Superior Court of Justice - Ontario

Citation: Cunha v. Gomes, 2016 ONSC 6695 Court File No.: 335/16 Date: 2016-10-27

Re: Ana Filipa Da Silva Cunha, Applicant/Responding Party And: Paulo Manuel Da Silva Gomes, Respondent/Moving Party

Before: H. Sachs J.

Counsel: Mark A. Russell, for the Respondent/Moving Party Steven M. Bookman and Jasmine Jadubir, for the Applicant/Responding Party

Heard at Toronto: In writing

Endorsement

[1] The parties began living together in a common-law relationship in April 2010 and they separated in April of 2014. There is one child of the relationship who is three and a half years old and has always resided with the Applicant. The Applicant has two other children from previous relationships. She is a full-time caregiver to her three children.

[2] On June 21, 2016, Backhouse J. made an interim support award in which she imputed income to the Respondent in the amount of $211,000.00 and ordered that he pay child support in the amount of $1,720.00 pursuant to the Ontario Child Support Guidelines, as well as spousal support at the SSAG mid-range amount of $5,640.00. The Respondent seeks leave to appeal this order to the Divisional Court.

[3] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[4] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, "desirable that leave to appeal be granted." A "conflicting decision" must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.).

[5] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to "very serious debate": Nazari v. OTIP/RAEO Insurance Co., 2003 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.).

[6] In Sypher v. Sypher, 1986 6337 (ON CA), 1986 CarswellOnt 282 (ONCA), the Court of Appeal made it clear that the purpose of an interim support order is to provide a reasonably acceptable solution until trial. For this reason, an appellate court should not interfere with such an order unless "it is demonstrated that the interim order is clearly wrong and exceeds the ambit of reasonable solutions that are available on a summary interim proceeding." (para. 4)

[7] The Divisional Court, in several decisions, has emphasized the discretionary, fact-based nature of these orders and pointed to the fact that they may be readjusted at trial (see, for example, Feldman v. Ford, 2014 ONSC 7466, at para. 10).

[8] On this motion for leave to appeal, the Respondent makes three arguments. First, he submits that the motion judge failed to consider the "needs and means test" and made a palpable and overriding error in the application of the test when she found that the Applicant’s standard of living as evidenced by her Financial Statement was below that enjoyed by the parties during their cohabitation. Second, he argues that the motion judge made palpable and overriding errors in imputing the income she did to him, including by adding back the business deduction he had made for "purchases". As part of this submission, the Respondent argues that the motion judge erred by "punishing" him for what she found to be his non-disclosure. Third, the Respondent submits that the motion judge misapplied the law by attempting to equalize the parties’ incomes.

[9] In my view, the Respondent has not demonstrated that the motion judge’s decision conflicts in principle with other decisions on the issue of interim support or that there is any to doubt the correctness of that decision.

[10] Given the evidentiary record before her, the motion judge had ample reason to accept the Applicant’s evidence that the standard of living reflected in her Financial Statement was far below the standard she had enjoyed during the parties’ cohabitation.

[11] With respect to the factual findings that the motion judge made in imputing the income she did to the Respondent, again, there was ample evidence in the record to support the inferences she made in this regard.

[12] On the issue of adding back the business deduction of over $82,000.00 that the Respondent had made for "purchases", when the Respondent was questioned about this deduction and asked to provide proof of the purchases he made for his business, the Respondent stated "we don’t buy anything, we just do labour" and "Very little. Very, very little." When he was then asked why his revised income tax return stated that he made over $82,000 in purchases in 2014, the Responded replied that he did not understand what this figure was.

[13] The motion judge also added $2,500 worth of cash income per month to the Respondent’s claimed income. To do so, she relied on both the Applicant’s evidence and the Respondent’s admission during questioning that he receives substantial amounts of cash income totalling up to $2,500 per month.

[14] The Respondent also admitted during questioning that he barters his renovation services for substantial value with various people. In 2014, the Respondent purchased a Mercedes automobile for over $25,000. In doing so, he put a deposit down of $15,000 which, he stated, was paid for by a friend in exchange for his services. Thus, the motion judge appropriately added this figure to the calculation of the Respondent’s income.

[15] There is also no merit to the Respondent’s submission that the motion judge erred in principle by punishing him for his non-disclosure. It is true that the motion judge found that the Respondent had failed to disclose and had deliberately made false disclosure. She also pointed to the evidence that she relied upon in making these findings. When it came to imputing income, the motion judge made it clear that when a court is forced to impute income because of non-disclosure, the risk of error increases and it is the party responsible for this non-disclosure who must bear the responsibility for this increased risk. This reasoning is entirely consistent with the case-law and with the fact that the obligation to make full and frank disclosure rests entirely upon the Respondent.

[16] Finally, there is no evidence in either the motion judge’s reasons or order that the motion judge was attempting to equalize the parties’ income. The amounts she ordered were entirely consistent with the relevant guidelines in place regarding the appropriate amounts for child and spousal support that should be paid by a person who earns the amount that she found the Respondent earned.

[17] It is also clear that the Respondent has not satisfied the second part of the test for leave to appeal. The issues raised in the proposed appeal pertain only to the interests of the parties and, in no way, involve issues of general or public importance relevant to the development of the law or the administration of justice.

[18] For these reasons, the motion for leave to appeal is dismissed. The Applicant, as the successful party, is entitled to her costs of the motion, which I fix in the amount of $5,000.00.

H. SACHS J.

Date: 2016-10-27