COURT FILE NO.: FS-14-19829

DATE: 2018/05/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ana Filipa Da Silva Cunha

Applicant

– and –

Paulo Gomes

Respondent

Angela Panzaru, for the Applicant

Kathryn Hendrikx, for the Respondent

HEARD: April 9-13 and 16, 2018

Moore, J.

Reasons for Decision

Reasons for Decision

1The trial of this matter was heard over the course of six days in April, 2018. The issues arise from the demise of a common law relationship that the parties began in April of 2010 and ended in April of 2014.

2There is one child of the relationship, Gabriel Da Silva Gomes, born May 9, 2013 (“Gabriel”), who has resided primarily with his mother, the applicant (“Ana”), since separation. Gabriel has enjoyed access visits with his father, the respondent (“Paulo”), and he is closely bonded to and loved by both of his parents and the members of their respective households and by his extended family.

3The parties agree that Gabriel is an active, happy and healthy boy, although he has demonstrated anxiety during times of access visit exchanges. He is now in full time attendance at school.

4Ana has two other children from other relationships, Joshua Da Silva Cunha (“Joshua”), born October 10, 2004, and Christopher Da Silva Cunha (“Christopher”), born October 17, 2008.

5Ana married Bruno Rodrigues (‘Bruno”) in November 2017 and lives together with Bruno and her three sons in Toronto, nearby the school that the three boys attend.

6Paulo and Fernanda Leonor (“Fernanda”) began living together in the summer of 2014; they subsequently married and they have a daughter together, Maria Gomes (‘Maria”), born in September 2017.

7Paulo has a son from a prior marriage, Daniel Carvalho Gomes, born September 5, 2002. Fernanda has two children from her previous marriage, Claudia and Ruben, who she has custody of and who live with her, Paulo and Marie in Vaughan. Gabriel and Daniel visit frequently.

Issues for Trial

Issues for Trial

8As the parties entered into a final consent order dated June 22, 2017 resolving the issues of access and parenting terms for Gabriel as well as other corollary relief, the issues for trial became:

Custody of Gabriel and his principal residence;

Child support for Gabriel;

Paulo’s income for child support purposes;

Spousal support for Ana;

Paulo’s income for spousal support purposes;

Ana’s income for spousal support purposes; and

Property claims – debts on separation

9Ana had pleaded a claim for child support for Joshua and Christopher but apparently abandoned that claim before trial; she led no evidence on it at trial and made no submissions about it in her closing statements.

Custody

Custody

10The parties and I agree that the custody issue stands to be resolved in accord with the provisions of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 and specifically, sections 20, 21, 24 and 28 thereof. I have considered all of these provisions.

11Section 24(1) and relevant case law arising from it confirm that the determination of custody and parenting issues must be driven by consideration of the best interests of the child.

12Section 24(2) lists matters to be considered in consideration of all of the child’s needs and circumstances and many of the listed factors are particularly relevant in the instant case. As noted above, Gabriel enjoys strong bonds of love, affection and emotional ties with each of his parents, family members who reside with him and others involved in his care and upbringing. These others include his maternal grandparents, his maternal uncle and family and the members of Paulo and Fernanda’s household.

13Gabriel is still a child of tender years and has not articulated his views and preferences in a way that allows of them being reasonably ascertained. He has however expressed delight to be living in his mother’s home principally and visiting his father and members of his household.

14In my view, Gabriel has lived in a stable home environment while living principally in his mother’s household since separation. I find this notwithstanding that Paulo insists that as Ana has lived at several addresses since separation, her household was stable.

15Upon the evidence before me, I must conclude that while in his mother’s residences he has been nurtured and cared for entirely appropriately in all respects and Ana’s decisions made in Gabriel’s best interests include decisions about his education, religion, medical and dental care, his general health and activities.

16Upon scrutiny of the various locations that Ana and Gabriel lived in post separation and before she married Bruno, it is clear that she lived with her parents at times in order to afford to raise Gabriel without financial support from Paulo. Another location sported a landing that Gabriel fell off of and that Ana considered it too dangerous to stay on at that place thereafter.

17Finally on this point, Ana’s moves did not affect her ability to keep her sons in the vicinity of only one school. Gabriel has now joined the older two at that school.

18Further, the parties participated in a section 30 assessment performed and reported upon by a psychologist, Dr. Raymond Morris, in 2016. I accept and value his analysis and conclusions. At page 30 of his July 16, 2016 report he stated:

The assessment data indicates that Ms. Cunha despite the differences in her approach to parenting, has appropriately attended to Gabriel’s health and safety issues. This is supported by the child’s family doctor and the Catholic Children’s Aid Society. There is no substantive assessment data that would reasonably support taking health-related decisions away from Ms. Cunha.

As mentioned above the assessment data does not support Mr. Gomes’ concern regarding Ms. Cunha’s ability to parent Gabriel, the nature and quality of relationships together with the assessment data related to parenting capacity including the child’s perception of his mother as his primary source of nurturance and security dictates that the child continue to live in the principal residence of his mother.

19A good deal of trial time was spent reviewing Paulo’s incessant campaign to undermine Ana’s parenting role with Gabriel. He acted unreasonably in this regard and thereby made life for Gabriel in a two household separated parenting situation more stressful than it needed to be. Paulo demonstrated the worst and best of parenting but neither consistently and in his son’s best interests. He saw Ana as a competitor in a parenting game that he was intent on winning.

20He lodged multiple complaints of Ana’s parenting to the Catholic Children’s Aid Society (“CCAS”), to the police and to Dr. Morris. His complaints were taken seriously and investigated. At no time did the CCAS find reason to fear for Gabriel’s safety or well-being while in the care of his mother. The police chose not to take steps of any sort against Ana. Dr. Morris concluded that both parents were capable of appropriate parenting but questioned Paulo’s ability to see that Ana was managing Gabriel appropriately.

21Paulo lacks insight into the effect that his campaign against Ana has had on Gabriel. Dr. Morris recommended that Paulo seek the services of a mental health professional who has experience with parenting post separation or divorce and who can assist him in managing both Gabriel’s response to transfers between parents and managing Paulo’s emotional reaction through stress management or anger management when things don’t go as he wishes or expects in relation to parenting and in implementation of residential arrangements. Good advice in my view and advice that Paulo has sought out. He contacted a psychotherapist, Carol-Jane Parker.

22Since 1999, Ms. Parker has carried on a private practice as a psychotherapist at the Willow Centre. Her clients self-refer or are referred by doctors, lawyers and even the Office of the Children’s Lawyer. She was also one of the third parties that Dr. Morris had reached out to during his assessment and she saw Paulo after the assessment report issued and she testified at trial.

23The Morris report issued in July 2016; Paulo brought a copy of it to Ms. Parker and they reviewed it together in September 2016. She testified that Paulo understood the report and they discussed it together. Despite her involvement, Paulo continued to insist to CCAS that Ana’s parenting was substandard. He remained single minded but not child focussed.

24Both parties have entered into marriages post separation. They are not long married but both new relationships show markers of stability and potential permanence. They each have homes and blended families living together.

25Anna/Bruno and Paulo/Fernanda are each and all capable of performing appropriate parenting for Gabriel while he is in their care. Paulo has not however put forward a proposed parenting plan that includes all aspects of Gabriel’s needs, all those matters that Ana has attended to successfully for Gabriel throughout his life. I see no reason to interfere now with Gabriel’s primary residence being with his mother and having her ordered to keep Paulo updated on important decisions to be made in order that Paulo’s views may be heard.

26Paulo needs to have access to information and documents from health care providers, schools and all other sources of information that a parent with custody would enjoy.

27The challenge in this case is to determine whether a custody order is appropriate and, if so, should it be an order for joint or for sole custody.

28Often parties who do not communicate effectively will submit that the absence of historical co-operation renders an order for joint custody inappropriate.

29Ana submits that a sole custody order is definitely required in this case because of the level of conflict between the parties that has been historically entertained by the respondent; the poor communication between the parties or the lack thereof; and the inability to co-parent Gabriel.

30Paulo seeks an order for sole custody in his favour but will be content with no order for custody issuing together with an order for some incidents of custody to Ana and others to him. He submits that he should have decision making authority for health and Ana have decision making authority for education.

31In M. v. F.¹, Benotto J.A. pointed out that the Children’s Law Reform Act does not require a trial judge to make an order for custody. Section 28(1) of the act is permissive, not mandatory. And she went on to endorse the concept of parenting plans without supporting custody orders in appropriate cases, stating:

For over 20 years, multidisciplinary professionals have been urging the courts to move away from the highly charged terminology of "custody" and "access". These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this "winner/loser syndrome" in child custody battles has long been recognized.

It was therefore open to the trial judge to adopt the "parenting plan" proposed by the assessor without awarding "custody". It was also in keeping with the well-recognized view that the word "custody" connotes "winner" so consequently the other parent is the "loser" and this syndrome is not in the best interests of the child.

32Here, neither party needs a custody order and such an order, in the context of the highly charged, high conflict environment of the parties’ relationship would likely lead to more discord and further complicate efficient parenting of Gabriel.

33What Ana needs is decision making authority in Gabriel’s best interests. The parties need to communicate by email or Family Wizard about decisions to be made relating to the health, education, religious, social, travel and all important decisions affecting Gabriel’s well-being. In the event that they cannot agree on a particular decision, then Ana’s view must prevail. Splitting up decision making authority will almost certainly lead to more conflict and inefficient decision making affecting Gabriel’s overall best interests.

34Ana shall maintain possession of all government issued documents relating to Gabriel, including health cards, birth certificates, citizenship certificates, social insurance cards, immunization records, school records and passports, and any such documents in Paulo’s possession, custody or control shall be delivered to Ana within 14 days hereof.

Child Support for Gabriel

Child Support for Gabriel

35Paulo admits that he owes a duty to support Gabriel.

36In order to put what follows regarding Paulo’s financial disclosure in this matter into context, note the following portions of the reasons for decision delivered by Backhouse, J. on a disclosure motion heard in this case on February 18, 2016:

2The respondent filed two financial statements sworn March 31, 2015 and September 18, 2015 in these proceedings claiming his 2014 income to be $34,197 and is 2014 gross business income to be $66,194. 10 days before the applicant’s support motion was to be heard, he served a third financial statement sworn on November 23, 2015 in which she claimed his 2014 income to be $84,420 and his 2014 gross business income to be $260,635. When it was pointed out by the applicant that his business account deposits for 2014 were $114,000 more than what he was now representing as his gross business income, the respondent raised for the first time an alleged loan from a business colleague which had not previously appeared on his sworn financial statements.

4The respondent and Ms. Leonor signed a lease in July 2014 for $2,700 per month. In 2016, they signed a lease for $2,850 per month. In the respondent’s first three financial statements he swore that his rent was $1,000 per month. There are no withdrawals from any accounts produced to date for rent by either the respondent or Ms. Leonor. In schedule B to his March 31 and September 18, 2015 financial statements, the respondent represented Ms. Leonor’s income as $988 per month. He stated that she contributes all of this to household expenses. In his February 9, 2016 financial statement, the respondent swore that he pays no rent. In schedule B he states that Ms. Leonor’s income is $3,500 per month and that she contributes all of this to household expenses. This is contradicted by Ms. Leonor’s own affidavit, sworn February 11, 2016 where she swears that she cleans houses part-time and makes $2,500 per month.

6While an ultimate determination of this matter must await trial, for the purposes of this motion, the record supports that the respondent has failed to make full, fair and frank financial disclosure, has misrepresented his financial affairs and is using Ms. Leonard to assist him. When discrepancies are raised with the respondent he changes his story in an effort to explain them away, including making conflicting statements to support his understated income about Ms. Leonor’s income and her contribution to household expenses.

7…. Ms. Leonor could have kept her finances separate from the respondent’s until these proceedings were completed. Instead, she intertwined her financial affairs with his and assists the respondent with his financial affairs.

37The result of the endorsement was an order requiring further disclosure and questioning.

38Then when the matter returned on June 16, 2016, Backhouse J’s findings included the following:

21The respondent’s sworn evidence is so patently wrong, contradictory and misleading that it is clear that he has complete disregard for the truth. His evidence that CRA lost his income tax returns and that his accountant made a mistake in understating his business income by $221,668 are obvious fabrications. What is more likely it is that the respondent produced income tax returns that were never filed with CRA and were for the purpose of misleading this court as to his true income.

24I accept the applicant’s evidence that during cohabitation, the respondent had significant unreported cash income. I find that this has continued and exists to a much greater extent than that to which she admits….

28I accept the information the applicant proffered regarding the respondent’s business and income. I also accept the applicant’s calculation of the respondent’s income based on his own evidence that his business purchased very little goods, that he bartered services for monies worth and received cash income. In all the circumstances, including the parties’ lifestyle during cohabitation, I find that income should be imputed to the respondent in the amount of $211,000.

39Paulo takes issue with the amount of support ordered by Backhouse J. on an interim basis in June of 2016. He insists that income imputed to him thereby of $211,000 was far higher than his actual income. He sought leave to appeal this support order, his request was denied; he did not apply for a variation of the terms of the order. His tactic was to largely ignore it. He made some payments of child support following the support order but submits that he could not afford to make the Guidelines level of $1,720 ordered for Gabriel plus the spousal support ordered of $5,460 per month for Ana. Rather than paying some of the support ordered, he chose to cease making support payments. In the result, he accumulated arrears in the Financial Responsibility Office (“FRO”) of $127,159.04 by the time of this trial.

40This said, it must be pointed out that he did make some payments for which he is entitled to credit:

Uncharacterized payments made directly to Ana between May 2014 and November 2015 of $36,362;

Support payments made through FRO between June 2016 and February 2018 totalling $25,816.42; and,

A further payment made under the FRO default procedure on April 16, 2018 of $7,180.

41He did not comply with the terms of the February 18, 2018 order, either as he failed to obtain and produce all of the financial disclosure information and documentation that he was obliged to under the rules and that order.

42Court orders are not suggestions; they need to be complied with; consequences follow for those who do not comply, including an order under section 19(1) of the Guidelines whereby the court imputes income to a support payor.²

43Upon the evidence, I find that Paulo has not been forthcoming with his financial disclosure in this case. By way of further example of this, he was served with a summons to deliver business records at trial. He testified that he didn’t read the summons and he did not produce the documents at any point during the trial. That he did not read the summons is unlikely but in any event it is unacceptable. An adverse inference must be drawn that the summonsed records exist and, if produced would not assist his position in the matter.

44Now I turn to some work history and income evidence heard at trial. Paulo is a landed immigrant in Canada. He left school in grade 6 at age 11. He came to Canada in 1997 at the age of 17 and worked for his uncle, a finish carpenter.

45He has been self employed as a finish carpenter since about 2011. He carried on business in a sole proprietorship under the name P & F Renovations (“P & F”) between 2008 and 2017. That business no longer exists because FRO and the government froze his business bank account.

46He now operates through a company incorporated in December 2013 called Mega Trim Carpentry Inc. (Mega). He claims to have no other businesses in Canada or in Portugal.

47He testified that he earns very little income through cash payments and does not quote jobs on that basis. Depending on the job, he might receive cash payments of $200 or even up to $1,500 he stated.

48He insisted at trial and in the information he provided to the business and income valuation expert he retained, Ms. Anna Barrett of the Marmer Penner firm, that his unreported cash income was modest. In 2014, he stated that he earned cash income of $40,000; in 2015 it was between $40,000 and $50,000 and in 2016 it was $56,000.

49He confirmed, during cross examination, that his cash income would be included in the income figures set out in his notices of assessment and so he was taken to those documents for the years 2012 through 2015. They show:

a. 2012 line 150 income of $40,001 and gross business income of $92,221;

b. 2013 line 150 income of $47,385 and gross business income of $97,561;

c. 2014 line 150 income of $31,550 and gross business income of $66,194; and

d. 2015 line 150 income of $30,529 and gross business income of $146,056.

50The assessment notices show that tax returns for 2012 through 2014 were filed on May 30, 2016; the tax returns for 2015 were filed on June 1, 2016.

51In his financial statement of March 31, 2015 he disclosed gross income in 2014 of $34,197. He disclosed the same gross income figure in his financial statement of September 18, 2015.

52Then in his financial statement of November 23, 2015, he disclosed a gross income in the previous year of $84,420.

53He had no explanation for the discrepancies in these financial statements.

54He was taken to his November 21, 2015 financial statement which refers to loans from family and friends of $40,000 including the money that Mr. Jafari lent, evidenced by his cheque payable to Dr. Morris for $11,100.

55Then in his February 3, 2016 financial statement he lists the same $40,000 plus additional loans of $11,300, $5,500 and one of $13,000 which he says was a loan from Basile Malamis. He volunteered that Mr. Jafari wrote two or three cheques, he is not sure.

56He did not call Mr. Jafari or Mr. Malamis to testify and produced no loan documents evidencing the transactions were otherwise than gifts.

57He was then taken to two incomplete and unsigned T1 general 2014 tax returns (marked exhibits A and exhibit B for identification). The gross business income set out in exhibit A is $66,194.69 and the line 150 income is $34,197.40. But the gross business income in exhibit B is $260,635 and the line 150 income in exhibit B is $84,420. He did not establish that these exhibits were actually signed and submitted to CRA, although Paulo produced them as such during the litigation.

58In cross-examination he agreed that the gross business income figure in the notice of assessment for 2014 is identical with the gross business income figure in exhibit A. The line 150 numbers are slightly different; $33,550 in the notice of assessment and $34,197.40 in exhibit A. He offered no explanation for these discrepancies.

59Returning to his November 23, 2015 financial statement, he declared a gross income for 2014 of $84,420. He was asked why this is different from the figures shown in his previous two financial statements. He answered that he does not know and “I have no idea”.

60He claimed that he was unable to recall his gross business revenue in 2014 and declined to approximate. He answered likewise for 2015 and 2016.

61He stated that he does not know his individual incomes for the years 2014 through 2016 and referred the examining counsel to the work done by Marmer Penner.

62As is apparent from the above, Paulo did not impress favourably as a witness on his own behalf on financial issues. Beyond his vague answers, he responded flippantly with small laughs at the end of many of his answers.

63I turn now to the Marmer Penner analysis and report authored by Ms. Barrett.

64Ms. Barrett is a chartered accountant and a chartered business valuator. Matrimonial litigation makes up the majority of the work that she does.

65She met with Paulo and his accountant, Mr. Nunes, who advised that most of the business financial information she requested was not available. A general ledger did not exist. No financial statements had been prepared to date for Mega.

66She therefore reviewed all available revenue related invoices and business bank statements for P & F and Mega. The work was prodigious and time consuming. In addition to bookkeeping and income calculations she prepared adjusted T1 tax returns for Paulo for the years 2014 and 2015 adjusting for his 2014 and 2015 personal tax returns. The 2016 return had not been filed and was not yet due and so a fresh return was prepared for that tax year. Ms. Barrett also prepared three HST returns for the P & F business for the years 2014 through 2016 and an HST return for Mega for 2016.

67Paulo relies upon the report Ms. Barrett authored in support of his contention that his income has never been as high as Backhouse J imputed it to be and asks this court to rely on Ms. Barrett’s findings in analyzing child and spousal support issues. It is not that simple though.

68To begin with, the Marmer Penner report issued on April 17, 2017. It did not address incomes and expenses before 2012 or after July 2016. Perhaps more importantly, Ms. Barrett did not attempt a forensic analysis of all of Paulo’s bank accounts; he had two business accounts and two personal accounts. And, in large measure, she relied upon and did not question Paulo’s self-serving estimates of cash income and cash paid expenses of his carpentry business.

69She readily agreed that she had no idea if the cash revenue estimates and expense estimates were correct or not. There were no documents to support Paulo’s estimates.

70Ms. Barrett was not aware of any bartering practices that Paulo engaged in. She was not aware therefore of the $15,000 payment made by a customer directed to a dealership for a down payment on a car that Paulo purchased.

71Had such a transaction occurred in 2014, (as Paulo had admitted it did, along with other barter transactions as well), she agreed that her schedule one guideline income of $124,000 would increase to $139,000. In short, absent further information on Paulo’s barter transactions, she could not attest to the accuracy of her findings.

72She was not aware of and did not ask for particulars of the orders made by Backhouse J. or the reasons for them. She did not request or see all of Paulo’s sworn financial statements delivered during the course of this litigation.

73As to the information Paulo provided regarding cash income, Ms. Barrett was not aware of the evidence Ana gave this court, information that I accept and value, that Paulo brought home significant amounts of cash income during the relationship. He paid for household expenses, expensive children’s clothing, reimbursed her Visa for travel expenses including several family trips into the United States to attend go cart races and he paid cash for the purchase and operation of go carts for himself and for Joshua to enjoy recreationally and to race with. It is inconceivable that he could have provided the family with the lifestyle both parties attested to with only modest amounts of cash income earned each year.

74While on the subject of go cart racing, I reject Paulo’s suggestion that his expenses were funded by sponsors. He provided no particulars, documents or evidence that sponsors funded any of his go cart expenses. He agreed that he provided Ana with cash to pay expenses that ran through her Visa. It seems to me to be highly unlikely that any sponsor company would give him cash and more likely that he funded these and other family expenses through cash generated through his carpentry business. Especially is this so in light of the interview he gave to the Toronto Star newspaper on the subject.

75During his cross examination, Paulo was shown an article taken from the Toronto Star dated Sunday, March 2, 2014. He agreed that the reporter spoke to him and to Joshua, although he got Mr. Gomes’ name wrong and referred to him as Paulo Cunha. He was specifically taken to the following portions of the article:

“He’s so calm, he’s so smooth” says his father, Paulo Cunha, who encouraged his son to get into racing two years ago. “It’s better to start young. Definitely, it has to be in your blood. If it’s not, it’s really hard to do.

“It’s a very expensive sport”, Cunha says. “It’s a lot of people thinking it’s easy when they see the car. Oh it’s a little car. When it comes down to a real race, they need to really spend the money” besides a family dedication, what separates a fledgling racer from fame and fortune is money. Cunha, a contractor, says he paid $160,000 out of his pocket last year. Ana is a stay-at-home mom and there is no prize money, just trophies, until the drivers turned 16.

Three races over 3 Weeks in Florida cost $58,000, once the engine, the chassis, the mechanics, travel and transporting the cart are added up. Joshua’s chassis was damaged during the race last weekend and he now needs a new one.

“That’s what I work for right now, pretty much. We work, we make the money and we invest in him” Cunha says.

Until now, Cunha hasn’t wanted to court sponsors. He didn’t want people to think he needs the money. But he does need the money.

“It’s very important for us that we can keep them going” Cunha says.

“For now, we thank God that we can do it. With some help from some other people, were trying the best we can.”

76Paulo suggested that he lied to the reporter when he provided him with inflated costs of racing figures and did so intentionally in order to attract sponsors. How this strategy could possibly succeed, he did not explain.

77I find that Paulo has underestimated the cash income he earned during his relationship with Ana and afterwards and I cannot rely on the accuracy of the income and expense figures generated by Ms. Barrett’s analysis for the reasons given above.

78As such, Paulo has prevented this court from assessing his finances with any degree of precision upon the evidence available at this trial. In these circumstances, I must impute an income to Paulo for child support purposes.

79Leaving aside the many shortcomings of the Marmer Penner report that make it likely that a more fulsome review would generate higher income figures for Paulo, I note that the report arrives at Paulo’s net business income for 2014 at $201,807; for 2015, at $166,329; and for 2016, at $138,575.

80I believe it is reasonable to average these figures for an approximation of his income for 2017 and 2018, year to date. That would produce an average figure of $168,903.66. Ana asks for an imputed income for all years between 2014 and 2018 at an annual figure of $135,000. In my view that is a fair figure and I endorse it as the figure to be imputed for support purposes.

81I impute Paulo’s income for each calendar year at $135,000. As such, Ana is entitled to an award of child support from the April 2014 separation through April of 2018 for Gabriel in the sum of $55,248 and child support for Gabriel shall continue at the rate of $1,151 per month.

82In making this award including a retroactive component, I have considered the factors enumerated in Bremer³ including the blameworthy conduct on the part of the payor for lack of full and timely delivered financial disclosure and in Marinageli.⁴

83Paulo seeks an order for a gross up of the amounts he has paid Ana as uncharacterized payments and amounts he has paid through FRO as he has not been able to deduct the spousal support portion of such payments for income tax purposes and, conversely, Ana has not had to include such payments into her income for tax purposes. This request fails since Bruno chose to make the payment of sums totalling $36,362 on an uncharacterized basis and the remaining sums were paid through the FRO process. Further, he ought not benefit now from his failure to provide full and timely financial disclosure. Finally, he has tendered no evidence on what an appropriate gross up figure should be.

Spousal Support

Spousal Support

84Ana claims spousal support for a short period of duration upon both compensatory and non-compensatory bases. Paulo submits that the evidence does not support a finding of entitlement on either basis. The parties agree, as do I, upon the tests outlined for entitlement to spousal support in the applicable legislation and case law; they apply their differing versions of proven facts to the law.

85Paulo submits that Ana did not prove that she made sacrifices for Paulo’s career and that her sacrifices were instrumental to his career success. He adds that spousal support awarded on a compensatory basis are typically found in long-term, traditional marriages and include such sacrifices as involving one’s career to become their primary caregiver, rearing the children to adulthood, moving across the country or continent to support the career of the other spouse and being unqualified and unable to obtain employment when the spouses near retirement age with no means to achieve financial self-sufficiency

86He adds that in this case, the parties were never married, they were in a relationship for a brief four years; Ana is still young, smart, healthy and capable of full-time employment. All of her children are enrolled in full-day schooling, so she has no childcare responsibilities that would prevent her return to the workforce.

87Paulo argues that Ana’s strongest argument for entitlement to spousal support is on the basis of need. He says that her decision not to return to work once Gabriel was old enough for daycare as necessitated her seeking money from other sources; however, whatever support she may receive will not be sufficient to support her household if she does not return to work. He insists that she has refused to return to the workforce and that an income may be imputed to her accordingly.

88Anna submits that she has been out of the workforce since 2014 when she started her relationship with Paulo. Before that she worked on and off in low-paying jobs. She has a grade ten education, no further formal education or training and limited work experience. She has devoted herself to caring for Gabriel as well as her two other children from previous relationships. She has been a mother since she was just 16 years old.

89She insists that Paulo assumed financial responsibility for the family during the relationship while she cared for the children, managed the household and fulfilled all domestic functions; in addition, she assisted and helped Paulo with certain aspects of his carpentry business.

90She points out that while living together, their lifestyle was one of parties and entertaining as well as being heavily involved in the very expensive sport of go carting. She testified that she and the children had everything they needed while they lived together with Paulo.

91She adds that Gabriel was only 11 months old when the parties separated. She has been economically disadvantaged as a result of her childcare responsibilities in the breakdown of the relationship and she has a compelling need for support, at least for a transitional period of time.

92She points out that her spousal support entitlement has been recognized by the court on an interim basis since June 2016. Paulo has recognized his obligation after the separation but then he went back on his agreement, paying spousal support to her only twice, in August and September 2014, in the amount of $1,849 during each of those months.

93Upon the evidence at this trial, Ana submits that no income should be imputed to her, at least for a substantial transitional period.

94Ana seeks an order for spousal support for a limited period of time: 3 ½ years, retroactive to the date of separation and terminating in September 2017 when Gabriel started school full-time. She seeks an award of spousal support set at the midpoint of the SSAG and at least at an imputed income of $135,000 to Paulo.

95In my view, Ana’s submissions on this issue are reasonable, compelling and supported by the evidence. The parties lived together in a relationship of some permanence. They intended to have children together. Ana mis-carried once during the relationship and later gave birth to Gabriel. Paulo was content that Ana give up her job to live in his household and that he would be, and was throughout their time together, the sole financial provider.

96Upon separation, Gabriel was not yet one year old and Ana had two other young children to care for. Paulo chose not to provide meaningful and continuing financial support for Ana and Gabriel. It is unrealistic to expect Ana to be able to find and keep employment generating income commensurate with the lifestyle the family was accustomed to during the relationship.

97Paulo prospered in his carpentry business by investing long hours while Ana attended to all of the duties she managed within the home and she enabled him to follow his expensive and time consuming hobby of go carting as well.

98I find that Ana has made out her claim to entitlement to an award of spousal support on both a compensatory and needs based basis.

99I decline to impute an income to Ana for spousal support purposes and base her award upon income imputed to Paulo of $135,000 per annum from April 2014 through to September 2017. In my view an award fixed at the SSAG mid-range is appropriate. On this basis Ana shall recover a gross award of retroactive spousal support of $136,240.

Debts

Debts

100Ana submits, and the evidence supports her in this, that throughout the relationship Paulo used her credit cards to pay for his personal and business expenses and to pay for family expenses, including travel expenses. Paulo had been bankrupt in about 2008 and was thereafter unable to obtain credit in his own name.

101Ana says that all the debt in her name at the time of separation, which she calculates to be $27,168.75, was common debt of the parties, if not Paulo’s personal debt. She adds that she borrowed money to pay for most of the components of the overall debt, sold a vehicle and borrowed money from her father to pay down the debt. She insists that she is still servicing the Visa and Amex accounts.

102Ana seeks an order requiring Paulo to pay her one half of the total debt at the date of separation.

103Paulo correctly points out that some of the total debt was paid off through collection proceedings against the parties after separation and that Ana did not lead any evidence with respect to the actual debt, net after collection proceedings were completed.

104Ana did not lead evidence of any analysis of the credit card or bank statements evidencing the specific costs associated with or related to expenses incurred by or for Paulo. She also testified that in the case of air travel expenses, such as those incurred for travel to attend at go cart races in the United States, Paulo reimbursed her with cash payments to offset the credit card charges.

105On this issue, I agree with Paulo and find that Ana has not met the onus upon her to quantify the value of the unjust enrichment she alleges Paulo has derived. Ana’s claim to recover $13,584.37, being his alleged share of her debt at separation, is therefore dismissed.

Final Orders to Go:

Final Orders

106Final orders shall therefore issue as follows:

• The child, Gabriel Da Silva Gomes, born May 9, 2013, shall reside principally with the applicant.
• The applicant shall consult with the respondent regarding all significant decisions to be made in Gabriel’s best interests, including in matters of religion, education, social, travel medical, dental and other health and well-being matters; in the event of disagreement, the applicant shall have final decision making authority on all such matters.
• The respondent shall have the same rights to the release of information concerning Gabriel as if he were the party having custody, including, but not limited to matters of education, extracurricular activities and health directly from the relevant sources without the necessity of any release, direction or acknowledgement executed by the applicant. This order shall constitute sufficient authorization, direction and release for so doing.
• Except in the event of an emergency involving Gabriel, communication between the parties shall be limited to written communication through text message or electronic mail and shall be expressly limited to matters and information pertaining to Gabriel.
• In the event of an emergency involving Gabriel, the party having care of Gabriel at the time of the emergency, shall inform the other party by telephone call and text message of the emergency, immediately, or as soon as is reasonably possible. The party having care of Gabriel shall inform the other of the location of the child and update the other party as to the status of Gabriel’s condition.
• The applicant shall maintain possession of all government issued documents relating to Gabriel, including health cards, birth certificates, citizenship certificates, social insurance cards, immunization records, school records and passports, and any such documents in the respondent’s possession, custody or control shall be delivered to the applicant within 14 days hereof.
• The respondent shall pay retroactive child support for Gabriel calculated from April 2014 through April of 2018 in the sum of $55,248 and child support for Gabriel and ongoing child support at the rate of $1,151 per month upon an income hereby imputed to the respondent of $135,000 per annum.
• The respondent shall pay retroactive spousal support to the applicant calculated from April 2014 through to September 2017 in the sum of $136,240 based on an income hereby imputed to the respondent of $135,000 per annum.
• From the above support awards, the respondent is entitled to a credit for uncharacterized payments made to the applicant and through the Family Responsibility Office in the total sum of $69,358.42.
• Unless the support orders made hereby are withdrawn from the Director’s Office at the Family Responsibility Office, they shall be enforced by the Director and amounts owing under the orders shall be paid to the Director, who shall pay them to the person to whom they are owed.
• For as long as child support is to be paid, the payor and recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of the order, in accordance with section 24.1 of the Child Support Guidelines, including income tax returns and notices of assessment for the previous taxation year, or a copy of the equivalent tax documentation from the jurisdiction in which the pay are resides, and recent proof of income in the form of pay stubs and/or business statements.
• The applicant’s claim for recovery of a portion of her debts at the time of separation is dismissed.
• The parties are encouraged to resolve costs issues but if they do not do so within 30 days, the applicant shall then deliver written submissions within ten days thereafter of up to 3 pages, double spaced to the Trial Coordinator to my attention, such submissions to be accompanied by a costs outline and any relevant offers to settle. Within ten days of receipt of the applicant’s costs submissions, the respondent shall deliver written submissions within ten days thereafter of up to 3 pages, double spaced to the Trial Coordinator to my attention, such submissions to be accompanied by a costs outline and any relevant offers to settle. Within five days of receipt of the respondent’s submissions, the applicant may deliver written reply submissions of up to 1 page, double spaced to the Trial Coordinator to my attention.

Moore J.

Footnotes

1. 12015 ONCA 277, at paras 38-40
2. 2Meade v. Meade, (2002) ONSC 2806 at para 81
3. 3Bremer v. Bremer, 2005 ONCA 3938 (ONCA)
4. 4Marinangeli v. Marinangeli, 2003 ONCA 27673 (ONCA) at paras 72 to 84