Court File and Parties

COURT FILE NO.: FS-18-001432 DATE: 20190612 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Marie Cel Ramirez Albanez, Applicant – and – Noel Samuda, Respondent

Counsel: Sarah Young/Jason Goodman, for the Applicant Rose Faddoul, Agent for the Respondent

HEARD: June 4, 2019

C. Gilmore, J.

Ruling on Motion

Overview

[1] This is the applicant’s motion for interim child support. Specifically, she seeks the following orders;

a. An order that the respondent pay interim child support based on an imputed income of $200,000 per annum;

b. An order that the respondent contribute $170 per month towards the child’s daycare and swimming lessons and 82% of other agreed upon s.7 expenses, such agreement not to be unreasonably withheld;

c. An order that the respondent provide life insurance as security for the payment of support with a face value of no less than $320,000;

d. An order that the respondent provide any outstanding undertakings within 14 days failing which his pleadings shall be struck;

e. An order for the disclosure from Xpress Technology Group (“XTG”) or Xpress Financial Services (“Xpress Financial”) as set out in paragraph 7 of the Amended Notice of Motion dated April 12, 2019. If the said disclosure is not in the possession of the respondent, he shall request it from Michael Daley and if the disclosure is not in the possession of Mr. Daley, the disclosure order to be binding on XTG and Xpress Financial;

f. An order for questioning of Michael Daley upon receipt of the disclosure in paragraph 7 of the Amended Notice of Motion;

g. An order that the respondent pay the costs of the previous Case Conferences and Settlement Conferences in this proceeding on a full recovery basis in the amount of $22,003; and

h. Costs of this motion.

[2] The parties had a short relationship and have not been together since January 2017. They have one child, namely Z.S. born May 17, 2017.

[3] In June 2018, the respondent consented to paying child support of $540 per month based on his reported income of $58,000 in 2018. The support commenced June 28, 2018. He also agreed to pay retroactive support of $2,780 for the period of May 2017 to May 2018. Both payments were without prejudice to the applicant’s ability to seek increased retroactive and ongoing support.

[4] The retroactive support was payable pending the outcome of a paternity test requested by the respondent. When that test proved he was father, he agreed to pay a further $10,000 in uncharacterized retroactive support/s.7 expenses payable at the rate of $1,000 per month commencing April 1, 2019. He has made three payments. His current monthly support payment is therefore $1,540. This payment was also agreed to without prejudice to either party arguing at trial that the amount was an over/underpayment of retroactive support and s.7 expenses. The respondent is current with those payments.

[5] The respondent was also ordered to make a payment of $5,000 “on account of child support” by May 1, 2019 at a Case Conference on April 25, 2019. He has made that payment.

[6] This case has a complex litigation history given that the application was only issued in March 2018. There have been four Case Conferences and this motion was adjourned twice. The respondent paid total costs of $4,300 as a result of late adjournment requests.

[7] Disclosure remains a major issue in this case. The respondent submits he has provided everything in his possession. The applicant maintains that significant disclosure is outstanding.

[8] The respondent is currently unemployed, suffers from several medical conditions and is in receipt of disability payments. He claims he is unable to pay support based on an imputed income of $200,000. The applicant claims that the respondent is hiding income, is deliberately unemployed, has lied about the sale of his business and failed to disclose relevant income information. She submits that failing to impute income to the respondent would endorse his attempt to use the family court system to financially abuse her.

The Position of the Applicant

[9] The parties had a brief relationship. When the applicant learned she was pregnant, the respondent insisted she get an abortion. When she would not agree, the respondent became distant. The applicant deposed that the respondent was verbally and physically abusive during the relationship.

[10] The child was born in May 2017. It is not disputed that the applicant has been the child’s primary caregiver since birth. Access was initially supervised but the respondent currently has seven hours of unsupervised access once per week based on an agreement between counsel.

[11] The applicant works for the Bank of Montreal as a Commercial Services Specialist. She deposed that she worked as an office manager for the respondent during their relationship. The respondent disputes that the applicant ever had any such role at XTG. In response, the applicant has provided photographs, text messages and emails showing her involvement with XTG.

[12] The applicant submitted that throughout their relationship she worked a full time job at the bank and worked for XTG during her lunch breaks at work and often during the evenings. The applicant’s evidence was that she fulfilled a variety of administrative duties for the respondent as well as on site physical labour on weekends.

[13] According to the applicant, the respondent worked as an elevator repair technician and operated his lending company Xpress Financial until at least January 2019. The applicant submits that respondent’s position that he was an employee of these companies, which were owned by his friend Michael Daley, was simply a ruse to allow him to avoid his disclosure obligations.

[14] The respondent incorporated XTG in 2006 and transferred it to Mr. Daley in 2012 for no material consideration. However, in reality it was Mr. Daley who was employed by the respondent and took instructions from him on work sites. It was the respondent who made all of the decisions for XTG and Xpress Financial which he ran out of his house on Evans Avenue in Toronto. Throughout the relationship the respondent told the applicant and the public that he was the owner of XTG and Xpress Financial. Mr. Daley’s affidavit does not corroborate the respondent’s position that he was an employee of XTG and Xpress Financial.

[15] The applicant points to certain evidence which would support her contention that the respondent owned XTG and Xpress Financial including:

a. the XTG logo is on the respondent’s truck;

b. his personal cell number was the number for XTG;

c. his cell phone, gas and auto repairs were paid for by XTG;

d. his LinkedIn and Facebook profiles showed him as the President of XTG and Xpress Financial;

e. the applicant was paid by the respondent when she worked there and not by Mr. Daley;

f. the respondent had signing authority on the XTG bank account;

g. the respondent charged food and drink expenses on his personal credit card, paid them from the XTG account and wrote them off as business expenses;

h. the respondent kept and used the Aeroplan points generated by the use of the XTG business credit card;

i. the respondent’s personal accounts show very little personal expenditures which is consistent with the applicant’s position that many of those expenses were paid by XTG; and

j. XTG’s bank statements were mailed to the respondent’s home on Evans Avenue.

[16] Further, the respondent was never “fired” from XTG in January 2019. This was also orchestrated as is the litany of medical issues which have arisen only since the application was issued (and after his alleged “firing” from XTG).

[17] The applicant has many complaints about the conduct of the respondent during this proceeding including the following:

a. He attended the first Case Conference in June 2018 without a complete Financial Statement. The one he served in May 2018 did not include any assets or debts.

b. The respondent raised the issue of the child’s paternity at the first Case Conference which the applicant submits undermined the entire conference. Subsequent testing confirmed that the child is the respondent’s.

c. The respondent agreed to produce certain disclosure by June 22, 2018. A significant portion of this disclosure had not been delivered by the next conference in August 2018.

d. The respondent attended the January 2019 conference without having answered his undertakings given at his questioning on November 13, 2018. On April 25, 2019 the respondent consented to an order that he would answer all of his undertakings and provide the disclosure in paragraph 7 of the applicant’s Amended Notice of Motion within 14 days. Many of the items remain outstanding as per the disclosure charts filed by the applicant as exhibits to her affidavits. Many of the answers to undertakings were not provided until May 2019.

e. Mr. Daley has filed an affidavit and indicated a willingness to provide the disclosure requested but has asked for clarity from the respondent’s counsel as to what was outstanding. He has not received a response.

f. The respondent told the applicant’s counsel that he had kept all the texts exchanged by the parties during the relationship. He disclosed a small number of texts despite his undertaking to disclose all the texts in his possession. In his affidavit of May 14, 2019 affidavit he provided text messages from the applicant that he had not previously disclosed. Those text messages portrayed the applicant in a negative light.

g. The respondent withdrew $270,000 from his line of credit on July 19, 2017 and then fully repaid this amount on March 8, 2018. No information has been provided by the respondent as where the funds to repay the line of credit came from.

h. The respondent withdrew at total of $377,000 from the same line of credit in May 2018. On Questioning, the respondent said he could not recall what the withdrawals related to. Six months later, the respondent deposed that the withdrawals related to a loan to his brother Everton. There is no evidence of such a loan, nor does it appear in the respondent’s Financial Statement sworn June 21, 2018.

i. During the relationship the respondent sold a property owned by his holding company 2354546 Ontario Ltd. However, the company is not listed in his Financial Statement nor has any disclosure been provided for this company.

j. The respondent provided a summary of his bank accounts and credit cards, past and current. That list shows a total of eight undisclosed accounts. As the applicant worked in the respondent’s business, she was able to locate in her own records copies of limited records for three other credit cards and one business bank account which were also not disclosed by respondent. The business bank account alone shows deposits of $850,000 over four months. This is inconsistent with the gross revenues of XTG in its 2016 corporate financial statement and supports the applicant’s contention that the respondent did not declare all of his income.

[18] With respect to his lifestyle, the applicant submits the following based on answers given at the respondent’s questioning. The respondent was paid $58,500 per year by XTG. He was paid this amount in cash until the applicant started this proceeding. He put his cash income into a safe in his home.

[19] The respondent stated during questioning that he advised XTG’s accountant which expenses were personal and those were deducted from his pay however there was no evidence of any such accounting procedure.

[20] The respondent claimed that he could rent out or sell his home on Evans Avenue but chose to keep it available for his adult daughter for whom he owns the home in trust. However, he was unable to say when his daughter was last in Canada and how long she stayed. In her reply affidavit, the applicant provided evidence that the respondent continues to rent out the Evans Avenue home on AirBnB in his name.

[21] The 2017 financial statement for XTG shows corporate pre-tax income of $49,942.

[22] The respondent’s personal bank accounts show significant deposits between January 2015 to July 2018, but the respondent’s evidence at Questioning was that none of this money was his pay.

[23] The applicant is aware from working in the respondent’s business that the business would generate about $25,000 per month in contract work plus other jobs. There was also income from Xpress Financial. The respondent bragged during the relationship that he was worth $4.5 million.

[24] The respondent owns the Evans Avenue property and another property in Mississauga (“Stanfield”) in which he now lives. He has virtually no debt. He has extensively renovated the basement at Stanfield which could be rented out. The applicant suspects he is renting it out as she says many cars are parked there when she attends for access pick up/drop offs.

[25] The respondent claims he was terminated from XTG in January 2019 because he refused to update some maintenance contracts. However, the termination letter from XTG’s accountant provides no explanation for the termination. In February 2019 the respondent alleged that he was medically unable to return to work. In May 2019 the respondent alleged he was terminated from XTG because of its impending sale.

[26] The applicant requests that the court reject the medical evidence provided by the respondent from his doctors. The notes from his family doctor and Dr. El-Saidi appear to be restatements of what the respondent has told them. Further, the respondent’s May 2019 affidavit indicates that his stress, anxiety and insomnia started in November 2018. However, no mention of those symptoms was made until after the applicant brought this motion. Dr. Alam’s note says that the symptoms started in February 2019.

[27] The respondent’s position is that the medical evidence proffered by the respondent is untestable and it should not be admitted. Further, the medical evidence does not meet the requirements for either expert or participant expert evidence. Dr. Alam’s statement that the respondent is “medically unfit for any employment job at this time” contains no basis for his opinion, nor is there evidence that Dr. Alam has the expertise to assess the respondent’s employment capacity.

[28] The applicant requests that the court impute income of $200,000 to the respondent on the basis of the employment income he declared from XTG, imputation of rental income from both of his properties and large sums of money moving in and out of the respondent’s bank accounts. As well, an adverse inference should be drawn with respect to the respondent’s non-disclosure and bad faith conduct.

[29] The applicant is in need of support and a contribution to s.7 expenses. The respondent is significantly underpaying support based on his lifestyle and assets. He has constructed his unemployment and attempted to bolster it with letters from family doctor who is a friend. He has deliberately divested himself of his business so that he can distance himself from that source of income. He is also deliberately not generating available income from his properties or failing to disclose such income (such as the AirBnB rental of Evans).

The Position of the Respondent

[30] The respondent sets out his issues as follows:

a. He is willing to obtain a life insurance policy to secure support with a face value of $100,000 but questions why a face value of $320,000 is required;

b. Income should not be imputed to him while he is receiving disability income and is incapable of working.

c. The respondent is willing to pay his share of s.7 expenses based on his disability income.

d. The respondent has complied with his disclosure obligations and if he has not, will do so within 14 days.

e. There is no need to question Mr. Daley as all relevant documents have been disclosed.

[31] The respondent has been put to great expense and emotional turmoil as a result of the applicant’s fabricated and exaggerated claims. The respondent denies that the parties ever lived together, that the applicant was an employee of XTG, that he owns XTG, that he abused or assaulted the applicant in any way, or that he lives an extravagant lifestyle. He currently receives EI disability income of $25,584. There is no basis to impute income to him of $200,000.

[32] The applicant is not in financial distress. She has a stable job, and has travelled with the child to Los Angeles and Regina within the last year. She is now receiving $1,540 per month by of a payment of ongoing and retroactive support.

[33] The respondent denies that the parties lived together. They had a purely sexual relationship for about a year which ended in September 2016.

[34] The respondent worked for OTIS elevator from December 2004 to February 2014 when his union membership was terminated. In January 2015 he was hired by his friend Michael Daley at his company XTG.

[35] The respondent did have significant authority at XTG but he did not arrange his affairs to avoid child support. XTG was transferred to Mr. Daley in 2012, long before the parties met. In April 2019 XTG was sold to a new owner for $100,000. The respondent was terminated from his job at XTG in January 2019 due to the impending sale of the company and the loss of a major account. With XTG’s authority, the respondent charged company expenses to his personal credit card for which was reimbursed. Mr. Daley also permitted him to use the accumulated credit card points. XTG did not have a formal bookkeeping system. The respondent’s personal expenses charged to the corporate card were deducted from his pay.

[36] The respondent does not live an affluent lifestyle. He has managed to accumulate a home through hard work. The renovations in his basement were to ensure that the child had a safe place to play, not for rental purposes. In any event, the respondent does not have the required municipal approvals to rent out his basement. The respondent does own one expensive watch which was gifted to him by the applicant. He owns two cars both of which are over 10 years old and not worth more than $8,000 combined.

[37] Like the applicant, the respondent made certain statements during heated text exchanges. Specifically, his statement that he owned $4.5 million in assets was said in the heat of the moment during an argument and is entirely untrue.

[38] The respondent’s daughter is the beneficial owner of the home on Evans Avenue. Her ownership interest is subject to a trust agreement signed in 2011. Any rental income from Evans Avenue belongs to the respondent’s daughter.

[39] The applicant never had a significant role with XTG. She worked there solely to pay off a debt she owed to the respondent. The applicant had her own condominium and the respondent was dating other women during the short time that the applicant was involved with XTG.

[40] The applicant logged into the respondent’s online profiles to create a false public image of his financial status.

[41] The applicant has failed to provide the court with a true picture of her personality. The respondent provided texts from the applicant which she sent to him during their relationship. Samples of the texts are as follows:

It’s best for him not to be around him. You are not a good example for the kid.

One day you will be sick in bed and nobody will care. One day you will be in jail pervert…continue what you’re doing.

I’m richer than you…I can buy your house double the price.with all my properties in phils [Philippines]…you haven’t seen my houses.

Z. will have a better father and it’s not you….Just let the boy go. You will save money if you just leave us alone. You will never win. Everything is all taken care of.

[42] The respondent took these texts as physical and real threats to cut him out of his child’s life. The applicant submitted that these texts were never disclosed to her by way of the respondent’s undertaking. Further, they are cut and pasted with large sections left out. Finally, many of the things she said in the texts were in response to provocation by the respondent.

[43] The respondent is unfit for work due to stress, anxiety, insomnia, nightmares, low self-esteem and panic attacks. Dr. El-Saidi diagnosed him as having a Major Depressive Disorder. His depression and associated symptoms were brought on by the applicant’s vicious and malicious fabrications and his termination from XTG.

The Issues and Analysis

[44] The issues in this case are straightforward:

a. Should income be imputed to the respondent and if so, how much?

b. How much life insurance should be in place given the respondent’s support obligations?

c. Has the respondent complied with his disclosure obligations?

d. Should the applicant be permitted to question Mr. Daley?

e. Should the respondent be required to pay the costs of Case Conferences and Settlement Conferences in this matter?

Issue One - Should Income be Imputed to the Respondent?

[45] Section 19(1) of the Child Support Guidelines permits the court to impute income to a party under circumstances which include the following:

a. The spouse is intentionally underemployed or unemployed, other than where the underemployment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

b. It appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

c. The spouse’s property is not reasonably utilized to generate income;

d. The spouse has failed to provide income information when under a legal obligation to do so; and

e. The spouse unreasonable deducts expenses from income.

[46] The respondent claims he is medically unfit to work. Clearly he has provided medical evidence sufficient to receive EI disability benefits. He blames his current unemployment status on a confluence of events including his termination from XTG, some physical health issues and some mental health issues arising because of what he claims are malicious allegations made against him in this case.

[47] The respondent has provided doctor’s notes from both his family physician and his psychiatrist. The applicant suggests that no weight be given to those notes because the court cannot rely on the truth of their contents. Neither doctor has complied with the requirements to give expert evidence, nor are they participant experts. The respondent argues that the doctors need not be either. This is evidence on an interim motion which is admissible. The court need only decide what weight to give the evidence.

[48] I have reviewed the letter from Dr. Alam dated March 19, 2019 attached as Exhibit “E” to the respondent’s May 14, 2019 affidavit. It is written in point form and comes to the bald conclusion that the respondent is medically unfit to work. There is no information was to what tests or examinations Dr. Alam performed or what expertise Dr. Alam has to give this opinion.

[49] The note from psychiatrist El-Saidi dated April 6, 2019 is also puzzling. It notes that the respondent is alert, well groomed, has insight and that his blood work is unremarkable. It also notes that he is sad, crying and preoccupied with his son. From this, the psychiatrist concludes that the respondent suffers from a severe major depressive order. Like Dr. Alam, there is no information as to what testing was done on the respondent to come to this significant conclusion.

[50] There is no evidence that prior to this proceeding, the respondent had any significant physical or mental health issues. While he may be “preoccupied” with his son, he has been having unsupervised access and is seeking joint custody. At his questioning, he was confident he could work with the applicant as a joint parent.

[51] The respondent is clearly upset by this litigation and the allegations being made against him. However, the effect is a situational one. That is, I infer that once this matter is concluded the respondent will be able to return to his work as a skilled elevator technician. The sooner this occurs the better.

[52] The applicant requests that I impute income to the respondent based on a number of factors including his access to cash, capital and even income from XTG. XTG has now been sold by Mr. Daley. It is not clear that the respondent has any existing ties to that business. The respondent denies that he does. The applicant submits that the Mr. Daley was never the real owner of the business in the first place and that the respondent has always been the controlling mind of XTG no matter who the owner may be on paper.

[53] The applicant submits that the respondent is underutilizing his properties. He should and likely is already renting out his basement at Stanfield. Like so many issues on this file, the evidence is completely contradictory. The respondent says he renovated the basement at Stanfield so the child would have a safe place to play. The applicant says that the respondent put in a bathroom and kitchen in the basement which would seem to be substantial renovations for a playroom. Further, she observes cars at Stanfield when she goes to drop off or pick up the child that are not the respondents. She submits he is actually renting out Stanfield and hiding the income. The applicant submits that $1,000 per month of rental income from Stanfield should be imputed to the respondent.

[54] As for the Evans Avenue property, there is some evidence that raises concerns about the respondent’s credibility. First, he claims the property is not being rented out yet the applicant was easily able to find it listed on AirBnB with comments from renters from as recently as May 2019. Second, the respondent’s evidence about having to keep the property available for his daughter simply did not make sense. His lack of knowledge of his daughter’s whereabouts or when she uses the Evans property rang hollow. His answers during Questioning on this subject were evasive and bordering on nonsensical. The applicant requests that the court impute income of $3,000 per month to the respondent for the rental of Evans Avenue.

[55] The applicant requests that the court impute income to the respondent because he has failed to provide proper and timely disclosure and the disclosure he has provided raises more questions than it answers. The respondent claims he gave all of the required disclosure to his two previous counsel but he now realizes that they did not take the necessary steps to provide the disclosure to opposing counsel. He did not wish to waive privilege concerning exactly what advice he was given by his previous counsel, but suffice it to say that he claims he was given advice that resulted in him failing to provide proper financial statements and timely disclosure.

[56] This position taken by the respondent is problematic for the court as it removes all responsibility from the respondent without the possibility of receiving any real explanation for the missing documents and deadlines.

[57] The applicant also submits that the respondent’s lifestyle is inconsistent with his claimed income. She points to large deposits to into his personal bank account in 2017 ($457,000), and the respondent paying off his line of credit ($270,000) without providing any information as to where he obtained the funds to pay this large amount. His evidence concerning loans owing to his brother should be rejected since there were no documents to substantiate this nor were any such loans disclosed in his financial statement.

[58] I agree with the applicant that many of the explanations given by the respondent about his personal financial circumstances were contradictory and uncorroborated. Income should be imputed to him for the following reasons:

a. His medical issues are, for the most part, tied to this case. This ruling will provide the respondent with the clarity and certainty he needs to focus on becoming re-employed. The barrage of affidavits will hopefully stop and he can move on with his life.

b. The respondent’s link to XGT and the role he played with that company is in question. While he no longer works there and the company has been sold, there are questions raised by the disclosure that remain outstanding including;

i. Does the respondent retain ties to the operation or income of the business?

ii. Was his termination from the business orchestrated once he became aware that disclosure was required and would reveal that the financial statements did not align with the money flowing through the bank accounts?

iii. Was he the directing mind of the business while maintaining that he was simply an employee?

iv. Can his initial failure to provide disclosure be tied solely to his former counsel or was the failure a more deliberate one?

[59] The respondent’s credibility has been damaged in relation to his position on the Evans Avenue home. His responses at questioning regarding his daughter’s control of that property were not tenable. His insistence that the property was not generating income while all the while being actively operated as an AirBnB is concerning.

[60] There were many unanswered questions about deposits into and payments from the respondent’s personal bank account.

[61] Income cannot be imputed to a party without there being sufficient evidence to ground an amount to impute. The amount sought by the applicant is significant. When asked, the applicant’s counsel could not provide an exact breakdown of how she arrived at $200,000 for the correct number. Understanding that the imputation of income is not an exact science, and at the same time referencing the amount to real evidence, I find that the respondent is capable of earning what he earned when he was at XTG, that is, the grossed up equivalent of $58,500.

[62] This amount represents about three times what he says he is receiving now by way of disability income. If I am wrong, the trial judge is not precluded from adjusting this number retroactively based on further evidence available at trial. The result of imputing income to the respondent at this level is a support payment of $700 per month. This amount should be payable as of June 1, 2019 and he must continue paying the retroactive support as agreed. Based on the applicant’s 2018 income of $36,329, section 7 expenses would be shared 67% by the respondent and 33% by the applicant.

Life Insurance to Secure Support

[63] The applicant seeks life insurance to insure the respondent’s support obligation pursuant to s.12 of the Child Support Guidelines. The respondent has already purchased a policy with a face value of $100,000. The applicant seeks to have this increased to $320,000.

[64] This ruling relates only to temporary support. A trial judge will be in a better position to determine what income should be used for support in the longer term. The proper amount of life insurance can be determined at that time. For now, the $100,000 policy should remain in place.

Disclosure

[65] During the course of the motion, the respondent’s counsel agreed to provide the disclosure set out in paragraph 7 of the applicant’s Amended Notice of Motion. This disclosure should be produced within 30 days.

[66] So long as the disclosure is produced as ordered, there would be no reason for Questioning of Mr. Daley.

Costs of the Previous Conferences

[67] In her endorsement of March 27, 2019, Goodman, J. permitted the applicant to pursue her costs of the conferences to date in this matter.

[68] The applicant relies on Rule 24(7) and (8) which permits the court to award costs where a party is not properly prepared to deal with the issues at that step which contributes to that step being unproductive. As well, if a party acts in bad faith, the court may order costs on a full recovery basis.

[69] The applicant submits that the respondent has attended conferences without updated or complete Financial Statements. He has breached disclosure orders and attended conferences without having fulfilled his undertakings. He undermined the effectiveness of the first Case Conference by raising the issue of paternity at the last minute.

[70] The respondent submits that the amount sought for costs of the conferences ($22,003) is excessive and unreasonable. The Bill of Costs provided by the applicant lacks sufficient detail and makes it impossible to assess the reasonableness of the costs sought.

[71] In response to the applicant’s specific allegations the respondent advised the court that his counsel did not ask him to prepare a Financial Statement for the first conference. He had provided numerous documents and undertakings to his counsel and was assured they would be delivered. When they were not, the respondent was not even aware he was in breach of the disclosure orders.

[72] The respondent submits that the conferences were productive in that they resulted in agreements on both ongoing and retroactive child support. The respondent reminds the court that the applicant was unreasonable in her demands for supervised access, her deliberate efforts to undermine the respondent’s parenting time with the child and refusal to expand parenting time.

[73] This has been a highly contentious case from the beginning. The respondent refuses to admit the parties cohabited and he initially denied paternity. There was an assault allegation, supervised access and numerous allegations regarding the respondent’s attempts to hide income. For his part, the respondent alleges he was effectively “set up” by the applicant who was jealous of his lifestyle and the fact that he had relationships with other women. This motion for temporary support took several hours to argue because of the history of blame between these parties.

[74] I agree that costs of the conferences should be fixed but the recipient of those costs should be determined by the trial judge based on determinations made at trial. This court is not in a position to make such findings based on the polarized positions of the parties.

[75] I have made no order with respect to the treatment of the $5,000 support payment ordered by Stewart, J. and now paid. Given that the respondent is current with his obligations and the issue of retroactive support and s.7 expenses has been settled, he is free to argue at trial that that amount should be credited towards future support payments.

Orders

[76] The respondent shall pay temporary child support of $700 per month commencing June 1, 2019 for the child Z.S. born May 17, 2017. Support is payable based on an imputed income to the respondent of $74,977 being the grossed up amount from the respondent’s previous cash income of $58,500.

[77] The parties shall share the cost of daycare and swimming with the applicant paying 33% and the respondent 67% of those expenses. Any further s.7 expenses must be shared in he same proportion and agreed upon by the parties, such agreement not to be unreasonably withheld.

[78] The respondent shall continue to maintain his current life insurance policy for the child without prejudice to the applicant arguing at trial that the face value of the policy should be increased.

[79] The costs of the four conferences held in this matter to date shall be fixed at $10,000. The trial judge may apportion those costs as he/she sees fit.

[80] The respondent shall produce the disclosure sought in paragraph 7 of the applicant’s Amended Notice of Motion and all unanswered undertakings within 30 days. If he fails to do so, the applicant may pursue Questioning of Mr. Daley.

Costs

[81] The applicant seeks full indemnity costs of $24,000 plus HST. She submits that it should not have taken over two months to have this motion heard. Her counsel was required to prepare twice and update her factum as a result. Further, the respondent has acted in bad faith and used the family law process to exhaust her both emotionally and financially.

[82] The respondent’s counsel advised that the two adjournment requests were her own due to other court commitments and a lack of time to prepare proper responding materials. The respondent already paid his costs thrown away for those adjournments. The respondent submits that the applicant has been overreaching and unreasonable in her demands. Finally, the respondent should not be penalized in relation to disclosure issues which he had presumed were fully resolved. The respondent seeks $20,000 in costs inclusive of disbursements and HST.

[83] Both parties served Offers to Settle. The applicant’s Offer of April 8, 2019 complies with the Rules. The applicant offered to receive support of $1,107 per month based on an imputed income of $125,000 per year plus a $150 per month contribution towards daycare and swimming lessons. The respondent to pay 74% of other agreed upon s.7 expenses, such agreement not to be unreasonably withheld.

[84] The applicant also offered to accept a life insurance policy to insure support with a face value of $250,000, and a commitment to produce all unanswered undertakings within 14 days and the disclosure in paragraph 7 of her Amended Notice of Motion within 30 days. The respondent to pay costs of the previous conferences in the amount of $12,000 within 30 days and the request to question Mr. Daley to be dismissed without prejudice to the applicant pursuing that questioning in future.

[85] The respondent served an Offer to Settle dated March 8, 2019. That Offer also complied with the Rules. He offered to pay ongoing temporary child support of $540 per month commencing April 1, 2019 to be reviewed upon him securing employment. The respondent also offered to contribute $75 per month towards daycare and swimming.

[86] The applicant had some success on the support issues in this motion. Her success in other areas was limited. No costs for the conferences were awarded to her although the quantum was fixed. No change in the life insurance policy was ordered. The respondent consented to providing the outstanding disclosure and undertakings (albeit during the motion).

[87] The costs of this motion must reflect the applicant’s success but reflective of the fact that income far below $200,000 was imputed. The costs award should also be proportional to her lack of success on other issues. Therefore, the respondent to forthwith pay the applicant the sum of $5,000 for the costs of this motion inclusive of HST and disbursements.

C. Gilmore, J.

Released: June 12, 2019

COURT FILE NO.: FS-18-001432 DATE: 20190612 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Marie Cel Ramirez Albanez, Applicant – and – Noel Samuda, Respondent

REASONS FOR JUDGMENT C. Gilmore, J.

Released: June 12, 2019