Court File and Parties

NEWMARKET COURT FILE NO.: FC-15-49571-00 DATE: 20181107 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Anca Bordeianu Applicant – and – Ammar Taimish Respondent

Counsels: A. Franks/A. Prewer, Counsels for the Applicant M. Wainberg, Counsel for the Respondent

HEARD: October 24, 2018

RULING ON MOTION

McGee J.:

Decision

[1] Four years after separation, the respondent father’s income for support purposes remains a mystery because he has deliberately refused to provide court ordered disclosure. In that context I prefer the applicant mother’s expert’s preliminary assessment of Dr. Taimish’s income; and accordingly order temporary table child support, and spousal support in the low range of the Spousal Support Advisory Guidelines. I also issue a family law Restraining Order on terms that mirror prior terms of probation.

Background

[2] The parties are dentists who separated on July 15, 2014 after a relationship of 18 years, the last 11, as married spouses. Following separation, Dr. Taimish had a child with a second spouse. He has since separated from his second spouse.

[3] Dr. Bordeianu and the parties’ three children in this proceeding, ages 14, 12 and 9 continue to reside in the former matrimonial home. Dr. Taimish owns the home, against which he placed a large line of credit post-separation to access funds, which he subsequently invested in various enterprises.

[4] Dr. Taimish has pressed for the sale of his home. Its list price was recently reduced from $2.8 million to $2.3 million. With the sale of the home imminent, and no equalization determination in sight, a formal determination of child and spousal support has become vital. Prior to this motion the litigation focussed on parenting and disclosure issues.

[5] Today Dr. Bordeianu asks for temporary monthly table child support of $13,502, spousal support of $14,741 and a proportionate sharing of section 7 expenses. She argues that her former spouse’s 2018 income is $890,000. Dr. Taimish opposes any payment of support in excess of the $5,000 per month that he voluntarily provides in uncharacterized support. He contributes no monies for section 7 expenses which are wholly funded by Dr. Bordeianu, including the costs of the children’s private school. [1]

[6] Dr. Bordeianu has not previously sought a temporary determination of support for two reasons.

[7] First, it could not be pursued with any precision. Dr. Taimish’s income is deliberately complicated. He holds interests from 33% to 100% in 10 [2] companies spread over Ontario. By his own admission, income is rarely deposited to the entity in which it was earned.

[8] There are further complexities, such as income splitting with his second spouse, [3] and the likely mischaracterization of working capital necessary to a corporation, so that 100% of earnings deposited to certain holding companies are shown as unavailable for the payment of support. Personal expenses are run through the companies. Business expenses are run through a personal line of credit. He is a Course Director for an international organization that performs educational programs in popular travel locations. Income and benefits from that endeavor are not tracked.

[9] In the ordinary course, those complexities would be challenging enough, but there is a further dilemma. Dr. Taimish performs oral surgeries for other dentists and then spreads the payments across his various corporations and dental practices in a manner that removes the payments from taxable income. His own valuator was wholly unaware of that activity prior to delivering the income report upon which Dr. Taimish relies for this motion.

[10] Basic disclosure that would unravel these mysteries has been withheld, despite three very clear Orders of this court issued on September 28, 2016 (McGee J.) June 21, 2017 (Bird J.) and August 14, 2018 (Kaufman J.). Dr. Taimish has provided no disclosure for 2017 or 2018 (not even his 2017 Tax Return). Disclosure that is received is often disorganized, duplicative, irrelevant or woefully incomplete.

[11] If this were not concerning enough, Dr. Taimish has never provided proof of date of separation values for his many bank and investment accounts. Stated values change in subsequent Financial Statements. In his most recent Statement deposed October 18, 2018, not yet filed in the Continuing Record, he brazenly manoeuvers his net family property on July 15, 2014 to zero. He has never filed a Certificate of Financial Disclosure.

[12] Determining an equalization payment is a very long way off.

[13] The second reason that Dr. Bordeianu has not previously sought a temporary Order for support is that there was no great urgency. Dr. Taimish has continued to pay the carrying costs of the matrimonial home, including the servicing of the line of credit taken post-separation, in addition to the payment of $5,000 per month. But with the recent price reduction to the home, it is more likely that the home will sell and Dr. Bordeianu needs to know her budget to secure new housing for her and the children.

[14] Dr. Bordeianu also asks the court for a family law Restraining Order. The terms that she seeks mirror earlier probation terms that expired October 18, 2018, which resulted from Dr. Taimish entering a plea of guilty to a November 2015 assault. Dr. Taimish opposes this request; although at the start of his counsel’s submissions on this motion, he indicated his consent to an Order for exclusive possession of the former matrimonial home.

[15] In the absence of any claim for exclusive possession, or the parties’ written consent, I decline to deal with the proposal for exclusive possession, or Dr. Taimish’s other day-of-motion, oral offer within his counsel’s responding submissions to pay for the children’s private school.

Nature of Temporary Motions

[16] Temporary Orders are intended to cover the period of time between the making of the Order and trial. Their purpose is to provide a reasonably acceptable solution to a difficult problem. A full investigation of the facts may demonstrate a substantially different Order than that granted on a motion. The motions judge must rely on the evidence before her. The Order must be made in accordance with the Federal Child Support Guidelines and the Divorce Act.

[17] On a motion for temporary support, the court need not conduct a complete inquiry into all aspects of the claim. That is to be left to the trial judge. Temporary support is better understood as a holding order based on the parties’ means and needs pending the final disposition.

Dr. Bordeianu’s Income

[18] Although both parties are dentists, their incomes could not be more different. Over the past 20 years, Dr. Taimish has built a dental “empire” [4] while Dr. Bordeianu has worked occasional to part-time hours around the needs of the family, at a location close to their Richmond Hill home.

[19] In May of 2015 Dr. Taimish fired Dr. Bordeianu from her position at the Vaughan and Ancaster Dental practices. Within the month she secured part-time employment, and she now commutes three days a week from Richmond Hill to Cambridge, Ontario. On the other two days she takes the children to all their activities. Her income for the past four years is not in dispute and is set out below. It is received by her professional corporation as employment income and then paid to her as taxable dividends:

2014: $138,640 2015: $75,803 2016: $80,275 2017: $120,510

[20] I accept Dr. Bordeianu’s evidence that she has a significant need for support and that she has been funding her and the children’s expenses through debt, advances from her parents and the sale of property.

Dr. Taimish’s Income

[21] Dr. Taimish took an early position in this litigation that his annual income was $111,000, but on motion he asserts that it is $240,000 or in the alternative, $258,000 based on a limited scope assessment of income completed by his expert, Mr. Mandel for the years of 2014, 2015 and 2016. Counsel for Dr. Bordeianu argues that this income cannot be correct.

(a) Dr. Taimish pays support to his first and second spouse [5] in the combined amount of $9,538 per month, $288 per month in excess of his gross monthly income of $9,250. Even with the tax deduction on the $3,239 per month paid to his second spouse in support, he would not be able to meet the balance of his stated budget. (b) Dr. Taimish’s budget changes with each iteration of his Financial Statement. In his most recent Statement deposed October 18, 2018 [6] he shows after-tax annual spending of $269,220 (inclusive of $9,538 of support.) To fund his after-tax spending he would need significantly more taxable, annual income than $258,000. (c) In an affidavit sworn by the second spouse in support of her recent motion for support, she identifies two income producing businesses owned by Dr. Taimish not yet disclosed in this proceeding: a parking garage in Hamilton that produces annual cash income of $97,066 and “The Dental Supply Company.” (d) Dr. Taimish drives (and one would assume insures and maintains) a BMW X-5 and a Ferrari Scaglietti purchased during the marriage. In 2014 he purchased his second spouse a BMW. None of those expenses are fully reflected in his Financial Statements. (e) Dr. Taimish purchases luxury brands items and travels extensively in a manner not reflected in his Financial Statements.

[22] Dr. Bordeianu’s expert, Mr. Ranot has prepared a report on Dr. Taimish’s income, also limited by the disclosure that has to date, been made available. It does not include the sources of income identified by his second spouse, or income from his teaching. Mr. Ranot’s preliminary assessment of income is:

2014: $1,280,000 2015: $880,000 2016: $890,000

[23] Why such a difference between the two reports? Mr. Ranot includes $200,000 of non-taxable income (see paragraph 9 above) in Dr. Taimish’s income and then grosses it up. The figure of $200,000 is extrapolated from a random sample of five cheques tracked from February 10, 2014 to April 10, 2014 totalling $33,076 of unreported income. There are other differences as well, but this is by far the defining dissimilarity.

[24] After Mr. Mandel reviewed this aspect of Mr. Ranot’s report he wrote in an October 16, 2018 letter addressed to Dr. Taimish’s counsel:

We had been previously unaware that Dr. Taimish made deposits to a personal account due to that account being the only account which allowed for mobile electronic deposits via Dr. Taimish’s phone. We have also recently learned that Dr. Taimish may have also paid for professional business expenses from this personal account that may have not been recorded in the corporate accounts.

We understand that Dr. Taimish’s accountant is in the process of gathering the information required to assess these allegations and review the actual accounting of mobile income and potential unrecorded expenses and whether they were reported or unreported for the entire period under review.

[25] The letter goes on to reference income splitting not included in Mr. Mandel’s report as well as discretionary expenses paid by the corporations, not added back to income, for which investigations will now be completed. It bears emphasizing that these basic inquiries are being undertaken after the delivery of the assessment of income on which Dr. Taimish relies in this motion. His counsel acknowledged during submissions that he does not yet known what income figure will result.

[26] At this stage of the proceeding, I prefer the income figure assessed by Mr. Ranot. At the same time, I appreciate that it is possible that the figure of $890,000 is too high; but the breadth of missing disclosure, most recently consolidated and ordered in Justice Kaufman’s endorsement of August 14, 2018 persuades me that Mr. Ranot’s assessment of 2016 income is the best evidence of Dr. Taimish’s 2018 income for support purposes.

Orders for Table Child and Spousal Support

[27] Two things were not in issue on this motion: entitlement to non-compensatory spousal support and a commencement date of January 1, 2018 for both child and spousal support.

[28] Counsels did not extensively argue the appropriate range of spousal support, instead focussing on Dr. Taimish’s income. In reviewing their respective DivorceMate calculations, I adopt the calculation prepared by the applicant, [7] and I chose the low range as the appropriate amount of spousal support because:

(a) it results in a rounded 40/60 [8] division of net disposable income, being in my view, the upper limit in these circumstances; (b) the applicant’s calculation does not in my view adequately address the benefits (albeit minor in comparison to those enjoyed by Dr. Taimish) to Dr. Bordeianu in receiving her income as dividends from a personally held company in which some expenses can be deducted; and (c) Dr. Taimish does have support obligations to a second spouse and a dependent child. [9]

[29] Order to go commencing January 1, 2018, that Dr. Taimish shall pay monthly table child support of $13,502 for three children, based on annual 2018 income of $890,000.

[30] Order to go commencing January 1, 2018, that Dr. Taimish shall pay monthly spousal support of $12,800.

[31] Order to go that the parties’ proportionate shares of agreed section 7 expenses on incomes of $890,000 and $120,510 are 75% and 25%.

[32] Any voluntary support paid to date shall be a credit to this Order.

[33] Support Deduction Order to issue on these terms.

[34] I decline to make an Order for the specific payment of section 7 expenses, as none is requested on this motion. I ask counsels to take note of the change in the range of spousal support created by a defined payment of section 7 expenses, particularly private school.

Restraining Order

[35] Dr. Taimish plead guilty to a November 2015 offence in which Dr. Bordeianu was scared and physically harmed. His Probation Order expired October 10, 2018. Dr. Bordeianu seeks to replace those terms with provisions set out in section 46 of the Family Law Act:

Restraining order

46. (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 35.

Same

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or (b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time. 2009, c. 11, s. 35.

Provisions of order

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
2. Restraining the respondent from coming within a specified distance of one or more locations.
3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
4. Any other provision that the court considers appropriate.

[36] Dr. Bordeianu asserts that she has reasonable grounds to fear for her own safety. She is frightened by Dr. Taimish’s unpredictable flashes of anger.

[37] When a former spouse has a legitimate fear for his or her safety, even if that fear is partially subjective, a Restraining Order should issue when there are compelling facts leading to that fear. [10]

[38] Although the violence directed towards Dr. Bordeianu is now historical, she points to three incidents of violence by Dr. Taimish over the period of April to October 2017 towards the second spouse, as deposed by that spouse in an affidavit of May 2018.

[39] The deposed incidents were not minor. The latter resulted in two charges of failure to comply with a Recognizance and two counts of failure to comply with a Probation Order. Dr. Taimish plead guilty on April 16, 2018 to failing to comply with a Recognizance and breach of his Probation Order.

[40] Dr. Taimish opposes any Restraining Order terms. His counsel points to the incident free period between the spouses since November 2015. I do not find this persuasive. Although he did not breach recognizance and probation terms protecting Dr. Bordeianu, Dr. Taimish did breach terms prohibiting contact with his second spouse. When considering a Restraining Order under section 46(1) of the Family Law Act, a court can consider a person’s overall pattern of conduct, and all circumstances which bear on the claimant’s safety concerns.

[41] The purpose of a Restraining Order is to permit both litigants the opportunity to conduct their litigation in as reasoned a manner as possible. [11] In the coming months there will be a renewed focus on the challenging issues that remain unresolved – and largely unaddressed by Dr. Taimish in this proceeding. In the objective context of the history between the parties, Dr. Taimish’s overall pattern of conduct and the impending stresses around the sale of the home, I find Dr. Bordeianu’s fears to be legitimate.

[42] Order to go per paragraph 4 of this October 12, 2018 Notice of Motion.

Costs

[43] If costs cannot be resolved, the applicant is to deliver her submissions by November 21, 2018, response from the respondent is to be filed by December 6, 2018, and reply, if necessary by December 13, 2018. Costs submissions are limited to three pages exclusive of Offers to Settle, a comparison of Offers and a Bill of Costs. Submissions are to be filed in the Continuing Record. If case law is referenced, please provide only the citation. No case books required.

Justice H. McGee

Date: November 7, 2018

Footnotes:

[1] But for payments in the first few months following separation, four years ago. [2] Dr. Taimish asserts that the one company in which he owns a 33% interest was sold in 2017, but no documents before me confirm this. If true, then he holds controlling interests in nine corporations. [3] As he did with his first spouse, the applicant. [4] One of the companies in which he is a 100% owner is actually called Norton Empire Holdings Inc. [5] The amount paid to the second spouse is known, as it was determined in an endorsement by Justice Kitely. [6] This was the first Financial Statement served in two years, the others in this proceeding being deposed January 31, 2016 and May 2, 2016. [7] Found at Volume 8 of the Continuing Record, Tab 3, Exhibit P [8] Dr. Bordeianu would receive 60% of the combined NDI and Dr. Taimish would receive 40%. [9] I was not provided with DivorceMate calculations that included those payments, but it is uncontested that payments are being made. [10] Fuda v. Fuda 2011 ONSC 154 [11] Callon v. Callon , 1999 CarswellOnt 2401 (Div Crt)