Court File and Parties

COURT FILE NO.: FS-17-417875 DATE: 20190529 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Akiva Medjuck, Applicant AND: Rachel Bilah Medjuck, Respondent

BEFORE: Madam Justice Kristjanson

COUNSEL: Harold Niman and Christopher Mamo, for the Applicant Jaret Moldaver and Lindsay Konkol, for the Respondent

HEARD: April 16, 2019

Endorsement

[1] The Applicant, Akiva Medjuck, and the Respondent, Rachel Bilah Medjuck, were married in 2001 and separated in 2017 after 16 years of cohabitation. Akiva was 37 and Bilah was 38 at separation. They have four children, ranging in age from 8 to 17. There were a large number of issues raised on the motion and cross-motion; they could not possibly have been dealt with in the day scheduled for the motion. I deal with the most pressing issues here. After hearing argument on tax and financial issues I directed the parties and their experts to meet and return to me for further argument. The parties settled those issues after the joint expert meeting, and I made an order accordingly. It is essential to move this family on to trial after two years of delay, and I set out a process to get the family to trial in early 2020.

Issues

[2] In this decision, I deal with the following issues:

(1) Should a section 30 assessment be ordered? (2) Should a Voice of the Child Report be ordered? (3) On an interim basis, what child support and spousal support should be paid? (4) On an interim basis, what section 7 expenses are reasonable? (5) How can this family get to trial quickly?

Issue #1: Section 30 Assessment

[3] Section 30 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12 (“CLRA”) sets out the framework for a court-ordered assessment regarding the needs of a child in the context of custody and access. It provides in part that:

30 (1) The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child….

(4) The court shall not appoint a person under subsection (1) unless the person has consented to make the assessment and to report to the court within the period of time specified by the court.

[4] Bilah seeks a section 30 assessment. Akiva opposes the section 30 assessment, and instead suggests a Voice of the Child Report.

[5] The parties separated in 2017 but lived together in the matrimonial home until February, 2018, when Bilah left the home. The two eldest children, AA, who is 17 in June, and BB, age 14, live with Akiva and are estranged from their mother. The two youngest, CC, almost 12 and DD, almost 8, live with Bilah. The two youngest reside with their father on alternate weekends from Friday after school to Monday mornings, every Wednesday overnight and every alternate Monday overnight.

[6] There are no allegations of alienation raised by Bilah in her Answer. Bilah’s claim for primary residence is based on three primary reasons: first, that she took on the lion’s share of the parenting responsibilities; second, that she is better able to provide a safe and stable environment, and third, that the husband does not have an acceptable plan for the care of the children. The extreme allegations made in her affidavit evidence on the motion for an assessment, generally not supported by independent and reliable evidence, must be evaluated in the context of the Application and Answer. As stated by Pazaratz, J. in Baillie v. Baillie, 2012 ONSC 3728: the mere fact that the parties are engaged in a high-conflict custody dispute does not, in itself, justify ordering an assessment (para. 31); courts should resist any subtle influence created by the sheer volume of material – the number of allegations and affidavits (para. 32); and, an assessment is not to be used as a fishing expedition, or a strategic fact-finding exercise by one parent hoping to discover evidence favourable to their position (para. 43).

[7] Both parents agree, and I accept, that all of the children have significant special needs. In their Form 35.1 Affidavits in Support of Claim for Custody or Access sworn in 2017, the parents agreed that many of the children had mental health issues, and all of the children required special educational supports.

[8] In her November 5, 2018 affidavit, Bilah states that:

(a) Akiva has taken steps to alienate the two elder children from Bilah. (b) Following an incident in August, 2017 when Bilah either grabbed or touched BB, Jewish Family and Child Services (“JFCS”) became involved with the family, and AA and BB for the most part refused to spend time with Bilah. (c) Bilah states that “BB made false allegations to JFCS.” (d) Akiva has made unilateral educational decisions regarding the children, failing to consult and failing to obtain Bilah’s consent, including for tutoring. (e) Bilah acknowledges that Akiva had proposed family reintegration therapy, particularly focusing on Bilah’s relationship with the older children. Her exhibits are not properly identified, nor are they complete. It appears that the family reintegration therapy did not proceed in any meaningful way.

[9] In her affidavit setting out the reasons why an assessment is required, Bilah, states that:

• she is concerned for the welfare of AA and BB;
• she does not believe that Akiva “is able and/or willing to provide them with the care they require;
• she believes “that Akiva is a poor influence on the children.”
• she fears the elder boys are on a dangerous path and fears that they will not have appropriate education, skills or motivation to be self-sufficient adults.
• she fears the consequences of alleged alienation for the children.
• she raises concerns regarding Akiva’s ability to care for CC and DD, based on what she alleges is failure to complete homework, failure to establish routines, failure to focus on education and consistency.
• Akiva has not prioritized his parenting responsibilities, has not properly monitored the children, and has not provided stability.

[10] Despite the many issues raised and concerns alleged, Bilah has:

• not provided the JFCS records or evidence from the JFCS workers;
• not provided any educational records from the school;
• not provided affidavit evidence of any teachers or school administrators;
• not provided any therapy or counselling records (except a letter from what appears to be DD’s consultant pediatrician addressed to the school, which is not in admissible form);
• not provided any doctor’s records;
• not provided any individualized educational plans or psycho-educational assessments; and
• not provided any reliable evidence regarding alleged issues relating to Akiva’s mental health.

[11] The issues raised by Bilah are unsupported by evidence except vague allegations and disputed statements contained in her lawyer’s letters. She relies on many hearsay statements; for example, she says that “The school has described Akiva as a bully”, without identifying the source of the information or her belief in its truth, or any identifying details such as the date and person allegedly making such a statement.

[12] The Answer does not plead alienation or issues with Akiva’s mental health. On this motion, however, Bilah alleges that “the marriage was plagued by Akiva’s mental health and behavioural issues”, including what Bilah alleges are “struggles with addiction” and with “compulsive behaviours and/or personality disorders.” There is no independent or reliable evidence, or expert evidence, in the record indicating any history of mental illness, or the alleged effect on parenting capacity and the ability of Akiva to recognize and provide for the needs of the children. Bilah is not qualified to provide an opinion on mental health.

[13] Akiva submits, and I agree, that Bilah’s evidence on the need for an assessment as set out in Bilah’s November 5, 2018 affidavit is “totally inadequate”. The evidentiary burden rests on Bilah.

[14] Akiva’s evidence in his April 1, 2019 Affidavit is that:

(a) Akiva has been a very involved father, and has taken the lead in dealing with the children’s medical, educational and programming decisions before and after separation; (b) AA has refused to participate in family therapy; (c) JFCS was involved with the family for about a year from summer 2017, and recently closed the file with no protection concerns; (d) He attributes the breakdown in the relationship with the two older children to Bilah’s actions; in her affidavit of April 10, 2019, Bilah denies allegations regarding the source of the strain in her relationship with the two older children; and (e) One of the children currently has 18 adults involved in his school/psychological planning.

[15] Akiva’s position is that an assessment is lengthy and intrusive, and it would not be in the children’s best interests to require a section 30 assessment. He states:

Our children have been involved in mediation (twice), reintegration therapy, have all attended weekly therapy (except [one child]), have undergone medical testing, psycho-educational testing and are still coping with our high conflict separation. The children are all currently facing their own academic and personal challenges and I am concerned that another invasive professional in this setting will put them over the edge.

[16] Akiva also expresses concern with delay; there is no evidence as to how long an assessment with these four children and their special needs would take. The parties have already been litigating for two years. Akiva’s position is that the status quo residency and parenting with the two youngest children, CC and DD, is working. He also raises a concern with the ages of the two older children. AA would be 17 at the time the assessment is done; BB would likely be almost 15. Even if a recommendation were made regarding custody and assessment for children of this age, it would be challenging to implement for the older children.

[17] Despite the many professionals involved in the lives of the children, Akiva has not provided any evidence to support his concern that introducing yet another professional would put the children over the edge. He has not provided any evidence from any of the psychologists, therapists, or tutors. Although he makes allegations about Bilah’s instability and anger, which he alleges both led to the family’s involvement in JFCS following the alleged hitting/touching of BB, and to the estrangement of the two older boys, he has not provided the JFCS records or affidavit evidence of a JFCS worker, or any other evidence of Bilah’s anger issues as they affect the best interests of the children.

[18] Akiva points to his many requests to Bilah to engage in parenting mediation which have been refused, with no alternatives proposed, as well as his requests for family counselling with two options for therapists, also opposed.

[19] The issues of cost and delay are particularly important in a family with four children with significant special needs (which will increase costs and delay), where the goals of the assessment and the type of information to be sought are poorly articulated. As noted by Kitely, J. in Glick v. Cale, 2013 ONSC 893 at para. 54:

…In motions for an order for an assessment, it is often the case that the court lacks both timing and cost information. The preferred approach is that when counsel obtain the consent of the proposed assessor, that the assessor be required to give an estimate of time (subject of course to variables that would be unknown until the assessment was under way) and an estimate of cost (also subject to those variables).

[20] In Glick v. Cale, 2013 ONSC 893, Justice Kiteley provided a non-exhaustive list of criteria that may be considered in the determination of whether to order an assessment. In applying these factors, given the inadequate evidentiary basis, I find that:

(a) Pre-Separation: The parenting relationship before separation appears to have worked, in that both parties took an active role in the lives of their children, and made appropriate arrangements to support the special needs of the children. This was a 16 year relationship. Bilah was at home (supported by two nannies). Akiva worked to support the family, but took a large role in medical, health and educational decisions and support. The parental dysfunction has spiraled post-separation. (a) Decisions About Children’s Needs: The parents have resolved some critical issues, including the fundamental question of a residential schedule for the two youngest children. However, Bilah raises concerns that Akiva is making educational decisions for the children without consulting her. In addition, Bilah has refused to consent to Akiva’s travel with the children, necessitating a number of motions. Consent to travel was also raised on this motion. (b) Unhealthy Relationship: There is some concern that the relationship between the parents is so unhealthy that they cannot identify the best interests of the children and work to resolve issues. I am concerned that the fights about money and control are intruding on the ability of the parents to make decisions in the best interests of the children. For example, on the issue of section 7 expenses, Bilah took the position on this motion that the children did not require the tutoring that Akiva has arranged, whereas in her Form 35.1 affidavit at the outset of litigation two years ago, she clearly took the position that the children required significant tutoring supports. Bilah has also refused to consent to travel by the children, necessitating motions to be threatened or brought. (c) Respect for Other Parent: Bilah clearly has a disregard for Akiva’s parenting skills, and blames Akiva for the family dysfunction. In her affidavit evidence, Bilah states that Akiva is not able and/or willing to provide the children with the care they require and believes “that Akiva is a poor influence on the children.” She accuses Akiva of alienating the two older boys and taking steps to do so with the younger children. Akiva is concerned with Bilah’s anger, and attributes Bilah’s estrangement from the older boys to Bilah’s actions and attitudes. He is not, however, critical of her parenting of the two younger children, while she is critical of his parenting. (d) Clinical Issues: There is no clinical diagnosis of the parents that would impact their parenting capacity. There are clinical diagnoses of all four children, both in respect of mental health issues and special educational needs. These issues were present prior to separation and were identified as pre-existing by both parents at the outset. The parents both accept that the children have special needs. Most of the children are receiving therapy; there is no evidence as to the specific effect of the high parental conflict on the health of the children, although therapy has increased since separation. (e) Age of Children: It is unlikely that a custody and access assessment could be of assistance to the court with respect to the two older children. AA is 17 in June, likely almost 18 at the time of trial. BB is 14. (f) Matter will Likely Proceed to Trial: Given the high conflict nature of the proceedings, it is unlikely that an assessment would lead the parents to have a better understanding of the family dynamics and arrive at a resolution on parenting issues without a trial. The viva voce evidence at trial will allow the court to determine the needs of the children and the willingness of the parents to meet those needs. (g) Cost and Delay: There is no evidence as to the cost and length of time an assessment would take. That is critical missing information. Both parties agree that all four children have significant special needs. Collaterals have not been identified, and the issues for the assessment have not been specified, two years after separation. Bilah has not set out the issues clearly, nor has she distinguished between the older two and the younger two. Given the extent of already identified complex needs, the complete absence of evidence of cost and time, that this litigation is over two years old and is being set down on a path to an early trial, I do not find that the assessment is warranted. (h) Intrusiveness: The children have all had a significant number of professionals involved in their lives, because of their special needs. A custody and access assessment by its very nature is highly intrusive. The parents acknowledged pre-separation the special needs of the children, and many professionals are involved with the family already.

[21] On a balance of probabilities, I find that Bilah has not established that a section 30 assessment is warranted in order to report to the court on the needs of the children and the ability or willingness of the parents to meet those needs.

[22] In addition, s. 30 requires me to appoint a person with technical and professional skill, and requires that I have evidence as to that person’s consent to make the assessment and report to the court within a period of time specified by the court. The evidence filed by the wife is not sufficient to make this determination.

[23] Bilah’s motion for a section 30 assessment is dismissed.

Issue #2: Voice of the Child Report

[24] Akiva suggests that a Voice of the Child Report would provide the court with information as to the children’s views and preferences. The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides that in making an order for custody and access, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. Determinations of a child’s best interests are guided by factors set out in the Children’s Law Reform Act, Section 24(2)(b), including “the child’s views and preferences, if they can be reasonably ascertained.”

[25] Custody and access are perhaps the most fundamental issues upon which the views and preferences of a child should be ascertained. Indeed, the United Nations Convention on the Rights of the Child, Can. T.S. 1992, No. 3, Article 12 (“UNCRC”) specifically recognizes that children who are capable of forming their own views have the right to express those views in all matters affecting them, and that for this purpose, the child shall be provided the opportunity to be heard in any judicial proceedings affecting them, either directly, or through a representative or an appropriate body. A Voice of the Child Report is one important way in which a child can be heard in a family judicial proceeding affecting the child’s future. It is important to recognize the agency of children, and where possible, to hear their voice before custody and access decisions are made.

[26] In A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181, 2009 SCC 30, paras. 92-93, the Supreme Court of Canada endorsed an interpretation of the "best interests of the child" (as contained in Manitoba's child welfare legislation), in a manner consistent with the UNCRC:

92 With our evolving understanding has come the recognition that the quality of decision making about a child is enhanced by input from that child. The extent to which that input affects the "best interests" assessment is as variable as the child's circumstances, but one thing that can be said with certainty is that the input becomes increasingly determinative as the child matures.

93 Such a robust conception of the "best interests of the child" standard is also consistent with international instruments to which Canada is a signatory. The Convention on the Rights of the Child, Can. T.S. 1992 No. 3, which Canada signed on May 28, 1990 and ratified on December 13, 1991, describes "the best interests of the child" as a primary consideration in all actions concerning children (Article 3). It then sets out a framework under which the child's own input will inform the content of the "best interests" standard, with the weight accorded to these views increasing in relation to the child's developing maturity. Articles 5 and 14 of the Convention, for example, require State Parties to respect the responsibilities, rights and duties of parents to provide direction to the child in exercising his or her rights under the Convention, "in a manner consistent with the evolving capacities of the child". Similarly, Article 12 requires State Parties to "assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child."

[27] More recently, in the child welfare sphere, the provincial government has recognized the importance of seeking a child’s views, and acknowledges that the aim of the Child, Youth and Family Services Act, 2017, S.O. 2017, c 14, Sch 1 is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child.

[28] The age of the children is important. AA is 17 in June, and will be almost 18 at the time of trial. As a practical matter, the court will likely not make a custody and access order given his age. As Benotto, J.A. held in R.G. v. K.G., 2017 ONCA 108 at para. 67:

The degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will be subject to the judge’s discretion as she seeks to determine the child’s best interests. When, as here, the child is months away from her eighteenth birthday, a continuation of litigation involving her indicates more about the parent’s needs than the child’s.

[29] AA has expressed his views and preferences; he has chosen to reside with his father, and to have no contact with his mother. A Voice of the Child report would not assist the trial judge on custody and access issues given AA’s age.

[30] There are different considerations with the younger children. BB is 14, CC is 12, and DD is 8. Their voices should be heard. The benefits to judicial decision-making of hearing the child’s voice were set out by Martinson, J. in G. (B.J.) v. G. (D.L.), 2010 YKSC 44 as follows at paras. 21-22:

[21] Obtaining information of all sorts from children, including younger children, on a wide range of topics relevant to the dispute, can lead to better decisions for children that have a greater chance of working successfully. They have important information to offer about such things as schedules, including time spent with each parent, that work for them, extra-curricular activities and lessons, vacations, schools, and exchanges between their two homes and how these work best. They can also speak about what their life is like from their point of view, including the impact of the separation on them as well as the impact of the conduct of their parents.

[22] Receiving children’s input early in the process, and throughout as appropriate, can reduce conflict by focusing or refocusing matters on the children and what is important to them. It can reduce the intensity and duration of the conflict and enhance conciliation between parents so that they can communicate more effectively for the benefit of their child. When children are actively involved in problem solving and given recognition that their ideas are important and are being heard, they are empowered and their confidence and self-esteem grow. They feel that they have been treated with dignity. In addition, children’s participation in the decision making process correlates positively with their ability to adapt to a newly reconfigured family.

[31] Bilah submits that in circumstances of alienation, a Voice of the Child report may simply perpetuate the alienation, reflect parental manipulation, and delay resolution of the issues: Canepa v. Canepa, 2018 ONSC 5154 at para. 23; Seaton v. Zheng, 2019 ONSC 781 at paras. 18 and 21. However, the UNCRC and the CLRA both speak of considering the child’s views and preferences, if they can be ascertained. I agree with Justice Martinson in G. (B.J.) v. G. (D.L.), para. 13:

[13] There is no ambiguity in the language used. The [UNCRC] is very clear; all children have these legal rights to be heard, without discrimination. It does not make an exception for cases involving high conflict, including those dealing with domestic violence, parental alienation, or both. It does not give decision makers the discretion to disregard the legal rights contained in it because of the particular circumstances of the case or the view the decision maker may hold about children’s participation.

[32] If the child is capable of forming views and communicating them, then generally, she should be allowed to express them in a judicial proceeding affecting her interests. In many cases, including high-conflict cases, the key issue will be the weight to be given to the child’s views in light of the child’s age and maturity and the other factors which inform the judicial assessment of a child’s best interests. In some cases the alienating behaviour of the parent “may be such that the child is not really capable of forming his or her own views”: there is nothing in the Answer, or the evidence on this motion, to lead to that conclusion in this case.

[33] In the circumstances, I find that a Voice of the Child report from BB, CC and DD with respect to access, residential schedule and travel would be of assistance to the Court. The parents have not agreed on a private party to conduct the report. I encourage the parties to reach an agreement. If not, I will name the assessor following submissions by the parties. The costs are to be shared equally by the parties.

Issue #3: Interim Spousal Support and Child Support

[34] I now turn to interim table child support, spousal support, and section 7 expenses, which require a determination of the income of both Akiva and Bilah.

[35] In accordance with the December, 2018 Order, Akiva has been paying uncharacterized support to Bilah in the amount of $15,874.00.

Bilah’s Income

[36] Bilah has not worked full time for some time. She worked at Baycrest as a physiotherapist part-time, approximately 10 years ago. She has not worked outside the home since. She states that since DD is currently attending school for half days, she cares for DD during the day four days a week, and for CC and DD most days after school. The older children are presently estranged from their mother, and Akiva looks after the older children.

[37] The husband seeks to impute income of $20,000 to Bilah. Bilah seeks to have no income imputed to her on the grounds that: (a) she looks after DD most days; and (b) she hopes eventually to return to school for a Bachelor’s Degree and work in the field of Recreation. However, she states she cannot afford to enroll in a post-secondary program. She submits that given that she left the workforce to accommodate the father’s employment and take on the role of stay-at-home mother and wife, at this time she is not able to earn income: Michalchuk v. Michalchuk, 2013 ONSC 5978 at para. 39; Dupuis v. Desrosiers, 2013 ONCJ 720 at paras. 85 and 100.

[38] Bilah was 38 at separation. In the two years since separation, she has taken no steps to either earn income or upgrade her skills. Given her young age, and the age of the children, intentional unemployment and self-sufficiency will be important issues at trial.

[39] Orders for interim support are based on a triable or prima facie case. An order for interim support is in the nature of a “holding order” for the purpose of maintaining the accustomed lifestyle pending trial: Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689 at para. 24.

[40] Given the traditional roles in the marriage that the parties assumed, Akiva’s role as the sole income earner, Bilah’s continuing role in the care of the two younger children, and the evidence that in the ten years before the parties separated Bilah did not work outside the home, I am not prepared at this time to impute employment income to her. The issue of Bilah’s imputed income will be determined at a trial where the court will have a complete evidentiary record.

[41] On this interim motion, given that I am setting this matter for a quick trial, I impute no income to Bilah.

Akiva’s Income

[42] On a temporary and without prejudice basis, Bilah proposes using Akiva’s income at $1,139,000.00 in accordance with his expert’s estimated 2018 income report. Akiva agrees for the purpose of interim support only that the 2018 income be used, without adjusting for a three year average pursuant to CSG, and without reduction for income over $350,000. However, he takes the position that income should be adjusted for the payment of section 7 expenses, discussed below.

Table Child Support

[43] On an interim basis, using Akiva’s 2018 income with no reductions or averaging, and with Akiva paying 100% of section 7 expenses, table child support payable to Bilah should be set at $13,945.00, subject to readjustment at trial.

Failure to Properly Calculate Income Available for Support: Divorcemate

[44] Bilah originally sought spousal support on the basis of Akiva’s income without taking into account the large section 7 expenses of the parties, where all four children are in private school or have tutors. She simply proposed that section 7 expenses be allocated proportionately after the amount of spousal support was determined on the basis of the Divorcemate calculations. She sought spousal support on a mid-range basis of $14,031, with an order that Akiva pay 85.2% of the children’s section 7 expenses.

[45] Akiva sought to include section 7 expenses prior to calculating spousal support and thus sought spousal support on the low end of the range of $2,906.00, with Akiva paying 100% of section 7 expenses. However, Akiva did not include tax deductions or credits claimed in relation to the section 7 expenses.

[46] Both approaches to the calculation of spousal support were clearly in error.

[47] The SSAG Revised User’s Guide clearly states that section 7 expenses must be included in calculating the SSAG range, as “by definition, any payment of section 7 expenses will reduce the range for amounts of spousal support”, and where “section 7 expenses are large, failure to consider section 7 expenses can be quite serious for the taxpayer.”: Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice Canada, 2016), p. 32.

[48] After the hearing, I wrote to the parties and requested additional submissions and additional Divorcemate calculations including both the special and extraordinary expenses and the related tax deductions or credits. I provided the parties with an article from the DivorceMate website, Christine Montgomery, “Special Expenses-To Include or Not Include? Common Mistakes/Misunderstandings Re: Special Expenses”, DivorceMate Software, June, 2016, and asked for their submissions. I apply the following principles as set out in the article:

• “In order to properly calculate spousal support under the SSAG, it is critical that any Special Expenses paid by the parties be included in the calculation. If the Special Expenses are not included, the spousal support figure will be inaccurate”,
• One of the most common mistakes relates to arrangements “where the parties determine child and spousal support in the absence of Special Expenses, and then simply provide that any Special Expenses will be shared according to percentages provided. In order to properly calculate spousal support under the SSAGs, it is critical that any special expenses paid by the parties be included in the calculations.”
• “The critical nature of the Special Expenses in determining spousal support stems from the direct connection that exists between child support (i.e. Table Amount plus Special Expenses) and spousal support in the “With Child Support” formulas of the SSAG (which include the “Custodial Payor” and “Adult Children” formulas). The more child support being paid, the less money the payor has available to pay spousal support, and the lower the spousal support range will be.”
• “Because Special Expenses are an important component of child support, if they are not included in the calculation, the child support will be underrepresented, and so spousal support will be higher than it should be. In other words, spousal support is determined based on the party’s reduced “after Special Expenses” income. If Special Expenses are not included in the calculation, they cannot be deducted from the party’s income, and so the spousal support obligations will be based on a higher income for the party than they should be.”
• “[T]he apportioning percentages for the Special Expenses provided at the bottom of each Scenario in the Support Scenario details will be accurate only if Special Expenses have been included in the calculation.”
• Associated tax deductions and tax credits must be included in the calculation in order to determine the net cost of the special expenses to be apportioned according to the Child Support Guidelines (“CSG”).

[49] Thus, in order to set interim spousal support based on the SSAGs, I must first decide on the allowable section 7 expenses.

What are the Section 7 expenses

[50] On an interim motion, the family’s spending pattern prior to separation is a key indicator of whether an expense is reasonable and necessary. I generally accept the section 7 expenses claimed by Akiva, subject to the following adjustments.

[51] Nanny: Akiva claims a nanny expense of $42,489, discounted by 25% to include housekeeping and non-child related tasks. The family relied on nannies to assist with child care prior to separation, and this is a child care expense incurred as a result of Akiva’s employment. The nanny provides childcare during the day, drives the children to activities and appointments (including picking up DD for lunch almost every day), and assists with special needs care. In addition, the two older children live with Akiva full time, and the two younger children are with him part-time the time. The proposed nanny cost has been reduced by 25% to account for any role in household maintenance, which I find to be a reasonable reduction.

[52] Bilah submits that she would permit Akiva to include the nanny expense if she could have a nanny too. However, section 7(1)(a) defines a section 7 expense to include “child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment.” Bilah is neither working nor attending school, and thus a nanny is not a justifiable s. 7 expense for Bilah.

[53] The line 214 tax deduction for child care relating to the nanny must also be included; Akiva claims $15,000.00.

[54] Massages: In the absence of agreement, this is not an allowable expense.

[55] Therapy: Bilah acknowledges that all the children have mental health issues, and that three of the four saw a therapist prior to separation. The therapy for one of the children was recommended by the school, and the estimated amount of $6,720 is lower than the ongoing cost of therapy. I accept the estimated costs of therapy for BB at $6,480 and AA at $1,650.

[56] Orthodontics: The estimate of $4,800 for two children over a year is reasonable.

[57] Tutoring: AA and BB relied heavily on tutors prior to separation, and this remains a reasonable and necessary expense on the evidence before me. The cost for BB of $12,000 is conservative, and given this family’s income and BB’s history, this is an allowable expense. AA is not attending school, and relies on full-time tutoring, and I accept the cost of $11,153.20. Bilah objects to the tutoring, seeking one hour a week. Given the history of the family, I do not agree on this interim motion that this is a reasonable position. I accept Akiva’s evidence on the continuation of tutoring in the summer and the cost.

[58] Tuition: The Applicant paid $52,975.50 for private religious school tuition in 2018, and will pay the same amount in 2019. The line 349 charitable tax donation of $16,146.90 must be included in the Divorcemate calculations.

[59] Summer camps: The Applicant is claiming $2,600, but has already paid $7,288.50 for camps. This is reasonable.

[60] Fitness: This fitness expense for AA includes both a gym membership and a personal trainer. Bilah objects to the personal trainer. For the purposes of the interim motion, she accepts the gym cost of $1,200.

[61] Hearing Aid: I accept Akiva’s estimate of $2,748.

[62] Non-recurring expenses: In 2018, Akiva paid $5,300 for a psycho-educational assessment. This is a non-recurring expense which may be claimed at trial, but should not be included for the prospective calculation.

[63] On a without prejudice basis, and subject to adjustment at trial, Akiva has consented to pay 100% of the children’s section 7 expenses to reduce the scope for conflict and I so order.

[64] As a result, Akiva is to pay 100% of the section 7 expenses set out above.

Spousal Support: Amount

[65] Bilah seeks an interim order for spousal support pursuant to s. 15.2(2) of the Divorce Act. Relevant factors to be considered are set out in s. 15.2(4) of the Act, and the objectives are set out in s. 15.4(6):

15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse.

15.2 (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse 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.

[66] In this case, rather than analyzing the contested evidence on means and needs, particularly the proposed budget of Bilah contrasted to the budget set out in her original Financial Statement, and each party’s evidence about competing debt, I turn to the SSAG’s. The Revised User’s Guide states on page 15:

The Advisory Guidelines are intended to apply to interim orders as well as final orders. The interim support setting is an ideal situation for the use of guidelines. There is a need for a quick, easily calculated amount, knowing that more precise adjustments can be made at trial. Traditionally, interim spousal support was based upon a needs-and-means analysis, assessed through budgets, current and proposed expenses, etc. All of that can be avoided with the SSAG formulas, apart from exceptional cases.

In D.R.M. v. R.B.M., 2006 BCSC 1921, Justice Martinson set out in detail the rationale for the application of the Advisory Guidelines to interim spousal support orders, concluding:

[19] They are a useful tool to have when determining interim spousal support. By focusing on income differences they provide a helpful measure of needs and means. Their use is consistent with the purposes of interim orders: to bridge the gap between the start of the litigation and the time when a resolution is reached at trial or by agreement; to avoid lengthy and costly interim litigation; to move the litigation to a timely resolution; and to reduce conflict

[67] I find that the SSAG’s in this case provide the best foundation for setting interim spousal support, where the father’s income is accepted by both parties for the purposes of interim support.

Range and Net Disposable Income

[68] Bilah seeks mid-range spousal support and submits that spousal support should be set at a range giving each family 50% of net disposable income. I do not agree, and find that spousal support at the low end of the SSAG range is appropriate for a number of reasons. First, the Revised User’s Guide is clear that the SSAGs are intended to apply to interim spousal support orders; there is no basis for readjusting the SSAG formula to 50% NDI on this motion. As it is, the NDI of the parties will not be too dissimilar (53% to 47%). Second, Akiva has sole responsibility for two of the four children, and the other two reside with him six out of 14 nights. He has significantly more childcare responsibilities and associated costs. Third, Bilah has not been paying child support for the two older children. Fourth, there is no reduction to child support for income over $150,000, or to spousal support for income over $350,000. The SSAG Revised User’s Guide states at page 57 that once the payor’s income is “far” above the ceiling, as is the case here, then the amount of support ordered will usually be below the low end of the SSAG range.

[69] Interim spousal support is set at the low end at $4,910 per month. This is based on the Divorcemate calculations provided to the parties with the following assumptions:

• No income is imputed to Bilah;
• The section 7 expenses claimed by Akiva except for massages, personal training and the psycho-educational report are included in the calculation, as well as the corresponding tax deductions and credits actually claimed by Akiva;
• Akiva pays 100% of the listed section 7 expenses, subject to adjustment at trial;
• There is no reduction of spousal support for income over $350,000;
• There is no 3-year averaging of Akiva’s income; and
• There is no reduction of child support for income over $150,000.

[70] If there are any issues regarding the Divorcemate calculation, either party shall raise calculation issues within 48 hours of receiving the endorsement.

Retroactive Claim

[71] Bilah left the home in February, 2018. Although she shared the home for which Akiva paid all expenses, her position is that she received nothing from March, 2017 to June, 2018. Commencing in June 2018 Bilah received $10,000 per month; in September she began receiving $12,500 per month, and since December, 2018, Bilah has received $15,874.00 per month. Both parties are in debt, although Akiva carries significantly more debt than Bilah.

[72] After the joint expert meeting which I ordered, the parties have come to an agreement which allows them to each withdraw $1,000,000.00 from trust funds. This will temporarily alleviate the financial pressure. As a result, and given that it is apparent from the evidence filed on these motions that the classification of post-separation payments and adjustments will be a complex issue at trial, I decline to deal with the retroactive support claim and direct that it be dealt with at trial.

Issue #4: Questioning

[73] The parties have leave to conduct questioning, one day each. If further time is required, this can be raised at the case conference.

Procedural Background and Directions

[74] This litigation began in 2017, and there is no trial date scheduled. For this one day motion, there was a Notice of Motion, Notice of Cross-Motion, and Amended Notice of Motion. The Respondent sought 28 orders and the Applicant sought 13 orders on a wide array of issues. Many of these issues were never case conferenced. The evidence comprises three volumes of the Continuing Record, including serial affidavits with improperly introduced exhibits. One day was insufficient to deal with all the matters raised. The day before the hearing I contacted counsel and indicated we would deal with seven key issues. As it turned out, there was not enough time to deal with even the truncated list I identified the day before the motion. On certain complex tax issues, I heard argument then directed the parties to meet jointly with their experts after the motion, and return before me in two weeks. After the joint meeting with experts, the parties resolved a number of tax and financial issues and I have made that order on consent.

[75] It was unrealistic for counsel to expect the court to deal with all the issues raised in one day. The primary objective of the Family Law Rules is to deal with cases justly, including by ensuring that the process is fair to all parties, and cases are dealt with expeditiously, cost-effectively, and proportionately. Accurately estimating the time required to argue motions is consistent with the primary objective, since it ensures that client resources are not thrown away drafting affidavits and researching case law on a plethora of issues that cannot be addressed in the time counsel propose for argument. Piling on motions and cross motions and amended motions and serial affidavits is antithetical to the primary objective. Case conferencing all issues prior to motions is an essential element of achieving a cost-effective and proportionate resolution of issues.

[76] What is important is getting this family to trial. By the next case conference, which is to be held before me, the parties are to timetable dates for outstanding disclosure, questioning, Bilah’s responding or critique expert report and Akiva’s reply expert report, the Voice of the Child reports, a settlement conference and a trial management conference, and any further steps required to take the parties to trial in early 2020. The requirements are set out in the Order below.

Costs

[77] If the parties are unable to settle costs, then the Applicant is to provide written costs submissions, 3 pages plus a Bill of Costs, by June 5, 2019, and the Respondent by June 12, 3 pages plus a Bill of Costs if the Respondent intends to take issue with quantum of fees, with Reply, if any, by June 14.

Order

[78] I order as follows, anonymized for the purposes of publication:

(1) On a temporary and without prejudice basis, and subject to readjustment at trial, the following expenses as set out in the Divorcemate calculations are special and/or extraordinary in accordance with section 7 of the Federal Child Support Guidelines:

(a) The children’s private school tuition; (b) The children’s medical and dental expenses, inclusive of therapy and orthodontics; (c) The children’s tutoring; (e) The children’s nanny; (f) The children’s summer camps; (g) AA’s gym membership; and (h) Any other expense agreed upon by the parties in writing.

(2) If either the Applicant or the Respondent incur additional section 7 expenses, they may seek reimbursement at trial.

(3) On a temporary and without prejudice basis, and subject to readjustment at trial, commencing April 1, 2019 the Applicant shall pay:

(a) 100% of the expenses listed in paragraph 1 herein, (b) $13,945.00 per month in table child support and, (c) $4,910.00 per month in spousal support,

(4) The Respondent’s request for a section 30 assessment is dismissed.

(5) The parties are to retain a mutually agreeable professional to conduct a Voice of the Child Report for the three youngest children forthwith, the costs to be shared equally.

(6) If the parties are unable to agree on the identity of a professional referred to in para. 5, then the parties are to make submissions in writing to me by June 7 with 2 names each plus CV and cost estimate, following which I will appoint such professional.

(7) If resident with the Applicant, the three younger children must be cared for by an adult over the age of 21 overnight, unless otherwise agreed to by the parties in writing. The Applicant is to advise the Respondent of the name of the adult who will be caring for the children in his absence, in writing, at least 24 hours in advance.

(8) Each party may question the other for up to one day, subject to extension on agreement or on application to me.

(9) The parties are to schedule a two-hour case conference before me, to be held before July 12, subject to the following requirements:

(a) at least 15 days in advance, the parties are to confer and exchange a list of all steps required to be taken between now and trial, with proposed dates for the completion of each step; (b) at least 8 days before the case conference, the parties are to submit to me a timetable, preferably on consent, listing all steps required to be taken before trial with dates for completion of each step; (c) with reference to all the outstanding relief sought in the motion/cross-motion/amended motion, the parties are to identify issues for which they believe a motion must be heard before trial, and provide that list to the other party and to me, at least 8 days before the case conference, with a realistic estimate of the amount of time each issue will take to argue on a motion, and a draft Order to be sought on the motion. Each outstanding issue will be case conferenced; (d) if it would be helpful to have the experts attend to discuss the outstanding disclosure request or other issues, then the parties should advise each other of this and book a case conference date when the experts are available; (e) the information listed above is sufficient and no case conference briefs are required, although each party must submit a confirmation form; (f) neither party can bring any motions without leave from me until the case conference is held, except that if a travel consent is required for specific travel planned to be taken with any of the children before the case conference and consent has been refused, then that motion is to be brought before me, and I will arrange to hear it before or after my normal list.

Kristjanson, J. Released Date: May 29, 2019