Court File and Parties
COURT FILE NO.: FC-17-1017 DATE: 2018/11/15 COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE
RE: George Foustanellas, Applicant AND: Elsa Maria Varela, Respondent
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Steven A. Fried, for the Applicant Jessica Montpellier, for the Respondent
HEARD: November 13, 2018
REASONS FOR DECISION
1The parties to this application are the parents of three children. As the parents were never legally married, the Divorce Act does not apply. The applicable provincial statutes are the Family Law Act and the Children’s Law Reform Act. The issues before the court are parenting arrangements, child support and spousal support.
2On November 13th, 2018 the parties appeared before the court to seek orders for temporary relief. The major disputes at this stage are access to the children by the applicant father, the appropriate level of child support and whether or not there should be temporary spousal support. There are conflicting views on the need for supervision, the father’s effective income, and entitlement to spousal support.
Background Facts
3The parties agree that they had a “relationship of some permanence” within the meaning of s. 29 of the Family Law Act and they are the parents of three children who are currently aged 6, 8 and 13. They also agree that the relationship was volatile although they disagree about what that means. They co-habited sporadically between 2004 and January of 2016 when the relationship ultimately ended with no prospect of reconciliation.
4For purposes of this motion, it is not necessary to determine the periods of time during which they lived as a family unit and when they lived apart or whether they considered themselves as separated when they lived in different residences or when the applicant was out of the country. It is conceded that the children have always resided with the respondent and she has had care of the children since separation. Custody is not contested. It is also conceded that the respondent meets the definition of “spouse” under the Act although it is not conceded that spousal support should be ordered.
5The applicant is the son of the late Petros (Peter) Foustanellas and his wife, Evangelia. Peter was a successful businessman founding companies such as Argos Carpets, Pegasus Developments, Olympia Homes and Merivale Bowling Centre. The Foustanellas family became extremely wealthy and besides the family owned businesses, owns properties in Florida and Greece. The applicant himself has a substantial amount of money gifted to him by his father and it generates investment income. The respondent also believes that the applicant’s use of property owned by his mother or other family members and access to other benefits provided by the family’s wealth should be regarded as income for support purposes.
6Neither the applicant nor the respondent have any formal education. In fact the applicant did not complete high school. For many years they were both employed in the family businesses. The applicant worked in the accounting department at Argos Carpets and was paid a salary of $78,000 per year but this employment ended in 2013 due to disagreements within the family. The respondent worked at Merivale Bowling Centre but that employment also came to an end. She is currently attending Algonquin College and is without significant income.
7During the relationship and since separation, the applicant has been in the habit of spending part of the year in Florida and part of the year in Greece. He advises the court that he assists his mother in managing the family owned properties. He indicates that he is prepared to spend less time out of the country if he is granted regular access to the children.
8It is common ground that the applicant has not had contact with the children since at least June of 2017 and until that time access was sporadic. It is the respondent’s view that the applicant has no real interest in parenting and he wishes regular access primarily for the benefit of his mother and until the death for his father. It should be noted that the paternal grandmother was present in court. I am advised that Mrs. Foustanellas considered asking to be made a party to the proceeding but has elected not to do. The respondent is encouraging visits between the children and their grandmother but has insisted on these being in public in her presence. She also takes the position that the applicant’s access should be supervised at least for a transitional period.
Consent Orders
9In her Answer, the respondent seeks custody of the children. This is not contested. The applicant is in agreement a custody order may be made in favour of the respondent. His issue is access which he contends is being unreasonably restricted. I have granted a custody order.
10The respondent also seeks an order for additional financial disclosure. Specifically, she seeks bank and credit card statements for the past three years. The applicant consents to this order but asks for reciprocal disclosure. I have granted this order.
11The parties agree that although the only parenting issue is the form and frequency of access, it is very important that the voices of the children be heard. On consent, I have granted an order for appointment of the Office of the Children’s Lawyer.
12In the event the OCL declines to provide service, the parties have agreed to consider alternatives such as a Voice of the Child Report or a Custody/Access Assessment. The respondent alleges that the sporadic involvement and disappearance of the applicant from the children’s lives has been traumatic for them but the evidence does not suggest significant clinical issues. On the other hand, two of the children have been diagnosed with special needs. Counsel have agreed to discuss the matter and seek further instructions if the OCL declines service.
13The parties have also agreed to an order for life insurance.
Contested Orders
Child Support
14Dealing firstly with child support, the applicant agrees he should be paying the table amount of child support for three children. He also recognizes he will be responsible for reasonable s. 7 expenses. There is dispute about the applicant’s income, the extent of retroactivity and the amount of the s. 7 expenses. I will address each of these in turn.
15The applicant concedes that he should be paying support based on imputed income of $27,300.00 per year which is the amount he could earn at a minimum wage job. He also concedes that he had taxable investment income of $24,680.00 in 2017 for a combined income of $52,160.00. This is the figure he proposes be used as his income for temporary support purposes.
16The respondent argues that in addition to this income, $26,960.00 of “gift income” should be attributed to the applicant. The evidence is that he lives rent free at his mother’s house and has use of homes in Florida and Greece. She also submits that he has access to other Foustanellas’ family assets or is subsidised by the family in ways he has not disclosed. The respondent states that the applicant lives a lavish lifestyle that cannot be supported on an income of only $52,160.00. The applicant himself states that one of the reasons for travel is to assist his mother in managing her foreign property.
17Gifts are not income nor is a lifestyle funded by family members or parents itself a basis for imputing income. Bak v. Dobell, 2007 ONCA 304 On the other hand the factors set out in s. 19 (1) of the Federal Child Support Guidelines are not exhaustive and factors such as failure to generate income from assets, and future expectation of income from a trust are included in the guidelines.
18The applicant does appear to be an ultimate beneficiary under the primary will of his father that was before the court. That will appears to be only one of three separate wills made by the deceased and designed to operate together. The primary will is complicated and appears very concerned with tax planning. It provides that during the lifetime of Mrs. Foustanellas the trustees shall use all of the estate for her benefit but the estate does not vest in her. On the date of her death, 20% of the residue of the father’s estate (25% of 80%) will vest in the applicant. The will dealing with the “Limited Property Estate” which deals with the shares of the family companies and the will dealing with the “USA Estate” have not been produced. In my view there is sufficient evidence to attribute some additional income to the applicant beyond minimum wage and investment income. Korman v. Korman, 2015 ONCA 578
19It is important to emphasise that this is a motion for temporary relief. That is I am asked to determine the level of support to be paid up until trial or other final resolution of this matter based on the evidence available at the time of the motion. Preliminary findings of fact are typically not as finely nuanced as trial decisions and the trial judge may well reach different conclusions with the benefit of all of the evidence. Temporary support orders are generally conservative with highly contested issues of fact or in depth analysis of the parties circumstances better left to trial. Vainshtein v. Vainshtein, 2016 ONSC 3697 although that decision relates to spousal support
20The applicant’s family dynamics are clearly complicated and it is too early to say with any degree of certainty what additional income he is entitled to access. While it may not be the $78,000 he formerly earned in salary, it is clearly more than minimum wage. For temporary support purposes I impute his income at $39,000.00 plus the investment income earned in 2017 for a total of $63,680.00. This results in a base level of child support of $1,272.82 per month.
Retroactivity of Child Support
21The respondent argues against a retroactive order on a temporary basis. It is true that retroactivity is not automatic and the Supreme Court has suggested an outside limit for retroactive support claims. S. (D.B.) v. G. (S.R.), 2006 SCC 37 In this case, however, the applicant has a clear obligation to pay child support but has been underpaying. He has also unilaterally reduced the support without reason or justification. There is no dispute about what has been paid as it has been carefully recorded. The application was commenced on June 26th, 2017 and the Answer demanding support was filed on June 14th, 2017. The date of separation was January of 2016 which is at most a year and a half before the date of effective notice. The applicant has the ability to pay.
22Accordingly there will be an order for the respondent to pay child support of $1,272.82 per month commencing February 1st, 2016 and continuing until further order or agreement. The applicant is entitled to credit for the amount of $23,511.00 actually paid up to October of 2018 as set out in the materials. Tab 4 CC, volume 2, CR He should also have credit for amounts actually paid subsequent to the date of the affidavit.
S. 7 Expenses
23The children are entitled to additional support for extraordinary expenses within the meaning of s. 7 of the Guidelines. There is no real dispute about dental and medical expenses. Neither party has an extended health plan. Those expenses are relatively modest. There is a dispute about the extracurricular activities including a question of who actually paid for those activities and whether they are all appropriate expenses given the drop in income of both parents and the failure to consult.
24Again, this is a temporary order and not a final order. The precise amount of reasonable s. 7 expenses and the proportionate share (as well as amounts that may have been paid from other sources such as grandparents’ largess) remains to be determined and is tied up with the question of establishing income. In the meantime, there should be a reasonable amount of reimbursement for expenses already incurred and reasonable contribution going forwards.
25The respondent seeks retroactive and prospective contribution of over $1,000 per month. Given the issues that are in dispute, I am not prepared to make that order. I will order $200.00 per month in addition to the table amount retroactive to February 1st, 2016 and continuing until further order or agreement. This amount will be credited against any obligation for s. 7 expenses calculated at trial.
Spousal Support
26There may be entitlement to spousal support in addition to the child support. The respondent meets the definition of “spouse” in the Family Law Act but there is a great deal of dispute about whether or not the parties ever functioned as an economic unit during the relationship. It is unclear whether there was economic dependency during that time and as noted above there is dispute about the duration of co-habitation. The facts are complicated and entitlement, quantum and duration will be disputed.
27Even on the respondent’s income figures, there may have been no spousal support payable in 2016 using the “with child support” formula. The need for spousal support currently is related to the fact that the respondent is taking college courses with a view to improving her employment skills. If she is successful that will be to the benefit of both parties as well as the children.
28Under the circumstances there will be a temporary order for spousal support in the amount of $150.00 per month commencing January 1st, 2018 and continuing until further order or agreement but subject to review if the respondent’s academic status or employment status changes. This is without prejudice to claims for further retroactivity and without prejudice to the determination of entitlement by the trial judge.
Access
29The applicant originally commenced this application to obtain regular access with the children. The parties have fundamental disagreements about the extent to which the applicant was involved with the children and why he has not been having access over the past year. While he claims the respondent has interfered with his access and made it impossible without a court order, she claims that he has made no effort to contact the children and was an occasional father who expected the children to be with him only when it suited him. She contends that he has been out of the country for much of each year and in reality he is only seeking access so that the children can spend time with his parents (now only his mother).
30Both parties accuse the other of assault, inappropriate behaviour in front of the children, and verbal abuse. There is very little objective evidence and there does not appear to have been involvement by CAS or by the police. As mentioned, however, both parties describe the relationship as volatile. It is certainly clear that the parties should not be required to have direct contact and any notion that the respondent should supervise access seems unworkable.
31There is minimal evidence to justify a requirement for supervised access. The respondent asserts that the applicant has no parenting skills. She asserts that the paternal grandmother suffers from depression and cannot cope with three children. The former statement is disputed, the latter is inadmissible because the affidavit does not state the source of the respondent’s information and belief.
32The problem is this. The applicant has had no contact of any kind with the children for over a year. The court has no reliable evidence about the views and preferences of the children. Both parties recognize that there should be a plan for re-integration of the father into the lives of the children. This needs to be done in a way that is comfortable for the children and maximizes the probability of repairing the parental relationship. Under these circumstances, I agree with counsel for the applicant that the use of the supervised access centre would not be optimum.
33Fortunately the children do have an ongoing relationship with their grandmother. Although the respondent has only allowed that access in a public place and in her presence, this is a relationship that both parents agree should be encouraged. As I noted earlier, Mrs. Foustanellas has elected not to seek party status but she is very much part of the reintegration plan proposed by the applicant.
34When the applicant is in Ottawa, he is living with his mother. His proposal is for initial limited duration visits at his mother’s house with both of them present. He would then like to transition to more regular access including overnight access.
35The respondent has not persuaded me that initial visits with the applicant at the grandmother’s house are inappropriate. To the contrary, the evidence suggests that this is likely to be the most comfortable way to reintroduce the applicant into the children’s lives. This should be done gradually with an opportunity to review the situation and to determine the views and preferences of the children. The parties will also have to consider the ages and temperaments of each child. It may well be that the needs of a 13 year old require different arrangements than for an 8 year old or a 6 year old. I am not suggesting that this is the case, but it should be a consideration in determining what access is appropriate longer term.
36As noted, I made an order for the involvement of the OCL but if the OCL denies service, the parties will have to make arrangements to ensure the wishes and preferences of the children are objectively determined and put before the court. I would consider either a Voice of the Child Report rather than a Custody/Access Assessment though I would not rule out the latter.
37In the interim, access between the father and the children should resume. Firstly, the applicant should be at liberty to contact the children by Skype, telephone, text message or mail at reasonable times and frequency. Secondly, there should be an access visit with the applicant in the presence of the grandmother and without the respondent being present. I suggest that the first visit might take place in a public place. The second visit might take place at the grandmother’s home but I will leave this to the applicant. The situation should be reviewed in two months with a view to expanding access and I will hear further submissions at that time if the parties cannot agree.
Costs
38I have not heard submissions on costs or considered any offers to settle. I invite counsel to agree on costs failing which they may arrange a date to speak to the matter or may contact my office for direction if they wish to make written submissions. If no date is fixed for a hearing or direction sought within 30 days then the court will presume that no order for costs is necessary.
Summary
39In conclusion the motions are granted in part. Subject to the provisions of Rule 25, an order will go as follows:
a. On consent, there will be an order granting custody of the three children to the respondent.
b. On consent, the court has made an order authorizing the Children’s Lawyer to appoint counsel for the children or to complete a report. In the event the Office of the Children’s Lawyer is unable or unwilling to provide service, the parties are to agree on an alternative means to put the voice of the children before the court or shall seek further directions.
c. On consent, each party shall produce to the other all bank statements and credit card statements for the past three years.
d. On consent, the applicant is to obtain a life insurance policy in the amount to be agreed upon naming the respondent the beneficiary.
e. There will be a temporary order that the applicant pay child support to the applicant in the amount of $1,272.82 per month commencing February 1st, 2016 and continuing until further order or agreement. This is the table amount for three children based upon an estimated income of $63,680.00. The applicant is entitled to credit for amounts actually paid and this amount is subject to adjustment by the trial judge.
f. In addition to the table amount, there will be a temporary order that the applicant contribute the sum of $200.00 per month towards the extraordinary expenses of the children commencing February 1st, 2016 and continuing until further order or agreement. This is a without prejudice order and may be adjusted by the trial judge.
g. Without prejudice to the claims for retroactivity or arguments concerning entitlement, quantum and duration, there will be a temporary order that the applicant pay spousal support to the respondent in the amount of $150.00 per month commencing January 1st, 2018 and continuing until further order or agreement. This order is subject to review in the event of a change in academic status or employment status.
h. On a temporary basis, following the reintegration plan set out below and after obtaining and considering the views and preferences of the children, the applicant shall have reasonable access on reasonable notice on terms and at times to be agreed upon by the parties or fixed by the court.
i. Until regular temporary access is ordered or agreed upon, the applicant shall have the following access by way of re-establishing contact with the children and re-integrating the applicant into their lives:
i. The applicant may contact the children by mail, Skype, text, telephone or other means as agreed between the parties. The respondent shall facilitate such access and shall not interfere with it.
ii. Commencing November 24th, 2018 the applicant may have weekly access with the children for up to four hours in the presence of the paternal grandmother. Pick up and drop off shall be in a public place and shall be supervised by the paternal grandmother or as otherwise agreed. Unless otherwise agreed the access visits shall take place on Saturday afternoon between 1:00 and 5:00 p.m.
iii. After two such access visits, unless otherwise agreed, the access visits shall be lengthened to six hours and shall include the dinner hour.
iv. The parties may agree on additional access at Christmas in accordance with the wishes of the children.
j. The interim access set out in paragraph h) shall be reviewed by the parties at the end of January 2019 with a view to establishing more extensive regular temporary access including overnight access as contemplated in paragraph g). If the parties cannot agree they shall seek further direction from the court.
k. There shall be no costs of this motion unless within 30 days the parties advise the court they have agreed upon costs, wish to speak to costs or wish to make submissions in writing. In the latter case, they shall agree on a timetable for exchange of submissions or obtain directions from my office.
40If there are other consensual terms which counsel wishes to include in the formal order they may incorporate them and submit them for my approval.
Mr. Justice C. MacLeod
Date: November 15, 2018