ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-14-1773
DATE: 2019/08/15
BETWEEN:
Maxwell Betancourt
Applicant
– and –
Cindy Rowe
Respondent
D. Siziba, for the Applicant
T. Deeth, for the Respondent
HEARD: November 26-30, 2018 and December 3-6, 2018
reasons for judgment
CORRECTED – page 15, paragraph 2 has been amended to read the 1st day of January 2019
McLEOD, J
Claims
[1] The Applicant (hereinafter referred to as “Maxwell”) seeks the following relief:
Spousal support (Maxwell has not clarified whether his spousal support claim is needs based or compensatory); and
Unjust enrichment and a finding of joint family venture.
[2] The Respondent (hereinafter referred to as “Cindy”) seeks the following relief:
- Child support;
a) retroactive;
b) ongoing; and
c) section 7 expenses.
A permanent restraining order; and
An order discharging the Certification of Pending Litigation registered against the property known municipally as “31 Dominy Drive, Ajax, Ontario”.
[3] Both parties asked the court to impute income to the other, pursuant to the Child Support Guidelines (OntReg 391/97 as amended).
[4] Maxwell asks the court to impute income to Cindy, for purposes of spousal support, in the amount of $150,000 per year from the date of separation (June 15th, 2013).
[5] Cindy asks the court to impute income to Maxwell, for the purpose of child support and s. 7’s, in the amount of $75,000 per annum from the date of separation.
[6] The parenting issues in this matter were resolved on a consent basis following the delivery of a s. 30 report completed pursuant to the CLRA, R.S.O 1990, c.C12, s. 30(9).
[7] The consent final order gives Cindy sole custody of the children and Maxwell supervised access.
Undisputed Facts
[8] The parties met in 1997 and commenced co-habitation in January 1998. They never married and have two children born of the relationship.
[9] The children are:
Alyssia (D.O.B. 2 June 2003); and
Miguel (D.O.B. 7 June 2007).
[10] The parties have separated on two occasions. The first was in July of 1998, six months after the commencement of co-habitation. On this occasion, Cindy was confronted by “Mary Rovos” who accused Cindy of having an affair with her husband, Maxwell. The parties reconciled and recommenced living together in September 1998.
[11] The second and final separation occurred on 15 June 2013. On this date, Maxwell was charged with the following criminal offences:
Assault with a weapon;
Assault causing bodily harm (x2); and
Choking.
[12] The alleged victim on these counts was Cindy.
[13] In addition, Maxwell was charged with assaulting the parties’ son, Miguel.
[14] Maxwell eventually pled guilty to one count of assault relating to Cindy and three counts of breaching his recognizance.
[15] In order to resolve the issues identified in these reasons, the court was required to go into an in-depth consideration of the issues relating to credibility. The credibility findings were particularly necessary, given the extreme differences in the narratives presented by both parties. Accordingly, a review of the law relating to credibility is necessary at this point.
The Law on Credibility
[16] In Deschenes v. Deschenes, Justice Perras set out some guidelines for determining credibility in family law cases.
a) The ability to consider inconsistencies and weaknesses in the witness’s evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.
b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.
c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 252 (BC CA), 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behavior.
d) It is possible to rely upon the demeanor of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, 2002 NSCA 99 ¶¶ 70-75).
e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H. 2005 253 (ON CA), [2005] O.J. No.39 (OCA) ¶¶ 51-56).
There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence. (See R. v. D.R. [1966] 2 S.C.R. 291 at ¶ 93 and R. v. J.H. supra).
(See: Deschenes v. Deschenes, [1990] O.J. No. 609.
[17] Recently in Dunford v. Hamill, 2018 ONSC 3421 (), Justice Jarvis cited Baker-Warren v. Denault and adopted the following observations on the assessment of a witness’ credibility at trial.
These include internal and external consistency of witness testimony with the testimony of other witnesses and the documentary evidence, motive, self-interest, clarity and logic of narrative, witness presentation (distinguishing candor from evasive or strategic testimony) and, to a lesser degree, witness demeanor. This list is not exhaustive. Assessing credibility is, in every respect, a holistic undertaking incapable of precise formulation.
[18] In Green v. Reed, Justice Baird made the following comments concerning credibility.
…and at the end of the day it is the trier of fact who makes findings on credibility within the context of the evidence as a whole, and this is not a scientific exercise. It arrives after due consideration of facts, the vested interest, the corroboration or lack thereof with respect to the allegations and statements of fact. And after considering the above and weighing the evidence, the trier or fact, in this case, the trial judge is the best independent person to make such a determination.
The credibility of a party or a witness is a slender thread which can be weakened or broken in an instant. A witness, while testifying, particularly in those cases where a finding of credibility is integral to the outcome, builds a relationship with the court, and that relationship starts with the pleadings, the pretrial motions, the theory or thesis advanced by counsel and finally, the testimony of the party and collateral witnesses.
(See: Green v. Reed, 2012 Carswell Ont).
Maxwell’s Credibility
[19] In addition to Maxwell, the only other witness called to support is case was Ms. Toussaint. No other corroborating evidence was provided to support his allegations. In fact, Ms. Toussaint did not support his allegations, but rather demonstrated that Maxwell earned more income following his hand injury than before.
[20] Maxwell acknowledged swearing financial statements that were, in fact, inaccurate as they related to his income and expenses.
[21] Maxwell failed to provide timely or complete financial disclosure.
[22] Maxwell played “hide and seek” during his cross-examination at trial. I observed the following testimony in support of this characterization:
Maxwell initially testified to having no post-secondary education. In cross-examination, he asserted that he had attended medical school in Venezuela. When pressed further, Maxwell testified that despite an absence of any medical training, he was permitted to “shadow” surgeons while they delivered medical services. This assertation is simply unbelievable.;
Maxwell testified that he was in the Venezuela military. When pressed, he altered his evidence to admit that he served only briefly following his graduation or lack thereof from high school (Maxwell tendered no documentary evidence to support this portion of his testimony).;
Maxwell denied ever assaulting Cindy (this despite his previous plea of guilty). When pressed, he agreed he assaulted Cindy on one occasion. Later in cross, he altered his evidence after being confronted with the testimony of Detective Constable Butt. Maxwell acknowledged that, in fact, he had assaulted Cindy on several occasions.;
Maxwell testified that he shut down his original home renovations business (Beautiful Image Design) because the name was “confusing to customers”. In cross, Maxwell testified that he closed the business down on the advice of his trustee in bankruptcy.
On the issue of bankruptcy, Maxwell agreed in cross-examination, that he counter signed any cheques payable to him or his company over to Cindy.
It was acknowledged by Maxwell in cross that by doing so he was shielding funds from his creditors, and further making it difficult for his former spouse “Mary Rovos” to obtain an accurate picture of what Maxwell’s income was for child support purposes.;
Maxwell submitted that following his hand injury, it was difficult to work, and his income dropped significantly. The scant disclosure provided by Maxwell demonstrates that, in fact, Maxwell was earning more income subsequent to his injury than was earned prior to the injury.;
Maxwell testified that he worked only for four identified companies. In cross-examination, and after being confronted with documentary evidence, Maxwell acknowledged working for both his mother and brother’s company.;
In cross-examination, Maxwell acknowledged work related deposits to bank accounts he failed to disclose prior to trial and never disclosed to Cindy.;
Maxwell gave misleading evidence in-chief on the issues of Cindy’s bank accounts. He indicated that he was never on Cindy’s accounts. In cross-examination, he acknowledged having open access to the accounts by virtue of a secondary bank card.;
Maxwell’s evidence as it relates to the “flipping” of a property known as 14 Bent Oak is also of concern. Maxwell misled the court as it related to the profit received on sale. He significantly understated the amount he received and only accepted the suggestion that he, in fact, received nine or ten times more than he had disclosed in-chief when he was confronted with bank statements. In addition, Maxwell testified that the profit on the flip was done for the benefit of the couples’ children. The $90,000 to $100,000 he received was, in fact, deposited to his own account, an account which he did not disclose to Cindy and an account which Cindy had no access to.
[23] The inconsistencies, the lack of corroborating evidence, lack of corroborating witnesses, failure to disclosure financial information, and the outright fabrications of evidence lead the court to the conclusion that Maxwell Betancourt is deceptive, manipulating, abusive, conniving, capable of criminal behaviour, and in almost every aspect of this case lacking in credibility.
Cindy’s Credibility
[24] By contrast, Cindy’s evidence is clear, concise, on point and corroborated both by witnesses and documentation. The witnesses called by Cindy included:
Neil Mathieson (accountant);
Ilana Tamari (clinician who delivered the s. 30(9) report under the CLRA);
Detective Constable Lindsay Butt (the officer called to testify about Maxwell’s charges); and
Evelyn Reid from Vine Group of Vine Valuation Inc. (witness testifying as to the incomes of the parties).
[25] I find that Cindy’s evidence was by and large unshaken in cross-examination. Likewise, the evidence of each of her supporting witnesses stood the test of cross-examination. I found those witnesses to be credible.
[26] Cindy was not aware that Maxwell continued in his adulteress relationships with other women during their period of co-habitation. It was only upon receipt of her credit card invoices that it became clear that Maxwell was continuing to meet up with his paramour in the Windsor/Sarnia area despite his advising Cindy that he was not otherwise engaged in such a relationship.
[27] I am satisfied on the evidence that Cindy was, in fact, assaulted on numerous occasions by Maxwell and that he did, in fact, assault the parties’ child Miguel.
[28] One of the troubling facts in this case is that on the eve of a Motion to Strike pleadings being argued, Cindy, through a company controlled by her issued a series of T4 forms to Maxwell. The T4 forms are found at Exhibit 78 (attached hereto).
[29] Cindy testified that she was advised during a CRA audit to issue the T4 forms to Maxwell setting out the taxable benefits for each of the years. Cindy did not, however, provide any corroborating evidence in this regard to demonstrate that she was in fact acting on CRA directives.
[30] In response to the issuance of the T4’s, Maxwell claims $150,000 as compensation for a tax liability. This claim was never set out in the pleadings and was advanced during the trial. In addition, Maxwell tendered no evidence as to the quantum of the liability. In cross-examination, Maxwell testified that he would take no steps to have the T4’s reviewed. No relief was originally sought. No evidence was tendered as to the quantum of a potential tax liability, and accordingly Maxwell has not satisfied his onus in demonstrating that such an order should be made in his favour.
The Facts as Found by This Court
[31] Cindy acknowledged in evidence that her version of the history of this relationship sounds “crazy”. Nonetheless, it was what Cindy believed in earnest. I have no reason to doubt her historical narrative. I find it to be accurate, save and except one point which will be identified later in these reasons.
[32] And now for the rest of the story…
[33] Two months following separation, Maxwell told Cindy that he was a member of the United States Secret Service and that he was working with the National Security Agency of the United States as a spy. Maxwell indicated that his responsibilities included espionage, infiltration, and assassination. He indicated that from time to time his responsibilities would require him to leave the area to fulfil his duties. On these occasions, Maxwell would depart the family home dressed in full military camouflage and carrying his” tools of the trade” (weapons, handcuffs, and identification pins).
[34] Maxwell disclosed to Cindy that he had a twin brother and that, in fact, his twin brother’s name was “Maxwell” who was also a member of the National Security Agency. The applicant told Cindy that his real name was “Manuel” Betancourt.
[35] The applicant advised that “Maxwell” (his twin brother) passed away while on mission and that the applicant (Manuel) stepped into his brother’s life and assumed his brother’s identity and from that point on went by the name of “Maxwell Betancourt.”
[36] The applicant, now known as Maxwell Betancourt, told Cindy that he did not advise Mary Rovos of these details and that he lived with Mary Rovos pretending to be her husband. Maxwell went further and told Cindy that Mary Rovos’ children (who would have been his nephews) were told that Maxwell was their father. Maxwell told Cindy that he assumed his brother’s identity in order to support his brother’s family. Maxwell told Cindy that she was never to discuss these details with anyone, even family, as it would put everyone’s safety in jeopardy.
[37] Of course, there was never a twin brother and the entire fabrication was done to take advantage of Cindy’s naivety and emotional frailty.
[38] Maxwell indicated that he double endorsed cheques over to Cindy’s accounts to “assist the family”. Nothing could be further from the truth. As previously noted, this process was taken by Maxwell to place funds out of reach of creditors and his spouse, Mary Rovos.
[39] Maxwell continued to operate bank accounts to which he made various deposits resulting from his renovation business. Cindy was not aware as to the existence of the accounts, nor the amounts deposited to those accounts.
Findings Regarding Maxwell’s Claims
Spousal Support
[40] Maxwell asks the court to impute income to Cindy in the sum of $150,000 since the date of separation. He provides no evidence to support this request. Cindy has never earned $150,000. The largest income she has earned has recently been as a result in her obtaining a new employment contract. That income is anticipated to be $105,000 per annum.
[41] In dealing with spousal support based upon a “needs” consideration, it is impossible to determine what Maxwell’s income was in the year leading up to separation and post-separation. As noted, none of his financial statements can be trusted, and he offered no evidence in this regard, other than his sworn financial statements which he indicated were clearly inaccurate.
[42] Maxwell’s sworn financial statements are, by his own admission, inaccurate. Maxwell does, however, swear that his expenses in June of 2016 amounted to slightly less than $25,800 (see Exhibit 29).
[43] The expert tendered by Cindy was Ms. Reid. She provided expert evidence as to what Maxwell’s income should be for support purposes. Ms. Reid noted that following separation and between the dates of October and December 2013, that Maxwell earned over $42,000 from his renovation services.
[44] The expert, Ms. Reid, testified that given the number of years that Maxwell has been in the renovation industry, the location in which Maxwell primarily completes his renovation work, and industry standards, Maxwell should be earning income between $80,000 and $100,000 per year.
[45] Despite the fact that Maxwell claims spousal support, the evidence does not support payment of spousal support to him based on a consideration of “needs and ability”, and accordingly, no spousal support will be paid under this analysis.
[46] Maxwell did not make a specific claim for compensatory support. I would not, in any event, grant it. There is no evidence tendered by Maxwell to indicate that he has sacrificed his career or employment opportunities by assuming a role in this relationship which required him to stay at home and provide child care. In fact, the evidence demonstrates the exact opposite. Maxwell continues to perform the tasks he performed when the couple met. He has suffered no income loss. It was Cindy, rather than Maxwell, that took time off to care for the children. It is very clear that the management of household tasks also fell on Cindy’s shoulders, and as a result Maxwell has failed to provide sufficient evidence to satisfy his claim for compensatory spousal support.
Unjust Enrichment and a Joint Family Venture
[47] In order to substantiate a claim for unjust enrichment, three factors must be demonstrated.
One of the spouses received an enrichment;
The other spouse suffered a deprivation or loss because of the enrichment; and
That there was no juristic reason for the enrichment.
See: Kerr v. Baranow, 2011 SCC 10.
[48] Maxwell’s evidence on the issue of unjust enrichment was that he had performed renovations on properties owned by Cindy. He provided no evidence, other than his own testimony, as to what these renovations would cost. I note, once again, that Maxwell failed to provide any disclosure on this issue. He simply stated at trial that he estimates his work to be worth $100,000. No backup documentation was provided, and given Maxwell’s total lack of credibility, I do not accept this submission.
[49] It is true that Maxwell did countersign some cheques and deposited them to accounts controlled by Cindy. However, it is to be recalled that all day-to-day living expenses were paid by Cindy, and in considering all those factors, it appears that Maxwell clearly contributed less than he ought to have, if there was to be a mutual effort to assist the parties and their children. I do not find that Cindy received an enrichment. Further, I do not find that Maxwell had been deprived or suffered a loss.
[50] Maxwell did indicate that he suffered a loss as a result of his failure to maintain possession of a work-related van and his tools. Again, Maxwell’s evidence on this issue lacks credibility. In fact, Maxwell was provided the van following separation and he returned the van to Cindy after an accident. Maxwell’s tools were stored in a storage facility for his retrieval. He has taken no steps to obtain them. As I have found that there has been no enrichment by Cindy, nor deprivation suffered by Maxwell, the claim for unjust enrichment is dismissed.
[51] The case of Kerr v. Baranow, 2011 SCC 10 sets out the factors to be considered in order to determine whether or not the parties were involved in a joint family venture. Those factors are:
Mutual effort;
Economical integration;
Actual intent; and
Priority of the family.
[52] On the issue of “mutual effort”, I note that Maxwell maintained hidden bank accounts to which he made secret deposits. His relationship with Cindy was perpetuated upon a series of intricate lies and frauds. In short, there was nothing “mutual” at all.
[53] Cindy carried the load with respect to ensuring that the family’s finances were kept in check. Cindy was always gainfully employed, even during the time when she was a student at the University of Toronto where she worked at two separate part-time jobs. She has overcome significant personal tragedy and managed to carve out a comfortable standard of living, while all the time maintaining full responsibility for both of the parties’ children. Maxwell provided little to no care for the children.
[54] This court is not prepared to make a finding of mutual effort.
[55] On the issue of “economic integration”, I rely upon the previous findings of fact I have made. The family’s financial resources were not pooled, and although Maxwell did countersign cheques that were deposited to Cindy’s bank account, he continued to maintain undisclosed bank accounts for his own benefit.
[56] Maxwell’s submission that “all” of the money he had received by way of insurance proceeds or earnings were used for family purposes is a sham and completely devoid of the truth. Maxwell paid for hotel rooms in Sarnia or Niagara Falls and purchased gifts and jewellery from his own bank accounts and those of Cindy for purposes which do not demonstrate economic reintegration.
[57] On the issue of actual intent, it would be unconscionable to indicate that the intent of these parties was to demonstrate a common purpose. Cindy’s conduct throughout this relationship is clearly a direct result of the emotional and physical abuse she suffered at the hands of Maxwell and his continued deceptions.
[58] Finally, on the issue of “priority of the family”, there is little to say, save and except that Maxwell gave this family no priority. Maxwell suffered no sacrifice of a career to benefit his family. In fact, the undisputed facts are that he victimized Cindy and, given my finding in this matter, victimized Miguel. Accordingly, Maxwell’s claims based upon joint family venture are dismissed.
Findings Regarding Cindy’s Claims
[59] Cindy asks the court to impute income to Maxwell pursuant to s. 19(1)(a) or 19(1)(f). Those sections provide as follows:
The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse; (f) the parent or spouse has failed to provide income information when under a legal obligation to do so;
[60] With respect to the considerations falling under subsection 19(1)(a), and given the lack of credibility and/or complete disclosure on the part of Maxwell, it is difficult to determine whether or not he has intentionally underemployed himself.
[61] It is clear that Maxwell asserts that he continues to work on a full-time basis. The evidence, however, reveals that in the past Maxwell has deposited revenue from employment into undisclosed bank accounts.
[62] The factors to be considered in determining whether or not an individual is intentionally underemployed include age, education, experience, skills and the health of the individual, availability of job opportunities and the hourly rate that the individual could reasonably expect to obtain. See: Drygala v. Pauli, 2002 41868 (ON CA), 2002 61 O.R. (3d) 711, an Ontario Court of Appeal decision.
[63] The only factor which Maxwell submitted impacted his ability to work was that of his health. In particular, the injuries he sustained to his hand in 2006. Maxwell called no independent evidence nor did he submit medical reports to substantiate that he was limited in working as a result of these injuries.
[64] As previously set out, Maxwell’s income was in fact greater following his injury than before. It would appear therefore that there is no reason why Maxwell would be earning less than an individual of similar age, education and experience.
[65] Evelyn Reid was called as an expert on the issue of income valuation. She did an analysis on Maxwell’s income. Ms. Reid testified that despite numerous court orders, Maxwell either ignored or only partially satisfied the request for information that Ms. Reid needed. The missing information was detailed at length in Ms. Reid’s report. In this regard, I draw an adverse inference given Maxwell’s failure to provide necessary income information while under an obligation to do so.
[66] Information provided from Maxwell indicated that from time to time he charged at least $175 per hour for his working time. Based on an average work week, this could have generated annual gross income well in excess of $150,000 per year.
[67] Ms. Reid considered all of the relevant factors as set out in Drygala and concluded after considering industry standards, average income of workers in a similar field with similar skills and experience working in the same area, that Maxwell’s income should be somewhere between $80,000 to $100,000 per year. In Cindy’s closing submissions, her counsel requested that Maxwell’s income be imputed to the sum of $75,000 per year.
[68] Ms. Reid’s position was not placed in doubt by cross-examination.
[69] I accept Ms. Reid’s evidence on this point, and in accordance with Cindy’s closing submissions, impute income to Maxwell in the sum of $75,000. This income will be used in determining child support retroactive to the date of separation. After imputing $75,000/year income to Maxwell, the adjusted arrears based upon what Maxwell should have paid and did pay are set out on the document identified as Schedule 1 hereto. Taking into account changes in the Spousal Support Guidelines in 2017, the total adjusted arrears owing by Maxwell Betancourt as of December 31st, 2018 is $56,759 (see Schedule 1).
[70] Cindy also seeks contribution to s. 7 expenses. Most of the items claimed are entirely reasonable. However, s. 7(f) deals with extraordinary expenses for extracurricular activities. Subsection 7(1.1) defines extraordinary expenses as follows:
In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(f) extraordinary expenses for extracurricular activities.
[71] Section 7(2) deals with proportionality in sharing expenses.
[72] Under subsection (3) and (4), the court is to take into account subsidies, benefits, income tax deductions, credits relating to the expense, eligibility to claim subsidy benefit or income tax deduction.
[73] The extraordinary extracurricular expenses relating to the children range on an annual basis between $10,000 to $15,000. The expenses relate primarily to swimming and soccer. Both children have been encouraged to participate in these activities and do so at a high level of skill. It is to be noted that Cindy has paid these expenses to date from her own resources and those financial resources which she has been able to utilize through the generosity of other family members.
[74] I am prepared to order contribution by Maxwell to the 2013 extra curricular expenditures because those activities had been entered into while the parties were together and Maxwell should be required to contribute to them.
[75] I am not prepared to order contribution to the extraordinary extracurricular activities as they relate to soccer and swimming for the years 2014, 2015, 2016 and 2017 for the reasons I have previously stated as I am not persuaded that the financial resources available at that time would be sufficient to cover these costs.
[76] On a go forward basis (commencing January 1st, 2018), I am ordering that Maxwell will contribute to s. 7 expenses which will include the extraordinary extracurricular activities of swimming and soccer. Contribution to those expenses will be based upon Cindy’s income of $105,000 and Maxwell’s imputed income of $75,000 (or 42%).
[77] With respect to the 2018 s. 7 expenses, Cindy is to submit to Maxwell an accounting of the s. 7 expenses claimed (which is inclusive of swimming and soccer) within 45 days hereof. Maxwell’s contribution to these expenses will be proportionate to the percentages previously set out for 2018.
[78] Maxwell’s contribution to s. 7 expenses for 2018 is also to be fixed as arrears following the delivery of documentation from Cindy to Maxwell. In the event of a dispute on this issue, the matter may be returned to myself for clarification and a determination as to the arrears relating to 2018.
[79] On a go forward basis, commencing January 1st, 2019, Cindy shall provide to Maxwell a formal accounting of s. 7 expenses by the 31st day of March each year commencing March 31st, 2020.
[80] Maxwell shall contribute the sum of $400 per month towards the s. 7 expenses commencing the 1st day of September 2019 and continuing on the first day of each month thereafter.
[81] A formal accounting of the annual s. 7 expenses incurred will occur by the 31st of March each year starting March 31st, 2020.
[82] Given the ages of these children, Maxwell is to secure his child support payment by way of a life insurance policy, the beneficiary of whom shall be named to be Cindy, in trust for the children. The policy is to be in the amount of $175,000.
The Permanent Restraining Order
[83] Cindy seeks a restraining order on a permanent basis as against Maxwell. The onus is upon Cindy to demonstrate that such an order is necessary based on the balance of probabilities. See: Kahra v. McManus, 2007 ONCJ 223.
[84] Cindy was abused emotionally and physically throughout the course of this relationship. Maxwell pled guilty to an assault upon Cindy. Maxwell has indicated to Cindy that he is a member of the Special Ops Force and capable of assassinating people. Despite the fact that there have been no recent acts of violence, I find that the request for a continuing restraining order is appropriate. Cindy was subjected to a pattern of continued violence which included at least three instances where Maxwell had beaten her into unconsciousness and choked her. In addition, Maxwell previously threatened Cindy’s life while holding a knife to her throat.
[85] It is my view that the restraining order should continue for a period of three years from the date of this judgment. Cindy is further granted leave to seek a further continuance of the restraining order 60 days before its termination.
[86] The restraining order shall issue preventing any and all direct or indirect contact between the applicant and respondent, save and except through counsel, and further save and except as it pertains to communications relating specifically to the children. In this regard, the communications are to be pursuant to Our Family Wizard or a similar communication app.
[87] Accordingly, an order will go as follows:
An order for retroactive child support payments in the sum of $56,759 (based upon imputed income to Maxwell in the sum of $75,000 per year) from date of separation, up to and including, December 31st, 2018;
Ongoing child support for the children Alyssia Betancourt (D.O.B. June 2, 2013) and Miguel Betancourt (D.O.B. June 7, 2007) based upon imputed income to Maxwell of not less than $75,000 per year payable at a rate of $1,139 per month commencing on the 1st day of January 2019 and continuing on the first day of each month thereafter;
On a go forward basis (commencing January 1st, 2018), an order that Maxwell will contribute to s. 7 expenses which will include the extraordinary extracurricular activities of swimming and soccer. Contribution to those expenses will be based upon Cindy’s income of $105,000 and Maxwell’s imputed income of $75,000 (or 42%).
With respect to the 2018 s. 7 expenses, Cindy is to submit to Maxwell an accounting of the s. 7 expenses claimed (which is inclusive of swimming and soccer) within 45 days hereof. Maxwell’s contribution to these expenses will be proportionate to the percentages previously set out for 2018.
Maxwell’s contribution to s. 7 expenses for 2018 is also to be fixed as arrears following the delivery of documentation from Cindy to Maxwell. In the event of a dispute on this issue, the matter may be returned to myself for clarification and a determination as to the arrears relating to 2018.
On a go forward basis, commencing January 1st, 2019, Cindy shall provide to Maxwell a formal accounting of s. 7 expenses by the 31st day of March each year commencing March 31st, 2020.
Maxwell shall contribute the sum of $400 per month towards the s. 7 expenses commencing the 1st day of September 2019 and continuing on the first day of each month thereafter.
An order for retroactive s. 7 expense contributions in the amount of $28,476 up to and including December 31st, 2017 (see Schedule 2);
Support Deduction Order to issue on the above;
It is ordered that Maxwell shall secure his child support obligations naming the children as irrevocable beneficiaries of a policy of life insurance in the minimum amount of $175,000. The policy proceeds are to be held by Cindy in trust for the children;
It is ordered that Maxwell will maintain the children on any policy of extended health, dental, drug coverage that he may have available to him through his employment for as long as the children are entitled to receive child support;
Further order to go discharging the Certificate of Pending Litigation registered against 31 Dominy Drive, Ajax, Ontario;
Further order to go that Maxwell shall be restrained from having any direct or indirect contact with Cindy, save and except through counsel or through Our Family Wizard or similar communication app, provided that such communications are specifically child-centred, for a period of three years from the date of this judgment. In addition, Maxwell will be restrained from attending within 500 metres of Cindy’s home, place of business or place of worship, for a period of three years from the date of this judgment;
Cindy has leave to seek a continuation of the restraining order provided she do so on notice, a minimum of 60 days prior to the order terminating.
On the issue of costs, within 30 days hereof, the parties are to exchange three page summaries with respect to their submissions on costs. Attached thereto can be any relevant offers to settle, along with the bills of costs being sought;
Within 45 days hereof, counsel may file a two-page written response to opposing counsel’s initial cost submissions.
McLeod, J
Released: August 15, 2019