Pasquali v. Cox, 2017 ONSC 7654

ONTARIO SUPERIOR COURT OF JUSTICE

CITATION: Pasquali v. Cox, 2017 ONSC 7654
COURT FILE NO.: FS-16-4128983
DATE: 20171221

BETWEEN:

SANDRA SILVANA PASQUALI
Applicant

– and –

DAVID PETER COX
Respondent

COUNSEL: Charley Levitan, for the Applicant Melanie A. Larock, for the Respondent

HEARD: December 14, 2017

BEFORE: M. D. FAIETA J.

REASONS FOR DECISION

INTRODUCTION

1The parties were married for almost six years when they separated on December 31, 2014. They have a son, Cooper, who is eight years old. Since about October 2015 the parties have followed a temporary parenting plan that results in Cooper spending four nights each week with the Applicant and three nights each week with the Respondent. Both parties were employed at the time of their separation. The Respondent has paid child support, on a consent and without prejudice basis, in the amount of $400.00 per month since January 1, 2017, and in the amount of $500.00 per month since June 1, 2017.

2The Applicant’s employment contract was terminated several months ago and her Employment Insurance benefits will end December 15, 2017. The Respondent has re-partnered and is living with his partner’s two children.

3The Applicant brings this motion for an Order:

(a) An order striking the Respondent’s pleadings if he does not provide outstanding documentary disclosure as ordered by this court within 14 days;

(b) Child support, on an interim, without prejudice and subject to re-adjustment, in the amount of $ 1,077.00 per month along with payment of a share of section 7 expenses;

(c) Spousal support on an interim, without prejudice and subject to re-adjustment, in the amount of $2,908.00 per month.

ISSUE #1: SHOULD THE RESPONDENT’S PLEADINGS BE STRUCK IF HE DOES NOT PROVIDE THE REQUIRED DISCLOSURE?

4The Respondent is employed by Minto Community Inc. as a construction manager. He also has a 50% interest in Bespoke Homes Inc. which was created to manage the construction and renovation of homes. He states that he has not earned an income from Bespoke since 2014. The Applicant alleges that Bespoke has paid for certain personal expenses incurred by the Respondent.

5There is no dispute that the Respondent has failed to comply with two consent Orders.

6Amongst other things, the Respondent was ordered by Justice Diamond to provide the financial statements and income tax returns for Bespoke for 2011 to 2015 by February 1, 2017. He has not provided the financial statements for the years ending 2011 and 2015 nor has he provided the corporate income tax returns for 2014 and 2015. He was also ordered to provide certain banking records many of which remain outstanding.

7Again, the Respondent was ordered by Justice Chiappetta to, amongst other things, produce the corporate income tax returns (2014, 2015) and financial statements (2011, 2014, 2015) for Bespoke by July 27, 2017.

8The Respondent states that following case conferences that resulted in the above consent orders, the bookkeeper for Bespoke resigned in or about July 2017 and it has proven difficult to retrieve the financial documents necessary to prepare the required financial statements and tax returns. He states that he is working with an accountant to produce the outstanding documents as soon as possible.

9Rule 1(8) of the Family Law Rules states:

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

10The primary objective of the Family Law Rules is to enable the court to deal with cases justly: Rule 2(2).

11In Grenier v Grenier, [2012] 26 R.F.L. (7th) 69 (ONSC), at para. 21, aff'd 2012 ONCA 732, Justice Rogers stated that a pleading should only be struck in the most egregious circumstances. She stated that the following matters should be considered in making this determination:

1. What was the overall effort to complete disclosure relative to the undisclosed items and what ratio does the completed disclosure bear to the undisclosed items?
2. Are the missing pieces of disclosure relevant to significant issues in the file or are they about issues that were or have become minor? Does the mover need this disclosure to proceed and would a court be hampered in adjudicating without it?
3. Was there and is there a realistic possibility of obtaining this disclosure?
4. What is the cost of the disclosure relative to the overall quantum of money at risk?
5. Is the disclosure available to the seeker?
6. Given the advances in the information in the case, has the request for missing disclosure become over-reaching?
7. Were the orders (or order) concerning the disclosure sufficiently clear that the party ordered to provide the information would understand what was being sought?
8. Were the timeframes for obtaining the disclosure reasonable?
9. Did the seeker of the disclosure continue to pursue the disclosure and enforce the order(s)?
10. Were the disclosure orders (or order) so onerous that a party could not reasonably locate and disclose the volume of material requested?
11. Is there a lesser remedy that would suffice? Would it be reasonable to provide that information not disclosed could not be used at trial?
12. Has the seeker of disclosure discharged the onus of the burden of proof in the motion?

12In my view:

1. The Respondent has made insufficient effort to comply with this court’s orders;
2. The cost of obtaining the outstanding disclosure is not onerous;
3. The outstanding disclosure is essential to the issue of the Respondent’s income for support purposes;
4. This court is hampered in adjudicating the support issues without this information;
5. The timeframes for providing the outstanding financial records were reasonable – as evidenced by the fact that the Respondent agreed to those dates;
6. The Respondent does not allege that the request for the outstanding documents are over-reaching
7. The Applicant has repeatedly continued to request the outstanding financial documents;
8. In my view, a lesser remedy would not suffice as such disclosure is central to the Applicant’s claim for child support and spousal support;
9. The Applicant has discharged the burden of proof.

13The Respondent agreed to deliver the corporate financial statements and tax returns well before the corporate bookkeeper resigned. The corporation is now working with an accountant to prepare those documents. In my view, justice demands that the Respondent’s Answer, in respect of any pleadings related to child support and spousal support, be struck if he fails to deliver the outstanding financial statements, tax returns and banking records previously ordered by this Court, by February 28, 2018.

ISSUE #2 SHOULD INTERIM SPOUSAL SUPPORT BE GRANTED?

14The Applicant claims spousal support retroactive to the date that she left the matrimonial home (September 2015) and on a prospective basis in the amount of $2,908 per month, without prejudice to retroactive adjustment by subsequent agreement or Court order.

15A court may make an interim order for the payment of spousal support and, in deciding whether to do so, shall take into account the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited, the functions performed by each spouse during cohabitation and any order, agreement or arrangement relating to support of either spouse: Divorce Act, ss. 15.2(2), (4).

16The objectives of an order for spousal support, including an order for interim spousal support, 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: Divorce Act, s. 15.2(6).

17In Fyfe v. Jouppien, 2011 ONSC 5462, 10 RFL (7th) 336, at para. 38, Justice Chappel outlined the following additional principles that apply on a motion for interim spousal support:

(a) The party claiming interim spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum. The merits of the case in its entirety are to be dealt with at trial.

(b) In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay;

(c) The primary goal of interim spousal support is to provide income for dependent spouses from the time the proceedings are commenced until the trial. Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial.

(d) The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. That task is for the trial judge.

(e) Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs. The objective of encouraging self-sufficiency is of less importance.

18Entitlement to spousal support may be considered having regard to the following three conceptual models on which entitlement to spousal support is based:

(a) Compensatory Model – there should be an equitable distribution between the parties of the economic consequences of the marriage that recognizes the sacrifices and contributions that the spouses made during the marriage and for the economic losses which they experienced as a result of the marriage, as well as the benefits which the other spouse has received as a result of these sacrifices and contributions;

(b) Non-Compensatory Model – a spouse may be obliged to pay support based on the other spouse’s economic need, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage;

(c) Contractual Model – support is paid as a result of express or implied agreement between spouses that either create or negate a spousal support obligation: Fyfe, paras. 42-45.

Compensatory Model

19The Applicant states, in her affidavit, sworn December 4, 2017 that:

I did not complete high school. During the marriage, I worked in recruiting for various companies. I had one very lucrative year when I was employed by Indigo in 2014. Otherwise, my earnings were moderate and certainly less than David’s. …

David was the primary breadwinner during the marriage. I worked full-time, but earned less than David with the exception of one year, when I was working for Indigo.

I took a year off for maternity leave after Cooper was born. Though I returned to work when Cooper was one, I continued to be primarily responsible for his care, as well as for the majority of household chores. This affected my ability to advance my career. …

20The Applicant submits she was financially dependent on the Respondent throughout the marriage. She states that the Respondent earned significantly more than her during the marriage, with the exception of one year.

21On the other hand, the Respondent states that during the marriage and since separation, the parenting responsibilities have been equally shared. He states that he was responsible for the majority of household responsibilities. Based on the information provided so far, it appears that the parties’ income was solely derived from employment. As a result, it appears that the Applicant’s income was generally higher than the Respondent’s income during their marriage:

Year	Applicant’s Employment Income	Respondent’s Employment Income
2008	$122,340	$168,264
2009	$101,103	$125,098
2010	$72,864	$136,045
2011	$138,868	$136,512
2012	$149,271	$144,778
2013	$187,305	$138,765
2014	$179,388	$142,121

22The parties’ views of the Applicant’s sacrifices during the marriage, and the Respondent’s corresponding benefits are diametrically opposed. Their affidavit evidence has not been tested by questioning. The above income figures undermine the Applicant’s assertion that she was financially dependent on the Respondent throughout the marriage. I find that there is insufficient evidence to support to the Applicant’s claim for support on a compensatory basis.

Non-Compensatory Model

23In Fyfe, at para. 54, Justice Chappel outlined the following considerations for determining whether spousal support should be awarded on a non-compensatory basis:

(a) The starting point for analyzing non-compensatory support claims based on need arising post separation is whether there is evidence during the period prior to separation to rebut the presumption of mutuality and interdependence arising from the marriage relationship itself. Where there is no evidence to rebut this presumption, it may be reasonable to expect that the parties will support each other for a reasonable period of time in the event of need that does not exist at the time of separation but that arises at a later date.

(b) The existence of mutuality and interdependence prior to separation is not, however, a determinative factor favouring a spousal support obligation in the event of need arising post separation. As the Supreme Court of Canada stated in Moge and Bracklow, all of the objectives underlying a spousal support order must be considered, including the objective of promoting self sufficiency within a reasonable period of time. The question that must be determined is whether, taking into account all of the circumstances of the particular case, it is reasonable on an objective analysis to expect the parties to continue to be "safety nets" for each other in the event of post separation need, and if so, for how long.

(c) The passage of time may be an important consideration, particularly where the parties both take steps post separation to unravel their interdependencies and to effect a clean break from each other. In these circumstances, the mutual obligation of support arising from the marriage itself may wane with the passage of time, and the objective of promoting self sufficiency within a reasonable time frame may come more to the forefront of the analysis. This would include an expectation that former spouses implement plans for their own care in the event of possible disability in the future.

(d) On the other hand, the passage of time may be given less weight in the analysis of entitlement if, despite the passage of a number of years, the parties have not effected a clean break, and their relationship continues to be characterized by mutuality and interdependence. In such circumstances, an objective analysis of the situation may lead to the conclusion that the expectation of mutual support and dependency arising from the marriage relationship has continued.

(e) Where the marriage was short lived, the objective of promoting self sufficiency may be given greater weight when considering the expectations of the parties.

(f) Situations where a spouse has been awarded time limited compensatory support, and then suffers an unexpected disability which creates need on their part may need to be approached with a somewhat unique lens. In such cases, the passage of time from the date of separation may not be as compelling a consideration as in cases where no entitlement to support exists at the time of separation. Time limited compensatory awards are intended in part to provide the recipient with an opportunity to regroup and recover from the economic consequences of the marriage. If an intervening disability impedes their ability to do so, the objectives of the award are undermined, and the claimant spouse may remain disadvantaged as a result of the marriage. In these circumstances, the objectives set out in section 15.2(6) (a) and (b) of the Divorce Act may weigh more heavily than the objective of promoting self sufficiency.

24The Applicant submits that she is in dire need of support. She states:

I have been unemployed since July 27, 2017. I currently reside in a one-bedroom basement apartment, which I rent for $1,295 per month. As Cooper uses the bedroom, I sleep in the main room, on the couch. I am struggling just to make ends meet.

Meanwhile, since separation, David has purchased a new Ford Expedition and has purchased an interest in his girlfriend’s home, where he now resides. David also takes regular vacations with his girlfriend.

Despite my diligent efforts, I have been unable to secure permanent employment since January 2016.

As my employment insurance terminates effective December 15, 2017, I will have no further income to support myself and Cooper.

I am in need of spousal support and David has the ability to pay. Additionally, I am entitled to compensatory support, given the sacrifices I made during our marriage.

25The Respondent submits that the Applicant is not entitled to spousal support as the Applicant’s current economic hardship is unrelated to their marriage or to the breakdown of their marriage that occurred three years ago.

26The Applicant earned a salary in excess of $100,000 during the marriage including the four years following her period of maternity leave. Whatever mutual support existed during the marriage, if any, each party continued to earn a sizable income following the date of separation. This is not a case where a spouse was unable to attain post-marital self-sufficiency. To require the Respondent to commence paying spousal support for the Applicant’s economic need that arises about three years after their separation would unreasonably impose a “safety net” obligation on the Respondent.

ISSUE #3: SHOULD THE AMOUNT OF INTERIM CHILD SUPPORT BE INCREASED?

27The Applicant submits that the amount of interim child support should be increased from $500 per month to $1,077 per month based on the imputation of an income for the Applicant of $40,000 per year and for the Respondent of $169,019 per year. The Respondent submits that child support should remain payable at $500 per month.

28The Respondent submits that the Applicant’s request to increase child support should be denied on the basis that the Applicant has failed to produce a sworn Affidavit of Documents in accordance with Rule 19 as requested on February 1, 2017. However, I find that it would be unduly harsh to dismiss the motion for child support when the Respondent has not obtained an order of this court to enforce this obligation.

29The Respondent submits that the motion should be denied as it contravenes s. 37(3) of the Family Law Act which prohibits an application for variation of a support order within six months after the making of a support order without leave of the court. Although I was not directed to any case law on the principles governing leave, it is my view that leave should be largely informed by the purpose of the Act which is to provide for the equitable resolution of economic disputes when there is a breakdown of an intimate relationship between individuals who have been financially interdependent: Brebric v. Niksic (2002), 2002 41745 (ON CA), 60 O.R. (3d) 630 (Ont. C.A.). In my view the equitable resolution of economic disputes between former spouses is not served by a spouse that seeks to re-litigate a child support order within six months of the last order having been made unless there have been unanticipated, material change of circumstances. The consent Order was issued by Justice Chiappetta on August 18, 2017 although it resulted from a resolution that was reached on or about July 13, 2017. There is no evidence that the Applicant knew that she would be unemployed following the termination of her Employment Insurance benefits despite her efforts to find another job. Accordingly, leave is granted to bring this motion.

30At the Respondent’s request, the Applicant was interviewed by Lynne Zagrodnik, a vocational assessor, on December 5, 2017 for the purpose of identifying alternate occupations for which the Application is suited. Although the Applicant did not complete high school, she completed an Advanced Program in Human Resources Management at the Rotman School of Management at the University of Toronto during the period 2008 to 2010. She has worked in the field of Talent Acquisition since the 1990s. Many of her roles were contract or short-term. She states that she has submitted about 110 resumes from January 2017 to October 2017. She received about five telephone interviews and eight in-person interviews. During that period she secured one temporary contract with the Flight Network from February 2017 to July 2017. She states the lack of global experience, education and credentials sets her back. She has applied for positions such as Recruiter, HR Assistant, Director of Talent Acquisition. Her experiences are strictly in the field of talent acquisition. She does not hold a university degree or college diploma in Human Resources. She is not an HR generalist – her skills are unique to talent acquisition and she does not have experience in organizational behavior, organizational development, formal talent management, compensation and benefits, industrial relations or learning and development. She would be willing to start at an entry level HR role and work her way up from there.

31Ms. Zagrodnik stated:

In my opinion, Ms. Pasquali would be limited in her efforts to secure upper management level positions in the human resources sector outside of her niche are of expertise in talent acquisition. Without a high school diploma, post-secondary diploma or degree, and qualifying for CHRP designation, I believe she will be at a competitive disadvantage to garner a wage comparable to what she was earning prior to 2015. She is employable and has transferable skills that could be applied to alternate employment as detailed below. She would be encouraged to obtain her school equivalency, and based on her present test results should not require any academic preparation to do so. It is also my opinion that she would require upskilling should she hope to garner a wage more in keeping with her pre-2015 employment earnings potential and as such she would be encourage to explore the most time-efficient path to acquire the education necessary to be eligible to write the CHRP qualifying exam … .

In considering Ms. Pasquali’s vocational profile … she should be able to compete for the employment options identified below. It is reasonable to predict that Ms. Pasquali could garner a higher than median wage as Recruiter (NOC 1223) in light of her extensive experience in this field and her own report that she earned $43.00 per hour on her most recent contract (February 2017 to July 2017).

32Ms. Zagrodnik identified the following “suitable direct entry” options for the Applicant with fair employment outlooks for 2016-2018, as well as their respective salary ranges, in the Toronto area:

1. Personnel and Recruitment Officers, Specifically, Recruiter Salary Range: Low $33,280; Median $64,001.60; High $94,931.20

2. Administrative Assistant Salary range: Low $27,310; Median $43,451; High $62,400

3. Personnel Clerk Salary range: Low $29,120; Median $47,403; High $57,137

33The average annual median salary of the above positions is about $51,618.00. Given Ms. Zagrodnik’s evidence, I find that it is appropriate to impute an annual income of $51,000 to the Applicant despite the Applicant’s’ seemingly arbitrary view that an annual salary of $40,000 be imputed because it was the approximate mid-point between zero and $80,084 (being her 2016 total income) and the Respondent’s view that the Respondent’s annual income should be imputed somewhere between $64,000 and $95,000.

34I decline to impute to the Respondent’s current income of $159,402.20 a further $10,000 on account of alleged personal expenses that were paid for by Bespoke until better evidence is provided to support that allegation.

35I also find that it is appropriate to order that the Respondent pay 64.2% towards Cooper’s section 7 expenses and that the Applicant pay 35.8% of those expenses, as requested by the Applicant.

36In cases of split custody, such as this case, section 9 of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”), governs the award of child support: Contino v. Leonelli-Contino, 2005 SCC 63. It states:

9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

37There is no evidence of the increased costs of the shared custody arrangement. The limited evidence of the circumstances of the parties and their child is described above. I find that it is appropriate to award an increase to the amount of child support paid by the Respondent to $800 per month effective January 1, 2018.

CONCLUSIONS

38I encourage the parties to come to an agreement on the question of costs for these motions, particularly given their divided success, failing which I will ask the parties for their submissions (maximum three pages) on this matter within two weeks.