COURT FILE NO.: FS-12-73939 DATE: 2017 04 19 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Ratnagopal Thiyagarajah Applicant – and – Krishnarathany Ratnagopal Respondent
Aida Pasha, for the Plaintiff Dilani Gunarajah, for the Respondent
HEARD: May 18, 20, 24, 25, 26, 27, and November 7, 8, 2016
REASONS FOR JUDGMENT
M. J. DONOHUE, j.
ISSUES
[1] This was a family law trial involving issues of custody, access, imputed income, child support, spousal support, s. 7 expenses, equalization, travel orders, and insurance.
BACKGROUND
[2] Both parties are from Sri Lanka. Mr. Ratnagopal is 45 and Ms. Ratnagopal is 40. They have an 11 year old son, “the child”.
[3] Mr. Ratnagopal immigrated to Canada in 1996 at the age of 25. He began working as a dishwasher and improved his position to do food preparation work as a chef’s assistant.
[4] The parties married on November 19, 1999 in Tamil Nadu. Ms. Ratnagopal came to Canada almost a year later, in the fall of 2000.
[5] Their son was born in 2005.
[6] In 2007, Mr. Ratnagopal invested in a restaurant business called Village Trattoria where he worked with a partner. The business was registered in Ms. Ratnagopal’s name but she had minimal involvement in its operation.
[7] The parties separated on a number of occasions. At times, they resided in separate apartments in the same apartment building.
[8] The separation relevant to this application occurred in the summer of 2013. Mr. Ratnagopal testified that it occurred in May. Ms. Ratnagopal testified that it occurred in June.
CUSTODY & ACCESS
Primary Residence
[9] On the evidence, Ms. Ratnagopal was the primary caregiver for the child. Since separation or late 2013, the child has resided with his mother and grandmother in Scarborough. By interim order of December 30, 2013, the child’s residence was to be with Ms. Ratnagopal.
[10] He has attended school in Scarborough since the late fall of 2013.
[11] The OCL report noted that the child expressed that he was missing his former friends in Mississauga but otherwise there was no evidence provided as to why the best interests of the child would be served by having the child’s residence changed.
[12] Mr. Ratnagopal’s argument for changing the residence was largely made to address the problem of the minimal access that had been occurring.
[13] Section 24.2(c) of the Children’s Law Reform Act obliges the court to consider, among other factors, the length of time the child has lived in a stable home environment in determining the best interests of the child. Relevant to this factor is the fact that the child has been in the primary care of his mother since birth: Badeau-Haughton v. Eastman, 2015 ONSC 2811, at para. 43. Further, the child has lived exclusively with his mother since the time of separation and attended his new school in Mississauga for over three years.
[14] I am satisfied that stability for the child is best served by his remaining with his mother at his Scarborough school where he has been for the last three years.
[15] I order primary residence to be with the child’s mother, Ms. Ratnagopal.
Custody
[16] An order for custody relates to decision-making for the child.
[17] The OCL were not able to assess the child with his father such that they were unable to make recommendations.
[18] There were no submissions made nor direct evidence presented relating to the best interests of the child as to decision-making in his life.
[19] Ms. Ratnagopal testified and her counsel argued that Mr. Ratnagopal was abusive by his controlling nature. No specific evidence was given in support of this. The evidence, on the contrary, was that Ms. Ratnagopal was the controlling one:
- She unilaterally changed the child’s school in November 2013 from Mississauga to Scarborough;
- She travelled to France with the child, without seeking consent of the father, or even advising the father that the child had left the country until they had reached France;
- She refused access weekends as a penalty when Mr. Ratnagopal was late for pick-up or for drop-off;
- She refused access when the father requested an extra day in the summer;
- She did not cooperate with the OCL office to allow an interview between the OCL and the father with the child;
- She did not allow phone access despite Mr. Ratnagopal purchasing a phone for the child; and
- She refused to allow Mr. Ratnagopal to work after mid-2014 at the restaurant, the ownership of which was in her name, despite asserting that he made a very good income there.
[20] The child was interviewed by the OCL and appears to be well-adjusted but unfortunately well-aware of the litigation between his parents. The eleven year old told the interviewer that he wants to ask the lawyer if he can go to see his dad, saying,” my mother cannot be boss of me, I want freedom to see my father”. He expressed anger that his mother did not let him go to see his dad, “I am ten years old and I am not scared to go to dad’s.” The clinician reported that the child expressed a strong interest in wanting to see his father and is looking for ways to connect with him.
[21] Ms. Ratnagopal’s English language skills are modest. The interview by the OCL of Ms. Ratnagopal was conducted with a Tamil interpreter. All of her trial evidence was conducted through a Tamil interpreter. She has been taking English as a second language courses daily and advises that her English is at a Grade 4 level.
[22] The OCL report was filed and relied on by both parties. The OCL interviewed the Principal and Vice Principal at the child’s school. They confirmed that the child is happy and well-behaved. Although not below grade level, they said the child struggles with reading, writing, responsibilities and organization. He needs reminders and had to do summer school.
Custody Order
[23] Ms. Ratnagopal seeks sole custody. Mr. Ratnagopal seeks sole custody or, in the alternative, joint custody.
[24] Counsel for Ms. Ratnagopal points to the authority set out in Kaplanis v. Kaplanis (2005), , 249 D.L.R. (4th) 620 (ONCA), that the ability to communicate between parents is vital if the court is to make an order awarding joint custody of the child. Weiler J.A. stated, at para. 11:
The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis…
[25] The evidence before me is scant on who best should make the decisions for this child’s life.
[26] I see a need here for both parents to be involved in decision-making for the child, but as they communicate poorly it needs to be allocated between them to minimize conflict and ensure effective parenting.
[27] I take into account the following considerations:
- Ms. Ratnagopal has limited English which is a concern for her understanding and communicating decisions necessary for her son;
- As discussed below, Ms. Ratnagopal displayed a marked lack of sophistication or understanding of financial matters, business dealings and paperwork;
- Mr. Ratnagopal, although testifying in Tamil at the trial, does understand English and communicates in English at work;
- Mr. Ratnagopal is the one employed and lives some distance away from the child’s school and residence;
- The parties do not communicate well;
- The evidence, both at trial and noted in the OCL report, is that Ms. Ratnagopal, who feels hurt by the breakdown of the marriage, has visited her anger and hurt by excluding Mr. Ratnagopal from her child’s life;
- The child requires some special needs and assistance academically; and
- Mr. Ratnagopal has been effectively excluded from participating in the child’s life by the limited access, which is roughly monthly.
[28] Accordingly, I order joint custody, with decision-making power allocated to each parent as follows. Mr. Ratnagopal is to make all decisions relating to education, in light of his stronger command of the English language and his greater understanding and sophistication.
[29] For reasons set out below I have ordered increased access which should allow the father more involvement with the school. The father also has a sensible plan for tutoring which is in keeping with their income levels.
[30] His decisions regarding education are not to conflict with the child’s primary residence, up to the child’s age of majority. In light of his desire to place the child in extracurricular activity, he is also to have final decision-making regarding sports on his access time. Ms. Ratnagopal is to make all other decisions relating to such things as health, religion or any other issue.
[31] At least 30 days prior to making a major decision in relation to the child, unless it is an emergency, the parent shall notify the other parent in writing to consult with the other parent and gain their input.
[32] Mr. Ratnagopal shall have the right to the release of information concerning the child directly from the relevant sources and service providers, such as doctors, without the necessity of any release direction or acknowledgement executed by the mother.
[33] Ms. Ratnagopal shall have the right to the release of information concerning the child directly from teachers and the school and any extracurricular sporting activity without the necessity of any release direction or acknowledgement executed by the father.
ACCESS
[34] Despite a court order for biweekly weekend access, the child has had the opportunity of seeing his father only monthly.
Safety
[35] There was mention that in 2006 due to an argument Mr. Ratnagopal shoved Ms. Ratnagopal. The police were involved and Mr. Ratnagopal entered into a peace bond. There was no other evidence that the child has ever been unsafe with his father, or with the paternal grandparents, with whom the father resides. Ms. Ratnagopal told the OCL investigator that the father might give their child a drink to hurt him. She agreed in her testimony that she said this just to influence the OCL investigator.
Limited Access
[36] In 2015 the child had only had four visits with Mr. Ratnagopal.
[37] Ms. Ratnagopal testified that, at times, Mr. Ratnagopal returned the child as late as 9:00 p.m. after a weekend access visit, but that generally he picks the child up at the correct time. When she called Mr. Ratnagopal about the late drop off, he would not answer.
[38] Unfortunately, she had been advised to deny the next access visit, when the child was returned late, to modify the father’s behaviour.
[39] Mr. Ratnagopal would attend at her residence and knock on her door but she would not answer.
[40] Other times when she denied access Ms. Ratnagopal said it was because the father had kept the child for ten days on a summer access visit and so she denied the following access visit.
[41] It was difficult to reconcile the evidence to determine fault on one parent or the other. Lateness remains an issue. Excuses offered were traffic and work schedules.
[42] What is apparent is that the child has only been given the opportunity of access with his father perhaps monthly and this is insufficient.
[43] A strict schedule of access is therefore required so that if there are any breaches it can be easily enforced.
[44] The current drop-off time has been 6:00 p.m. on Sunday evenings. The father sought a drop-off time of 8:00 p.m. and mother proposed 7:00 p.m. I am satisfied that for an 11 year old to get settled and ready for school the next day a return of 7:00 p.m. is prudent and in his best interests.
[45] I order access to be each alternate Friday from 4:30 p.m. to Sunday at 7:00 p.m., extended to Monday at 7:00 p.m. on long weekends and PA days, commencing with the 1st week following issuance of this judgment. Mr. Ratnagopal shall pick up and drop off from Ms. Ratnagopal’s home. The exchange shall be in the lobby of her building.
[46] Ms. Ratnagopal is not to deny access visit because of lateness.
Access Mid-Week
[47] Mr. Ratnagopal wishes to see his son more frequently than every 12 days and seeks a mid-week visit from 4:30 to 8:30 pm to allow him to sign his son up for an extracurricular activity.
[48] Ms. Ratnagopal gave no evidence or argument as to why a mid-week access would not be in the best interests of the child.
[49] In light of the limited access to date I am satisfied that ordering a mid-week access would go a long way to remedying the loss that this child has suffered in not seeing his father much in the last three years.
[50] Initially, Mr. Ratnagopal proposed Tuesday, Wednesday or Thursday but was uncertain what activities were available in Scarborough on what nights.
[51] To allow Mr. Ratnagopal the chance to choose an activity that is suitable for the child and the father’s work schedule, I order that he be allowed to choose the mid-week access evening. He is to make his choice in writing. The access evening may be changed on consent. If Ms. Ratnagopal does not consent, I order that Mr. Ratnagopal has the right to make a change in the mid-week evening access in writing up to four times a year to allow for change of activities.
Holiday Access
[52] March Break: the mother proposed that only on odd-numbered years the child would have the one week with his father. The father proposed sharing the week. I am satisfied that sharing the break will be in the child’s best interests to further his relationship with both parents. I order that the father shall pick up the child on the Wednesday at 5:00 p.m. and return the child on the Sunday at 7:00 p.m.
[53] Mother’s Day/Father’s Day: in the event this Sunday falls on the alternate parent’s access day the child will celebrate Mother’s Day with his mother by being dropped off at noon that day and the child will celebrate Father’s Day with his father picking him up at noon that day until 7:00 p.m. that evening.
[54] Summer Vacation: the mother proposes two weeks access with the father and the father proposes a sharing, with the child staying with his mother for July and his father for August. I support the proposal of longer time with each parent considering the child is now 11 years of age. A full month also reduces the child’s time in the car on multiple access visits. I order that the child remain with his mother for July, such that this middle access weekend with the father is suspended, and the month of August the child is to have full access with his father. If summer school interferes in some manner, the parties are to adjust the dates to ensure the child has a full month (31 days) with his father.
[55] Christmas break: Both agree the school break is to be shared equally as follows: The child is to have access with his father for the first half of the break in odd-numbered years and with his mother in even-numbered years. The first half is to start at 7:00 p.m. on the child’s last day of school in December and end at noon a week later. The other parent is to have the child for the second half. Neither party requested any special access on Christmas day.
Phone Access
[56] Mr. Ratnagopal sought an order for phone access with his son. He testified that at times, when speaking on the phone with his son, Ms. Ratnagopal took the phone away and stopped the conversation. He also testified that he would phone her residence and she would not answer.
[57] Ms. Ratnagopal did not deny this evidence.
[58] In situations where, as here, the parties reside some distance apart, the alternate means of communication becomes even more significant to foster the parent/child relationship.
[59] Section 16(10) of the Divorce Act states:
In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[60] In Berry v. Berry, 2011 ONCA 705, 343 D.L.R. (4th) 501, at para. 13, the Court of Appeal found that the trial judge “erred by failing to give sufficient weight to the maximum contact principle.” Addressing the significance of this factor, Juriansz J.A. referred to the Supreme Court’s decision in Gordon v. Goertz, , [1996] 2 S.C.R. 27:
In Goertz, McLachlin J. pointed out that the maximum contact principle is one of the two statutory factors set out in ss. 16(10) and 17(9) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and added that "the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child" (Goertz, at para. 25).
[61] I order Ms. Ratnagopal to facilitate daily phone contact for up to five minutes, at a time convenient to Mr. Ratnagopal’s work schedule. Mr. Ratnagopal is to facilitate daily phone contact for up to five minutes daily when the child is with him for March Break, summer access and Christmas break.
Travel
[62] The parties are from Sri Lanka but their parents now reside in Canada. Mr. Ratnagopal has family in France and visits there. He had two extended visits there in 2016. He travels there roughly every two years.
[63] Ms. Ratnagopal expressed her fears repeatedly that Mr. Ratnagopal will not return the child on an access visit and this has resulted in her subsequent denial of access on a number of occasions. Ms. Ratnagopal herself took the child to France without advising the father nor seeking his consent.
[64] As the access is considered critical in the next three years, I seek to reassure both parties that there is no danger in the child being removed from Canada. I order that the child is not to be taken outside Canada by either party before he turns 14 years of age, in 2019.
[65] After that time Ms. Ratnagopal may apply for a passport for the child. The child may travel outside the country if the other parent provides written consent. Consent will not be unreasonably withheld. An itinerary of proposed dates, accommodation, and contact numbers is to be provided when consent is sought, at least 30 days before the proposed departure date.
SUPPORT
Imputed Income of Mr. Ratnagopal
[66] Mr. Ratnagopal came to Canada from Sri Lanka in 1996. He began work as a dishwasher and worked his way up to being a chef assistant, paid an hourly wage of $15.00 per hour.
[67] In 2007, he and Ms. Ratnagopal sold the matrimonial home and invested in a restaurant. Mr. Ratnagopal held a 50% interest in the restaurant with the other 50% held by his friend Mr. Manickam. The business was incorporated and his interest was put in the name of his wife, Ms. Ratnagopal. He ran the restaurant with his partner. Ms. Ratnagopal helped at times in the kitchen but was largely not involved in the business.
[68] Mr. Manickam’s evidence was that he worked three days a week at the restaurant and Mr. Ratnagopal worked the other three days at the restaurant. This allowed Mr. Ratnagopal to do hourly paid work for a catering company called 10-tation.
[69] After separation, in the spring of 2014, Mr. Ratnagopal testified that Ms. Ratnagopal advised him that as the business was in her name he may no longer go there. She told him she would call the police if he entered there. He has not returned to the restaurant since April 2014. Bank records show that payments to him from the restaurant ceased at this time. Mr. Manickam affirmed this evidence.
[70] In 2014, Mr. Ratnagopal continued working at the catering company earning $12.00 an hour, but quit in January 2016 when he a obtained a full-time job at an Italian restaurant. He earns $14.00 per hour for a 35 hour week.
[71] His tax information discloses the following income:
- 2012 - $25,216
- 2013 - $25,702
- 2014 - $27,564
- 2015 - $31,426
Lifestyle
[72] This couple have not lived a life of comfort. They moved frequently and were subject to a number of evictions. When they did own a home briefly, it was sold, and the equity of $35,000 invested in the restaurant to generate Mr. Ratnagopal’s income.
[73] Mr. Ratnagopal owes over $64,461 to Immigration Canada for the sponsorship of his parents to this country. He did not declare this in his net family property statement as he believed it was a debt of “unclean hands”. He believes the debt is now over $80,000. The government garnishes his GST refunds.
[74] At separation, they had no assets to speak of and their bank accounts were in the red. Mr. Ratnagopal has been able to put $1,500 a year in their son’s RESP account since the child’s birth.
[75] Apart from trips to see family in France every two years, there is no evidence of Mr. Ratnagopal having extra disposable income.
[76] He obtained a CIBC loan to consolidate his debts in 2014. This loan has increased since separation.
[77] Nevertheless, his financial records demonstrate a somewhat higher income, as set out below, than his declared line 150 income.
The Restaurant Business
[78] Gross revenue for the restaurant has been shown to be between $180,000 to $210,000 between 2010 and 2015. Costs of goods sold ranged from $70,000 to $86,000. There are no unusual operating expenses. Total salaries paid to the two partners and their employees ranged from $34,000 to $55,000. There is less than $3,000 net income each year after expenses. Ms. Ratnagopal argued that by the summary of the business activity there was an extra $75,000 not accounted for each year. I am satisfied that the summary failed to note the costs of goods sold each year, which was in that amount.
[79] Mr. Manickam testified that there is not much cash income in the business, with most customers paying by debit or credit, including the tip. Evidence of tips being paid to respective employees is demonstrated in various cheques indicating “tips”. Bank deposits for the restaurant, however, far exceeded the numbers shown as gross revenue on the business statements.
[80] Mr. Ratnagopal also denied earning cash or undeclared income. For the reasons that follow I do not accept the evidence of Mr. Ratnagopal or Mr. Manickam on this issue.
Bank Records
[81] For 2013 Mr. Ratnagopal declared income of $25,702 to Revenue Canada. Cheques issued to him by the restaurant that year total $28,553. Bank deposits, excluding transfers from other accounts, amount to $37,202 in one account and $19,874 to the line of credit, for a total of $57,076.
[82] For 2014 Mr. Ratnagopal declared income of $27,564 to Revenue Canada. Cheques issued to him by the restaurant that year total $10,500. Bank deposits, excluding transfers from other accounts, amount to $33,906 in one account and $23,832 to the line of credit, for a total of $57,738.
[83] For 2015 Mr. Ratnagopal declared income of $31,426 to Revenue Canada. No cheques were issued to him by the restaurant. Bank deposits annualized for the year indicate potential income of $37,194. The actual total deposits are not available.
[84] Mr. Ratnagopal was cross-examined at length to explain the extent of the bank deposits compared to his declared income.
[85] Both Mr. Ratnagopal and Mr. Manickam testified that they purchased small daily supplies for the restaurant such as milk and bread for the restaurant and then reimbursed themselves by writing cheques back to themselves.
[86] There was no production of such food invoices, although Mr. Manickam advised that all the paperwork is there. Most of the cheques written by the restaurant to the two partners do not reflect reimbursement for expenses. They are in increments of hundreds of dollars or even thousands of dollars.
[87] A proposal for the sale of the restaurant in 2015 by Mr. Manickam and Mr. Ratnagopal states that the business still owes Mr. Ratnagopal for repayment of expenses in the amount of $35,000. In contrast, the business records for 2015 do not show an account payable by the business to Mr. Ratnagopal.
[88] Mr. Ratnagopal gave weak evidence that some of the bank deposits were loans from friends or family. He had no paperwork, no details, no timeframes and no names to attach to any particular loan. Nothing regarding loans was on his financial statement. There was no persuasive evidence to support that these bank deposits resulted from loans.
[89] I conclude from the evidence that Mr. Ratnagopal was earning undeclared cash income in 2013 and 2014 from the restaurant.
[90] Counsel for Ms. Ratnagopal submitted that whatever cash income Mr. Ratnagopal earned would also be grossed up for tax purposes. She urged the court to impute $50,000. In light of the bank deposits I am satisfied that there is an evidentiary basis for imputing income of $50,000 to Mr. Ratnagopal for 2013 and 2014. Approximately half that income was not declared to Revenue Canada and must be grossed up for tax purposes. With the imputed portion of his income grossed up for income tax, I find his income for support purposes to be $58,777 for 2013 and $58,173 for 2014.
[91] Counsel for Ms. Ratnagopal further urged me to impute $50,000 in income to Mr. Ratnagopal for 2015 and 2016. As discussed below, I find there is not an evidentiary basis for doing so.
[92] Both Mr. Manickam and Mr. Ratnagopal testified that Ms. Ratnagopal threatened to involve police if Mr. Ratnagopal went to the restaurant. She denies saying this, but does not deny that she did not want him at the restaurant. It had been suggested to her that she transfer the ownership of the restaurant to her husband and she refused to do so. At trial she said she thought it would have a bad effect on her.
[93] Since November 2013, Ms. Ratnagopal has had the consent of Mr. Ratnagopal to dispose of her half share of the restaurant. It has been open to her to sell it or transfer it to her husband.
[94] The evidence supports that Ms. Ratnagopal is responsible for Mr. Ratnagopal leaving the restaurant and having to seek work elsewhere. In light of her argument that the restaurant gave them a more lucrative income, this was an unfortunate position for her to take for the family livelihood.
[95] After the time Mr. Ratnagopal left the restaurant, I find it appropriate to order support based on his T4 earnings as declared in his tax returns. This is $31,426 for 2015. I anticipate it will be a similar amount for 2016 but require the T-4 or last pay stub for 2016 to finalize this number.
[96] I order child support pursuant to the Child Support Guidelines based on these incomes attributed to Mr. Ratnagopal.
[97] The parties are to exchange Notices of Assessment and tax returns every June 30 while support is payable.
Credit for Child Support Payments Made
[98] By the interim order of Lemon J., child support was payable in the amount of $200 a month based on an annual income of $25,000 commencing November 2013. As of August 2016 Mr. Ratnagopal began to pay $245 a month.
[99] Mr. Ratnagopal claims he has made all such payments since November 2013. He testified that initially he made cash payments. As of August 1, 2014 he began to pay by cheque, which documents his payments.
[100] Ms. Ratnagopal disputes that he made any child support payments between November 2013 and August 2014 - nine months.
[101] Mr. Ratnagopal argues that as Ontario Works was deducting the $200 per month payment from Ms. Ratnagopal’s social assistance cheque, she would have disputed this if the payment was not actually being received. I am not satisfied that she had the means, or the understanding, that this was something she could endeavour to correct.
[102] In her evidence, Ms. Ratnagopal demonstrated a number of ways in which she was unsophisticated in financial matters and paperwork:
- She did not understand how she came to be responsible for the employment insurance debt;
- She did not understand how she could get involved in the restaurant that was in her name and obtain financial information; and
- She kept wanting to establish a much higher value for the restaurant for the net family property statement which, in this proceeding, was against her interest as it would result in a much larger, and potentially inflated, equalization payment being owed by her.
[103] Mr. Ratnagopal said he gave cash every month for those nine months, but could not point to any bank record supporting a withdrawal of that amount. He did not give any detail of how this cash was actually delivered to Ms. Ratnagopal. She lived on the other side of the city and his evidence was that he was often denied access visits in 2014. I find it unlikely that he was driving across town to simply deliver cash payments.
[104] On the balance of probabilities, I find that Mr. Ratnagopal did not make the child support payments until August 2014 and he is not receive credit for the alleged payments before that date.
SPOUSAL SUPPORT
The Law
[105] The relevant sections of the Divorce Act provide:
Spousal support order 15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
Factors (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse.
Objectives of spousal support order (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[106] The Court of Appeal, in Roseneck v. Gowling (2002), , 62 O.R. (3d) 789, discussed the various bases of spousal support. As in Roseneck, there is no contractual basis applicable for support in this case. However, the principles of compensatory and non-compensatory support are relevant.
[107] In Roseneck, Weiler J.A. discussed the compensatory basis for spousal support at para. 61:
61 Compensatory support is intended to compensate a spouse upon the breakdown of a marriage for contributions made to the marriage, such as sacrifices made for a spouse's career and loss of economic opportunity sustained as a consequence of raising children. This is particularly applicable where a property division is insufficient to achieve this result: see Moge, supra at 843-849. Where a spouse has the capacity to be self-sufficient but the spouse's ability to enjoy the same standard of living as during the marriage has been negatively impacted as a result of the marriage breakdown, compensatory support helps to ensure that the economic impact of this breakdown is equitably shared: Linton v. Linton (1990), , 1 O.R. (3d) 1 (Ont. C.A.). As pointed out by Carol Rogerson in "Spousal Support Post-Brackow: The Pendulum Swings Again" (2001) 19 C.F.L.Q. 185 at 191, the compensatory principle fits most comfortably the situation where, as a result of having children, the parties have developed an interdependency and merger of their economic lives.
[108] Weiler J.A. went on to describe non-compensatory support as follows, at para. 65:
Non-compensatory support focuses on the mutual obligation that arises from the marriage itself, the expectations of the parties when they married, and the need to grant relief from hardship flowing from the break-up of the marriage: Bracklow, supra, at paras. 48-49. Thus, non-compensatory support arises where there is an economic dependency that may be due to a variety of factors such as age, illness or disability. It is apparent that these factors need not necessarily be connected to the marriage. Where the marriage is of relatively short duration and there are no children of the relationship, however, economic self-sufficiency carries greater weight when considering the expectations of the parties: Rogerson, supra at 281…
Entitlement
[109] The parties were married for thirteen years. Mr. Ratnagopal has largely been the breadwinner of the family, working as a cook and chef assistant and running the restaurant, which was in his wife’s name.
[110] It was confirmed, by both parties, that at various times Ms. Ratnagopal did unpaid labouring work in the restaurant over the years.
[111] Ms. Ratnagopal came to Canada in 2000 from Sri Lanka. Her education was Grade 12 in Sri Lanka. The child was born in 2005 and she was primary caregiver for his early years.
[112] Her work history is unclear, but she appears to have done occasional work over five years at different factories, arranged through an agency. She took some English classes and did some cleaning work. In 2009, when the child was four, she had T-4 earnings of $17,128. I understand that she left this job due to the illness of her father, who has since passed away.
[113] Ms. Ratnagopal gave her trial evidence through a Tamil interpreter. It is clear she understands some English. For the last two years she has attended daily classes for English and is at a Grade four level. As noted above she is not financially sophisticated.
[114] She is 40 years of age and in good health.
[115] Her current income is $7,824 in social assistance plus the modest child support and the child tax credit. She lives with her mother who assists with child care.
[116] The Spousal Support Advisory Guidelines suggest that “[n]o amount of social assistance should be treated as income, for either the recipient or the payor.” This income is automatically deducted for the purposes of spousal support calculations under the SSAGs, which will be applied below.
[117] Ms. Ratnagopal came to Canada for marriage. She has shown herself willing to study and to work. She has been out of the work force for a time during the marriage and since the separation, caring for the child and has been his primary caregiver. I find that she has established an entitlement to spousal support on a compensatory basis.
[118] Ms. Ratnagopal has been attending English classes which should go some way to ameliorating her disadvantage of being out of the work force. I anticipate that after the school year, beginning July 2017, that she would be in a position to garner at least part time work at minimum wage of $11,000 per annum. Up to that time, I find that she has an entitlement to spousal support on a non-compensatory basis in light of her financial need.
[119] In light of her ability to work at times full-time during the marriage, I consider mid-range spousal support to be appropriate.
Spousal Support to Date
[120] As the agreed upon date of separation is in 2013, after the date of the initial application and Ms. Ratnagopal’s answer seeking spousal support in April 2012, retroactive support is not an issue in this case.
[121] Based on the incomes of the parties, including the imputed income of $58,777 for Mr. Ratnagopal discussed above, the range of spousal support for 2013 is from $1,122 per month at the low end of the range to $1,373 per month at the high end. $1,248 per month is the mid-range spousal support under the SSAGs, which I find to be appropriate. This amount will be payable by Mr. Ratnagopal for each month from July 2013 to December 2013.
[122] For 2014, the mid-range support is $1,240 per month. Mr. Ratnagopal owes this amount for 2014.
[123] Mr. Ratnagopal’s income for 2015 is $31,426, as declared in his tax returns. The mid-range support under the SSAGs is $536. Mr. Ratnagopal owes this amount for 2015.
Ongoing Spousal Support
[124] The range of support appropriate for a marriage of this length is between 6.5 and 13 years. I have determined that Ms. Ratnagopal will be in a position to earn at least part-time minimum wage income by July 2017, but will have need for some time to improve her English skills and return to the job market full-time. I find spousal support should continue for ten years to June 2023.
[125] The appropriate quantum of support for 2016, and on an ongoing basis, will be determined after Mr. Ratnagopal has produced his T-4 for 2016.
Section 7 Expenses
[126] Mr. Ratnagopal agrees to fund any extracurricular activities which occur on his access time and not seek contribution from Ms. Ratnagopal.
[127] Ms. Ratnagopal seeks section 7 expenses regarding math and English tutoring at $100/month, the school uniform at $70/year, and Tamil class at $20/year.
[128] Mr. Ratnagopal proposes paying half of the school uniform and Tamil classes. These costs total $90/year or $7.50/month. In light of my rulings above regarding spousal support owed to Ms. Ratnagopal I find his proportionate share of these expenses to be 65%.
[129] Mr. Ratnagopal does not support the cost of the tutoring. He prefers instead to have family members tutor at no cost.
[130] Information from the OCL report confirms that the child is struggling and had to attend summer school. I find it has been reasonable to date for the child to receive formal tutoring. Ms. Ratnagopal is to provide invoices for him to pay 65% of the past costs as his proportionate share according to their respective incomes to date.
[131] Mr. Ratnagopal proposes that there is help through the community centre for Grade 8 students and he also has a cousin who would help the child. At the income levels of these parties, I consider Mr. Ratnagopal’s proposals to be prudent and appropriate.
[132] As by my order Mr. Ratnagopal is hereafter the custodial parent for education decisions it will be up to him to determine how future tutoring will be handled and he has confirmed that he will honour any extracurricular activity, which he arranges.
[133] After July 2017, when I have imputed income of $11,000 to Ms. Ratnagopal, section 7 expenses are to be shared proportionate to their respective incomes.
[134] Future special expenses are only those which are extraordinary, taking into consideration the parties’ regular support. “Extraordinary expenses” are defined by section 7 of the Federal Child Support Guidelines as follows:
(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means
- (a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
- (b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
- (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
- (ii) the nature and number of the educational programs and extracurricular activities,
- (iii) any special needs and talents of the child or children,
- (iv) the overall cost of the programs and activities, and
- (v) any other similar factor that the court considers relevant.
EQUALIZATION
[135] The parties agreed at trial that the valuation date, for the purposes of equalization, was June 29, 2013.
[136] A large amount of trial time was spent on conflicting evidence of the values to be considered in the Net Family Property statements. Ultimately, however, most items were agreed upon.
[137] The items in dispute and my findings on each are as follows:
(i) Jewellery and Sovereigns
[138] Ms. Ratnagopal sought to include this as an asset to Mr. Ratnagopal of $2,000, although originally she claimed $71,000.
[139] Mr. Ratnagopal argues that the jewellery and sovereigns were in trust for the child and should not be included. I note that in his early financial statement he noted this as an asset. He was the last to remove such things from the safety deposit box. There was no other supporting evidence that these items were gifted to his son and not in his power to dispose of.
[140] I rely on his earlier statement that he had $2,000 worth of jewellery.
(ii) Money owed to a Party
[141] Mr. Ratnagopal did not place a value on a debt owed to him by the restaurant of $35,000.
[142] Mr. Ratnagopal himself gave evidence that he personally paid for restaurant expenses and then reimbursed himself at times, to explain the frequent deposits to his bank accounts. There was really no documentation to support this.
[143] In proposals for the sale of the business, Mr. Ratnagopal and the restaurant partner, Mr. Manickam, confirmed in writing that Mr. Ratnagopal was owed $35,000 for supplies purchased for the business. This proposal was in 2015. The court was not provided with any evidence, however, to support that this was owed in 2013, at the valuation date. It is also contrary to the evidence that the many bank deposits were to pay off expenses he incurred.
[144] The financial statements of the business do not show any account payable to Mr. Ratnagopal.
[145] Although it was not in her interest, Ms. Ratnagopal argued that this asset should not be shown on the net family property statement for her husband. On all the evidence, I agree that there is no evidentiary basis to support it.
(iii) Debt to Employment Insurance
[146] Ms. Ratnagopal claims a debt owed to employment insurance of $14,095.40 as of the valuation date which appears to be due to an overpayment.
[147] Both parties claim that they were unaware of this debt until after the fact. Ms. Ratnagopal blames her husband for doing paperwork that was incorrect and putting her in this situation. Mr. Ratnagopal claims to have known nothing about it.
[148] During the marriage, Ms. Ratnagopal did not have a bank account. The reality is that the employment funds were signed for and collected and enjoyed by the parties during the marriage. As the monies must be repaid and the debt is in her name, I find it appropriate and reasonable for her to deduct it as a valuation date debt.
(iv) Mr. Ratnagopal Debts
[149] The parties agree that the figure totals $27,434.28 to credit cards, the line of credit and a car loan. Ms. Ratnagopal seems to argue that they may not be deducted because they were incurred for the restaurant. I do not follow this argument. He has no registered interest in the restaurant. If the expenses were incurred for the restaurant, the parties jointly benefited from them as they benefitted from the income he generated from the restaurant. It only follows that they are legitimate matrimonial debts.
(v) RESP
[150] Although the parties agreed that the child’s RESP not be included in the equalization, it was noted that at valuation date the fund had $12,550.23. The fund has grown since that date. The parties wished me to confirm that the increases as of the conclusion of the trial on November 8, 2016 were due solely to the contributions of Mr. Ratnagopal. I so confirm this here.
Net Family Property Calculation
Assets
| Mr. Ratnagopal | Ms. Ratnagopal | |
|---|---|---|
| Cars (Agreed) | $6,300 | |
| Bank Accounts (Agreed) | ($1,469.15) | |
| Business Half Interest (Agreed) | $40,000 | |
| Jewellery | $2,000 | |
| Total Assets | $6,830.85 | $40,000 |
Debts
| Mr. Ratnagopal | Ms. Ratnagopal | |
|---|---|---|
| Credit Card LOC | $27,434.28 | |
| Employment Insurance | $14,095.40 | |
| Excluded Property (Agreed) Car Gift | $300 | |
| Total Debts | $27,734.28 | $14,095.40 |
Total Net Family Property
| Mr. Ratnagopal | Ms. Ratnagopal | |
|---|---|---|
| Total Net Family Property | -0- | $25,904.60 |
Equalization Payment
| Mr. Ratnagopal | Ms. Ratnagopal | |
|---|---|---|
| Equalization Payment | $12,952.30 |
[151] I order Ms. Ratnagopal to pay an equalization payment to Mr. Ratnagopal of $12,952.30.
Other Orders Sought
[152] Ms. Ratnagopal requested an order that her husband pay all liabilities for the restaurant. I am baffled by this request. She has insisted on her legal right to the restaurant business and excluded Mr. Ratnagopal from working there, from taking over ownership, and has argued a high value for the restaurant.
[153] When she seeks to insist on benefitting from the asset in her name to the exclusion of her husband, she cannot then avoid the potential liabilities of the business.
[154] Ms. Ratnagopal further requested an order that she sell the restaurant at a fair market value only after Mr. Manickam provides that she will not be liable for any debt to any government body.
[155] This court does not have jurisdiction to order her to sell an asset. Mr. Manickam is not a party to this proceeding and not subject to court order. Finally, as noted above, as Ms. Ratnagopal seeks to benefit from the business she also faces the potential liabilities which the business has. She and her counsel appear to conflate the future negotiation/litigation, which she faces with Mr. Manickam, with the matrimonial litigation. This cannot be done here.
Life Insurance
[156] Mr. Ratnagopal consented to an order that he maintain a policy of insurance for both his life and that of Ms. Ratnagopal for $550,000. On consent he will continue to maintain such a policy while he is obligated to provide support.
SUMMARY
[157] Accordingly, I order primary residence to be with the child’s mother, Ms. Ratnagopal.
[158] Custody: I order joint custody, with decision-making powers allocated to the parties. Mr. Ratnagopal is to make all decisions relating to education in light of his stronger command of the English language and sophistication. In light of his desire to place the child in extracurricular activity, he is also to have final decision-making regarding sports during his access time. Ms. Ratnagopal is to make all other decisions relating to such things as health, religion or other matters. At least 30 days prior to making a major decision in relation to the child, unless it is an emergency, the parent shall notify the other parent in writing to consult with the other parent and gain their input.
[159] Mr. Ratnagopal shall have the right to the release of information concerning the child directly from the relevant sources and service providers without the necessity of any release direction or acknowledgement executed by the mother.
[160] Ms. Ratnagopal shall have the right to the release of information concerning the child directly from teachers and the school and any extracurricular sporting activity without the necessity of any release direction or acknowledgement executed by the father.
[161] Access: I order access to be each alternate Friday from 4:30 p.m. to Sunday at 7:00 p.m., extended to Monday at 7:00 p.m. on long weekends and PA days. Mr. Ratnagopal shall pick up and drop off from Ms. Ratnagopal’s home. The exchange shall be in the lobby of her building.
[162] I order Ms. Ratnagopal to facilitate daily phone contact for up to five minutes at a time, at a time convenient to Mr. Ratnagopal’s work schedule. Mr. Ratnagopal is to facilitate daily phone contact for up to five minutes daily when the child is with him for March Break, summer access and Christmas break.
[163] I order that a weekly mid-week access occur with the father from 4:30 to 8:30 p.m. I order he be allowed to choose the mid-week access evening. He is to make his choice in writing. The access evening may be changed on consent. If Ms. Ratnagopal does not consent, I order that Mr. Ratnagopal has the right to make a change in the mid-week evening access in writing up to four times a year to allow for change of activities.
Holiday Schedule
[164] March Break: I order that the father shall pick up the child on the Wednesday at 5:00 p.m. and return the child on the Sunday at 7:00 p.m.
[165] Mother’s Day/Father’s Day: In the event this Sunday falls on the alternate parent’s access day the child will celebrate Mother’s Day with his mother by being dropped off at noon that day and the child will celebrate Father’s Day with his father picking him up at noon that day until 7:00 p.m. that evening.
[166] Summer Vacation: I order that the child remain with his mother for July such that this middle access weekend with father is suspended, and for the month of August the child is to have full access with his father. If summer school interferes in some manner the parties are to adjust to ensure the child has a full month with his father.
[167] Christmas break: Both agree the school break is to be shared equally as follows: The child is to have access with his father for the first half of the break in odd-numbered years and with his mother in even-numbered years. The first half is to start at 7:00 p.m. on the child’s last day of school in December and end at noon a week later. The other parent is to have the second half of the break.
[168] Travel: I order that the child is not to be taken outside Canada by either party before he turns 14 years of age, in 2019. After that time Ms. Ratnagopal parent may apply for a passport for the child. The child may travel outside the country if the other parent provides written consent. Consent will not be unreasonably withheld. An itinerary of proposed dates, accommodation, and contact numbers is to be provided when consent is sought, at least 30 days before the proposed departure date. The child’s current passport is to be provided to either counsel and kept in counsel’s vault until the child turns 14 years of age, at which time it shall be released to Ms. Ratnagopal.
[169] For support purposes, income for Mr. Ratnagopal is imputed to be $58,777 for 2013 and $58,173 for 2014. Income for 2015 is $31,426.
[170] Guideline child support is ordered for each of those years for one child; Mr. Ratnagopal is to receive credit for demonstrated payments made since August 2014.
[171] Spousal support of $1,248 per month is to be paid by Mr. Ratnagopal to Ms. Ratnagopal for each month from July 2013 to December 2013.
[172] Spousal support of $1,240 per month is ordered for 2014.
[173] Spousal support of $536 per month for 2015 is ordered.
[174] Mr. Ratnagopal is ordered to provide his T-4 and or his last pay stub for 2016 for the court to finalize the support for 2016.
[175] The parties are to exchange Notices of Assessment and tax returns every June 30 while support is payable.
[176] Section 7 Expenses: I order Mr. Ratnagopal to pay 65% of the cost of tutoring up to $100/month to date. Ms. Ratnagopal is to provide invoices for same; I order Mr. Ratnagopal to pay 65% of $7.50 per month for section 7 expenses related to the school uniform and Tamil classes to date. Section 7 expenses after July 2017 are to be shared proportionate to the parties’ incomes, taking into account the imputed income to Ms. Ratnagopal of $11,000.
[177] Equalization: I order Ms. Ratnagopal to pay an equalization payment to Mr. Ratnagopal of $12,952.30.
[178] Insurance: I order Mr. Ratnagopal to maintain his policy of insurance of $550,000 on both his life and that of Ms. Ratnagopal while he is obligated to provide support.
[179] If the parties are unable to finalize calculations of the support numbers and arrears within 7 days, they are to contact my judicial assistant to arrange a 9:00 a.m. appointment for submissions. On the date arranged I will also hear submissions on costs.
[180] Costs: If the parties are able to resolve the support numbers and arrears within 7 days, but are unable to resolve the matter of costs, I order Mr. Ratnagopal to write written submissions of three pages or less plus, any cost outlines, offers to settle and case law, within 14 days; thereafter Ms. Ratnagopal may provide similar written submissions within 14 days; if required, Mr. Ratnagopal may submit one page reply submissions plus attachments within 7 days thereafter.
M. J. DONOHUE, J. Released: April 19, 2017