Court File and Parties
COURT FILE NO.: FC-14-2103-1 DATE: 2017/03/08 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sarbjeet Singh Gill, Applicant AND Sukhwinder Kaur Dhillon, Respondent
BEFORE: Madam Justice Engelking
COUNSEL: Raja Irfan Aziz, Counsel for the Applicant Thomas R. Hunter, Counsel for the Respondent
HEARD: February 28, 2017
Endorsement
T. ENGELKING, J.
[1] This is a motion brought by the Respondent mother, Ms. Dhillon, seeking the following relief:
(1) that the child support Order of Master Champagne granted on a without prejudice basis on the 12th day of November, 2015 be varied to reflect the Applicant’s actual income, retroactive to June 1, 2015;
(2) that spousal support be paid by the Applicant to the Respondent, retroactive to the 1st day of June, 2015, in accordance with the Spousal Support Advisory Guidelines;
(3) that the provisions of the without prejudice Order of Master Champagne as it relates to the proportionate sharing of daycare expenses, be varied retroactive to September 1st, 2015, to reflect the actual income of the Applicant and that daycare expenses and all s. 7 expenses be shared in proportion to the parties total incomes;
(4) that the Applicant produce all leases for all properties owned by him alone and/or jointly with any third party for any period from June 1st, 2015 to date, whether or not these leases are in effect at the present time. In the event that any of the properties are and/or have been rented, but are not subject to leases, that the Applicant produce all documentation as to the details of the these rental arrangements; and,
(5) costs on a full indemnity basis.
[2] The parties were married on May 14, 2005 and separated on March 3, 2013, according to the Applicant, or December 18, 2014, according the Respondent. Regardless, they continued to reside in the jointly owned matrimonial home at 140 Deerfox Drive, Ottawa, until the Applicant father, Mr. Gill, vacated the home on June 1, 2015.
[3] There is one child of the marriage, Subhjot Kaur Gill, born the 30th day of December, 2010. Subhjot has remained in the primary care of the Respondent, and the Applicant has short periods of supervised access to her through the Supervised Access Program at Family Services Ottawa.
[4] The Applicant commenced his application in September of 2015. The Respondent’s Answer was filed on October 23, 2015.
[5] On November 12, 2015, Master Champagne granted an order on consent on a temporary and without prejudice basis providing, inter alia, that the Respondent would have primary care and residence of the Subhjot, that the Applicant was to pay child support to the Respondent in the amount of $724 per month commencing September 1, 2015, based on an annual income of $80,000, that commencing on September 1, 2015, and the Applicant was to pay his proportionate share of 60% of the child’s daycare expenses.
Child support
[6] The Applicant has been paying child support of $724 per month since September 1, 2015, and paid his proportionate share of the childcare expenses of $420 per month (based on a 60% proportionate share at an annual income of $80,000) from September 1, 2015 to October 31, 2016. The Applicant ceased to pay childcare expenses as of November 2016, notwithstanding that he is subject to an order which requires him to do so, as he believes that the identified care provider is not in fact providing care to Subhjot. No child support was paid for the period of June 1 to August 31, 2015.
[7] Master Champagne also made some orders with respect to disclosure, and after receiving portions of same, it was determined that the Applicant’s actual income from line 150 of his 2014 Notice of Assessment was $107,500, resulting in monthly child support payments of $939 for 2015 in accordance with the Federal Child Support Guideline Table. According to the Respondent, this would result in the Applicant owing $939 per month for June, July and August, 2015, for a total of $2,817, and the difference between $939 and the $724 the Applicant was paying, or an additional $215 per month, totalling $860 for September to December, 2015.
[8] Similarly, based on the Applicant’s actual income for 2015 of $94,113, the Respondent states that the table amount of child support of $833 per month would apply, and the Applicant would owe the Respondent the difference between $833 and $724, namely $109 per month, for a total of $1,308 for 2016.
[9] With respect to 2017, the Respondent submits that the Applicant has not provided documentation with respect to his actual income. The Applicant did attach to his materials at Exhibit “I” to his sworn affidavit of February 23, 2017, a copy of his payroll stub for the pay period of November 27 to December 10, 2016, which showed a year-to-date total income of $85,508.56. The Respondent proposes that the Court rely either upon the Applicant’s 2015 income of $94,113, “top up” the Applicant’s income for 2016 to $88,000 to account for the final pay period of the year, or average out the past three years, to come to an appropriate table amount of child support for 2017 and on a go forward basis.
[10] The Respondent also alleges that the Applicant is in receipt of rental income for at least two of three properties that he owns, and that such income should be included in determining the Applicant’s child support, or for that matter, spousal support, obligations.
[11] The Applicant acknowledges that he is an owner, either jointly or otherwise, of the following three residential properties;
(a) 140 DeerFox, Ottawa – the former matrimonial home, which as of August 31, 2016, is solely owned by the Applicant, and which is subject to a lease from November 1, 2016 to October 31, 2017 at $1,500/month;
(b) 24 Sedona Drive, Ottawa – which is jointly owned by the Applicant and in which the Applicant claims he and his new partner reside; and,
(c) 17 Rosecliffe Crescent, Ottawa – which is owned by the Applicant, and which is subject to a lease from April 1, 2016 to March 31, 2017 at $1,500/month.
[12] The Applicant states that he has made no income from said properties, and has in fact suffered losses over the past year. The Applicant claims that he borrowed $30,000 from a friend for the down payment on the Sedona property. The Applicant states, moreover, that he cannot be expected to pay more in child support, or any spousal support, when he is “overburdened” with mortgages and debt.
[13] In August of 2016, the Respondent released her interest in the 140 DeerFox property to the Applicant and rather than selling the property, he kept it. Subsequent to separation, he has additionally purchased a third property, namely 17 Rosecliffe, and while there was an ongoing discrepancy between the child support he was paying pursuant to the Order of Master Champagne and his actual income.
[14] While the Respondent claims that the Applicant has rental income which should be included in any calculation of child support, she has not asked the Court to do so today. Nor would I, as the issue of whether the Applicant is actually making money on his investment properties is one which will need to be proved or disproved at trial.
[15] I am, however, prepared to vary Master Champagne’s without prejudice order to have the temporary child support payable by the Applicant to the Respondent be consistent with his reported income, retroactive to June 1, 2015. The result is an order as follows:
- The Applicant shall pay to the Respondent child support in the amount of $939 per month from June 1, 2015 to December 31, 2015, based on a reported annual income of $107,500. Arrears for that period are fixed at $3,677 and shall be payable within 90 days.
- The Applicant shall pay to the Respondent child support in the amount of $833 per month from January 1, 2016 to December 31, 2016, based on a reported annual income of $94,113. Arrears for that period are fixed at $1,308.00 and shall be payable within 90 days.
- Commencing January 1, 2017, the Applicant shall pay to the Respondent child support in the amount of $785 per month on an income of $88,000 per annum. Arrears for the period of January to March, 2017 are fixed at $183, and are payable forthwith.
Daycare Expenses
[16] Although ordered by Master Champagne to pay 60% of Subhjot’s daycare costs at $420 per month based on an income of $80,000, the Applicant ceased to do so as of November of 2016. Notwithstanding that he is subject of an order of the Court, the reason he gives for doing so is that he does not believe that the woman identified as providing before and after school care for Subhjot, Ms. Sheeirn Afif, is in fact doing so. Rather, because two nieces of the Respondent are currently living with her while they go to school, it is the Applicant’s belief, based on some references made in the report of the Clinical Investigator of the OCL, that the Respondent’s family members are providing before and after school care to Subhjot. While this may be the case from time to time, the evidence provided by the Respondent and by Ms. Afif in a letter at Exhibit “C” of the Respondent’s affidavit sworn on February 24, 2017, indicates that Ms. Afif continues to care for Subhjot on a regular basis. Indeed, attached at Exhibit “P” to the Affidavit of the Applicant sworn on February 23, 2017, is a copy of a letter from the Respondent’s counsel to the Applicant’s counsel confirming that the former spoke to Ms. Afif and that Subhjot, but for a few exceptions, was being cared for her in the morning until her bus picked her up and again after school when the bus dropped her off until she is picked up by Ms. Dhillon. Frankly, that should have been the end of the matter. While the Applicant may attempt to prove otherwise at trial, I am satisfied on a temporary basis that Ms. Afif continues to provide before and after school care to Subhjot at a cost of $700 per month.
[17] The Applicant is thus in arrears in the payment of Subhjot’s daycare expenses from November 1, 2016 to the present. The Respondent argues that based on the Applicant’s 2014 income, the Applicant’s actual proportionate share of daycare costs for 2015 should be at 67% as opposed to 60%. Similarly, based on the Applicant’s 2015 income, the Applicant’s proportional share for 2016 should be 67% between January and August, and 85.9% between September and December, and up to and including the present, based on the Respondent’s income being reduced due to her going back to school. I cannot disagree.
[18] With respect to the daycare costs, I order as follows:
- The Applicant shall pay to the Respondent $468.72 per month, being a 67% proportionate share at an income of $107,500, for the months of June, July and August, 2015. The arrears for this period are fixed at $1,406.16.
- The Applicant shall pay to the Respondent $468.72 per month for September to December of 2015. The Respondent was paying $420 during this period, and therefore owes the difference. The arrears for this period are fixed at $194.88
- The Applicant shall pay to the Respondent $468.72 per month from January to August of 2016. The Respondent was paying $420 per month during this period, and therefore owes the difference. The arrears for this period are fixed at $389.76.
- The Applicant shall pay to the Respondent $601.30 per month from September of 2016 to December of 2017. The Respondent paid $420 per month for September and October of 2016. He, therefore, owes the difference for those two months, and the full amount for the remainder. The arrears for this period are fixed at $1,565.20.
- Commencing January 1, 2017, the Applicant shall pay $595.63 per month in daycare expenses, representing his proportionate share 85.09% based on an annual income of the Applicant being $88,000 and an annual income of the Respondent being $15,420. Arrears are fixed for January and February of 2017 at $1,191.26. I note that the arrangement of the parties was that each would pay Ms. Afif directly, so this may continue on a go forward basis.
Spousal Support
[19] In the case of Maelbrancke v. Proctor, 2016 ONSC 1788, Harper J. reviewed the law with respect to temporary spousal support. At paragraph 11, Harper J. referred to the case of Samis v. Samis, ONCJ 273, which in turn referred to that of Lowalski v. Grant, 2007 MBQB 235, 219 Man.R. (2d) 260, 43 R.L.F. (6th) 344, [2007] M. J. no. 386, 2007 CarswellMan 422 (Man.Q.B.), to set out the following principles in temporary spousal support:
(1) Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial.
(2) The court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge.
(3) Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage.
(4) Interim support is to be based on the parties’ means and needs, assuming that a triable case exists. The merits of the case in its entirety must await a final hearing.
[20] The evidence supports the Respondent’s assertion that she was the primary caregiver to the child of the marriage, both during the marriage and after the separation, and that the Applicant was the main breadwinner in the family. The Respondent’s evidence is that while she did work throughout the life of the marriage, in 2012-13 she attended Algonquin College in the Personal Support Worker Program, and in September of 2014, the Respondent started a Registered Practical Nursing Program at St. Lawrence College in Brockville, Ontario. The Respondent indicated in her affidavit sworn on February 24, 2017, that she took the September 2015 to June 2016 year off due to the stress of dealing with the breakdown of her marriage and consequent proceedings, but that she returned in September 2016 and expects to graduate in July of 2017. The Respondent has worked part-time as a personal support worker during her studies and worked full-time during the year she was off school.
[21] The Applicant’s position is that the Respondent is a perpetual student, and is perfectly capable of working to support herself. It is, however, clear from the evidence before me that the Respondent has chosen a reasonable career path in nursing, and is working towards self-sufficiency. It is equally clear, however, that she is not there yet.
[22] I am directed by the law that interim support should only be ordered where a prima facie case for entitlement has been set out. The Respondent indicates that when the Applicant left the matrimonial home, he ceased paying insurance for the vehicle she was using, and she was left to pay the expenses on the matrimonial home, including the mortgage. The Applicant argues that the Respondent was irresponsible in that the mortgage went unpaid for a number of months prior to him buying out the Respondent’s interest in the matrimonial home and assuming responsibility for same. In fact, the Respondent’s inability to make those payments evinces her means and needs at the time. While I am not mandated to make a full inquiry into the advantages or disadvantages to which the Respondent may have been subject at the breakdown of the relationship, I do find on the facts before me that she has made a prima facie case for interim spousal support.
[23] The Applicant’s most stringent arguments against temporary spousal support related to both the payment the Respondent received in relation to the matrimonial home in August of 2015, and a payment that the Applicant claims to have made to the Respondent’s brother, Amritpal Badhohal, in India of the equivalent of $100,000 Canadian. With respect to the former, I find that the payment was made in the context of partial equalization of the parties’ net family property, and does not pertain to the issue of spousal support.
[24] In respect of the latter, the Applicant relies upon a copy of a document which purports to be an acknowledgement of a payment by Mr. Badhohal, and witnessed by others, at Exhibit “Q” of his affidavit of February 23, 2017, and an affidavit of one, Mandeep Singh Toor, which is at Exhibit “P” of the Applicant’s affidavit.
[25] The Respondent, in her affidavit of February 24, 2017, disputes entirely that any such payment was made, and indicates that having just received the documents, she had no chance to obtain her brother’s response to them.
[26] This issue of whether $100,000 was paid to the Respondent’s brother is a highly contested one, and I cannot make a determination in regard to same on motion. It is, rather, an issue which must be left to trial. Having said that, I can indicate that even if I could conclude that such a payment was made, it would remain unclear to me for what purpose it was made, and I have no basis upon which to conclude that it was made for the intention of supporting the Respondent. Additionally, the Applicant’s counsel indicated in his submissions that the Applicant originally borrowed the money to make this payment from his own brother-in-law in India, and when he returned to Canada, the Applicant told the Respondent that he needed money to pay back his brother-in-law, which was in turn borrowed against the jointly owned Sedona Drive property. Were this the case the Respondent would be, in part, contributing to a payment that was ostensibly made for her own support. Again, whether this payment was made at all, to what end, and ultimately by whom, is a matter for trial.
[27] In relation to both the requested adjustment of child support and the request for spousal support, the Applicant implied that he would be subject to hardship, if not undue hardship, if he was required to pay same. I have trouble with this argument when the Applicant has chosen to keep two properties and purchase yet a third in the face of his child support and potential spousal support obligations. In conclusion, I find that the Respondent is entitled to temporary spousal support as follows:
- The Applicant shall pay to the Respondent $1,275 per month from September to December of 2016, which represents the midrange of the Spousal Support Advisory Guidelines with child support on an income of $94,113. Arrears for this period are fixed at $5,100.
- Commencing January 1, 2017, the Applicant shall pay to the Respondent $1,091 per month in spousal support, which represents the midrange of the Spousal Support Advisory Guidelines with child support on an income of $88,000. Arrears for January and February 2017 are fixed at $2,182.
[28] The above order is without prejudice to the Respondent to claim or the Applicant to defend retroactive spousal support to the date of separation at trial.
[29] Finally, the Respondent has requested an order for further disclosure, and in this regard I order that the Applicant produce all leases for all properties owned by him alone or jointly with any third party for any period from June 1st, 2015, to date, whether or not these leases are in effect at the present time. In the event that any of the properties are or have been rented, but are not subject to leases, that the Applicant produce all documentation as to the details of the these rental arrangements.
[30] Based on Rule 24 of the Family Law Rules, O. Reg. 114/99 (the “Family Law Rules”), and the Respondent’s overall success on the motion, and having regard to the factors outlined in subrule (11), I order that the Applicant shall pay to the Respondent costs on the motion in the amount of $3000, to be paid within 30 days of today.