ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 48/16 DATE: 2017-06-15

BETWEEN:

Asmaa Benzeroual Applicant

• and -

Joseph Issa Respondent

Heidi Farag Respondent

COUNSEL: Jodi L. Feldman, for the Applicant Jas Dhaliwal, co-counsel for the Applicant Peter Chmiel, for the Respondent (Joseph Issa) Joshua David, not appearing, for the Respondent (Heidi Farag)

HEARD: June 8, 2017

JUDGMENT

THE HONOURABLE MR. JUSTICE A. PAZARATZ

[1] If you claim you’re so poor you can’t afford a penny of child support, best not to be driving a red Ferrari convertible. In addition to two Mercedes-Benzes. In addition to….well, we’ll get to that.

[2] This was a full-day, bitterly contested motion and cross-motion, entailing five thick volumes of materials; written factums; and two comprehensive books of authorities.

BACKGROUND

[3] The main parties:

a. The Applicant wife Asmaa Benzeroual is 32 years old. b. The Respondent husband Joseph Issa is 51. c. They started living together in late 2011. d. They have a five year old daughter Lina, born April 16, 2012. e. They were married on October 17, 2012. f. They separated on January 13, 2016. g. I will refer to these parties as “the Applicant” and “the Respondent” respectively.

[4] The second Respondent is Heidi Edourard Farag. I will refer to her as “Farag”.

a. Farag had a previous unmarried relationship with the Respondent. She appears to have extensive ongoing involvement with him. b. Farag owns the residence at 7 Ranko Court, Hamilton, Ontario, which the Applicant describes as the parties’ former matrimonial home. c. Farag is also said to own shares in at least one private corporation paying expenses on behalf of the Respondent.

[5] Farag attended to observe the motion without her counsel of record. She confirmed that she took no position in relation to the motion because there were no claims directly affecting her. She was simply present as an observer and potential support for the Respondent.

[6] The chronology, briefly:

a. In July 2010 the Applicant came to Canada from Morocco on a student visa. She met the Respondent while she was living in Montréal. b. The Respondent had previously emigrated to Canada. He was separated from his first spouse and had four children of that relationship. c. In March 2011, at the Respondent’s suggestion, the Applicant attended the University of Toronto where she studied English. The Respondent paid for her studies. d. However, due to her pregnancy the Applicant had to leave the program. She returned to Montréal. a. But shortly after Lina’s birth in April 2012, the Applicant permanently settled in Hamilton with the Respondent. b. When Lina was 18 months old, the Applicant took a medical esthetician course which was paid for by the Respondent. He also paid for the child to be in daycare. c. During the course of the relationship the Applicant was a stay-at-home parent and assumed primary responsibility for Lina. d. The Respondent was diagnosed with serious mental health issues in 2008. He says he is substantially unable to work, and at all material times the Respondent’s only visible income has been a very modest pension from the Ontario Disability Support Program (ODSP). e. Despite those limited finances, the Respondent always assumed full responsibility for supporting the Applicant and Lina. f. Both parties acknowledge they had a luxurious lifestyle.

SEPARATION

[7] Separation occurred in January 2016 when the Applicant discovered weapons, bullets and guns in the powder room vanity of the family residence, in an area where the young child could gain access to the weapons.

[8] The Applicant contacted police and disclosed assaults and criminal threats by the Respondent over a four year period. The Respondent was then charged with 24 criminal offences including:

a. Unauthorized Possession of a Restricted Firearm (2 counts), b. Possession of a Prohibited Firearm. c. Possession of a Prohibited Device (gun magazine). d. Possession of Unregistered Firearm (3 counts). e. Possess of Ammunition while Prohibited. f. Unsafe storage of a firearm (3 counts) g. Possession of a firearm with an altered serial number. h. Uttering death threats. i. Assault (on the Applicant). j. Assault (on the child).

[9] The Respondent was initially incarcerated. He remained in jail without bail until March 29, 2016. Since then his terms of release require that he resides with his brother, Tony Issa, who acts as his surety.

[10] The Respondent was committed to trial following a two-day preliminary hearing in February 2017. The charges are currently scheduled for trial during the period December 11 to 22, 2017.

[11] The police synopsis with respect to the charges includes the following information:

a. The Respondent was previously convicted of assaulting his ex-wife and unauthorized possession of a firearm in 2009. b. The Respondent has been diagnosed as schizophrenic and does not take medication. c. The Applicant had reported to police that the Respondent was involved with making fraudulent insurance claims related to motor vehicle collisions. d. On September 20, 2011 when the Applicant was two months pregnant the Respondent pushed her down in a bedroom, causing her to lose consciousness for a few seconds. He threw a lamp at her which narrowly missed the Applicant, and struck a wall causing a large hole in the drywall. He then smashed a flat screen TV. The Applicant did not report the incident but photographed the damage and her injuries. e. On September 2, 2012, at their home, the Respondent grabbed the Applicant’s left upper arm hard enough to leave bruised impressions of his fingers on her arm. She didn’t report the incident but again took photographs of the injuries. f. On September 4, 2012, at their home, the Respondent grabbed the Applicant’s face around her cheeks. She was wearing braces at the time. He squeezed hard enough to cause the braces to cut into the Applicant’s cheeks. She took photographs of the injuries. g. In February or March 2013, at the home, the daughter Lina was less than a year old. The child apparently disturbed the Respondent while he was asleep. He became angry and slapped his young daughter across the face. The blow was hard enough to leave red marks on the child’s face that went away the same day. No medical attention was required. h. In February or March 2015, at the home, the Respondent grabbed the Applicant around the neck hard enough to leave red marks. The Respondent’s 12 year old son (of his first wife) was visiting and saw the Applicant’s injury. i. In November 2015 the Respondent threatened to kill the Applicant. He said “I will burn you in this country and put you underground.” j. The Applicant said that the Respondent told her more than once that if she ever tried to leave him he would kill her. He also stated: “If you leave, I will kill you, my ex-wife and then myself.” k. On January 14, 2016 police searched the family residence pursuant to a search warrant. They discovered three handguns and ammunition in the vanity of the main floor bathroom. The guns and ammunition were in a black duffle bag with $2,500.00 cash. The handguns were all semi-automatic and included a Ruger P95 (serial number defaced), a Bryco Arms handgun, and a Davis Industries prohibited handgun. Each gun had a magazine and one magazine was a prohibited device. The Respondent did not have a licence to possess firearms, and the guns were unregistered.

[12] Apart from the police summary, the Applicant says the Respondent was physically, verbally and emotionally abusive throughout the relationship.

[13] The Applicant expresses strong concerns about the Respondent’s mental health, and his propensity to violent and aggressive behaviour. Among her stated concerns:

a. The Respondent suffers from schizophrenia which results in erratic and volatile behaviour. b. When Lina was an infant, the Respondent attempted to commit suicide, which required hospitalization. c. Although the Respondent’s brother Tony has stated that the Respondent will take medications for the rest of his life, to maintain his mental health and well-being – the Respondent himself has provided no such assurance. d. To the contrary, the Applicant says the Respondent has a history of refusing to comply with his psychological medications.

[14] The Applicant described her personal situation since separation in January 2016:

a. Initially, she and Lina fled to a local women’s shelter where they remained until April 2016. b. With no income and no support from the Respondent, the Applicant and Lina returned to reside in Québec where the Applicant has family. c. Eventually they moved to Montréal, where Lina was born. They remain in that city, where they have financial and emotional support.

COURT CHRONOLOGY

[15] Immediately upon separation in January 2016, the Applicant commenced an Application and emergency motion. There have been a series of temporary orders.

[16] On January 13, 2016 Justice Brown granted two ex parte orders:

a. A restraining order against the Respondent. b. An order that the Applicant would have primary residence of Lina, with no access to the Respondent.

[17] On January 15, 2016 Justice Brown continued those orders on a without prejudice basis. She also granted exclusive possession to the Applicant and ordered that the property not be sold, transferred or re-mortgaged.

[18] On January 27, 2016, with both the Respondent (assisted by counsel) and Farag present, this court made a temporary-temporary without prejudice order:

a. Justice Brown’s previous orders continued. b. In addition, the Respondent was restrained from selling, encumbering or disposing of any property in his name or over which he has interest or entitlement through any trust or corporate interest. As an exception, the Respondent was permitted to access $10,000.00 to retain counsel. c. Farag was restrained from engaging in any transaction or activity involving any property or assets owned or controlled by the Respondent (including corporate or trust interests) either in her personal capacity or under any power of attorney. She was prohibited from engaging in any transaction involving the parties’ residence at 7 Ranko Court, Hamilton. d. The Respondent and Farag were jointly required to take all steps necessary to return to the matrimonial home any property removed from the premises including household contents and any vehicles. e. Apart from returning property, Farag was prohibited from attending at the matrimonial home. f. Costs were reserved.

APPLICANT’S MOTION

[19] More recently the Applicant brought this motion which included requests for:

a. Imputation of income to the Respondent in the annual sum of $150,000.00 for the years 2016 and 2017. b. For 2017 child support on an ongoing basis in the sum of $1,263.00 per month commencing January 1, 2017. c. For 2016 retroactive child support for the year in the total sum of $15,156.00. d. Spousal support in the sum of approximately $4,200.00 per month (high end SSAG) or in the alternative approximately $3,700.00 per month (medium range) commencing January 15, 2016. e. $25,000.00 interim disbursements for the Applicant to retain a business valuator. f. $50,000.00 interim disbursements for the Applicant’s legal fees. g. Costs.

RESPONDENT’S MOTION

[20] The Respondent asks that all of the Applicant’s claims be dismissed. He cross-motioned for:

a. Access to the child Lina, to be supervised by either his brother Tony; the co-Respondent Farag; or at a supervised access center. b. A request that the Office of the Children’s Lawyer become involved on behalf of the child. c. Costs.

[21] As a result of delays getting the motions heard, the Respondent consented to making an undifferentiated support payment of $6,000.00 for the period February 10 to March 31, 2017. On April 28, 2017 he was ordered to make a second $6,000.00 undifferentiated payment by May 5, 2017.

[22] Beyond that, no support has been paid and the Respondent hasn’t seen Lina since he was arrested in January 2016.

COMPETING THEMES

[23] The five volumes of affidavit materials are extremely lengthy, detailed and in conflict. However the respective themes can be summarized as follows:

[24] The Applicant’s basic theme:

a. Long before the parties met, the Respondent had a well-established history of having vast amounts of undeclared money – so much money that he was always able to maintain a lavish lifestyle. b. During the entire time that the parties were together, the Respondent continued this pattern of hiding income and assets so that he could qualify for his meagre ODSP pension. He hardly ever put anything in his own name (including the matrimonial home which he maintained in Farag’s name as part of their ongoing friendship and collusion). But the parties maintained a lavish lifestyle, luxury cars, fancy vacations and spent money freely. c. The Respondent was the actual owner (or at least had actual control) of a complex network of corporations and businesses (some of which he placed in the names of either his twin brother Tony or Farag). He freely and regularly accessed large amounts of money from these corporations, usually by having corporations (or other persons) pay for all living expenses and acquisitions (so that monies would not be traced directly back to him). d. The parties each had unlimited use of credit cards issued (and entirely paid for) through corporations – even though the Respondent insisted he didn’t own those corporations. e. As a result of this abundance of available funds, the Applicant was able to remain at home caring for the child during the relationship. She came to be completely dependent on the Respondent. She was left penniless, with no assets or resources as of the date of separation. f. The Respondent is quite sophisticated at maintaining a dishonest lifestyle, hiding income from Canada Revenue Agency, and defrauding the ODSP program by hiding very large amounts of ongoing income through an elaborate scheme of corporations, assisted by his brother Tony, and Farag. He has money hidden in the Bahamas. g. While the parties were together the Respondent boasted about how much money he regularly generated and how much he was worth. h. However, now that the parties have separated, the Respondent is attempting to maintain a fiction of poverty within this family court proceeding, to avoid any liability for child support, spousal support, or equalization of net family property. i. The Respondent’s vague representations that he has virtually no income, little property, and overwhelming debts are unbelievable. His persistent refusal to provide disclosure or explain complex financial transactions supports her contention that he is doing everything possible to hide money and make it as difficult as possible for the Applicant to cut through the subterfuge. j. The Respondent is an aggressive, angry, volatile, mentally unstable, spiteful man who has no actual interest in the child Lina, and wishes to create as much hardship for the Applicant as possible, to punish her for disclosing his long-standing abuse and violence to the police. At one point he conveyed word to her that financially she would do much better if she cooperated, with the inference being that she would be compensated if she didn’t support the criminal charges proceeding. k. The Respondent’s serious and unaddressed mental health issues have already jeopardized Lina’s well-being, in terms of violence while the Applicant was pregnant; violence in the presence of the child; and violence toward the child. l. The Respondent has not had any access for about 17 months, and he didn’t bring a motion for access until after he was served with the Applicant’s motion on financial issues. He is only motivated by money, and has no sincere interest in the child. m. The Respondent already has a serious criminal record including a weapons conviction. There is a significant likelihood he will be convicted of some additional charges at his December 2017 trial, in which case he will almost certainly be incarcerated. n. With no indication that the Respondent acknowledges or has any insight into his mental problems and aggressive personality, it is inappropriate to resume any form of access at this time. Even supervised access would not guard against the likely emotional shock to the child of having her violent father resurface in her life after such a lengthy absence. The child has done well since being away from the Respondent. o. There should be no consideration of access until the Respondent can establish that he has received professional assistance for his many problems. And there is no point experimenting with access if the Respondent would inevitably soon be disappearing from Lina’s life as a result of his likely pending incarceration. p. A referral to the OCL is inappropriate and unnecessary. We are dealing with adult issues, which only the Respondent can address. q. The Applicant requires support for herself and for Lina. The Respondent has ample ability to pay. He has continued a lavish lifestyle, and in addition he has paid vast amounts of money to a series of high-priced lawyers in relation to both his criminal and family law cases. r. The Respondent is deliberately dragging out this family court case by avoiding disclosure and portraying his financial situation in the most confusing and complicated manner. He is trying to take advantage of his vastly superior resources by making this case so complicated that the Applicant won’t be able to afford to litigate and pursue her claims. For this reason the Applicant requires an interim disbursement of funds for both legal fees and a business valuator.

[25] The Respondent’s basic theme:

a. He is a simple man with health problems which preclude him from working. b. All of the allegations against him – both in relation to violence and hiding money – are completely without merit. c. He admits to owning one corporation which owns three properties. He hasn’t valued it yet. His lawyer says no one has asked him to. d. He has no financial or ownership interest in any of the other companies the Applicant refers to. They are owned by other persons, primarily his brother. e. He does work for his brother, collecting rents for example. f. His brother allows him to charge certain expenses to corporate credit cards, in exchange for his services, and also as ongoing loans. g. His brother Tony is very supportive. And Tony frequently has to travel abroad for his businesses, so that’s why the Respondent is sometimes left with responsibilities for businesses he doesn’t own. That’s why the brother has given him power of attorney over at least one of the brother’s corporations. h. He admits the parties spent a lot of money while the Applicant and the Respondent lived together. He says that money came from the generosity of his brother. i. He denies being deceitful. j. He denies being violent or mentally ill. k. He says he always had a close and loving relationship with Lina, and it is unfair that the Applicant now wants to keep the child from the Respondent – and from the Respondent’s four older sons. l. He says he can’t afford to pay any child support. His ODSP income is less than $10,000.00 per year – below the guideline chart. m. He denies the Applicant should receive spousal support. She is able to work. n. He disputes that the Applicant requires any experts to value his businesses. He only owns one corporation and he will value it in the future. o. He disputes that the Applicant requires money from him to hire a lawyer. He can’t afford it. She can apply for Legal Aid.

[26] All of this is a lot to deal with on a motion. In other circumstances the inclination would be to accelerate this matter to a trial, where all of this complex evidence could be thoroughly presented and tested. And where credibility could properly be assessed.

a. But this matter is nowhere near being trial ready. b. The parties have had a couple of long Case Conferences. But the resulting disclosure orders have not been complied with. c. Questioning was ordered but hasn’t taken place. The Applicant’s current (second) lawyer attributes the delay primarily to the fact that the Respondent has gone through a succession of lawyers, making it difficult to co-ordinate Questioning. d. The parties aren’t even ready for a Settlement Conference, primarily because of the glaring deficiencies in the Respondent’s disclosure.

[27] So – a year and a half after separation -- the court must try its best to deal with some of these urgent issues despite far-less-than-perfect evidence, at least on a without prejudice basis.

[28] The Respondent’s counsel submits that with the facts being so unclear, the court should do nothing pending trial. But at the current pace, it may be years before they reach trial. To abdicate responsibility at the motions stage would simply encourage mischief, and signal to litigants that stalling and non-disclosure are effective strategies.

RESPONDENT’S INCOME

[29] The primary issue on this motion is the determination of the Respondent’s income for support purposes. As part of that analysis, the parties focussed heavily on what corporate or other assets the Respondent may or may not own; and what corporate or other funds the Respondent may or may not control and utilize.

[30] The parties agree the Respondent is the sole owner of I-Land Corporation.

a. I-Land owns a property in Fort Erie and two properties in Toronto. b. The Respondent has not produced a valuation for I-Land, nor has he produced valuations for the individual properties owned by I-Land.

[31] The parties agree the Respondent is the sole-shareholder of 2434545 Ontario Inc, carrying on business as “Advanced Service Group”. The Respondent describes this as a defunct automotive repair shop which ceased operations in approximately August 2015.

[32] The Applicant alleges the Respondent owns or has interest in a property in Mississauga, three properties in Cambridge, and a property in Windsor. The Respondent denies this.

[33] The Applicant alleges the Respondent is the beneficial owner of what she characterizes as the matrimonial home, 7 Ranko Court, Hamilton.

a. The Respondent denies that he has any ownership interest in the property. b. He says 7 Ranko Court was gifted to Farag by the Respondent’s mother on November 18, 2011 – around the time the Applicant and the Respondent started living together. c. The Applicant says the documents placing the home in Farag’s name were signed by the Respondent, purportedly using a Power of Attorney granted by his non-resident mother. d. A company registered in Farag’s name paid ongoing expenses for the family’s residence, vehicle, cell phone, internet, cable, hydro, family trips, etc.

[34] Coincidentally, the Respondent acknowledges that one of the Cambridge properties the Applicant claims he owns, was also gifted to Farag prior to the Applicant and the Respondent getting married.

[35] There are other corporations the Applicant claims the Respondent owns or controls, including:

a. Daniel & Brother Investment b. H.E. Courier Canada Inc. c. 186126 Ontario Inc. d. Eldora Investment Inc. e. Deva Property Management f. 1324294 Ontario Inc.

[36] The Respondent denies having any ownership interest in these companies.

a. He says some of them are owned by his brother. b. He sometimes helps manage some of his brother’s companies and assets – in addition to doing work for his own I-Land Corporation. c. But he receives no formal payment, and he never shows any T4 income from any source. d. The Respondent acknowledges that he accesses funds from some corporations he doesn’t own. He charges personal expenses to the accounts of corporations he has no connection with. He is unclear about how exactly he is able to do this; the amounts involved; how the money is calculated; how the money is characterized; etc.

[37] The Applicant notes that while the Respondent insists his I-Land Corporation is independent of his brother’s various corporations, accounting statements show large financial transactions between these businesses. As well, an Eldora Investments Limited statement shows a February 2014 loan to the Applicant in the sum of $25,000.00 – even though the Respondent says he has no ownership in Eldora, and the Applicant says she never received the money. It’s hard to understand why a company neither the Applicant nor the Respondent own would be claiming it made a disputed loan to the Applicant.

[38] To shed more light (or add to the confusion), the Applicant referred to a number of documents from Nora Ragheb Melo of Golden Gate Financial, which appears to provide bookkeeping services for the Respondent.

a. In a letter addressed to one of the Respondent’s previous lawyers, Ragheb sets out that neither of the Respondent’s I-Land Corp or 2434545 Ontario Inc. have had any employees nor have they ever issued management salaries. b. She stated that the Respondent currently has no source of income other than ODSP. c. She also stated: “He has withdrawn from these corporations a very large amount of funds under his shareholder account. I can provide details of these general ledger accounts should you require this.” (The details have not been provided to the Applicant.)

[39] Related to this, the Applicant’s solicitor referred to a string of e-mails involving Ragheb and the Respondent.

a. On December 15, 2016 Riad Wehbe of Reliable Services Inc. e-mailed an invoice to Golden Gate Financial, with a copy purportedly forwarded to the Respondent at a private e-mail address. b. The invoice, dated February 1, 2014 stated it related to “MR Joe Essa, Eldora”, and claimed $37,492.27 in relation to “professional, consulting, management fees (from) Feb. 1/2013 to Jan. 31/2014”. It references “Job Site: wolf dale, Mississauga.” (3239 Wolfedale Road, Mississauga is one of the properties the Respondent denies having any ownership or interest in). c. On December 16, 2016 Ragheb (the Respondent’s bookkeeper) responded to Reliable Services Inc., with a copy to the Respondent. Ragheb’s response started with “Thank You. However, ‘Joe Essa’ name should be removed…” The e-mail mentions “CRA will probably call you to verify…” Ragheb closes the e-mail with “Joe, please send me you (sic) cell number” because she didn’t have access to her phone contacts. d. The Respondent did not specifically deny or explain any of this in his materials. His lawyer submitted that the e-mails referred to a “Joe Essa” and since the Respondent is “Joe Issa”, then quite likely all of this might be in relation to a different person. The lawyer also submitted (without evidence) that the Respondent denies that he owns the personal e-mail address repeated in the string of e-mails. e. We’re getting into some far-fetched denials. With Ragheb having previously confirmed in writing that she is “Joe Issa’s” bookkeeper, it seems highly unlikely that she would also have a client named “Joe Essa”. It seems even more unlikely that this “Joe Essa” person would have some involvement with the Wolfedale Road property referenced on the invoice. It also seems unlikely that Ragheb’s records would show that all this time she has been sending e-mails to her client at the wrong address. f. I agree with the Applicant’s submission that these documents suggest an invoice was generated in relation to monies the Respondent was to receive. But as soon as the bookkeeper noticed the Respondent’s name was listed, she immediately asked that his name be deleted (without changing the fact that monies would be paid).

[40] The Respondent’s materials are really quite vague about what he does – or doesn’t do – to generate income.

a. He says his only formal source of income is ODSP, totalling perhaps $10,000.00 per year. b. That’s roughly the amount he declares on his tax returns. c. Except his 2014 Notice of Assessment shows income totalling $36,242.00. He hasn’t explained where the extra income came from (given his insistence that for many years he has only received ODSP). d. His 2015 reported income hasn’t been confirmed because he’s never produced his Notice of Assessment. His lawyer couldn’t explain why. e. He hasn’t produced any tax disclosure in relation to 2016. His lawyer says the Respondent filed a return and is waiting to hear back. The Respondent has never produced a copy of that 2016 return even though he admits it is physically available to him. His lawyer couldn’t explain why. f. The Respondent admits he performs services on behalf of his own company and he performs services on behalf of companies he doesn’t own. But he insists there’s no formal payment or compensation for any of this. g. The Respondent doesn’t dispute the Applicant’s allegations that while they were together they were able to spend lots of money on a very comfortable lifestyle, even though very little of the money or assets were ever in the Respondent’s name. h. He does not dispute that there has been a long-standing pattern of him charging personal expenses or otherwise receiving personal benefit by having companies – that he doesn’t own – pay for things for him. i. He does not dispute that during the relationship he gave the Applicant a Cadillac Escalade. Upon separation he retained three other luxury vehicles – a Ferrari and two Mercedes-Benzes. As with everything else, registered ownership of those vehicles is very complex. One is registered in the name of a company the Respondent says he doesn’t own. One is in the name of a company the Respondent owns but claims is inactive.

[41] Not much seems to be in the Respondent’s name. And yet he seems able to afford a lot of stuff.

BROTHER TONY

[42] The Respondent relied on an affidavit of his brother, Tony Issa, signed May 5, 2017. The brother included the following information:

a. Tony has dual citizenship and currently resides in Canada and Lebanon. b. Tony owns several businesses in Lebanon and frequently travels there to handle his business affairs. He also has several businesses in Ontario that operate investment properties. c. The Respondent has a medical condition. He was diagnosed with paranoid schizophrenia in 2008. He has been successfully treated with anti-psychotic medication and at times required brief hospitalization and attention from a psychiatrist. d. Tony has observed the Respondent to function as a parent and a caregiver for his children while taking his medications. e. Tony has in the past transferred funds from Lebanon to Canada to the Respondent for the Respondent to purchase properties for Tony’s companies. f. The Respondent is on disability income. During the relationship between the Applicant and the Respondent, Tony would loan the Respondent funds for him to finance the lavish lifestyle the Applicant demanded. “I would constantly loan funds to the Respondent, and only did so as he would tell me that the Applicant becomes easily angry because the Respondent could not afford to finance her expensive lifestyle.” g. Tony said the Respondent has outstanding debts owed to him which he has yet to repay in full. Tony’s affidavit didn’t specify any amounts. h. Tony is prepared to offer financial support of $2,500.00 per month for the Applicant on the condition that the Applicant returns the child Lina from Montréal to the Greater Toronto Area. i. When Tony travels to Lebanon, the Respondent would act on behalf of Tony’s Ontario companies. The Respondent would collect rent from tenants and maintain the properties while Tony is away. (This is consistent with the Applicant’s evidence that when they were together she would accompany the Respondent when he went around collecting cash rents, which she says he was able to access.) j. But Tony says since 2008 when the Respondent was diagnosed with his medical problems, he “has been unable to take a full time active role in handling all the affairs of the business.” (The Applicant says she observed the Respondent to be regularly involved in these business activities, long after 2008.) k. Tony goes on to explain that he is the registered owner of various companies and properties the Applicant has alleged to be the property of the Respondent.

[43] The story gets more complicated. It was a long motion.

[44] But here’s what we’re left with:

a. There is overwhelming disagreement about the registered ownership of many significant corporations and assets. Those issues can’t be determined on this motion. b. There is overwhelming disagreement about the beneficial ownership of many significant corporations and assets. Those issues also can’t be determined on this motion. c. But there is absolutely no disagreement that for years and years and years – before, during and after the Respondent’s relationship with the Applicant – every single year the Respondent has been able to spend vast amounts of money, on a luxurious lifestyle (and more recently on intensive and aggressive legal services). d. The money’s coming from somewhere. And so far none of the Respondent’s vague explanations are very convincing.

[45] The Applicant says the Respondent derives income from corporations and businesses because he’s the actual owner. The Respondent denies this.

a. But the Respondent admits he actually does work for his own corporation. He shows no income or compensation for this effort. b. The Respondent and his brother both say the Respondent has done work for the brother’s various businesses. But neither of them have provided any particulars as to the amount of work, the value of the work, the nature of the arrangement between them, or the amount of compensation the Respondent has been receiving. The Respondent has regularly had his brother’s companies pay for things. And yet neither the Respondent nor the brother have quantified anything. c. To put things in perspective: the Applicant says the Respondent has received more than $400,000.00 from just two of those companies.

[46] The Respondent and his brother both characterize significant monetary transfers as “loans”. But no supporting documentation has been provided, and the numbers presented so far don’t make sense.

a. In his affidavit sworn May 5, 2017 brother Tony Issa stated repeatedly “ I would loan the Respondent…” and “ I would constantly loan funds to the Respondent”. (Emphasis added.) He doesn’t mention amounts. b. But in the Respondent’s financial statement sworn March 20, 2017 the Respondent doesn’t list any money owing to his brother Tony. The Respondent’s lawyer notes that the financial statement shows indebtedness to two corporations owned by Tony in the amounts of $487,000.00 and $421,328.00 respectively as of the date of separation. c. The lawyer suggested Tony might have blurred the distinction between whether he was personally loaning the Respondent money or whether Tony’s corporations were loaning money. d. That fine distinction might make more sense if the Issa brothers weren’t so “corporate sav”. But in this court we rarely see people so sophisticated and scrupulous about doing just about everything behind a network of corporate shields. e. The Respondent shows a further date of separation debt from Deva Property in the amount of $42,000.00. f. And then he claims on the date of separation he owed Farag $103,610.00 for rent and utilities on the matrimonial home at 7 Ranko Court, Hamilton. Remember, Farag was gifted this property and another property. Now he owes her rent? g. Indeed, while we’re on the subject of the 7 Ranko property, it turns out Farag tried to sell it despite this court’s January 27, 2016 order specifically prohibiting her from doing so. A listing agreement was signed but aborted when one of the Respondent’s former solicitors learned of the contemptuous behaviour and intervened. I am advised a penalty was incurred of somewhere between $20,000.00 and $40,000.00.

[47] Notably none of the v-day debts listed on the Respondent’s March 20, 2017 financial statement matched up with the v-day debts listed on his March 10, 2016 financial statement.

a. In March 2016 the Respondent listed a $900,000.00 debt to “Bushara”. No explanation has ever been provided about Bushara. Certainly no corroboration of any debt. By March 2017 the Bushara debt had disappeared. b. In March 2016 the Respondent listed $1,200,000.00 owing to his brother Tony. Again, no corroboration of that amount was ever provided. But by March 2017 the $1,200,000.00 owing to Tony had disappeared. c. Even if the Respondent was referring to Tony and his corporations interchangeably, the totals are completely different: $1,200,000.00 allegedly owing on v-day in a 2016 statement; $908,328.00 owing on v-day in the 2017 statement. d. And the v-day debts to Deva Property and Farag weren’t even mentioned on the Respondent’s March 2016 financial statement.

[48] Neither the Respondent nor his brother Tony provided any evidence to support the characterization of these very large (but unspecified) exchanges of money as “loans”.

a. There are no contemporaneous documents evidencing a loan. b. The manner of repayment has never been specified. c. There is no security held for the loans. d. There appears never to have been a demand for repayment – or any actual repayment or reduction of debt. e. Both brothers describe the Respondent as permanently disabled. So there’s little likelihood the Respondent would ever be in a position to repay loans allegedly totalling $1,000,000.00. There’s little likelihood Tony would ever expect repayment. f. See: Boulanger v. Hebert-Boulanger, 2017 ONSC 482; Poole v. Poole, 2001 ONSC 28196.

[49] Beyond offering no proof of the specified (but inconsistent) numbers on his financial statements, under most headings on both statements the Respondent has simply inserted “TBD” which presumably means “To Be Determined”. Except the Respondent has had plenty of time to do the determining. “TBD” might wash within a few weeks of separation. But when the Respondent swore his March 20, 2017 financial statement, the parties had been separated more than a year. “TBD” is equivalent to no disclosure.

[50] As an aside, on his March 2017 Financial Statement the Respondent lists $810,000.00 in child support arrears owing to his first wife for the period 2009 to 2015. During much of that time, by his own admission, the Respondent was living a lavish lifestyle with the Applicant. I accept the Applicant’s submission that this suggests a long-standing lack of commitment by the Respondent to supporting his various dependants.

ANALYSIS

[51] Determining income for support purposes is guided by sections 15 to 20 of the Federal Child Support Guidelines. The purpose of these sections is to arrive at a number that fairly and fully reflects the payor’s income. Mason v. Mason, 2016 ONCA 725. This analysis can also be used to determine income for spousal support. Syed v. Syed, 2017 ONSC 2588.

[52] Pursuant to s.16 the starting point for calculating annual income is the payor’s “total income”, also known as the “line 150” income. Sections 17 and 18 permit a court to depart from line 150 income where the court is of the opinion that relying on the spouse’s line 150 income would not be the fairest determination of income. Duffus v. Frempong-Manso, 2017 ONCA 360; Pecanac v. Mamado, 2017 ONCJ 260.

[53] Section 17 entitles the court to examine any pattern of income.

[54] Section 18 allows a court to add all or part of pre-tax corporate income for the most recent taxation year to a spouse’s income.

[55] Section 19 permits the Court to impute income in certain circumstances, including:

a. Where a support payor is intentionally under-employed or unemployed. b. Where it appears that income has been diverted which would affect the level of child support payable. c. Where the support payor’s property is not reasonably utilized to generate income. d. Where the support payor has failed to provide income information when under a legal obligation to do so. e. Where the support payor unreasonably deducts expenses from income. f. Where the support payor derives a significant amount of income that is taxed at a lower rate or not taxed at all. g. Where the support payor is a beneficiary under a trust and is, or will be, in receipt of income or other benefits from the trust.

[56] The list circumstances that may give rise to an imputation of income under s.19 of the Guidelines are not exhaustive, and do not circumscribe the court’s general and broad discretion to impute income in other situations where it considers appropriate to do so. Morden v. Pippy, 2016 ONSC 6886; Menegaldo v. Menegaldo, 2012 ONSC 2915.

[57] The purpose of the Guidelines is to establish a fair standard of support that ensures that children continue to benefit from the financial means of both spouses after separation, using a methodology that strives to achieve objectivity, efficiency and consistency. Obodoechina v. Ayetor, 2013 ONSC 7500; Lee v. Lee, 1998 NLCA 18000; Milford v. Catherwood, 2014 ONCJ 276; Tillmanns v.Tillmanns, 2014 ONSC 6773.

[58] Imputing income provides a means by which the court can ensure that both parents meet their absolute and ongoing obligation to support their children to the extent that they are able to do so. Drygala v. Pauli, 2002 ONCA 41868; Tillmanns v. Tillmanns, 2014 ONSC 6773;

[59] B. (G.T.) v. B. (Z.B.), 2014 ONCJ 382.

[60] The onus is on the party seeking to impute income to establish an evidentiary basis for two determinations:

a. Whether income should be imputed. b. If so, the amount of income to be imputed. Homsi v. Zaya, 2009 ONCA 322.

[61] But once a prima facie case for imputing income pursuant to s.19 has been established, the onus shifts to the payor seeking to justify the income position they are taking. Drygala (supra); Rilli v. Rilli, 2006 ONSC 34451; Bekker v. Bekker, 2008 ONSC 864; Millford (supra); Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719; Jackson v. Mayerle, 2016 ONSC 72.

[62] A pervasive and troubling theme on this motion was the Respondent’s persistent failure or refusal to provide financial disclosure – an obligation clearly amplified by the scale and opaqueness of the Respondent’s complex financial world.

a. The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Roberts v. Roberts, 2015 ONCA 450. Failure to abide by this fundamental principle impedes the progress of the action; causes delay; disadvantages the opposing party; and impacts on the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled. b. Section 21 of the Guidelines and Rule 13 of the Family Law Rules largely preclude the necessity of anyone asking for disclosure. Indeed, in 2015 Rule 13 was amended to expand and emphasize each party’s financial disclosure obligations. c. The Applicant’s counsel requested that the Respondent produce mandatory disclosure – repeatedly – and more than a year post-separation she and the court are still waiting. d. The Respondent’s current lawyer attempted to explain away deficient disclosure through a combination of “he’s new to the file” and “no one ever asked for this before.” But being relatively new to the file doesn’t negate the fact that none of the Respondent’s succession of lawyers produced the required disclosure. And it’s never acceptable to say you didn’t produce mandatory disclosure because nobody asked for it. Mandatory means you shouldn’t have to ask. e. Indifference or wilful blindness to the most basic of disclosure obligations is more than a nuisance or irritant. Such contemptuous behaviour undermines the integrity of the court process and public confidence in our system. f. And to the extent that inadequate disclosure creates a strategic advantage – by causing delay, frustration and needless expense for the opposing party – the court has both an obligation and a self-interest to severely sanction such mischief. g. Where a party fails to provide full disclosure relating to their income and financial circumstances, the court is entitled to draw an adverse inference which may result in income being imputed. Smith v. Smith, 2012 ONSC 1116; Tillmanns v.Tillmanns, (supra); Dewan v. Dewan, 2012 ONSC 503; Blatherwick v. Blatherwick, 2015 ONSC 2606; Bagheri-Sadr v. Yaghoub-Azari, 2011 ONSC 780; Psavka v. Kroll, 2017 ONSC 1087; Manchanda v. Thethi, 2016 ONSC 3776; Montgomery v. Kenwell, 2017 ONSC 3107. h. A payor’s failure to properly disclose may mitigate the obligation of the recipient to provide an evidentiary basis to impute income. Graham v. Bruto, 2008 ONCA 260 i. A history of deceptive behaviour or unreported income will increase the likelihood of income being imputed. Bensadoun v. Bensadoun, 2002 ONSC 2023.

[63] The Applicant’s request that income be imputed to the Respondent is largely – and unavoidably – based upon evidence of lifestyle and consistent spending patterns.

[64] A party’s lifestyle can provide valuable information about their actual income, cash flow, and true financial circumstances. Aitken v. Aitken, 2003 ONSC 2780; Jonas v. Jonas, 2002 ONSC 2117; Price v. Reid, 2013 ONCJ 373; Pecanac v Mamado, (supra). Lifestyle is not income, but it is evidence from which an inference may be drawn that the payor has undisclosed income that may be imputed for the purpose of determining child support. Bak v. Dobell, 2007 ONCA 304. The less adequate and credible the payor’s disclosure, the more relevant lifestyle may become.

[65] Imputing income based on lifestyle is an inexact science. But it is important to consider that most often – as in this case – the challenge is created entirely by the payor’s evasion, non-disclosure and deceit. As a court system we don’t like to “guess” about anything. But when sophisticated and determined spouses go to extraordinary lengths to create a fiction of poverty, they invite a common sense and practical response: The payor couldn’t be spending all this money if he didn’t have it.

[66] I have no hesitation in finding that for many years the Respondent has consistently had available to him and utilized a very large cash flow, which he has spent regularly and in a seemingly unfettered fashion, not only on basic living expenses, but also on a quite extraordinary lifestyle. It would appear that this steady flow of funds – undeclared for tax purposes and largely invisible – was available not only before and during his relationship with the Applicant; but it has also continued since separation, as partly demonstrated by his apparent ability to incur significant legal fees in relation to complex family and criminal court proceedings.

[67] So on a threshold basis, unlike many imputing income cases, there’s really no dispute here that the Respondent has and regularly spends significant amounts of extra money, not accounted for in any of his income disclosure.

a. The Applicant describes it as equivalent to hundreds of thousands of dollars of tax-free money per year. b. The Respondent admits it is – and always has been – a lot of money. c. The Respondent admits he has consistently had personal expenses paid by corporations or businesses. d. But curiously, quite apart from any dispute as to how various funding sources should be characterized, in his comprehensive motion materials the Respondent did not quantify how much money he has been receiving and spending, currently or in previous years. e. In essence, the Respondent’s lack of disclosure, explanation and accountability forces the court to struggle with the question of what to do with a large but unknown amount of mystery money. f. The Respondent is solely responsible for this quandary.

[68] For purposes of this motion, the precise characterization of the Respondent’s continuous cash flow is less important than the simple fact that he is reliably and consistently receiving the money.

[69] If there’s ultimately a determination that the Respondent is the actual or beneficial owner of these various corporations and businesses, then it’s his money; his income.

[70] To the extent that the ultimate determination may be that he doesn’t own the corporations and businesses, but that he was receiving compensation for the work that he did – then once again it’s his income.

[71] To the extent that he wasn’t entitled to the money – which I do not accept – the regular sizable payments would constitute a permanent pattern of gifts. The essential elements of a gift were described by the Court of Appeal in McNamee v. McNamee, 2011 ONCA 533:

a. An intention to make a gift on the part of the donor without consideration or the expectation of remuneration; b. An acceptance of the gift by the donee; and, c. A sufficient act of delivery or transfer of the property to complete the transaction.

[72] As noted above, I reject the twin narrative of the twin brothers that whenever we find some undisclosed money, they can explain it away by calling it a loan.

[73] Based upon the evidence and the reasonable inferences, I find that the Respondent has been and continues to be entitled to vast amounts of undisclosed income by virtue of his ownership and/or remunerative participation in multiple corporations, businesses, and properties.

[74] In the alternative, in the unlikely event that any portion of his regular income stream might be characterized as gifts, this is one of those rare situations in which that money should also be included when determining imputation of income.

[75] Until the Court of Appeal’s decision in Korman v. Korman, 2015 ONCA 578, the Court’s earlier decision in Bak v Dobell, supra) was generally interpreted as telling us that gifts are gifts and gifts are not income.

a. In reality, Bak did not foreclose the possibility that gifts by a parent to an adult child (the usual scenario) might be considered income for child or spousal support purposes. b. But the Court placed significant limitations on consideration of gifts in this context.

[76] Korman reinforces much of the reasoning in Bak, but opens the door for a more expansive treatment of gifts:

a. Income for support purposes is presumptively the payor’s line 150 income. b. Gifts are not subject to taxation and are not usually included in a payor’s presumptive income. c. But the imputation of income does not depend solely on the determination of the payor’s presumptive income. d. Imputing income is a fact-specific exercise that depends on the circumstances of each case. The objective is to establish fair support based on the actual means of the parents. e. Generous monetary gifts can be a proper and necessary consideration in determining income, particularly where the advances of money are regular, frequent and substantial. And where the gifts were relied upon as an essential and predictable source of funding, in making and maintaining family commitments. f. To the extent that gifted money is included in imputed income, this does not impose any legal obligation on the person making the gift to advance additional funds. The court is merely making a factual determination about the payor’s actual past revenues and his likely financial future. If that cash flow changes in the future, the payor can request an adjustment of support. g. As stated, these gifted income scenarios often involve a grandparent wanting to help not only their own adult child but also their grandchildren. There is no public policy interest in interfering with such generosity to offspring. h. But if the fact-specific analysis reveals that substantial gifting of money has become an enduring aspect of a family’s overall financial plan, it is reasonable to take actual, regular money into account in determining ability to pay. Indeed this may be even more so where the “gifting” occurs between sophisticated siblings who have blurred the distinction between familial and business transfers.

[77] The Respondent’s brother Tony has sworn an affidavit saying that for many years he’s advanced regular, substantial funds to the Respondent. He says he intends to continue to do so. He’s even joined into negotiations, offering to pay the Applicant certain amounts if she does want he wants.

[78] The Applicant proposes that income be imputed in the sum of $150,000.00. The Respondent insists none of his extra money and benefits should be imputed as income.

a. Quantification is the most challenging part of this exercise. b. Even after a determination that income should be imputed, the court cannot arbitrarily allocate an amount. There must be a rational, evidentiary basis for the income level to be imputed. Drygala v. Pauli (supra); Mason v. Mason (supra). c. Income may be imputed on a motion for temporary support. Pecanac v Mamado (supra). d. The onus is on the person requesting imputation. The determination to impute income is discretionary based on the circumstances of each case. Mercer v. Mercer, 2016 ONSC 7951. e. Since motions are determined based on limited and untested evidence, both parties have a heightened obligation to clearly disclose and explain their case. f. On a motion it is incumbent on the person seeking a finding of imputation of income to provide the court with sufficient information from which a reasonable inference could be drawn. Kowalik v. Kowalik, 2011 ONSC 1551; Stoyshin v. Stoyshin, 2007 ONSC 15478. g. I am satisfied that the Applicant has provided sufficient information to justify an imputation of income at $150,000.00 per year, particularly given the fact that the Respondent is consistently availing himself of large amounts of money he pays no tax on. h. This amount includes a gross-up to reflect the tax-free status of this money. Duffus v. Frempong-Manso (supra). Grossing-up of income is done to ensure consistency of treatment where a party is found to have arranged his or her affairs to pay less (or no) tax on income; and to ensure the objectives of the Child Support Guidelines and Spousal Support Advisory Guidelines are promoted. Riel v. Holland, 2003 ONCA 3433; Sarafinchin v. Sarafinchin, 2000 ONSC 22639; Price v. Reid, 2013 ONCJ 373; Wawzonek v. Page, 2015 ONSC 4374. i. Although $150,000.00 is a lot of money, it’s not beyond the range of income levels our court sees regularly. The Respondent’s ongoing lifestyle and spending patterns are consistent with that range of income.

[79] The Respondents counsel emphasized that a motions court should proceed cautiously when the evidence is contradictory. I agree with his general submission that when findings of credibility are necessary to determine a matter of importance, the issues are more appropriately dealt with at trial. Ierullo v. Ierullo, 2006 ONCA 33301; Menchella v. Menchella, 2012 ONSC 1861.

a. But a payor cannot indefinitely stall off temporary support obligations – particularly child support -- through their own lack of disclosure and unresponsive materials. b. If there’s any lack of clarity it’s because the Respondent seems to have gone out of his way to create a lack of clarity. c. The “let’s not do anything until trial” argument only has merit if the payor is making reasonable, sincere, and timely efforts to be ‘trial ready’.” d. A year and a half after separation, I see no sign of that.

SUPPORT

[80] With respect to spousal support, the Respondent acknowledged neither entitlement nor ability to pay. However, not a lot of time was spent on this topic, either in his materials or during submissions.

[81] The following principles apply to temporary spousal support.

a. The purpose of temporary support is to provide income for a dependent spouse from the time the proceedings are instituted until trial. b. As a pre-requisite the support claimant must establish a prima facie case for entitlement. c. In determining entitlement the court should consider the objectives of support as set out in the Family Law Act and the Divorce Act. d. But no single statutory consideration should be emphasized. e. On temporary applications the need to achieve economic self-sufficiency is often of less significance. f. The court cannot embark on an in-depth analysis of the parties’ circumstances or determine the extent to which either party experienced an economic advantage or disadvantage as a result of the relationship. That can be determined by the trial judge. g. Temporary support is a “holding order” to continue the same standard of living enjoyed prior to separation, so long as the claimant is able to present a triable case for economic disadvantage, and subject to the payor’s ability to pay. h. Temporary support is based primarily on the parties’ means and needs, assuming that a triable case exists. i. Temporary support should generally be ordered within the range suggested by the Spousal Support Advisory Guidelines. j. See: Racco v. Racco, 2014 ONCA 33; Sutton v. Ramos, 2017 ONSC 3181; Jovanovic v. Jovanovic, 2017 ONSC 1374; Maelbrancke v. Proctor, 2016 ONSC 1788; Aden v. Mohamud, 2017 ONSC 1629; Robles v. Kuhn, 2009 BCSC 1163.

[82] Having regard to the considerations set out in s.15 of the Divorce Act I find that the Applicant has established a prima facie entitlement to spousal support; she has a significant need for support; and the Respondent has the ability to pay:

a. While this was a short relationship, the parties had a child and the Applicant remained home caring for that child. b. The Applicant had to interrupt her efforts to upgrade her qualifications as a result of the pregnancy. c. The Applicant organized her life around the Respondent’s and the family’s needs and routines. d. The Applicant came to be completely financially dependent on the Respondent, in a lifestyle which by the Respondent’s own admission was quite luxurious. e. The Applicant came to be economically disadvantaged by virtue of the roles and responsibilities the parties assumed. f. Upon separation the Applicant suffered a significant dislocation, while still assuming full responsibility for the young daughter. g. The Applicant has established a prima facie case for both compensatory and non-compensatory support.

[83] The paucity of information in the Respondent’s financial statements make it more difficult to do a meaningful budget analysis. I have considered all available information, including the Spousal Support Advisory Guideline calculations, in concluding that $3,500.00 per month spousal support is a reasonable sum on a without prejudice basis.

[84] Spousal and child support should be retroactive to the date of separation.

a. While temporary support orders sometimes focus on prospective payments and leave retroactivity to the trial judge, in this case the Applicant has been diligently pursuing child and spousal support since the date of separation. b. The Respondent has been stonewalling and playing “catch me if you can.” c. I am reluctant to defer important cash flow and enforcement issues to a likely-distant family court trial. The Respondent’s amorphous finances and the uncertainty associated with his December 2017 criminal trial already represent significant challenges for the Applicant. Child and spousal support clearly should have been paid all along. Further delay would be unfair to the recipient.

INTERIM DISBURSEMENTS

[85] The Applicant seeks $25,000.00 in interim disbursements to fund a business valuator, and $50,000.00 to fund legal fees. In addition to claiming he has no money (an argument which I have rejected), the Respondent says there is no legal basis for an award of interim disbursements.

[86] The legal considerations briefly:

[87] There is a presumption that parties pay their own legal fees until proceedings are over, at which point the court will determine whether any retroactive reimbursement for costs is appropriate. Melendez v. Soleimani, 2011 ONSC 5468; Waxman v. Waxman, 2003 ONCA 22440. Mere inability or hardship paying one’s own legal fees does not in itself rebut that presumption.

[88] Rule 24(12) of the Family Law Rules allows the court to order that a party pay money to the opposing party to cover part or all of the expenses of carrying on the case, including legal fees.

[89] The rationale for interim disbursements was summarized by Rogers J. in Stuart v. Stuart, 2001 ONSC 28261 at paragraph 5:

The duty in the court to ensure a fair procedure means that both parties should be able to request and give disclosure and to tackle complex valuation issues equally. One party should not be disadvantaged in the litigation by being unable to test the evidence of the other party.

[90] Stuart summarized the primary considerations in determining interim disbursements in family law cases:

a. An order for interim disbursements is discretionary. b. The claimant must demonstrate that the interim disbursements are necessary to pursue their case; that without the advance of funds for interim disbursements, the claimant cannot present or analyse settlement offers or pursue entitlement. c. The interim disbursements must be shown to be necessary. d. The claim or defence advanced must be meritorious. e. The exercise of discretion should be limited to exceptional cases. f. Interim costs are for the purpose of leveling the playing field. g. Monies may be advanced against an equalization payment.

[91] More recent case law suggests interim disbursements in family law cases are not limited to exceptional cases. McCain v. Melanson, 2017 ONSC 916; Sadlier v. Carey, 2015 ONSC 3537; Turk v. Turk, 2016 ONSC 4210; Romanelli v. Romanelli, 2017 ONSC 1312.

[92] The recurring theme is that where one party is at an economic disadvantage, interim disbursements may be required;

a. To “level the playing field”. Ludmer v. Ludmer, 2012 ONSC 4478; C.M.M. v. D.G.C., 2015 ONSC 1815. b. To ensure that meritorious claims in the family law context are not abandoned or forfeited by those who lack financial resources and, as a result, are at a significant financial disadvantage relative to the other party in the proceeding. Morton v. Morton, 2015 ONSC 4633. c. To allow both parties to advance and scrutinize their respective cases, in compliance with our comprehensive Family Law Rules, within the timelines imposed by case management.

[93] As noted in Stuart, interim disbursements have often been permitted where the payment can be characterized as an advance to the party who will likely be receiving an equalization payment in any event. But a pending equalization entitlement is not a pre-requisite to interim disbursements. While equalization is claimed herein, the evidence is unclear as to the likely outcome on this topic.

[94] Similarly, while some of the earlier case law considered the ability of the claimant to repay the funds in the event that their case fails, this does not appear to be a consideration which currently receives much favour. The purpose of much of our family law legislation is to address economic disadvantage. It would be illogical to require the disadvantaged party to prove they’ve got enough money to repay any advance on disbursements. If they had such resources, they likely wouldn’t be seeking interim disbursements in the first place. Romanelli v. Romanelli (supra).

[95] Under Rule 24(12) the threshold requirement of a “meritorious claim” is not terribly onerous: The claimant must establish a prima facie case. Rea v. Rea, 2016 ONSC 382.

[96] But interim fees and disbursements are not intended to fund a fishing expedition. There must be sufficient information in the materials filed on the motion to reassure the court that the claims being made are reasonable. Romanelli v. Romanelli (supra); Mcilvenna v. Pinkowski, 2010 ONSC 3963.

[97] A party claiming interim disbursements should provide estimates and explanations of the proposed expenditures, particularly those relating to experts and valuators. Hall v. Sabri, 2011 ONSC 4178; Jung v. Johnson, 2015 ONSC 6734. Ballpark numbers are generally insufficient (although the court may be able to take judicial notice of a reasonable range of anticipated legal fees).

[98] By the same token, until the financially dominant party cooperates fully and makes complete disclosure, it is difficult for a party claiming interim disbursements to assemble precise cost estimates from the professionals they seek to retain. Once it becomes clear that the financially dominant partner is intent on deception and obfuscation, a more expansive approach to interim disbursements may be necessary to avoid mischief and discourage non-disclosure.

[99] The party seeking interim disbursements should also be able to satisfy the court that despite reasonable steps to finance the litigation, they are still unable to proceed without advance funds. Turk v. Turk (supra).

[100] An award of interim disbursements pursuant to Rule 24(12) is not a predetermination of costs. The order is not intended to be a licence to litigate. Both parties should remain equally wary about the potential of a costs order against them. Rea v. Rea (supra).

[101] With respect to the motion before me, I am satisfied that the Applicant has presented a prima facie case, and that she lacks the financial resources to retain legal and other professionals to assist her in pursuing her claims and unravelling the Respondent’s complex financial regime.

a. Complexity alone does not automatically justify interim disbursements. b. But a persistent refusal by the financially stronger party to provide disclosure or proper valuations inevitably heightens the need for expert scrutiny and assistance. c. A good way for the financially dominant partner to avoid a claim for interim disbursements is simply to be more forthcoming.

[102] The Applicant requests $25,000.00 to retain Crowe Soberman to assist with respect to valuing the Respondent’s businesses.

a. They provided a letter dated May 17, 2017 setting out that it is impossible to estimate overall fees because of the lack of clarity about the Respondent’s holdings and finances. b. They request a retainer of $40,000.00 plus HST, for a total of $45,200.00. c. I find that such professional assistance for the Applicant is necessary. The valuator is required partly because the Respondent hasn’t valued his own assets. d. In that context, I find that the request for $25,000.00 is reasonable.

[103] The Applicant seeks a $50,000.00 advance disbursement in relation to legal fees.

a. Clearly, this is a very complex case involving many serious issues (including the serious access issue, still to be discussed below). b. I make no predetermination of entitlements, but the Respondent’s approach thus far has been to aggressively resist every issue, and to thwart determinations by refusing to provide comprehensible (or any) disclosure and information. c. While costs can be awarded at the completion of each step in the proceeding, it will be difficult for the Applicant to continue to retain qualified counsel to pursue further steps in this bitter dispute, without being able to provide the assurance of funds. d. The Respondent has expanded the scope and cost of this litigation through the uncooperative and evasive approach he has selected. It’s his choice. But all choices have consequences. e. I find that a $30,000.00 advance toward legal fees is appropriate at this time. If the Respondent continues to make this file unnecessarily complicated and protracted, he can anticipate that further advance payments will be ordered.

ACCESS

[104] Finally, the Respondent seeks access to five year old Lina. I mention this last simply because this topic received by far the least attention during his counsel’s submissions. Indeed, access wasn’t even mentioned in the Respondent’s factum.

[105] The Respondent states that he loves his daughter. He wants to see her. He wants her to have contact with his four older children. He’s willing to have access supervised by his brother, Farag, or in a supervised access center.

[106] I have no doubt that he loves his daughter. But I have very significant concerns about whether it is in the best interests of this child to have contact resume – in any form – at this time.

a. The Respondent has serious mental health issues. His brother says he takes his medications. But the Respondent himself provides little reassurance that he is taking meaningful steps to stabilize and control his long-standing health and behavioural problems. b. The Respondent has a serious criminal record for violent behaviour. It is not reassuring that he was not forthcoming about it in his Rule 35.1 Affidavit. c. The Respondent is facing numerous criminal charges, including misconduct directly impacting both the Applicant and the child in very frightening ways. He has been committed to trial. Hopefully these serious matters will be resolved by the end of the year. d. The Respondent is alleged to have made statements about multiple-murder/suicide. I do not believe he has adequately responded to the Applicant’s legitimate concerns, particularly given his diagnosis of paranoid schizophrenia. e. He has not seen Lina since January 2016. This is the reality that the child is used to. Access must be determined based on the child’s best interests. f. He has made little effort to see her. He didn’t bring a motion for access until he was served with a motion claiming significant support. g. I accept the Applicant’s evidence that Lina was upset by the Respondent’s aggressive behaviour. She appears to be stable and doing well right now. Any reintroduction of contact – particularly after all this time – must be done with careful attention to both the child’s emotional vulnerabilities, and the acute, ongoing concerns about the Respondent. h. I am concerned that there appears to be no insight by the Respondent that perhaps his long-standing mental health issues have caused him to behave in ways which have been very upsetting for this young child. The Respondent appears to acknowledge nothing inappropriate, either about his own behaviour or the child’s experiences. i. Arguably, some concerns might be addressed by requiring that any access be supervised. As an aside I note that even if I were inclined to consider supervised access, the Respondent’s brother Tony and Farag are far too closely and strategically allied with him to provide neutral monitoring. j. While institutional supervision might provide basic safeguards about physical harm to Lina, the serious domestic violence which the child has reportedly been exposed to raises fundamental concerns about the child’s psychological or emotional reaction if contact were to resume at this time. k. Clearly, the disposition of the 24 criminal charges in December 2017 may have a significant impact on the Respondent’s near-term availability to exercise access to Lina. Indeed, the conclusion of his criminal matter may allow the Respondent to speak more openly about her personal situation and behaviour. l. I am not foreclosing the possibility of access being further addressed in the near term, even before the Respondent’s criminal charges are resolved. But after all that Lina is said to have been exposed to – including witnessing serious domestic violence – the court must require much better reassurance about the Respondent’s mental state and parental insight, before we experiment with this young child’s fragile emotional reactions.

[107] For the same reasons, I am not prepared to request the involvement of the Office of the Children’s Lawyer at this time. We are dealing with adult issues, mainly relating to the Respondent’s mental health and behaviour. Before we summon outside resources, I believe the Respondent should take further steps to better address his own role in creating a multitude of serious concerns about his parenting.

[108] The Respondent asks that the Applicant be ordered to return with the child to reside in the Greater Toronto-Hamilton area. Given the fact that no access is occurring, and given the fact that the Applicant had to go stay with family because of the financial hardship she has been experiencing, I do not believe it is appropriate to require the Applicant to return to this area at this time.

[109] Temporary order:

a. For the years 2016 and 2017 the Respondent’s income for support purposes is imputed to be $150,000.00 per year. b. Commencing January 15, 2016 the Respondent shall pay to the Applicant support for the child Lina in the sum of $1,263.00 per month. c. Commencing January 15, 2016 the Respondent shall pay to the Applicant spousal support in the sum of $3,500.00 per month. d. The quantification of income and support herein is without prejudice to redetermination at trial. e. The Respondent shall receive credit for the two $6,000.00 support payments made earlier this year. f. The Respondent shall pay to the Applicant the sum of $25,000.00 as an interim disbursement with respect to business valuation expenses for Crowe Soberman, without prejudice to further interim disbursements in this respect. g. The Respondent shall pay to the Applicant the sum of $30,000.00 as an interim disbursement with respect to legal fees, without prejudice to further interim disbursements in this respect. h. Scheduling for Questioning shall be confirmed by June 30, 2017 with Questioning to take place no later than September 29, 2017. i. The Respondent’s motion for the involvement of the Office of the Children’s Lawyer is dismissed. j. The Respondent’s motion for access to the child Lina is dismissed, without prejudice to the Respondent returning this motion with better materials addressing his mental health and professional assistance for related issues. k. The Respondent’s motion that the Applicant and the child be required to return to reside in the Greater Toronto-Hamilton area is dismissed. l. All other orders continue. m. Support Deduction Order to issue.

[110] If there any remaining issues other than costs, counsel should arrange a time for this matter to be spoken to before me in court.

[111] If only costs are in issue, the parties should file written submissions on the following timelines.

a. Applicant’s written submissions to be served and filed by July 14, 2017. b. Respondent’s written submissions to be served and filed by August 4, 2017. c. Any reply by Applicant to be served and filed by August 22, 2017.

Pazaratz, J. Released: June 15, 2017