Vainshtein v. Vainshtein, 2016 ONSC 674

CITATION: Vainshtein v. Vainshtein, 2016 ONSC 674

COURT FILE NO.: FS-15-401891

DATE: 20160127

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tzahi (Zack) Vainshtein, Applicant

AND:

Limor Vainshtein, Respondent

BEFORE: Hood J.

COUNSEL: Andrew Vankoughnett, for the Applicant

Jonathan Miller, for the Respondent

HEARD: January 21, 2016

ENDORSEMENT

[1] This is a motion brought by the Respondent Wife (RW) to have the Applicant Husband (AH) pay an additional $723 per month in temporary child and/or spousal support on top of the $430 in child support voluntarily and currently paid by the AH for a total monthly payment of $1,153. While the Notice of Motion seeks a total of $723, I believe it to be clear from the affidavit in support that the RW is seeking the $723 in addition to the $430. The only issues before me were spousal support and the table amount for child support. Section 7 expenses were not argued before me.

[2] The parties were married on June 3, 2012 and separated January 29, 2015. They have one son, Levy, born February 9, 2013, who lives with the RW in a rented apartment. The AH lives with his parents in their home. The RW is currently 26 years old and the AH is 31.

[3] Pursuant to a consent endorsement of Justice Chiappetta dated June 26, 2015 the AH agreed to pay child support of $650 per month and spousal support of $1350 per month for a total of $2,000 per month for July and August, 2015. On consent this was continued for September and October, 2015. On November 1, 2015 the AH stopped making these payments and instead started paying $430 per month in child support. This amount is based upon an income of $47,600 from the child support guidelines. The AH admits an income of $46,538 on his December 30, 2015 financial statement. In addition, the AH also pays monthly insurance on the RW’s vehicle of $153. Taken together this equates to an income of $63,900 based on the child support guidelines.

[4] The RW commenced working in August, 2015 at a daycare as an ECE teacher for JK/SK students. She is paid on an hourly basis with a gross annual income of $27,040. For the motion and the support calculations she has used an income of $27,279. Her parents assist her as needed to pay for some expenses. In addition, she receives some government assistance for her prescription expenses for her diabetes as well as child tax benefits and child care benefits of $500 per month. She alleges that her monthly deficit is $723 per month, which equates to the additional amount being sought.

[5] The AH disputes some of the RW’s expenses. For example he claims to pay Levy’s daycare expense of $35 per month. The RW claims this expense at $30 per month. I note that this added to the other expenses, although arguably a s.7 expense, equates to an income of $67,600 based on the child support guidelines. He also questions the RW’s babysitting expenses, saying there are none, and the net amount of the RW’s medical and drug expenses following the acknowledged government subsidy. He also challenges the RW’s rent, arguing that this is paid for by the RW’s mother. Based upon the limited evidence before me I am satisfied that the rent is paid for by the RW.

[6] The RW asks that I impute an income of $75,000 to the AH. This would result in child support of $682 per month and spousal support between $147 and $805, with a midpoint of $468. The RW asks in essence for $471 per month in spousal support to reach her combined total of $1,153. RW argues that the AH’s employment income from his business, of which he is a 50% shareholder, is grossly understated in light of his apparent lifestyle, including a trip to the Dominican Republic for a week with Levy and large monthly entertainment and restaurant expenses as disclosed on his Visa statements. As well, he has an ownership interest in three investment properties, he lives with his parents in their home, and his debt load has decreased since separation despite his claimed expenses and payments to the RW. In addition, the RW questions his expenses and argues it is suspicious that his monthly expenses for himself are more, by $1,736 than for herself and Levy, or alternatively his expenses are double of hers. Part of that of course consists of his monthly payment for child support at $430.

[7] Both parties argue that on a motion such as this for interim child and spousal support I should look to the eight factors as set out by Justice Lemon in Driscoll v. Driscoll, 2009 66373 (ONSC). Both parties acknowledge that I am not to embark upon an in-depth analysis of the parties circumstances, which is better left to trial. I am to achieve rough justice at best. The AH argues however, that no prima facie case for entitlement has been made out so that no interim support should be ordered above the voluntary payment of $430 in child support.

[8] I find that a prima facie case for support has been made out. The RW has demonstrated need despite her job. I believe that the AH has the means to make support payments so as to allow the RW to live at a standard not equivalent to what she experienced prior to separation but above the situation she presently finds herself in.

[9] As to the AH’s means, I have considered the fact he is self-employed, lives with his parents, has not increased his debt since separation, voluntarily paid $2,000 per month for four months, has allegedly paid approximately $25,000 since separation to the RW, and based upon his admitted payments of insurance and daycare over and above his child support payments has a table income of $67,600.

[10] For the purposes of this motion I am prepared to impute a total income of $75,000 from both his rental properties and his business, which results in a monthly child support payment of $682 and an approximate mid-point monthly spousal support payment of $471. I am not prepared to order that the AH continue to pay the monthly insurance for the car of $153 as was belatedly argued by the RW during the argument before me. This was not asked for in the Notice of Motion and it would be unfair to the AH to make an order in relation to it when it was not asked for. The AH may continue to make such payment on a without prejudice basis if so inclined.

[11] I note that this is the third court attendance in less than one year. During argument I was advised that the parties are awaiting a valuation of the AH’s business. Once this is done I would expect the parties to arrange a settlement conference in the hopes of resolving this matter in its entirety.

[12] As to costs, being successful on the motion, the RW is presumptively entitled to costs. There is no basis to rebut this presumption. With respect to quantum the RW asks for $2,686, inclusive of disbursements and HST, on a partial recovery basis, being 75% of full recovery. By comparison the AH sought $6,817 on partial indemnity rate, if successful, plus counsel fee for the court attendance.

[13] All in all and considering the factors set out in s.24(11), I fix costs in the amount of $2,500, inclusive of disbursements and HST. In doing so I am assuming that there were no offers that would impact upon the questions of presumption or quantum.

[14] Order to go as follows:

a. AH is to pay interim child support in the amount of $682 per month retroactive to November 1, 2015, based upon an imputed income of $75,000.

b. AH is to pay interim spousal support in the amount of $471 per month retroactive to November 1, 2015, based upon an imputed income of $75,000.

c. Support Deduction Order to issue.

d. AH is to pay costs fixed in the amount of $2,250 to the RW within 30 days of today’s date, unless either party wishes to make further submissions in writing based upon any offers to settle which would have an impact upon either presumption to costs or the quantum thereof. If so, such submissions shall be made in writing within one week of today’s date of no more than two pages in length plus any offer with any reply to be in writing within one week thereafter and no more than two pages in length.

HOOD J.

Date: January 27, 2016