CITATION: Ursini v. Ramskogler, 2016 ONSC 6135

NEWMARKET COURT FILE NO.: FC-15-49180-00 DATE: 2016-10-18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Michael Ursini Applicant

– and –

Alicia Ramskogler Respondent

Counsel for the Applicant: Melanie Battaglia Counsel for the Respondent: Audrey Lee

HEARD: September 28, 2016

JARVIS J.

ruling on motion

[1] This is a motion by the respondent (“Ramskogler”) for a temporary support order and disclosure. The principal issue is support entitlement. The applicant (“Ursini”), who was the responding party, opposes the relief sought. It is his position that there is no legal entitlement to support, that Ramskogler has failed to take reasonable steps to become self-sufficient and that, in any event, a $60,000 uncharacterized, without prejudice, payment to her which was ordered by Nelson J. on March 23, 2016 more than adequately satisfies any obligation owed. That Order was made on consent. As for the disclosure requested, Ursini claims that he has satisfied all reasonable disclosure requests.

Background

[2] These are the facts relevant to this motion:

(a) the parties met in 2002 and dated sporadically. Ramskogler was then about 20 years old and Ursini was about 33 years old;

(b) the parties began cohabiting in 2009 when Ramskogler moved into Ursini's residence. Ramskogler claims that the parties actually began living as common-law spouses in 2006: this is disputed. What is not disputed is that the parties separated in July 2015 after Ursini was charged with assaulting Ramskogler, and he was removed from the home. Those charges have since been resolved by a peace bond;

(c) the parties’ evidence conflicts as to the nature of the parties’ relationship between 2009 to 2015. Ramskogler claims that they had a conjugal relationship: Ursini maintains that relationship only lasted until 2010, and that afterwards the parties were no longer involved with each other. Ursini has maintained that despite his encouragement that Ramskogler leave his home, she refused;

(d) in addition to ownership of his residence, Ursini is the owner and controlling shareholder of a number of companies. His net worth exceeds $2,000,000;

(e) Ramskogler has few marketable skills. Between 2009 to 2015 she periodically worked for one of Ursini’s companies in a clerical capacity;

(f) Ursini started this Application on September 17, 2015 when Ramskogler was living in his residence and he elsewhere. In her Answer and Claim Ramskogler requested spousal support and general and punitive damages for assault;

(g) a Case Conference was held on February 5, 2016;

(h) on March 23, 2016 the parties consented to an Order later made by Nelson J. that Ursini pay $60,000 to Ramskogler “on a without prejudice basis… and on the basis that no finding on the issue whether [Ramskogler] is a “spouse” and/or that there is a prima facia case for same will be pursued or sought until the trial of this matter” (paragraph 6). That paragraph would appear to conflict with paragraph 8 of the same Order where the parties agreed that “[n]o motion for support shall be brought or returnable until… after the Settlement Conference”;

(i) Ursini immediately paid Ramskogler the sum of $60,000. Most of those funds were paid to Ramskogler except for $22,000 which are being held by Legal Aid. Ramskogler has spent most of the balance to repay debts incurred after the parties separated and to meet her daily living expenses;

(j) the Order of Nelson J. also provided that Ramskogler would vacate Ursini's residence before April 11, 2016. That was done;

(k) Ramskogler recently gave birth to a child who was conceived after the parties separated. It is acknowledged that Ursini is not the father: Ramskogler has taken no steps to seek support from the child's father;

(l) a Settlement Conference was held on July 4, 2016. A comprehensive disclosure Order was made with the parties’ consent. Questioning was ordered to be completed by September 13, 2016;

(m) Ramskogler is seeking additional financial disclosure from Ursini. No questioning has been held;

(n) when this motion was argued neither party was able to satisfactorily explain the inconsistency between paragraphs 6 and 8 of Nelson J.'s Order. Each adopted the interpretation that best suited their position; and

(o) for the purpose of this motion Ursini acknowledged a $134,000 income even though his financial statement declared a $47,563 income.

[3] The issue of Ramskogler's entitlement to support has permeated these proceedings. Although acknowledging Ramskogler’s 2009 to 2015 period of residency in his home Ursini catalogued what he contended were the facts relevant to the issue whether the parties were ever “spouses” within the meaning of section 29 of the Family Law Act. This is what he listed:

(a) the parties were never married and did not live in a conjugal relationship for a period of three (3) continuous years or more;

(b) Ursini explicitly told Ramskogler that they would never have children together;

(c) the parties never planned for the future together, and Ursini says that he never told Ramskogler that he would “take care of her”;

(d) Ursini alleged that Ramskogler maintained intimate relationships with several men during the time that she resided in his home. Ramskogler denies this;

(e) Ursini maintained intimate relations with other women while dating Ramskogler;

(f) Ramskogler described her status as “single” on her Income Tax Returns from 2007 to 2014;

(g) Ursini always described his status as “single” on all of his income tax filing;

(h) Ramskogler never performed household services/housework, including cooking and cleaning at Ursini’s home;

(i) Ramskogler never contributed to the purchase of Ursini’s home;

(j) Ramskogler never contributed to any maintenance or household expenses, but only her own personal expenses;

(k) Ursini paid Ramskogler a salary when she worked part-time for his company for approximately two years, and assisted her with some of her credit card expenses;

(l) Ursini never held himself out as Ramskogler’s “boyfriend”, let alone her “spouse” to his friends, colleagues or family;

(m) Ramskogler never met Ursini’s siblings or extended family;

(n) Ursini met Ramskogler’s parents briefly, in passing, on one occasion in 2002;

(o) Ramskogler’s parents and Ursini’s parents never met each other;

(p) Ramskogler never listed Ursini’s personal address on her official documents as her residence. Ursini permitted Ramskogler to use his business address temporarily until she found a place to reside;

(q) the parties never owned any real property together;

(r) the parties never had any joint bank accounts or investment accounts;

(s) the parties never made a Last Will and Testament and/or Power of Attorney naming each other as executors and/or beneficiaries; and

(t) the parties never designated the other as a beneficiary of any life insurance, RRSPs, health plans or other benefits.

[4] Many of these “facts” are disputed by Ramskogler. In essence, Ursini relegates her to a friend, or tenant, with benefits. Ramskogler points to pictures of birthday and Christmas celebrations spent with Ursini’s parents in 2011 and separate Christmas cards from Ursini and his parents to Ramskogler (Ursini’s card expresses his “love” for Ramskogler), and as recently as August 3 and 4, 2014 the parties stayed together at the Sheraton Four Points Hotel in Niagara Falls to, as Ramskogler stated, celebrate the anniversary of their relationship. It is noteworthy that Ursini has contended that ‘[F]rom 2010 onward, the parties were no longer involved in a casual relationship…” and that his parents had no relationship with Ramskogler. The documentary evidence would suggest otherwise.

Analysis

[5] Section 29 of Part III of the Family Law Act defines spouse as,

…either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years….”

[6] The bar is low when determining entitlement on a temporary motion. As observed in Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600, [2004] O.J. No. 4595, [2004] O.T.C. 979, [2005] W.D.F.L. 312,

36 Interim support motions are not intended to involve the court in a detailed examination of the merits of the case. If a claimant establishes a prima facie case an order will be made based largely on the means and needs of the parties. (see: Plaxton v. Plaxton (2002), 2002 ONSC 49545, 27 R.F.L. (5th) 135 (Ont. S.C.J.)).

[7] As more recently observed by Penny J. in Knowles v. Lindstrom, 2015 ONSC 1408,

[8] It is well-established that interim support motions are not intended to involve a detailed examination of the merits of the case. Nor is the court required to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. These tasks are for the trial judge. Orders for interim support are based on a triable or prima facie case. An order for interim support is in the nature of a “holding order” for the purpose of maintaining the accustomed lifestyle pending trial, Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (ONSC) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, 2012 CarswellOnt 14841 (ONSC) at para. 24.

[8] Ursini has argued that the $60,000 paid to Ramskogler was intended to meets her needs until trial but there is nothing in the Order of Nelson J. that says that. Moreover, paragraph 8 of that Order specifically contemplated the bringing of a motion for temporary support. There is also the issue of Ramskogler’s tort claim.

[9] It is not for this court in the circumstances of this case and at this stage of the proceedings to delve into the quality of the parties’ relationship. It may be, as Ursini contends, one from which he felt unable to extricate himself. But, on his evidence, he had five years to arrange for Ramskogler’s removal from his residence and did not do so. He enabled the continuation of Ramskogler’s financial dependence on him beyond 2010. A “prima facie” case entitling Ramskogler to temporary support has been made out.

[10] While Ramskogler disputes that Ursini’s income is limited to the $134,000 which he has acknowledged for the purposes of this motion, there is no better evidence about that income at this time. Ramskogler argued that the court should attribute pre-tax income from Ursini’s companies to him, relying on Ricciardelli v. Ricciardelli, 2010 ONSC 2961, 2010 CarswellOnt 4236 and Whalen-Byrne v. Byrne, 2016 ONSC 1172, 2010 CarswellOnt 2428. Those are trial decisions where there was, in each case, the kind of robust evidentiary record about a putative payor’s attributable income from closely-held companies which is absent in this case. In Whalen-Byrne, there was expert income analysis evidence.

[11] Ursini has argued that, as an alternative and without conceding the issue of entitlement, the $60,000 paid to Ramskogler exceeds her best case lump sum SSAG award. That is based on a five year relationship, itself not admitted. The lump sum amount would be significantly greater than $60,000 if there was a nine year relationship.

[12] There is insufficient evidence about Ramskogler’s income earning ability or whether, as Ursini contends, there should be imputed income to her. Given the recent birth of her child, no income shall be imputed to Ramskogler.

[13] Based on the evidentiary record in this case, Ursini should pay to Ramskogler the sum of $1,600 monthly. This is the average of the SSAG high end range for a payor earning $134,000 a year depending on whether the relationship was five or nine years in duration.

Disclosure

[14] Ramskogler is requesting an order that Ursini provide within 30 days the following:

(a) a complete copy of all bank statements for all personal and joint credit instruments were over which the Applicant exercises control (including over which the Applicant has signing authority) including but not limited to credit lines, credit cards, or loans since January 1, 2013;

(b) a complete copy of all business credit instrument statements since January 1, 2013 to the present;

(c) a complete copy of all business bank account statements since January 1, 2013 to the present; and

(d) a complete copy of all applications submitted for financing of any kind since January 1, 2013 to the present.

[15] Disclosure has also been an issue in these proceedings since its inception. Even though Ursini started this case in September 2015, he filed no Financial Statements or tax information until March 8, 2016, a month after that had been ordered by Douglas J. at the February, 2016 Case Conference. The July 4, 2016 Settlement Conference led to a more fulsome disclosure Order being made but not as broad as sought by Ramskogler. In her August 24, 2016 affidavit Ramskogler complained about Ursini's dilatory efforts at providing meaningful disclosure. A Request for Information sent April 27, 2016 was ignored, and perfunctory disclosure of some of Ursini's corporate holdings was delivered mere days before the Settlement Conference.

[16] In his affidavit sworn September 2 and 23, 2016 Ursini catalogued the disclosure made pursuant to the Order of Douglas J., and contended that the disclosure still requested was “disproportionate to the issues in this case, excessive and overreaching.” Ramskogler maintains that the disclosure sought is relevant because it will more fully flesh out the sources of income available to Ursini since most of his income is derived from corporations of which he is the sole controlling officer, director and shareholder. This is the reason why questioning has not proceeded.

[17] Despite acknowledging, for this motion, an income greater than declared for income tax purposes and as sworn in his Financial Statement, Ursini has not commissioned an income analysis: counsel for Ramskogler advised the court that her client was unable to afford the cost of any such analysis.

[18] In Sharma v. Sunak, 2011 ONSC 7670 McGee J. observed, when dealing with the income of a self-employed party that it would be the “uncommon case that will not require some level of expert assistant to value income… and a party’s own interests in an incorporated .… company.” While that observation was made in connection with a child support claim, it is equally applicable to spousal support disputes, particularly in the circumstances of a case such as this case where Ursini acknowledges an income significantly greater than declared to the Receiver General for tax purposes and as shown in his Financial Statement.

[19] Ursini has alleged that Ramskogler removed from his residence, when she vacated it, most of his personal and business files and records. While that could be true (and I will not speculate about that) the fact is that Ursini is the person most familiar with whom he banks and to whom he, or any of his companies, has applied for credit or with whom there are outstanding financing arrangements. The issue though is how from a practical and cost-effective standpoint Ramskogler would be able, if the disclosure Order requested was granted, to assimilate all of the disclosure provided to move forward with her case in circumstances where Ursini has shown no inclination to engage expert income analysis assistance. The court is presented with a Hobson’s choice.

[20] In light of his concerns about the excessive nature of Ramskogler’s disclosure requests which have, among other things, detracted from Ursini’s ability to deal with his father’s failing health and his mother’s need for his assistance, Ursini should be given an opportunity to engage an income analyst before the further disclosure requested by Ramskogler is ordered.

Disposition

[21] The following Order shall issue:

1. Ursini shall pay to Ramskogler effective October 1, 2016 and continuing monthly thereafter on the first day of each succeeding month until further Order the sum of $1,600 for temporary spousal support. This Order is based on a “without prejudice” income attributed to Ursini of $134,000 a year.

2. Ursini shall have 30 days to advise Ramskogler that he has engaged a qualified expert of his choosing to analyze his income for support determination purposes. The expert so chosen shall confirm their retainer within this 30 day period to Ursini, who shall provide a copy of that confirmation to Ramskogler within that same 30 day period. The expert shall confirm that a trial-ready Report will be available no later than January 30, 2017.

3. Ursini shall provide to the expert chosen such income information as the expert may require including but not limited to the disclosure already made to Ramskogler. The expert should be made aware of the disclosure request made by Ramskogler in paragraph [15] above and shall be at liberty to determine whether such information is relevant and/or necessary.

4. Ramskogler shall be entitled to forward to the expert chosen by Ursini any of the pleadings filed in these proceedings to date, but no other information.

5. If Ursini should choose not to take advantage of the option set out in (2) above by the time indicated, then he shall provide to Ramskogler by November 30, 2016 all of the disclosure requested in paragraph [14] above.

6. The costs of the expert, if engaged, and the obtaining of the disclosure now ordered if (2) is not followed, shall be to Ursini’s account and shall be reserved to the trial judge.

7. Paragraphs 6 and 7 of the Order made by Douglas J. on September 13, 2016 are varied, respectively, to provide that the parties shall schedule a teleconference with Douglas J. through his Judicial Assistant to be held no later than April 15, 2017 for a Trial Scheduling Conference and that questioning shall be completed no later than March 31, 2017.

8. Any issues arising with respect to compliance with (2) to (7) above may be brought to my attention by Form 14B motion on ten days’ notice to the other party.

9. A Support Deduction Order shall issue.

[22] If Ursini should choose an expert, the parties should understand that this is not a joint retainer. Nothing precludes Ramskogler from engaging an expert of her choice. It is hoped that, by the directions given above, the issues of relevant disclosure and Ursini’s qualifying support income will fairly and reasonably assist the parties’ settlement efforts and, if necessary, the court in the event of a trial.

[23] In the event the parties are unable to resolve the issue of costs arising from this motion and the costs from the Settlement Conference as ordered by Douglas J. then each shall file no later than November 4, 2016 their costs submissions limited to three double-spaced pages, which submissions will be filed as part of the Continuing Record. Offer to Settle (if any) Bills of Costs and Authorities upon which either party may rely shall also be filed by that date but not form part of the Continuing Record.

Justice D.A. Jarvis

Date: October 18, 2016