COURT FILE NO.: D24826/14 DATE: 2016/09/15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Maryam Amirmojahedi Elena E. Mazinani, for the Applicant Applicant

• and -

Roger Edmond Rivette M. Kenneth Douglas, for the Respondent Respondent

MOTION HEARD at Welland, Ontario: September 2, 2016

The Honourable Justice T. Maddalena

ENDORSEMENT

THE ISSUES

Applicant’s Motion

[1] There are three issues in the applicant’s motion for adjudication by the court. They are as follows:

1. The quantum of spousal support and the retroactivity of spousal support to October 1, 2015;
2. Leave to amend the application to include a claim for the Islamic Marriage Contract (“MEHR”); and
3. Documents disclosure.

Respondent’s Motion

[2] There are three issues for adjudication by the court as outlined in the respondent’s motion. They are as follows:

1. A reduction of spousal support from the $1,000 per month ordered by the court previously to $500 per month commencing July 1, 2016;
2. An order for production of documents; and
3. Payment of credit card debt from joint sale proceeds of the matrimonial home.

Disclosure Issues

[3] There was much argument between these parties regarding requests for disclosure of documents and the actual documents disclosure. Each party is pleading the insufficiency and inadequacy of disclosure by the other side. Many lists have been exchanged.

[4] After hearing counsel on the issue of outstanding disclosure, I make the following orders on disclosure:

(1) On the consent of the parties, the court grants leave for the mutual questioning of the parties.

(2) There are a number of documents that the applicant has consented to provide to the respondent. Thus, on consent, the applicant shall provide to the respondent the following additional disclosure:

(i) The 1998 income tax return of the applicant;

(ii) Regarding the CIBC accounts from January 2012 to August 2012, the applicant states, via letter from CIBC that the account in question (being account #7806584) was closed in 2012. The respondent is unsatisfied with this response and, thus, the applicant will sign an authorization permitting the respondent to make his own inquiries regarding this account of the applicant. (CIBC a/c # 7806584);

(iii) The applicant shall obtain from Fallsview Casino a report documenting her casino losses from October 19, 2014 to October 30, 2014;

(iv) The applicant shall obtain from Fallsview Casino a letter documenting her casino losses for the years 2001, 2002, and 2003;

(v) The respondent seeks information on the applicant’s property in Iran. The applicant states she has no property in Iran. This issue will be the subject of questioning and ultimately a triable issue.

[5] The applicant submits that there were a number of properties sold by the respondent during the marriage. The applicant, therefore, seeks to obtain from the respondent, regarding property in Sudbury, two properties in Fort Erie, and a Niagara Falls property, copies of the solicitor’s reporting letters for the sale of each property and an accounting of how the net proceeds were disbursed.

[6] Further, the applicant seeks the following from the respondent:

1. A copy of the respondent’s 2015 income tax return and notice of assessment;
2. Proof that the RSP amount of $88,911.78 was used to repair the matrimonial home and that same existed prior to marriage;
3. A copy of all bank accounts, statements, and schedules for the last seven years to the present, including the TD Canada Trust account 9857.

[7] All of the above is ordered on consent.

Islamic Marriage Contract (MEHR)

[8] The applicant wishes to amend her application to include a claim provided in the Islamic Marriage Contract (MEHR).

[9] The respondent states that such a claim is unlikely to succeed and initially opposed the amendment, but at the hearing agreed that the amendment should be made provided costs of $1,000.00 were paid by the applicant to the respondent to address the prejudice issue.

[10] The issue of granting an amendment has nothing to do with the likelihood of success of a claim. The issue of the marriage contract is a triable issue and the amendment is therefore permitted.

[11] There is sufficient time to permit the amendment, such that there is no prejudice to the respondent.

[12] The applicant is, therefore, permitted to amend her claim to include the claim for the Islamic Marriage Contract, pursuant to Rule 11(3) of the Family Law Rules.

[13] The amended application shall be served and filed within 15 days of the receipt of my endorsement on the motion.

[14] The respondent shall then have 15 days thereafter to serve and file his amended answer.

Spousal Support

[15] The main issue for adjudication is the quantum of spousal support payable by the respondent to the applicant.

[16] A temporary support order was initially made by Harper J. on August 2, 2015. In paragraph 11 of that order the court stated, “So long as the Respondent continues to pay all of the costs of the matrimonial home at $500 per month (taxes, insurance, utilities and phone), he shall pay spousal support, commencing August 1st, 2015, in the amount of $1,000 per month, payable by the Respondent to the Applicant.” Paragraph 12 of the order stated the parties could return to court once the matrimonial home was sold.

[17] The applicant submits that the matrimonial home was sold September 3, 2015. The net proceeds remaining in trust initially were $344,583.46, but $20,000 was disbursed to each of the parties, thus leaving in trust $304,583.

[18] The applicant submits that the respondent is no longer required to pay expenses for the matrimonial home, therefore, spousal support should now be adjusted in accordance with the Spousal Support Advisory Guidelines (“SSAG”) calculation for the midrange in the amount of $2,239 monthly, and same should be made retroactive to October 1, 2015.

[19] The applicant states that she is in receipt of Canada Pension Plan (“CPP”) disability in the amount of $6,893 annually and, separate and apart from spousal support, this is her only source of income.

[20] The respondent submits that he receives a tax-free pension from Provident Life and Accident Insurance Company in the amount of $51,000 per annum, as well as taxable income of $10,501 from CPP disability.

[21] The respondent submits that his spousal support obligation should reduce from $1,000 a month to $500 per month on an interim basis. He states that he has extraordinary expenses due to his disability, which include the following:

• Blue Cross - $1,938 annually
• Medication not covered by any plan or OHIP - $652 annually
• Seeing Dr. Schwartz quarterly in Toronto for treatments - $4,222 annually, including transportation
• Personal support worker (“PSW”) - $10,600 annually. The costs for the PSW include, according to the evidence of the respondent, overseeing changes of his medication and uses, light housecleaning, grocery shopping, and driving the respondent to his doctor’s appointments in Toronto.

[22] The respondent submits that his total extraordinary medical expenses are approximately $17,412 annually and are nondiscretionary. He submits this amount should be deducted from his income for purposes of calculating spousal support.

[23] I note the respondent has been disabled since 2009. However, the correspondence from the PSW is dated August 3, 2016 after the applicant’s motion was brought. Further, the respondent’s financial statement sworn June 2016 makes no reference to a PSW and associated expenses. The correspondence of the PSW is not signed on any specific letterhead, but on a regular blank sheet of 8-1/2” X 11”.

[24] The applicant submits the PSW is the respondent’s girlfriend. The respondent denies this. I find that this is an issue for trial, but do allow the respondent $2,590 (being $1,938 for Blue Cross and $652 for medication not covered by OHIP) as the deduction from the $51,000 nontaxable income for spousal support purposes.

[25] Thus, for interim spousal support purposes, I assess his nontaxable income as $48,410 for gross up, and his taxable income as $10,915.

[26] The applicant is in receipt of CPP disability in the amount of $6,893 annually.

[27] The applicant has also received a structured settlement in the amount of $145,000 from McKellar Structured Settlements in August 2011. This was as a result of a motor vehicle accident in June 2007.

[28] The settlement included, in part, an allowance for income replacement as well as a Family Law Act claim for the respondent. The respondent submits a portion of the structured settlement ought to be included as imputed annual income for the applicant.

[29] The respondent deposes that the applicant, upon receipt of these funds, went to Iran for four months and the money has not been accounted for. He submits that she purchased property in Iran.

[30] The applicant states that she and the respondent jointly spent the $145,000 that she received together on the family. She submits she has no monies left from the motor vehicle accident settlement proceeds.

[31] I conclude that this is an issue for trial.

[32] The respondent further alleges the applicant spent a disproportionate amount of joint proceeds during the marriage on gambling. The applicant makes the same claim against the respondent.

[33] The respondent further alleges that after a review of bank statements between 2012 and 2014, the applicant withdrew cash advances totalling approximately $273,500.42 from various accounts and credit cards. He submits none of the monies went to family expenses. The applicant denies this.

[34] I conclude that all of these are triable issues.

[35] Lastly, these parties strenuously disagree as to the length of time that they were cohabiting as spouses.

[36] According to the applicant, cohabitation commenced in July 1992. They were married June 26, 1999 (both agree on the date of marriage as confirmed by their marriage certificate). They separated for the last time October 30, 2014. There are no children of this marriage. The applicant further submits that in 2005/2006 she and the respondent separated for a period of approximately six months and then reconciled. As a result of all the aforementioned, the applicant submits the total period of cohabitation as spouses is approximately 22 years.

[37] The respondent submits cohabitation commenced in 1998 or the beginning of 1999.

[38] The respondent confirms the six months separation in 2005, but states there were various other periods of separations and reconciliations throughout, such that the total period of cohabitation is 13 years, and not 22 years.

[39] I conclude the length of cohabitation is a triable issue.

[40] The respondent further suggests that the costs of caring for the matrimonial home were significantly greater than the $500 a month reflected in the order of Harper J. dated August 12, 2015.

[41] However, it was acknowledged by the respondent this order was not appealed.

[42] The matrimonial home has been sold and effective October 1, 2015 there were no longer any carrying costs. The issue for the court, therefore, is how does this affect the quantum of spousal support, given the order of August 12, 2015?

Are the SSAG Applicable?

[43] Both parties acknowledge that support is payable by the respondent to the applicant. The issue is quantum.

[44] The applicant submits the court should apply the midrange of the SSAG which would provide for the respondent to pay to the applicant $2,239 monthly.

[45] The respondent submits the amount of spousal support ordered at $1,000 per month should be reduced to $500 per month effective July 1, 2016.

[46] The respondent submits the court should not utilize the SSAG in this case, given the enormous debt faced by the respondent and given his illness/disability expenses. Thus, the amount of spousal support should not fall within the parameters of the SSAG.

[47] I have already dealt with the illness/disability aspect of the respondent’s claim.

[48] The respondent states he is left with a great deal of credit card and family debt. He continues to make those debt payments that curtail his ability to pay spousal support in accordance with the SSAG.

[49] I note his sworn financial statement, dated August 4, 2016, shows total debt on the date of separation as $67,000 and $93,800 effective the date of statement.

[50] The applicant’s sworn financial statement dated the 22nd of July 2016 shows debt of $20,487 on the date of separation and $68,130 effective the date of the statement.

[51] I note further the draft net family property statement of the respondent, at tab 43 of the court continuing record, shows a debt of the applicant on the date of separation as $25,000 and debt of the respondent on the date of separation as $48,000.

[52] The issue for the court is whether this situation is one that would take the facts outside of the application of the SSAG.

[53] The respondent submits the s. 12 exception should apply given the large debt payment. Here, the debts of both on the date of separation total $73,000. The remaining funds in trust from the sale of the matrimonial home total $304,583.

[54] In the instant case, the debts of the parties do not exceed the assets of the parties.

[55] It is noted in the article entitled, “Chapter 12 Exceptions to the SSAG”, appended to the respondent’s factum, at p. 63 that, “the debt payment exception is applicable only when debts exceed assets, and even then, only when debt payments are so large that they cannot be adjusted for by location in the range.”

[56] Here, the total debts do not exceed the total monies remaining in trust. These parties do not have a negative net worth. The total family debt does not exceed total family assets.

[57] In the case of Dunn v. Dunn, 2011 ONSC 6899, the joint debts of the parties were $138,000. Each spouse only had modest RSPs as assets. Mr. Dunn, in addition to his share of the joint debt, had further debts of $123,000, some of which were due to the post-separation legal fees and accruing income taxes. The court held that despite Mr. Dunn’s difficult position, it declined to move outside of the SSAG range to create an exception. Instead, the court awarded spousal support near the low end of the range. *Ontario Bar Association’s Institute 2015 article – page 5.

[58] The same applies in the instant case. Rather than taking this case outside of the SSAG range, I find that an award of spousal support near the low end of the range will adjust for the higher debt payments undertaken by the respondent. Further, in the instant case, there is much dispute between the applicant and the respondent with regard to the family debts. There is dispute over properties that were sold by the respondent during the marriage. There is further dispute over a property which the respondent owns jointly with his daughter from a previous marriage. There is dispute regarding renovations to the matrimonial home or monies spent during the marriage on renovations for the jointly-held property with the respondent’s daughter.

[59] There is further dispute as to whether the respondent is entitled to a disproportionate share and/or adjustments to net family property given his assets on the date of marriage.

[60] These are all issues for trial.

[61] I find for purposes of this motion that the applicant’s income at the current time consists of $574.45 monthly from a CPP disability benefit, together with $1,000 per month in spousal support.

[62] I find that the respondent’s income consists of $51,000 annually nontaxable as well as taxable $10,915 CPP disability benefits. Given my findings on the respondent’s medical expenses, I conclude his nontaxable income for support purposes is $48,410. This is subject to a gross-up.

[63] I conclude that the applicant has substantial need. The respondent has the ability to pay even with the family debts. The matrimonial home no longer has carrying costs. This will free up some of his funds.

[64] Further, as consideration for interim spousal support, the court must consider the condition, needs, means and other relevant circumstances of each spouse as outlined in the Divorce Act. Also, each spouse is presumptively entitled to an approximate equal standard of living.

[65] I find that during their cohabitation, these parties lived beyond their means. There is debt outstanding. This will be adjusted in the calculation of the parties’ net family property.

[66] Having considered the objectives of the Divorce Act, I am persuaded that this case ought not to come within the exception to the SSAG, but is a case where the location within the ranges can accommodate any necessary adjustment.

[67] I conclude the payor can be accommodated by an award in the low range of the SSAG.

[68] I have attached Schedule A and Schedule B as DivorceMate calculations. The current spousal support may be accommodated by taking the average of the low range for 13 year cohabitation (see Schedule A) and the low range for 22 year cohabitation (see Schedule B). I, therefore, conclude that the spousal support to be paid by the respondent to the applicant is $1,500 per month.

Retroactivity

[69] The court has the discretion to order retroactive payments on a temporary basis.

[70] The order of Harper J. of August 12, 2015 took into consideration the respondent making ongoing payments for the matrimonial home. However, the matrimonial home was sold in September 2015. Thus, the applicant seeks an increase in spousal support commencing October 1, 2015.

[71] The respondent claims his ongoing payments for the matrimonial home were actually larger than contemplated. This is a triable issue.

[72] Thus, I order spousal support to be paid by the respondent to the applicant effective October 1, 2015 and continuing monthly until further agreement or court order.

[73] Lastly, the respondent’s motion requests payment of the outstanding credit card debt from the sale proceeds of the matrimonial home. Unfortunately, the parties do not agree on this issue. This, absent an agreement, must be left as a triable issue.

SUMMARY OF ORDERS MADE

Disclosure Orders

[74] Disclosure orders are:

(1) On consent, leave is granted for the mutual questioning of the parties.

(2) On consent, the applicant shall provide to the respondent the following:

(i) 1998 income tax return of the applicant;

(ii) Direction and authorization for CIBC permitting the respondent to make inquiries regarding CIBC account of the applicant from January 2012 to August 2012 (re CIBC account 7806584);

(iii) Fallsview Casino report documenting casino losses from October 19, 2014 to October 30, 2014;

(iv) Fallsview Casino report documenting casino losses of the applicant for 2001, 2002, and 2003.

(3) On consent the respondent shall provide to the applicant:

(i) Regarding properties in Sudbury, Fort Erie, and Niagara Falls – copies of solicitor’s reporting letters regarding the sales, and an accounting of how net proceeds were disbursed;

(ii) Copy of the respondent’s 2015 income tax return and notice of assessment from the Canada Revenue Agency;

(iii) Proof that the respondent’s RSP amount of $88,911.78 was used to repair the matrimonial home and that the RSP existed prior to marriage;

(iv) Copy of all bank accounts, statements and schedules for the last seven years to the present, including TD Canada Trust account 9857.

(4) Both parties shall serve completed affidavits of documents in accordance with Rule 19 of the Family Law Rules.

Amendment of Pleadings

(5) The applicant is permitted to amend her pleading to include a claim for the Islamic Marriage Contract pursuant to Rule 11(3) of the Family Law Rules.

(6) The amended application shall be served and filed within 15 days of the receipt of this endorsement on the motion.

(7) The respondent shall have 15 days thereafter to serve and file his amended answer.

Spousal Support

(8) The order of August 12, 2015 is hereby amended as follows: Commencing October 1, 2015 and continuing monthly thereafter, the respondent shall pay to the applicant as spousal support the amount of $1,500 per month until further court order or agreement of the parties.

(9) Support deduction order to issue.

Costs

[75] Unless otherwise agreed, costs submissions may be made in writing, limited to three pages, plus the bill of costs, plus any offers to settle. The applicant’s are due by September 29, 2016. The respondent’s are due by October 13, 2016.

Maddalena J.

Released: September 15, 2016