada Trust enabling the Respondent to obtain a copy of the Applicant’s application for credit/mortgage; ii. a signed and irrevocable authorization/direction in favour of Desjardin Financial enabling the Respondent to obtain a copy of the Applicant’s application for a car loan; and iii. full particulars, with proof, of the $9,250.00 investment income from Baybank Capital.
[2] At the case conference before Justice Bennett on March 14, 2016 this motion was scheduled to proceed for a period of two hours commencing at 9:30 a.m. on June 30, 2016.
[3] Court convened at 9:49 a.m. Before me were this proceeding and another shorter urgent unrelated matter on adjournment.
[4] Counsel for the shorter matter were present as was counsel for the Respondent moving party in this proceeding. Counsel for the Applicant in this proceeding was not present due to inadvertence, believing that the motion was to commence at 10:00 a.m. rather than 9:30 a.m. I do not fault her for this given that while the March 14, 2016 endorsement directed that the matter commence at 9:30 a.m., the issued order indicates 10:00 a.m., for reasons unknown.
[5] I addressed those present and advised that I intended to deal with the shorter matter first whereupon this matter was stood down.
[6] Upon addressing the shorter matter an issue quickly developed requiring that the shorter matter be stood down at 9:51 a.m.
[7] At 9:52 a.m. I commenced dealing with this matter. Ms. Mazinani was now in attendance and as I was aware that some preliminary issues needed to be addressed and I invited submissions on those issues. This process consumed approximately 32 minutes of court time during which I found in favour of the Respondent moving party on the preliminary issues raised by the Applicant being, in essence:
a. the Applicant’s request for adjournment for cross-examinations; b. the Applicant’s objections to content of Respondent’s reply evidence; c. whether I should receive Applicant’s second responding affidavit; d. whether the Respondent was restricted in the issues that could be raised upon the motion before me.
[8] After ruling on these preliminary matters I returned to the shorter matter and dealt with it until approximately 11:30 a.m. when we broke for the morning recess.
[9] Upon resuming at approximately 11:53 a.m. Applicant’s counsel advised the court for the first time that she had an obligation in Oshawa Court at 2:15 p.m. to attend upon a Trial Management Conference. She advised that she would not be able to stay after 1:00 p.m. She referred to having been advised by the Trial Coordinator my list had only one matter and accordingly she expected to be finished in time to attend the matter in Oshawa. I proposed standing the matter down to give her an opportunity to make other arrangements. Counsel declined indicating that as a sole practitioner she could not make other arrangements. I was not made aware as to when Applicant’s counsel scheduled her competing obligation in relation to the scheduling of this long motion, nor was I made aware as to whether any consideration had been given to dealing with the competing obligation by way of telephone from the Newmarket Courthouse in the circumstances.
[10]
[11] I directed that the matter proceed notwithstanding counsel having the competing obligation elsewhere later in the day.
[12] I then received submissions from the Respondent moving party from 11:56 a.m. to 12:33 p.m. following which I received the Applicant’s submissions from 12:34 p.m. to 1:24 p.m.
[13] We took the lunch recess at 1:24 p.m. and after resuming at 2:30 p.m. I received 3 minutes of reply submissions in the absence of Applicant’s counsel but in the presence of the Applicant himself.
[14] Including the 3 minutes from 11:53 a.m. to 11:56 a.m. during which the Applicant explained to the court that she would have to excuse herself at 1:00 p.m., I calculate that the Applicant’s submissions totalled 53 minutes. I also note in this regard that she remained approximately 24 minutes beyond the time by which she said she had to withdraw.
[15] By comparison, the Respondent’s submissions, including reply, totalled 40 minutes.
[16] At no time did the Applicant give me a specific position with respect to the amount of time that she required to make fulsome submissions on behalf of her client. Instead, I was advised that the time available was insufficient given the amount of time consumed by the shorter urgent matter. The record will reflect that during the Applicant’s submissions from 12:34 p.m. to 1:24 p.m., considerable time was expended by counsel confirming how matters had unfolded up to that point procedurally and, later in submissions, time was expended as counsel rifled through papers while I waited for her to find the documents for which she was searching and to which she wanted to direct my attention, only to conclude that my attention had to be directed elsewhere.
[17] I note that the Consolidated Practice Direction concerning family cases in Central East Region directs as follows regarding long motions:
The time for argument of a long motion will be allocated as follows: one third of the time scheduled for the motion will be allotted to the applicant for argument; one third of the time will be allotted to the respondent; and five minutes for each hour that has been booked will be allotted for reply. The remaining time will be for allocated for the judge’s decision and submissions regarding costs. The parties will be held to the time that they have scheduled.
[18] At 53 minutes, the Applicant had more time than permitted per the Practice Direction and more than was utilized by the Respondent.
[19] I also note that the Applicant failed to file a Factum, contrary to para. 43 of the Practice Direction.
Background
[20] The parties were married on June 17, 2007 in Iran.
[21] The parties separated on September 8, 2015.
[22] The children have been in the Respondent’s primary care since separation. The Applicant enjoys regular access to the children the totality of which does not pierce the 40% threshold under the Child Support Guidelines.
[23] The matrimonial home was purchased in 2011 for $1,185,000.00. Ownership is registered in the Applicant’s name alone.
[24] On March 14, 2016 a Case Conference was held before Justice Bennett. An order resulted therefrom, the salient terms of which are as follows:
a. Matter set for June 30, 2016 to address issues of custody, child support, spousal support, retroactively, sale of matrimonial home and disbursement of proceeds; b. Access by Applicant to include alternating weekends and Wednesdays; c. Children’s passports to be held in Respondent’s counsel’s safe until agreement or order; d. Applicant to maintain all expenses regarding the matrimonial home pending agreement or order.
[25] On March 30, 2016 Justice Rogers ordered:
a. Commencing September 1, 2015 the Applicant shall pay on a without prejudice basis the sum of $892.00 per month in child support based on his stated income of $60,000.00 and the table amount under the Child Support Guidelines for the children; b. All arrears of support shall be paid by May 31, 2016; c. Applicant to provide full and complete disclosure of all remaining and outstanding information and documentation requested in the Respondent’s Requests for Information dated January 5, 2016 and February 1, 2016 including, but not limited to: i. Full and complete disclosure of all assets which he claims are excluded (described in items 30-79 of the Request for Information dated January 5, 2016) and 1-19 in the Request for Information dated February 1, 2016; ii. full and complete disclosure of all his assets which are located outside of Canada (e.g. items 78 and 79 of the Request for Information dated January 5, 2016) iii. all personal and company records and bank statements from January 1, 2012 to present (unless otherwise requested); iv. actual answers to the questions in the two Requests for Information, with supporting information, about all of his company’s personal and or discretionary expenses, amounts payable to or receivable from him or any related party, non-recurring, non-operational and unusual revenue or expenses, breakdown of revenue by customer for the top five customers and not simply referring the questions to the relevant company’s business financial statements; v. all documents in respect of his first divorce (i.e. items 95 and 96 of the Request for Information dated January 5, 2016). Applicant husband to do all necessary to request this disclosure from any third parties by April 6, 2016. All disclosure to be delivered by May 15, 2016. d. Applicant husband to disclose all information he has and any documents he has in his possession re sale of property 575 Broadway Avenue in January 2014.
[26] I note that there appears to be a dispute between the parties as to the content of the order of March 30, 2016. My summary above is not meant to determine this issue.
[27] The Respondent and the children have been residing in the matrimonial home since separation on September 8, 2015.
Temporary Custody of the Children
[28] The Applicant consents to a temporary order granting custody of the children to the Respondent provided that the Respondent consults with the Applicant in relation to major decisions affecting the welfare of the children. So ordered.
Travelling with the Children without the Applicant’s Consent
[29] The children have both Iranian and Canadian passports. The Applicant proposes that the passports remain in the Respondent’s lawyer’s safe as he has concerns that the Respondent may travel with the children without his consent.
[30] The Respondent wishes to be allowed to travel with the children outside of Canada for no more than 14 days at a time and indicates that she has no intention of relocating with the children outside of Canada.
[31] There is no evidence that the Respondent represents a flight risk or that she has any plans to remove the children from Canada. The Applicant’s concerns are speculative.
[32] The Respondent’s entitlement to travel with the children is consistent with the custody to which the Applicant has consented. His stated “concerns” about the possibility of the Respondent travelling without his consent can be readily addressed without the passports remaining locked in the Respondent’s lawyer’s safe.
[33] There will be an order that the passports remain in the Respondent’s possession and control subject to access by the Applicant for travel with the children. Either party planning to travel internationally with the children shall provide the other party at least 30 days’ notice in writing of said plans including proposed itinerary, address of destination and dates of departure and return. Consent to travel shall not unreasonably withheld. Neither party shall remove the children from Canada without the consent in writing of the other party or a court order.
Imputation of Income for Child Support
[34] Section 15.1(2) of the Divorce Act provides as follows:
Where an application is made under subsection 1 the court may, on application by either or both spouses, make an interim order requiring the spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection 1.
[35] Section 19(1) of the Federal Child Support Guidelines addresses imputation of income. The Respondent submits that the following components of s.19(1) are relevant to the issues before me:
(1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include the following:
(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines; (e) the spouse has failed to provide income information when under a legal obligation to do so; (f) the spouse unreasonably deducts expenses from income; (g) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.
[36] In Bax v. Dobell, 2007 ONCA 304, [2007] ONCA 304, 86 O.R. 3d 196 ONT CA, para. 33 to 36, the Court of Appeal confirmed that the list of circumstances in s.19(1) is not exhaustive and that if appropriate facts arise a court has the discretion, to be exercised on a principled basis, to impute income to a payor. Whether or not income should be imputed depends on whether the allegations are supported by evidence, bearing in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency, and encourages resolution.
[37] The Applicant filed a Financial Statement in this proceeding sworn December 9, 2015. Contrary to the requirements of Rule 13 of the Family Law Rules, it has not been updated for the purposes of this motion.
[38] In the Financial Statement the Applicant deposes that he is employed by Nu York Marketing and Consulting Corporation based in Woodbridge. His gross income “last year” from all sources was $24,350.00. At the time of swearing the Financial Statement the Applicant’s position was that his annual income was $26,250.00, being comprised of $1,500.00 per month from employment income and $687.50 per month from net rental income. His annual expenses were identified as $115,091.00 or $9,590.00 per month. He deposed that he was living with his mother temporarily in her residence. He further deposed that he was the sole director, officer and shareholder of Nu York Marketing and Consulting Corporation, a 25% shareholder of Yorks United and 50% shareholder of Nu Plastochem. He shows savings as of the date of swearing the Financial Statement of $1,478.00 compared to $6,762.00 on the date of separation. He shows debts as of the date of swearing the Financial Statement of $665,602.00 compared to $633,275.00 as of date of separation.
[39] The Applicant deposes that he received $230,000.00 by way of inheritance in 2011 and that his average yearly income is less than $30,000.00. He says that he has “spent the entire $230,000.00 inheritance on family expenses and “that he has significantly indebted” himself because of “unnecessary family expenses.”
[40] He further deposes that in 2014 he lost various business opportunities in the export import industry due to the financial strains of the Respondent’s business expenditures. He says he is heavily indebted to family, friends and lending institutions as the parties have been living beyond their financial means.
[41] The Applicant notes that the Nu York Marketing and Consulting Corporation Corporate tax return for 2015 shows a net loss of $39,124.00. His $18,000.00 salary was part of the company expenses that resulted in this loss.
[42] The Respondent notes that despite the Applicant’s Financial Statement and the claim of an extremely low income, the Applicant’s bank statements show hundreds of thousands of dollars being deposited into his personal bank accounts with the family’s estimated expenses during this time commensurate with such spending. The Applicant argues that there has been double counting of deposits that have inflated the figures to unrealistic levels. That may be, but it is the Applicant’s responsibility to explain transactions evidenced by his account statements, something his materials fail to do. Such failure can lead to adverse inferences.
[43] The Respondent has submitted that in 2015 the balance sheet for Nu Plastochem shows two shareholder loans owing to him totalling $47,000.00 that were not reported in his Financial Statement. The Applicant responds that at the time his Financial Statement was completed in December 2015, Nu Plastochem did not owe him any shareholder loans.
[44] The problem with this argument is that it reinforces the need for compliance with Rule 13 and the delivery of a fresh Financial Statement for use upon a motion.
[45] The Applicant’s position is that income of $60,000.00 ought to be imputed to him for support purposes. He is thus conceding that his sworn evidence in his Financial Statement is not reflective of his real income circumstances.
[46] The Applicant has been maintaining payments on the mortgage of $3,400.00 per month. He is maintaining other expenses including the two cars which cost $2,000.00 per month including insurance. Prior to separation the parties were spending $1,800.00 per month on Lilia’s Montessori school and $1,000.00 per month on Vanda’s daycare. Extracurricular activities for the children were typically $800.00 per month. These expenses alone total $108,000.00 per year in after-tax dollars. It is not disputed that the Respondent was not employed during the marriage. Thus these expenses must have been paid from the Applicant’s resources.
[47] The Applicant has yet to fully account for disposition of the $230,000.00 in inheritance which he maintains was spent on family expenses. It is not clear to me when this money was exhausted. Again, this is the Applicant's evidence to give but he has not done so. As a result I cannot determine when the expenses were no longer being paid from this fund and thus from other sources such as the Applicant’s income or monies borrowed.
[48] The Respondent says the Applicant before separation gave her $3,000.00 per month to spend on herself. In response he deposes: “I have not given the Respondent $3,000.00 per month to spend on herself.” He does not say he has given her nothing. Perhaps it is less than $3,000.00 per month, perhaps more. The reader of his Affidavit is left wondering as a result of this imprecision. Again, this is evidence within his power to provide and he has failed to be clear. In 2013 Nu Plastochem paid the Applicant $145,096.00 in shareholder loans and in 2014 a further $93,816.00 was paid out to him. His Notices of Assessments for those same years show total income of $15,600.00 and $24,350.00 respectively.
[49] This is a motion for a temporary order and the best that can be hoped for is an imperfect order based on imperfect evidence to carry the parties through the immediate future until such time as more fulsome and complete disclosure is at hand. The income that I attribute to the Applicant must be based on the evidence or inferences reasonably drawn therefrom, including adverse inferences.
[50] In the Respondent’s affidavit in support of her motion she summarizes some of the facts arising from the disclosure received from the Applicant. In response the Applicant notes that this is not a motion for disclosure and that the additional disclosure sought should be addressed by way of questioning or a further Request for Information. He specifically fails to directly respond to a number of assertions by the Respondent and the questions they raise, including:
a. In 2013 he shows T4 income of $15,600.00 from Nu Plastochem. In his Financial Statement he swears he’s only employed by one company, Nu York; in other words, what happened to his employment at Nu Plastochem? b. in 2014 he reported $9,250.00 in “invest income” from Bay Bank Capital, the same company he took a mortgage from in 2013. His financial statement shows no investment with this company. c. In 2014 he received a T4 “salary” of $15,000.00 from Nu York; d. the Applicant has not provided a copy of his 2015 income tax return; e. Nu York’s address for corporate purposes is the matrimonial home; f. in its first year of operation Nu York shows a net loss of $1,874.00 on revenue of $175,951.00 and expenses of $177,267.00. Almost all of the “expenses” were for “cost of goods sold” for which proof has been sought but not yet provided; g. the 2014 Financial Statements for Nu York show a net loss of $8,039.00 on revenue of $682,911.00 against expenses of $691,031.00. h. The respondent specifically alleges that some of the expenses in the 2014 Nu York Statements are not accurate; for example, amortization, motor vehicle, realized exchange gain/loss, rent and travel/entertainment are not true and proper business expenses and were all either personal to the Applicant or fabricated/inflated. These allegations are not directly answered by the Applicant. i. The 2015 corporate tax return for Nu York, which is 100% owned by the Applicant, claims total revenue of $108,409.00; however, the Applicant claimed $147,533.00 in company expenses for a net loss of $39,124.00. Of the $147,533.00 in expenses, the Applicant admits to receiving only $18,000.00 as salary. This may be legitimate, but it has not been explained. j. The general ledger for Nu Plastochem shows many expenses paid by Nu Plastochem on behalf of the Applicant including a payment to him for $34,853.00 on May 6, 2013, $16,280.00 on June 3, 2013, $15,000.00 on August 21, 2013, $15,000.00 on September 9, 2013 and $10,000.00 on February 24, 2014, yet in 2015 the Applicant claimed income from Nu Plastochem of only $20,000.00. These allegations were not directly answered in the Applicant’s Responding Affidavit. k. The Respondent deposes that the Applicant purchased a condo in Iran in February 2008, contrary to the Applicant’s evidence in his Financial Statement that it was purchased in 2004 before marriage. In his Financial Statement the Applicant claims rental income of $8,250.00 per year; however, the lease for the property shows the rent as 40,000,000.00 Rials per month which, according to the evidence before me, is equivalent to $1,681.00 per month or $20,172.00 per year. The Applicant has not directly answered this allegation. l. The Respondent alleges that months prior to separation the Applicant purchased a 2014 BMW X5 for which he is paying $1,000.00 per month in loan payments. The Respondent alleges that there is a second car being a BMW X3 for which the Respondent is paying $586.00 per month. There is a third car being a 2010 Volkswagen Tiguan which the Applicant claims is in trust for his mother without proof yet having been provided. The Applicant has not directly answered these allegations. m. In 2013 one of the Applicant’s personal accounts shows deposits for the year totalling $127,838.00. In 2014 the deposits totalled $93,539.00. In 2015 the deposits totalled $235,324.00. In another account there are deposits in 2013 of $223,643.00 none of which, it is alleged, came from the prior account just mentioned. In 2014 the deposits to this second personal account belonging to the Applicant totalled $682,185.00. In 2015 the deposits were only $62,380.00. These deposits have not been explained in the Applicant’s evidence. n. In a third personal account the Applicant deposited $140,000.00 on January 25, 2013. As none of the other bank accounts had that kind of balance at that date the funds must have come from another source. On February 3, 2014 the sum of $220,000.00 was deposited into this account. On February 11, 2014 a further $351,000.00 was deposited. Again, the Applicant has not directly responded to these allegations. o. The Respondent alleges that in March 2015 the Applicant spent $2,809.00 for a purse for the Respondent. The Applicant’s response to this allegation is to observe that in March 2015 the Respondent spent over $15,000.00 which resulted in an argument over her reckless spending habits. In other words, the allegation of expenditure of $2,800.00 on a purse is not denied by the Applicant, but neither does he explain where the $15,000.00 came from. Was this his money? Was it on a credit card? Was it from inheritance funds? Was it borrowed? This is his evidence to provide, yet he has failed to do so. p. There are other unexplained expenditures by the Applicant noted by the Respondent including $9,300.00 spent at Mason’s Masonary Supply Company in the fall of 2015, over $12,000.00 on “Toronto water”.
[51] The Applicant is in the best position to explain his income and provide meaningful disclosure to assist the court in determining an appropriate amount; however, in my view the Applicant has failed to do so. He has not directly answered the Respondent’s inferences drawn from the disclosure produced to date and summarized in part above. He has not updated his financial statement contrary to the Rules. I infer that had the Applicant provided more fulsome explanation, such would not have assisted in supporting his position that his income is $60,000.00 for support purposes.
[52] By taking the position that his income ought to be imputed at $60,000.00, he implicitly concedes that his sworn Financial Statement from December 2015 is not reliable in statement of his income at $26,000.00. His expenses of $115,000.00 per year clearly grossly exceed his stated income whether at $26,000.00 according to his Financial Statement or $60,000.00 imputed invited in his affidavit in response to this motion. $115,000.00 equates to approximately $177,000.00 in before tax dollars. This is but one component of the puzzle. I have addressed additional components above.
[53] Notwithstanding the foregoing concerns with respect to the quality and content of the Applicant’s evidence and disclosure to date, I am not satisfied that his income rises to the level of $350,000.00 as asserted by the Respondent. I have no doubt that whatever income I establish on a temporary basis for support purposes will prove to be inaccurate once disclosure is exhausted and questioning has been undertaken; for the time being however I find the sum of $225,000.00 per annum to be more or less consistent with the level of after tax expenses the Applicant maintains in this Financial Statement and the other evidence referred to above.
[54] On the evidence before me I conclude that the Applicant’s income is likely in the range of $225,000.00. I find this figure is appropriate for determining support issues on this motion, subject to reconsideration following disclosure and questioning.
Interim Child Support
[55] The children are in the Respondent’s custody more than 60% of the time. The base amount of child support pursuant to the Guidelines for income of $225,000.00 is $2,867.00 per month. The Respondent seeks retroactivity to September 15, 2015. On March 30, 2016 Justice Rogers ordered child support of $892/month commencing September 1, 2015. I decline to make my order retroactive given the other obligations imposed upon the Applicant by this and previous orders and the availability of this relief at trial. Retroactivity can be addressed later. The child support shall commence July 1, 2016.
Section 7 Expenses
[56] In this regard the Respondent deposes that the children have the following s.7 expenses:
a. Toronto Montessori for Lilia. She has attended there since Junior Kindergarten. The cost is $21,240.00 per year. The Respondent would like Vanda to attend Toronto Montessori as well. b. Piano lessons for Lilia at a cost of $400.00 per month. She has been taking lessons since she was four years old. The Respondent has been paying for this expense on her own since separation. c. Drawing classes for Lilia at a cost of $80.00 per month. Lilia has been taking these classes for two years. The Respondent alone has been paying since separation. d. Daycare/preschool for Vanda in the amount of $1,092.00 per month (ends before the end of June followed up proposed attendance by Vanda at Toronto Montessori commencing September 2016. e. Summer camp $4,000.00 for both children (8 weeks, non-sleepover).
[57] The Respondent seeks an order that the Applicant pay $2,710.00 per month as his contribution to same commencing July 1, 2016 (for all of the claimed expenses being daycare, summer camp, piano lessons and drawing classes).
[58] Regarding Toronto Montessori School, the Applicant indicates that Lilia was enrolled in 2013 and he has paid in full for 2015-2016. His position is that this expense is neither necessary nor reasonable given his financial means. He asserts that he never agreed to have Vanda register for enrollment at Toronto Montessori and he is unable to afford to enroll them in the 2016-2017 school year.
[59] Regarding piano lessons, the Applicant concedes that Lilia has attended since 2013. He last made a payment in October 2015 when he advised the Respondent that he was unable to continue the expense. He says that his sister, a certified music instructor, could continue with the piano lessons free of charge. This proposal is not disputed by the Respondent.
[60] Regarding drawing classes, the Respondent says that Lilia commenced in 2015. The last payment he made was in October 2015 when he advised the Respondent that he was unable to afford the expense.
[61] Regarding daycare the Applicant says the Respondent is a stay at home mother who is being assisted in childcare by her mother who resides with her at the matrimonial home and thus such is not necessary or reasonable.
[62] The Applicant also notes that the Respondent has not produced invoices or proof of payment in relation to these s.7 expenses nor obtained his consent prior to incurring the expenses.
[63] Pursuant to s.7(1) of the Child Support Guidelines necessary and reasonable extraordinary expenses for primary or secondary school education or for any other educational programs that meet a child’s particular needs, and necessary and reasonable extraordinary expenses for extracurricular activities are appropriate expenses for proportionate sharing between the parties.
[64] In Bhupal v. Bhupal, [2013] ONSC 16 (ONT SCJ), the court clarified that when determining if the cost of private school is a necessary and reasonable expense the financial positions and circumstances of the parents are relevant.
[65] Regarding Lilia’s attendance at Toronto Montessori School and Vanda’s future attendance, such is consistent with the Applicant’s income and with the family’s spending pattern prior to separation.
[66] I have no evidence that the summer camp is an expense that has been incurred previously and thus it is not an established practice of the parties. Also, there is no evidence that camp is necessary. Similarly there is no evidence that the drawing classes are necessary. Similarly, the piano lessons expense cannot be said to be “necessary” when the Applicant’s sister is apparently available to provide the lessons at no expense to the parties.
[67] The expenses regarding Toronto Montessori will be continued for both children and shared proportionately pursuant to s.7 of the Guidelines.
Ownership and Sale of the Matrimonial Home
[68] First, with respect to the issue of ownership of the matrimonial home, the Applicant in his materials concedes (both in his Financial Statement and his Responding Affidavit) that the Respondent has an interest in the matrimonial home. In his Financial Statement in particular he claims a 50% interest.
[69] Therefore, I find that the parties are joint owners of the matrimonial home.
[70] Section 10(1)(c) of the Family Law Act empowers the court to order real property to be sold for the purpose of realizing interests in it. Both parties are consenting to the immediate listing and sale of the matrimonial home; however, they are disagreed as to disposition of the proceeds. Further, it is the Respondent’s position that the home should only be sold if the following terms and conditions are met:
a. It is confirmed in a court order that she is the beneficial half owner; b. no new debt has been placed on the home since December 17, 2015; c. she receives her half share at the close of sale; and d. the Applicant’s full half share is retained in the trust account of a real estate lawyer pending further court order or written agreement.
[71] The Respondent’s position is that if the foregoing terms are not agreeable then she would prefer to wait until trial before this issue is determined.
[72] It is the Applicant’s position that all of the net proceeds of sale should remain in trust pending final resolution of the within issues subject to a $50,000.00 advance to each party to assist in finding a suitable accommodation.
[73] As noted above, I have already found that the Respondent is beneficial half owner. The Applicant has deposed in his Responding Affidavit that “no new debt has been placed on the title since December 17, 2015 to date”. Thus, two of the Respondent’s four conditions outlined above have been satisfied.
[74] The parties are not agreed as to the value of the property. The Applicant believes it is worth approximately $1.5 million while the Respondent believes it is worth closer to $2.0 million. There is a mortgage outstanding in the amount of approximately $800,000.00; thus there is substantial equity available to the parties on either valuation.
[75] The Applicant has not brought a motion seeking any relief. The only motion before me for sale of the home is that of the Respondent which is conditional and the Applicant does not agree to all of the conditions sought.
[76] While I would have been inclined to consider payment out of the Respondent’s share of the matrimonial home sale proceeds to the Respondent and a lesser partial payment to the Applicant, given the Respondent’s position on this issue, I treat the Respondent as having withdrawn her conditional request for an order for sale of the matrimonial home.
[77] There is already an order in place requiring the Applicant to maintain “all expenses on the home including but not limited to mortgage, property taxes and utilities.”
[78] The order of Justice Rogers has only just been made and while in time it may prove necessary for some security to be established to secure payment of the Applicant’s support obligations, that need has not yet been demonstrated given no significant history of non-payment of support under Justice Rogers’ order and no opportunity yet for non-payment under the order I make herein.
[79] The Respondent asserts that a substantial equalizing payment will be owing to her. I have not been provided a Net Family Property Statement and disclosure is incomplete. The Applicant was content that an order be made holding the net proceeds of sale in trust “in order to protect the parties substantive rights to equalization” but subject to a $50,000.00 advance to each party. These are terms that were not acceptable to the Respondent.
[80] For the foregoing reasons there will be no order for sale of the matrimonial home at this time.
Temporary Spousal Support
[81] Section 15.2(2) of the Divorce Act entitles the court to grant an interim order requiring a spouse to pay periodic sums deemed reasonable for the support of the other spouse, so long as the recipient spouse is entitled. The relevant factors to consider are the length of time the parties’ cohabitated, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to the support of either spouse.
[82] The Applicant does not appear to take the position that the Respondent is not entitled to spousal support.
[83] The parties’ cohabitated for eight years prior to separation. The Respondent is not employed. She has not worked during the marriage according to her evidence although the Applicant alleges that in her immigration application to Canada dated September 2007 the Respondent asserted that she was working for her father’s company from January 2007 to the undisclosed date of the application as a commercial manager. The Applicant does not depose that the Respondent has been employed since their relationship commenced although he does indicate that the Respondent completed an interior design certificate from Azad University in 2004 and that when the parties came to Canada in 2010 he encouraged the Respondent to continue her education and career in interior design in Canada.
[84] The Respondent’s evidence is that she is not employed and has not worked during the marriage and that during the marriage the Applicant was the only financial support for the family. She has a certificate from Iran in French translation. She used to work for her father who lives in Iran. She did this for two years before getting married. It was office work unrelated to her education.
[85] There is a factual dispute between the parties as to whether the Applicant wanted or did not want the Respondent to work. This is not a dispute that can be resolved on this motion, nor is it necessary that I do so. Although she is not currently employed, the Respondent says that she would like to take a course in event planning and become an event planner; however, she has no money at present and is busy with the children. She is hopeful that she will be able to do so once she has some support.
[86] The Respondent submits that her income for support purposes should be $0.00.
[87] The parties were married for eight years and clearly the Respondent assumed primary child care responsibilities following the births of the children. She has never been employed in Canada. Entitlement is clearly made out.
[88] The parties separated ten months ago. I have no evidence of efforts expended by the Respondent to pursue employment opportunities following separation. I note that one of the parties’ children remains preschool. At the same time it appears that the Respondent has the assistance of her mother to assist with child care and thus I consider it reasonable to conclude that she could develop some part time income approaching $18,000.00 per annum and I so find for support purposes.
[89] Based on income of $225,000.00 for the Applicant and $18,000.00 for the Respondent, the range of child support pursuant to the Divorcemate calculations is low $2,921.00, mid $3,442.00 and high $3,969.00. The net benefit to the Respondent of these monthly payments would be $2,322.00, $2,680.00 and $3,043.00 respectively.
[90] In her affidavit the Respondent states:
“In the event Kamran is not agreeable to these terms and conditions I am not agreeable for the property to be sold at this time and seek to wait until trial before this issue is determined. There is already a court order in place requiring Kamran to maintain all expenses on the house….which I ask to be continued until the home is sold. Once the home is sold I will pay for my own housing expenses from the support I receive.”
[91] The expenses being maintained per the March 14, 2016 order are (per Applicant’s Financial Statement):
a. Mortgage $3,400.00 per month b. Taxes $683.00 per month c. Utilities i. Water $143.50 per month ii. Heat $163.90 per month iii. Electricity $176.70 per month iv. Telephone $14.00 per month v. Cable $70.00 per month vi. Internet $50.00 per month Total utilities: $618.10 per month d. Insurance $164.74 month
Of these expenses the utilities are for the Respondent’s sole benefit while the mortgage, taxes and insurance payments are to the joint benefit of the parties given joint ownership of the home.
[92] Therefore while the Applicant is maintaining these payments they benefit the Respondent in the amount of $2,742.00 per month in after-tax dollars (i.e. ($3,400.00 + $683.00 + $167.74)÷2+$618.16).
[93] The net benefit of mid-range spousal support is $2,680.00, less than the individual benefit being conferred upon the Respondent by the Applicant complying with the order of March 14, 2016.
[94] Therefore I find that the Respondent’s need for spousal support is currently satisfied so long as the Applicant remains in full compliance with his obligations under the March 14, 2016 order. Therefore no further order is required at this time.
Exclusive Possession
[95] The Respondent seeks exclusive possession of the matrimonial home pursuant to s.24 of the Family Law Act.
[96] In his responding materials the Applicant does not identify his position with respect to this issue. From this I infer that he does not oppose same. I also note that he did not identify his position through counsel in submissions.
[97] Therefore I will grant an order of interim exclusive possession of the matrimonial home in favour of the Respondent.
Interim Disbursements
[98] Rule 24(12) of the Family Law Rules permits the court to order a party to 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.
[99] The purpose of an order for the payment of interim costs or disbursements is to ensure that each party can equally provide or test disclosure, make or consider offers and if necessary, go to trial (see Younger v. Zolty, [2011] ONSC 5943 (ONT SCJ)).
[100] The law in relation to this issue is evolving and in my view it is fair to say that a finding of “exceptional circumstances” is not necessary to trigger an entitlement to an award of interim disbursements.
[101] It is submitted that the Respondent cannot afford the costs associated with these proceedings although with the support order made herein that will change markedly. She seeks $50,000.00 given the youth of these proceedings and the Applicant’s failure to retain a chartered business valuator to produce an opinion of value of his business interests at valuation date and his income for support purposes.
[102] I am concerned that the financial imbalance exhibited here may lead to unfairness as this proceeding unfolds. I am satisfied that the Applicant’s means are significantly greater that the Respondent’s. A valuation of the Applicant’s business interests and income is required in order to move this matter toward resolution. I would prefer however that this be undertaken by the Applicant.
[103] My order below is designed to address these concerns.
Compliance with Previous Orders
[104] The Respondent submits that the Applicant is in breach of the order of Justice Bennett dated March 14, 2016 and the order of Justice Rogers dated March 30, 2016. After initiating the motion, some payments came to the Respondent through the Family Responsibility Office. It is clear that there are often delays between payments made to the Family Responsibility Office and receipt by support recipients. On the evidence before me I cannot conclude that the Applicant is in breach of his support obligations.
[105] Regarding disclosure pursuant to Justice Rogers’ order of March 30, 2016, the evidence before me is inconsistent with the Respondent asserting failure of full compliance and the Applicant asserting full compliance. I can draw no conclusion on the conflicting affidavit evidence and therefore there will be no order in this regard.
Conclusion
[106] For all of the foregoing reasons, order to go as follows:
a. Temporary sole custody of the children to the Respondent. b. The Children’s passports shall remain in the Respondent’s possession and control subject to access by the Applicant for travel with the children. Either party planning to travel internationally with the children shall provide the other party at least 30 days’ notice in writing of said plans including proposed itinerary, address of destination and dates of departure and return. Consent to travel shall not unreasonably withheld. Neither party shall remove the children from Canada without the consent in writing of the other party or a court order. c. The Respondent shall consult with the Applicant regarding major decisions affecting the welfare of the children. d. Commencing July 1, 2016 the Applicant shall pay the Respondent child support in the amount of $2,867.00 per month for the two children of the marriage, based upon income of $229,000.00. e. Commencing July 1, 2016 the parties shall proportionately share the Toronto Montessori expenses for both children pursuant to s.7 of the Child Support Guidelines. f. The Respondent shall have interim exclusive possession of the matrimonial home. g. The Applicant shall pay interim disbursements of $25,000.00 to the Respondent on or before August 31, 2016; h. By September 30, 2016 Applicant shall provide proof to the Respondent of his having retained a CBV to prepare an opinion of value of all of the Applicant’s business interests as of the date of separation and a valuation of his income for support purposes; i. Should the Applicant fail to comply with subparagraph (h) he shall pay a further $25,000.00 to the Respondent by October 15, 2016. j. The support orders herein are without prejudice to the rights of the parties to return these issues, including spousal support, to court following questioning and completion of disclosure. k. Parties shall respond to any outstanding requests for information within two weeks or provide an affidavit explaining efforts to comply and why compliance is not possible. l. Parties shall submit to questioning at a time and place to be agreed by counsel. m. Remaining claims are dismissed without prejudice regarding issues of spousal support and sale of the matrimonial home. n. Parties to provide to my assistant at Barrie costs submissions in writing limited to three pages excluding offers and Bills of Costs. Respondent’s submissions within 30 days. Applicant’s submissions within 45 days.