Toula Atis v. George Atis
NEWMARKET COURT FILE NO.: FC-13-42604-00
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Toula Atis, Applicant
AND:
George Atis, Respondent
BEFORE: The Honourable Mr. Justice R. Kaufman
COUNSEL: R. Halpern/S. Boyle, Counsel for the Applicant
Respondent – Acting In Person
HEARD: July 16 and August 7, 2019
ruling on motion
1Rule 14 of the Family Law Rules, O.Reg. 114/99, as am. (“rules”) provides for motions for temporary orders. Generally speaking, the moving party serves the Notice of Motion and supporting affidavit. The responding party serves a responding affidavit and the moving party then files a reply affidavit. The matter then proceeds on the designated date with submissions expected to be completed within one hour which is also designed to allow the Motion Judge to consider the argument and render a decision.
2Occasionally parties determine, in advance, that one hour will be insufficient to argue their interim motion. In cases such as these, a long motion date is requested, and time allocated by the trial coordinator, as requested, and the parties serve and file their materials in accordance with the relevant Practice Direction. Generally speaking, that requires the moving party to deliver materials 30 days prior to the scheduled event and file a Confirmation 7 days prior to the Hearing.
3Subrule 2(2) of the rules provides that the primary objective of these rules is to enable the court to deal with cases justly. This includes ensuring that the procedure is fair to all parties, saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity and giving appropriate resources to the case while taking into account of the need to give resources to other cases.
4Subrule 2(4) requires the court to apply these rules to promote the primary objective and the parties and their lawyers are required to help the court to promote the primary objective.
5Notwithstanding the contents of the rules and the filing requirements, all designed to give effect to the primary objectives, occasionally litigants determine that their litigation needs take precedence. This is such a case.
6If there is a level of litigation that has risen (or perhaps sunk) beyond a description of high conflict, this is such a case.
Recent Litigation
7On December 18, 2018, the applicant brought an urgent motion, dated December 4, 2018 and the respondent, in response, brought an urgent cross-motion dated December 13, 2018. Each party relied upon one affidavit. The Endorsement of the court described the situation within the matrimonial home as unpleasant but not urgent. The parties agreed to remain in the home pending a Case Conference and a motion on the issue of exclusive possession. A term of their consent provided for each party to have exclusive possession of parts of the matrimonial home.
8The Case Conference occurred on January 11, 2019. The Settlement Conference was scheduled for June 3, 2019. A term of a Consent entered on January 11 referenced the possible appointment of a joint Chartered Business Valuator to value the respondent’s income for support purposes.
9The applicant’s next Notice of Motion was returnable on March 26, 2019 and was brought, on notice, on an emergency basis. In total, 3 more affidavits were filed. The motion was adjourned to April 17, 2019. As a term of the adjournment, the court granted the applicant temporary exclusive possession of the matrimonial home, on a without prejudice basis, pending the return of the motion.
10On March 29, 2019 Justice Douglas conducted a further Case Conference by telephone. An Endorsement states that some progress was made on outstanding issues and that a narrowing of issues to be argued on April 17 was likely. The Endorsement also commended the parties for exploring options to avoid unnecessary litigation.
11On March 26, 2019 the applicant filed her Notice of Motion and her Amended Notice of Motion, both returnable on April 17, 2019. On April 10, 2019 the respondent filed his Notice of Motion returnable on April 17, 2019. In total, 5 affidavits were filed by the parties in addition to the 5 affidavits referred to above.
12On April 17, 2019 the scheduled one-hour Motion was addressed by Justice McGee. The respondent was represented by counsel. The Endorsement of the Court states that the respondent’s Motion would exceed the allotted one hour. The Court also noted that the applicant’s Motion created confusion because substantial claims were lined out while indicating, in brackets, that those lined-out issues would be argued that day. The court Endorsement states:
The parties are at a crossroads but there is no clarity regarding relief that can be obtained on a one-hour motion. Today I fear that the chaotic presentation is a strategy and that what the court permits, it promotes.
The court adjourned both Motions to June 19, 2019 and permitted updated affidavits to be filed.
13On May 10, 2019 the applicant filed a further Amended Notice of Motion. In total, a further 11 affidavits were filed with the Court prior to the return of the adjourned Motion. As such, on June 19 this Court had 21 affidavits before it that were referenced in the materials.
14On June 19, 2019 the parties appeared before this Court. The respondent was then acting in person. The parties entered a Consent Order requiring them to both respond to a list of documentary items. In respect of the respondent, the items were marked as “outstanding, partially answered with refusal or invalid or refused” and in respect of the applicant, the items were marked as “deficient/outstanding or to be determined”. As part of the Consent Order, the respondent was permitted to file another affidavit not to exceed 8 pages in response to the applicant’s June 14, 2019 affidavit, addressing the issues of imputation, income analysis and interim child and spousal support. The applicant was permitted to file a responding affidavit in response to the same issues. Leave was given to the parties to file Amended Factums restricted to the same 4 issues. The motion was adjourned to July 16, 2019 for a full-day Hearing.
15On July 16, 2019 the argument of the respective Motions proceeded but could not be completed. At 5:00 P.M., the balance of the argument was adjourned to August 7, 2019 for one-half day, commencing at 9:30 A.M.
16At 5:10 P.M. on August 7, 2019, the Hearing was concluded. The parties were required to file a 3-page summary on the issue of imputation with reference to the materials already before the Court.
17Before addressing the submissions of the parties, it would appear relevant to note the oft-cited decision of Ierullo v. Ierullo, 2006 33301 (ON CA), [2006] O.J. 3912 (OCA) which stands for the proposition that substantial relief cannot be granted based on competing affidavits of the parties. In such instances a trial preceded by full financial disclosure is required to resolve credibility issues.
Background
18By way of background, the parties met in 1992 and were married in 1994. They have three sons, aged 22, 21, and 14. The eldest is currently not in school. The middle child is enrolled in his third year at Brock University, living away from home when at school but otherwise returning home, and the youngest is in grade 8. The parties initially separated for a brief period in January 2013, reconciled in March of that year and then separated in June 2018.
19By profession, the applicant has previously been employed in the banking industry and the respondent as a self-employed business lawyer.
20At the time of the first separation, the respondent faced criminal charges of uttering death threats that were subsequently withdrawn upon reconciliation. Since the most recent separation, the respondent has faced several reports to the police. At least one of these reports has resulted in criminal charges of public mischief which were withdrawn by the Crown Attorney, without prejudice to the respondent’s rights to take action against the applicant and the York Regional Police. At the time of being charged, the respondent was required to sign a Police Undertaking prohibiting him from returning to or residing in the matrimonial home.
Relief sought
21In his original Notice of Motion dated April 8, 2019, the respondent sought ten areas of relief. In his Factum presented to the court on July 16, the respondent narrowed his requests to the following seven areas of relief:
(i) An extension of the applicant’s temporary exclusive possession of the matrimonial home situated at 5 Lawrie Road, Thornhill, Ontario subject to the applicant assuming responsibility for all expenses pertaining to the matrimonial home pending its sale and further subject to the respondent being granted access to the matrimonial home at least three days prior to the sale for inspection and removal of the furniture in the respondent’s law office contained within the home;
(ii) An order listing for sale the matrimonial home subject to terms as to the choice of listing agent, the listing price, the duration of the listing agreement, choice of real estate lawyer and the distribution of the net proceeds of sale;
(iii) An order for sale of the Condominium property situated at 30 Roehampton Avenue, Suite 911, Toronto (“Roe Condo”) subject to terms as to the choice of listing agent, the listing price, choice of real estate lawyer and the distribution of net proceeds of sale;1
(iv) An order prohibiting the applicant from encumbering, transferring, selling or otherwise dissipating any interest in the Condominium known municipally as 1 Yorkville Avenue, Suite 3002, Toronto. (“Yorkville Condo”);
(v) An order that the applicant provide to the respondent specified items of personal property including clothing, watch winders, and the contents of the respondent’s night table. In addition, that the respondent be entitled to access his law office and the basement storage room to pack and remove his personal property and legal keepsakes and that the parties be entitled to video record the removal of the respondent’s personal property to prevent any disputes;
(vi) An order preserving the parties’ valuable artwork and furnishings located in the matrimonial home;2 and
(vii) An order allowing for the attendance of the respondent and a personal security guard at the matrimonial home every twenty days, on no less than 24 hours written notice for the purpose of video recording that the parties’ art collection and furnishings had not been damaged, dissipated or removed by the applicant.3
22In his Factum filed on June 17, 2019, in advance of the return of the Motion on June 19, the respondent raises the following four procedural issues:
(i) The applicant failed to file her Confirmation and Offer to Settle and, as such, her Motion should be vacated and adjourned to a later date;
(ii) The applicant served and filed an Amended Motion dated May 10, 2019 which is not properly before the Court and should not be considered on the June 19 Motion date;
(iii) The applicant’s May 10 Motion includes requests for new Orders requesting spousal and child support based on new allegations which are not properly before the Court and should not be considered; and
(iv) The applicant’s May 10, 2019 affidavit refers to a “without prejudice” letter written by the respondent to the applicant’s father which should not be considered by the Court. The respondent also requests that the applicant and/or her counsel be sanctioned for the inclusion of this letter.
23This Court will address these issues to enable the Record to be complete although they are somewhat moot considering the arguments received and subsequent materials filed by both parties. The arguments raised in subparagraphs 1-3 of the preceding paragraph are dismissed. Adjourning motions to a later date, in this case, is not a tenable suggestion and would add to the expense and delay of the case and time consumption otherwise available to other cases requesting court appearances. Both parties have, seemingly as of right, walked documents into Court on the day of the Hearing. This Court has already addressed its concern about the multiple documents placed before it. The respondent has also not shown prejudice in these documents being considered and has had ample opportunity to respond. The final issue appears to be a valid concern at least for the purposes of this Motion. The contents of the letter have not been considered by this Court and, in any event, are not relevant to the issues to be decided.
24On the return date of the adjourned Motion on August 7, 2019, the respondent requested further relief in which he requested Orders requiring the applicant to produce outstanding disclosure as reflected in an attached schedule and requesting that the applicant’s Motion requesting both child and spousal support be stayed based on his inability to pay.
25In her original Notice of Motion dated March 18, 2019, the applicant sought nine areas of relief. In her Amended Notice of Motion dated May 10, 2019, the applicant sought the following relief:
(i) A temporary order granting the applicant exclusive possession of the matrimonial home and its contents;
(ii) A restraining order prohibiting the respondent from harassing, annoying or communicating with the applicant or from being within 300 meters of the applicant;
(iii) A temporary order granting the applicant custody of the youngest child, then 14 years of age;
(iv) Pending full financial disclosure from the respondent, an order that the respondent pay to the applicant his 50% share of the household expenses estimated to be in the sum of $4,500 per month per party without prejudice to the applicant seeking retroactive child and spousal support upon receipt of full financial disclosure;
(v) An order that should the respondent not have produced all the financial disclosure sought in the applicant’s Request for Information served February 15, 2019, the Court should impute the respondent with an income in the sum of $500,000 and for an order for monthly child support in the sum of $6787 and monthly spousal support in the sum of $10,698;
(vi) Should the respondent have provided his complete financial disclosure by May 15, 2019 (as ordered), then he should pay both child and spousal support based on the Child Support Guidelines and the Spousal Support Guidelines;
(vii) An order that the closing of the sale of the matrimonial home occur no sooner than June 30, 2019 and that one-half of the net proceeds of sale be retained by the parties’ real estate lawyer and each of the parties receive one-quarter of the net proceeds of sale;
(viii) An order requiring the respondent to preserve and not dissipate or deplete any property, asset or chattel associated or present within the matrimonial home in which either party or child may have an interest;
(ix) An order requiring the respondent to retain a Certified Business Valuator for the purpose of determining his income available for support commencing two years prior to separation to the present and the value of his business interests at the date of separation and all relevant years; and
(x) If required, an order for the respondent to produce outstanding disclosure as set out in an appended Schedule to the Notice of Motion.
Temporary relief granted
26Following partial argument of the Motions before the court on July 16, 2019, there were several temporary Orders granted both on the court’s initiative and on consent. Those Orders are repeated here for conciseness as they relate to issues placed before the court.
(i) The jointly-owned art collection located at the former matrimonial home shall be preserved pursuant to section 12 of the Family Law Act (“FLA”).4
(ii) Upon the applicant being notified that an occupancy permit is available for the Yorkville Condo, the applicant, through counsel, will notify the respondent as to the extent of indebtedness required to be incurred to complete the purchase of the property. If the respondent is not in agreement with the extent of financing required by the applicant, the respondent may bring a motion before the court.
(iii) The parties are at liberty to amend their pleadings; the applicant within 60 days and the respondent within 70 days (calculated from July 16, 2019).
(iv) A mutual disclosure Order was granted requiring both parties to produce letters from RBC, TD-Canada Trust, BMO, Scotia Bank, CIBC, National Bank and Tangerine to produce a client profile from 2012 to the present detailing accounts held solely or with others, currently open or previously closed. The production shall also include active and inactive closed accounts, loans and credit facilities both of a personal and professional nature.
(v) The respondent shall be allowed to attend at the matrimonial home at a date and time to be coordinated with counsel for the applicant to retrieve his clothes and watch winders, his possessions from the master ensuite washroom and nightstand and to inspect his office, the nanny’s room and the garage and to take photographs of these areas. The respondent shall attend in the presence of a police officer and shall be accompanied by a security guard as his witness. The applicant may be present in the company of a friend who shall be identified and agreed upon beforehand. The attendance was to occur prior to August 7, 2019. The children were not to be present at the home during the attendance.
Analysis of Remaining issues
Custody of Thomas (aged 14)
27The applicant seeks a temporary order granting her custody of Thomas, the youngest child. She alleges that the child fears his father. Much of this fear is attributed to the respondent’s relationship with Thomas’ older two brothers. Evidence supports the respondent telling one child that “he is like a bad debt and being written off”. This child has allegedly been referred to as a cancer. He has been told that “he is like a bad poker hand” and that his father wanted nothing to do with him. This child was ousted from the matrimonial home on Christmas Day over allegations that he had absconded with his father’s possessions. The respondent was upset with this son regarding a BMW vehicle entrusted to the son which was forfeited to the Government for non-payment of fines.
28Further evidence reflects the respondent’s concern over the other child’s use of marijuana and the respondent’s concerns over the child’s usage of a Mercedes-Benz entrusted to the child for his own use but registered in the respondent’s name for insurance purposes. Evidence indicates that when the child did not return the vehicle within the time stipulated by the respondent that the respondent enlisted the police to confiscate the vehicle.
29The applicant comments upon Thomas having his own cell phone and the ability to contact his father whenever he pleases. She also states that she has encouraged Thomas to spend time with his father and to allow his father to drive him to hockey to no avail. Yet in the same breath she comments about her fear for the safety of herself and her sons and the respondent’s refusal to give Thomas some space. She states that a 13-year-old child should not be forced into the company of a parent if he is refusing due to discomfort.
30The respondent indicates that he enjoyed a wonderful relationship with Thomas until January 24, 2019 coinciding with the respondent’s arrest on the public mischief charge. He believes that notwithstanding the early withdrawal of the charges that Thomas has been poisoned into believing that his father is a criminal who was arrested for doing something bad to the child’s mother and brother.
31The respondent maintains that it would be in Thomas’ best interests to reside with him, in his rental accommodation, until both of Thomas’ parents are able to secure permanent, independent residences. He believes that Thomas is safest with him and that the child’s safety is compromised because the applicant does not cook or clean for herself and subjects the child to second hand smoke while smoking marijuana within the home together with her other son. The respondent requests this Court to take judicial notice that the chemicals from marijuana may have a permanent, deleterious effect on Thomas’ brain.
32The respondent maintains a level of confidence that the fullness of time will repair his relationship with all three of his sons. He states that the same passage of time will allow Thomas to appreciate that his mother and brother had no right to poison him with lies that turned him against his father. He also relies upon support letters from other individuals in support of his belief that Thomas is being negatively influenced against his father by unknown others. These letters also purport to support the respondent as being the more-involved parent in Thomas’ extracurricular events. These letters are not signed under oath. It is also unknown to this Court if these individuals have been made privy to all the allegations raised in these proceedings concerning the children or if they have reviewed the correspondence authored by the respondent to his sons. Accordingly, this Court gives little weight to these letters.
33The respondent also attests to his belief that the applicant orchestrated the interactions between the respondent and the two older boys by first, asking for the respondent’s help in dealing with the older two children’s problems and then portraying her need to defend her sons from their father’s aggressive behaviour.
Determination of Issue
34In his Motions and Factums filed with the Court regarding the Court appearances on June 17 and July 16, 2019, the respondent makes no requests regarding Thomas’ custody. His Motion originally before the Court on April 17, 2019 sought an Order for the appointment of the Office of the Children’s Lawyer (“OCL”) pursuant to section 30 of the Children’s Law Reform Act5 and section 112 of the Courts of Justice Act6 which may include the appointment of counsel for the child and/or a Voice of the Child Report. In the alternative the respondent sought an Order for an assessment, presumably under the legislation allowing for such relief.
35The applicant, as noted seeks a temporary Order for custody of the youngest child, Thomas. Since separation, Thomas has resided in the day-to-day care and control of the applicant.
36This Court is most concerned with the correspondence which is attributed to the respondent and sent by him to his older two sons. Thomas is at an age where he has likely been impacted by the severe breakdown in the father/son relationship regarding his siblings. If the respondent is of the opinion that the passage of time will repair his relationship with his children, he is urged to obtain a knowledgeable second opinion.
37The Court is also concerned with the applicant’s contrary views; on one hand she claims to be supportive of Thomas contacting his father and on the other hand, she is of the belief that a 13-year-old child is entitled to his own views. Whereas the Court gives weight to the views of a child of this age, neither the Court nor the parent should abdicate its decision-making regarding the termination of a child/parent relationship.
38There is no need for a custodial Order at this stage of the proceeding. The parties have spent the past year in aggressive litigation without the need of such Order. The child will maintain his principal residence with the applicant who shall continue to be responsible for the child’s day to day care and control. Pending further Court Order, the child shall be at liberty to initiate contact with his father. The father shall not be precluded in contacting the child by electronic means. Copies of any electronic exchanges shall be preserved for future scrutiny. There shall be no Order restricting the father from contact with Thomas, but he is encouraged to await the requested involvement of the OCL.
39Both parents shall be entitled to receive information regarding Thomas from his school and from those attending to his medical and dental needs. The respondent shall also be entitled to receive schedules of school and extracurricular events and to attend same. His attendance at school events shall be coordinated with the applicant’s legal counsel to ensure that the parents have separate appointments wherever offered by the school. His attendance at extracurricular events shall be coordinated to ensure that if the applicant is present on one side of the playing field/arena, the respondent shall not be present on the same side. If there is only seating on one side of the hockey arena, the first parent in attendance shall take a position on one side of the red line and the other parent shall not attend on that side. If the respondent requires a meeting with school personnel, it shall be scheduled after school hours when Thomas is unlikely to be present.
40There are certainly clinical issues present in this case that would justify a psychological assessment under the prevailing legislation. This Court does not possess the attributes necessary to understand the dynamics of the parental relationship and how that negatively impacts their parenting abilities in meeting the needs of Thomas. However, the expense, which neither party can apparently afford and the ensuing delay in achieving a trial date mitigates against such an Order.
41This Court will replicate the Consent Order granted by Justice McGee on April 17, 2019 and request the involvement of the OCL. My Judicial Assistant will provide me with the requisite Order. The parties shall be notified upon the Order being submitted by the Court to the OCL and shall ensure that their Intake Forms are submitted on a timely basis. This Court does not accept the request to the OCL to accept this appointment as moot notwithstanding its’ earlier rejection.
Listing for sale of the matrimonial home and incidents of sale including temporary exclusive possession
42In his Motion the respondent requests that the matrimonial home situated at 5 Lawrie Road, Thornhill, be listed for sale subject to terms as to the choice of listing agent, the listing price, the duration of the listing agreement, choice of real estate lawyer and the distribution of the net proceeds of sale.
43The respondent states that there have been at least six separate instances where the applicant consented to the sale of the home. There have been offers extended but not accepted by the applicant.
44In one affidavit, the respondent seeks exclusive possession of the matrimonial home pending sale to enable him to salvage his law practice. In his Factum dated June 17, 2019, the respondent argues that neither of the two prior Orders extending the applicant’s temporary exclusive possession of the home considered the impact to his law practice amongst other concerns. In other sworn documents he appears content that the applicant maintains exclusive possession of the home pending its sale provided that the carrying costs are shared equally and provided that his law office situated at the front of the home remain sealed. Finally, it appears that his most recent position is that the applicant be solely responsible for the expenses of the home pending its sale.
45The respondent alleges that he has nowhere else to reside, but the applicant does, at her father’s residence or at various residences owned by her brothers. The applicant alleges that she has nowhere else to reside but that the respondent does, either with his new partner or in his current rental accommodation which he rents from his former counsel’s parents.
46At the Hearing of the various Motions, the applicant resided within the matrimonial home with the youngest child who is now in attendance at Grade 9 at a nearby high school. The eldest child also resides within the home but was not in attendance in post-secondary schooling. According to the applicant his departure from University was as a result of the trauma inflicted upon him by his father. The middle child attends Brock University and resides away from the home. When not in school he returns home.
47The applicant does not disagree that the home should be sold but that prior to consenting to a sale she required an agreement from the respondent for the payment of support. She attests that there has been no payment of support for the children since separation.
48In her affidavit of March 19, 2019, the applicant requests that if the home is sold that the sale coincide with the completion of Thomas’ school year. She suggests that a financing alternative for the maintenance of the home pending its sale by via a line of credit, but the respondent refused to apply for same.
Determination of matrimonial home-related issues
49This Court acknowledges that the law generally allows for the partition and sale of jointly owned property, and that a joint owner has a prima facie right to partition and sale (see Allard v. Sylvain-Allard 2015 ONSC 2052, at paragraph 10). It is not an absolute right. This right exists unless the other joint tenant has made claims that would be prejudiced if the property is sold. The party that resists the application for sale, should have an order for interim exclusive possession, or be able to show that the claims she intends to put forward at trial will be prejudiced by an immediate sale. Batler v. Batler (1988), 1988 4726, 18 R.F.L. (3d) 211 (Ont. H.C.).
50The applicant’s preference is that the home not be sold without an appropriate order for support in place. As will be seen elsewhere in this Ruling, her guestimate of the respondent’s income cannot prevail at this juncture. However, the applicant has a legitimate concern about the respondent’s ongoing obligation to pay support or his ability to pay amounts found to be owing since separation.
51The Court notes that the parties had chosen an agent well-known in their local community. The agent was placed into the midst of the marital dispute. To her credit, she is still inclined to accept the listing. From the Court’s perspective, having two listing agents with two signs posted on the property is tantamount to announcing to the prospective market that the inhabitants of the home are separating. Although this may not impact the ultimate sale price, it may well delay achieving the best price available for the property in the shortest period.
52There should also be no need to keep the respondent’s home office sealed following an attendance to remove all client-related and personal documents from the office. Prospective purchasers should be able to gain entry to all areas of the home. Following the removal of client-related and personal documents there can be no concerns about offending Law Society confidentiality requirements.
53The respondent’s request for an Order allowing him periodic inspection of the matrimonial home is dismissed. There is no need for the respondent to verify the integrity of his home office. A Consent Order is in place with respect to the artwork and furnishings. Further agreement or Court Order will be required to preserve these items once the home is sold and prior to the completion of the sale. The respondent has not satisfied this Court that the applicant will intentionally allow damage to the home to interfere with the sale.
54Without further commentary on the contents of the competing affidavits filed in respect of this issue, this Court orders the following:
(i) The applicant shall continue to have temporary exclusive possession of the matrimonial home situated at 5 Lawrie Road, Thornhill, Ontario together with the contents located within the home (including those subject to a preservation order) pending the completion of the sale of the property or further court Order;
(ii) The Respondent’s law office located in the matrimonial home will remain sealed and locked pending the attendance at the home by the respondent as set out in the following paragraph. At no time shall the applicant enter the office or allow others, including the children of the marriage, to enter the office;
(iii) Prior to the listing of the matrimonial home, the respondent shall have access to the home for removal of the client-related and personal documents contained in his office and/or desk within the office. His attendance shall be coordinated through the offices of the applicant’s counsel. The respondent shall attend in the presence of a peace officer or other individual preapproved by the applicant’s counsel. He shall not enter any other part of the home other than the area allowing for entry into his office. Neither the applicant nor the children shall be present in any area of the home visible from the front of the home adjacent to the office;
(iv) At least 5 days prior to the completion of the sale of the home, the respondent shall have access to the home for removal of the remaining contents of his office. His attendance shall be coordinated through the offices of the applicant’s counsel. The respondent shall attend in the presence of a peace officer or other individual preapproved by the applicant’s counsel. He shall not enter any other part of the home other than the area allowing for entry into his office. Neither the applicant nor the children shall be present in any area of the home visible from the front of the home adjacent to the office;
(v) The matrimonial home shall be listed for sale by February 15, 2020 unless otherwise agreed upon by the parties, in writing. The following terms apply to the sale:
(a) The parties shall be equally responsible for the expenses of the home until the completion of the sale;
(b) Commencing February 1, 2019 until the completion of the sale, the respondent shall pay to the applicant the monthly amount of $2500 towards his share of the home expenses. This payment is without prejudice to the rights of either party to seek other relief arising from separation including retrospective spousal or child support, occupation rent and an adjustment for the carrying costs of the matrimonial home payable pursuant to this Order including a credit to the respondent for any payments made towards the expenses of the matrimonial home during this time interval. The above sum shall be deducted from the sale proceeds to which the respondent is entitled as set out in this Ruling and is payable to the applicant. It is expected that the ongoing payments of $2500 shall be paid directly to the applicant through her counsel commencing January 1, 2020 with the amounts that have accrued since February 1, 2019 being addressed from the closing proceeds;
(c) The listing agent shall be Andrea Halpern. The listing shall be on an MLS service unless otherwise agreed upon by the parties in writing. The listing agreement shall be for a period of at least 90 days. It may only be renewed by the written consent of the parties unless a Court orders otherwise;
(d) The parties shall agree to a listing price pursuant to the recommendations of the listing agent;
(e) If the parties are unable to agree on the listing price, they shall present their dispute to the Case Management Judge hearing their Settlement Conference in January 2020 for determination by that Judicial Officer;
(f) If the parties can agree in writing, all joint lines of credit shall be discharged on the completion of the sale of the home. If they are unable to agree, this issue shall also be presented to the Judicial Officer presiding over their Settlement Conference for determination by that Judicial Officer if so inclined;
(g) If the parties cannot agree upon a real estate solicitor to represent their interests in completing the sale of the home, this issue shall also be presented to the Judicial Officer presiding over their Settlement Conference for determination by that Judicial Officer if so inclined;
(h) The parties shall accept all reasonable offers to purchase as recommended to them by their real estate agent. The parties shall cooperate on any sign-back offers as recommended by their real estate agent;
(i) Absent agreement, either party may bring an Urgent Motion on notice compelling the other party to accept the offer or dispensing with the consent of the other party. Each party may file an affidavit not exceeding 5 pages. The moving party may also file an affidavit from the real estate agent commenting upon the offer to purchase that the parties cannot agree upon. There shall be no cross-motions or reply affidavits. The time for argument of the contemplated Motion shall not exceed one hour;
(j) From the sale proceeds the real estate solicitor shall discharge any liabilities required to complete the transaction (subject to reapportionment at a later date), real estate commission and legal fees. From the remaining proceeds, the applicant shall receive 25% of the proceeds plus the sum owing to her pursuant to subparagraph 54 (v)(b) herein and the respondent shall receive 25% of the proceeds less the amounts owing to the applicant. The remaining 50% of the proceeds shall be maintained by the real estate solicitor in an interest-bearing account pending further Court Order;
(k) Pending the completion of the sale of the matrimonial home, the parties’ shall each be responsible for payment of one-half of the insurance premium required to protect their investment.
Roe Condo
55The respondent maintains that this property was purchased entirely from his savings attributed to his income. He maintains that the applicant diverted his income into bank accounts she established between the years 2005-2013. He alleges that she misappropriated his funds. He states that she was unemployed at the time so that the only plausible explanation is that his funds were used for the downpayment and closing costs associated with the property.
56In support of his position that the property is jointly-owned by the parties, the respondent relies upon the following documents, all of which list the parties as joint owners:
(i) MPAC assessment;
(ii) Title Insurance policy;
(iii) Reporting letter from the solicitor who acted on the purchase of the property;
(iv) CIBC mortgage statement;
(v) City of Toronto property tax account;
(vi) The listing agreement (the parties had apparently listed this property for sale in June,2018). The Agreement was prepared by the applicant’s brother Peter Anthos; and
(vii) The abstract of title reflects the parties as joint owners.
57The respondent has asked this Court to take judicial notice of the high value of the condominium market in Toronto in support of his request that this property be sold.
58The applicant maintains that the property was purchased using the children’s funds and that the parties’ joint intention prior to separation was to hold the property in trust for the children.
59The applicant maintains that this is a triable issue.
60The applicant held bank accounts in trust for the three children from approximately 2005-2012 that she then transferred into another financial institution. She acknowledges that these funds were combined with her funds to purchase the condominium property.
61The applicant submits that the purpose of obtaining the property was to ensure that the children had a stake in the Toronto housing market and to provide them with accommodation when they graduate university that would be affordable. She maintains that a sale of the property at this stage with the proceeds remaining in a trust account would create risk that the children would not be able to enter the housing market in the future.
62The applicant also notes the property in question is rented out and that all carrying costs are covered by the rent.
Determination of issue
63Until amended, the applicant’s Application did not seek any declaration that this property was held in trust for the children. At the time these Motions were argued, her Application had not been amended.
64Further, the applicant does not explain why the subject property was apparently listed for sale in June 2018 if the parties’ intention was always to hold the property in trust for the children.
65The applicant has also not explained how this one property would provide the foundation for all three children following their graduation.
66The applicant has offered evidence regarding the establishment of bank accounts for the children. She has not, at this stage, satisfied the court as to the source of these funds or refuted the respondent’s position that his income was the sole source of these funds.
67Notwithstanding the above findings by this Court, on the balance of probabilities this property will not be sold at this time. However weak the applicant’s position appears to be, there is still a triable issue regarding ownership. This issue is best resolved at trial where the presiding Justice can best assess credibility on the competing positions. There is little prejudice to the respondent. The property is rented and does not cost him anything. He has suggested that the property be sold now, and the funds maintained in trust pending trial but that does not benefit him at this stage. By his own argument, the market is at an all-time high. If the market value increases and the respondent succeeds on this issue at trial, he will benefit from the increased value and the decrease in the mortgage on the property. If he succeeds on this issue at trial and the property has decreased between now and the trial, he will have recourse to seek damages from the applicant from the decrease in value. The court is unable to take judicial notice of the high-value of the Toronto condominium market as requested by the respondent.
68This court did not receive any evidence from the parties regarding the nature of the tenancy agreement or the nature of the mortgage term. Subject to written agreement between the parties, if the tenant has a written lease, upon its expiry the tenant shall remain on a month to month tenancy. If the mortgage matures, it shall be renewed on an open basis for no more than a one-year term. Assuming the parties’ focus on reaching trial sooner than later, depending on the results of the trial, the property will not be unduly encumbered to preclude an early sale.
Restraining Order
69The applicant’s evidence is that she has reasonable grounds to fear for her safety and that of her children. Her affidavits are replete with allegations of behaviour that, if believed and/or proven, would cause a trier of fact to have concerns.
70Allegations include:
(i) The respondent, following the second separation, wishing that the applicant had succumbed to cancer;
(ii) The respondent referring to the marriage as a 25-year mistake and that he married a shallow, materialistic spoiled brat;
(iii) The respondent allegedly causing the applicant to lose her employment at RBC for not protecting client information;
(iv) The applicant’s personal jewellery and possessions missing from the home during an interlude when, coincidentally, the security cameras were disconnected; and
(v) Other unexplained damage to the applicant’s clothing and her vehicle which the respondent has blamed on the parties’ eldest son.
71The court has also heard evidence regarding communication between the respondent and the two older sons which may be viewed as demonstrative of his demeanour and character by a trial Judge.
72The respondent asserts that Justice Douglas refused the granting of a restraining Order against him on March 26, 2019 based on the identical facts relied upon the applicant before this Court.
73The respondent also asserts that it has been the applicant and his older son who have been the aggressors against him since separation.
74The respondent indicates that it is he who lives in fear of the applicant by virtue of the three criminal charges against him, initiated by her or at her behest, that have decimated his legal practice and caused him to suffer from Post-Traumatic Stress Disorder. Although medical evidence has not been reviewed supporting his diagnosis, the laying and dismissal of criminal charges has been proven.
75The respondent maintains that he has had virtually no contact with the applicant since his arrest on November 5, 2018, either in person, verbally or by email or other correspondence. He is concerned that if granted, the applicant will utilize the Restraining Order as a sword rather than a shield.
Determination of Issue
76Whereas the respondent has allegedly displayed some questionable behaviour, it is beyond the scope of this Motions Court to assess the credibility as to who did what to whom.
77Further, while the correspondence between the respondent and his older sons reflect poorly on him and suggest poor judgment which may well impact his custody claim of Thomas, this behaviour does not meet the threshold for the granting of a Restraining Order.
78Of concern is the respondent’s error in advising this Court that Justice Douglas had dismissed the applicant’s request for a Restraining Order on March 26, 2019. The respondent indicates that the reasons of Justice Douglas in refusing to grant the Restraining Order were that it was the applicant and her eldest son who were the aggressors. However, a review of the Court’s Endorsement from March 26, 2019 indicates that on that date, the applicant sought Orders for exclusive possession of the home and a Restraining Order. The respondent requested an adjournment to enable his counsel Mr. Borden to be present. Justice Douglas granted the adjournment but changed a prior Order of the Court in which both parties were granted exclusive possession of parts of the matrimonial home to the exclusion of the other and granted the applicant temporary exclusive possession of the entire matrimonial home. The motion was adjourned to April 17, 2019. Justice Douglas’ Endorsement was silent on the issue of the Restraining Order as was Justice McGee’s Endorsement on April 17, 2019 wherein all motions then before the Court were adjourned to June 19, 2019.
79This Court has carefully considered granting an Order under section 47.1 of the FLA prohibiting one or both parties from directly or indirectly contacting or communicating with the other. The applicant currently has an Order granting her exclusive possession of the matrimonial home pending its sale. The Order granted herein allows the respondent to be present at Thomas’ school and extracurricular activities subject to conditions attached to that Order. Fortunately, the allegations against the respondent relied upon by the applicant have not been of recent vintage. At this stage, the request for a Restraining Order is dismissed without prejudice to such a request being revived at trial if merited.
Preservation order
80To alleviate any concerns created by the parties’ mistrust of one another, there shall be a mutual Order granted pursuant to sections 12 and 40 of the FLA restraining the depletion and non-dissipation of property in existence at separation and preserving such property pending further Court Order. This Order is made notwithstanding the respondent’s submission that it will invite unintended consequences by encouraging more litigation. The law is quite clear that an Order in the form granted by this Court is designed to hold litigants accountable for their financial transactions post-separation. The Court is not inclined to meticulously examine every expenditure by litigants in the course of the litigation. The obligation on the litigants is viewed on a much larger scale to ascertain if there has been a shifting of material assets or transfer of wealth designed to frustrate one’s entitlement under the legislation.
Disclosure
81Considerable time was expended in the Hearing regarding disclosure issues. On July 16, 2019, this Court granted an Order requiring both parties to exchange further disclosure beyond what had already been requested and/or exchanged.
82Unsurprisingly, both parties allege non-compliance with Court Orders and Requests for Information.
83The respondent maintains that he has provided more than enough disclosure to the applicant. He complains of the tactics of the applicant’s counsel in insisting upon more and more disclosure which the respondent describes as irrelevant and immaterial and designed to delay the resolution of this matter. He submits that he has more than complied with his disclosure obligations. He submits that he has filed three extensive disclosure packages including an Income Analysis prepared by a Chartered Business Valuator (“CBV”), seven years of Income Tax Returns and corresponding Notices of Assessment and more than three years of bank statements and credit card statements. If there are discrepancies (according to the applicant), the respondent takes the position that the applicant was his office manager and bookkeeper since 2005 and that she has created the discrepancies of which she now complains.
84The respondent also argues that the applicant is the party deficient in her disclosure obligations. He wishes this Court to impute the applicant with income based on her income prior to her departure from RBC, income received from the management of properties in Greece and hidden income from an unlicensed mortgage business. The respondent is asking this Court to impute to the applicant while submitting that the Court has no basis upon which to impute him, relying upon decisions that caution a Motion Court from making credibility assumptions on untested materials. There is no specific request for disclosure from the applicant contained in the respondent’s Motion material.
85The applicant still maintains that despite the respondent’s assertions to the contrary, that he is deficient in his disclosure. She insists that she has not been provided with corporate financial records, bank accounts and proof of personal expenses run through the respondent’s legal practice that she requires to determine the respondent’s income for support purposes.
86The applicant also dismisses the respondent’s alleged excuse for non-disclosure, being that his documents were situated in the matrimonial home. She submits that he has had ample time to replicate whatever is allegedly missing but has not done so.
87The applicant continues to seek an Order requiring the respondent to produce a Report from a CBV as to the value of the respondent’s practice and an analysis of his income from two years prior to separation to the present. The applicant has acknowledged receipt of a CBV Report from the respondent but takes issue with its contents and methodology. There will be no further Order against the respondent in that regard. The respondent has done what was required of him. If the applicant does not accept the findings of the respondent’s CBV, she can either challenge those findings at trial or request her own CBV to place a value on the respondent’s practice and prepare an income analysis. If she cannot afford such an endeavour, she has available remedies. That is yet another issue best discussed with the Case Management Justice at the Settlement Conference.
88The applicant provides examples of the respondent’s avoidance of his disclosure obligations. She notes that in 2011 the respondent declared gross professional income to the Canada Revenue Agency (“CRA”) in the sum of $200,450. His declared net income was $80,722.89 but he, nonetheless, deposited the sum of $724,311.56 into a joint personal account. He has failed to respond to a request for an explanation. In 2014, the respondent is alleged to have earned gross income of $150,150, net income of $46,051.41 and yet he was able to deposit the sum of $188,860.25 from one of his clients into a personal account. In 2016, net income was claimed in the sum of $85,277.11 on gross income earned in the sum of $237,436. In that year, in excess of $151,000 in four corporate cheques was deposited. In 2017, the sum of $254,411 was deposited into a personal account. Finally, in 2018, the respondent apparently claimed to have earned gross income of $83,869.97 but suffered a loss of $7,872.48 for the year despite in excess of $104,000 being deposited into a TD account. The applicant maintains that the respondent has failed to respond to disclosure requests seeking an explanation for these deposits.
Determination of disclosure issue
89In 2013, Justice Czutrin commented that unresolved issues of disclosure are one of the key factors in delay, unproductive court attendances and getting to a point of serious settlement discussions or, if necessary, in the very few cases that need to go or in fact end up in trial. See English v. Dixon, 2013 ONSC 8043. This comment is just as relevant and problematic today as it was at the time of the decision.
90Although full and frank disclosure is a necessary component of family law litigation, exhaustive disclosure may not always be appropriate. Courts and parties should consider the burden that disclosure requests bring on the disclosing party, the relevance of the requested disclosure to the issues at hand, and the costs and time to obtain the disclosure compared to its importance: see Chernyakhovsky v. Chernyakhovsky, 2005 6048 (ON SC), 137 A.C.W.S. (3d) 988 (ONSC) at paras. 8 and 15. Disclosure orders must be fair to both parties and appropriate to the case.
91As Perell J. held in Boyd v. Fields, [2007] W.D.F.L. 2449 (ONSC) at paras. 12-14:
Full and frank disclosure is a fundamental tenet of the Family Law Rules. However, there is also an element of proportionality, common sense, and fairness built into these rules. A party’s understandable aspiration for the utmost disclosure is not the standard. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact-finding process are factors. I also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead or distract the trier of fact’s attention from the main issues and unduly occupy the trier of fact’s time and ultimately impair a fair trial.
92Finally, Justice Benotto in Roberts v. Roberts, 2015 ONCA 450 stated:
Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent, and the final adjudication is stalled.
93This case involving these litigants commenced in 2013 when they first separated. Their material, as noted in the Table of Contents Endorsement Brad, consisted of seven tabs of one volume. From November 21, 2018 to the present date the Continuing Record now contains 22 volumes of material most of which has been directly or indirectly referenced in the motions before this Court.
94At this stage of this proceeding the Court is presented with two opposite views of what has been requested and what has been provided. This Court is unable to determine which party is more accurate in its assessment of the status of the disclosure in terms of what has been requested, what has been provided and what, of material relevance, remains outstanding.
95It may well be at trial the respondent will have available appropriate medical documentation to support his position that he is unable to work as a lawyer. One would expect disclosure of medical records back to 2013 when the respondent alleges his PTSD-like symptoms began. It may well be that the applicant will request an Independent Medical Examination to investigate this issue. One must wonder how, if he is suffering from Post Traumatic Stress Disorder, the respondent hopes to be able to focus on achieving an MBA. In his defence, he is the one who has faced three criminal charges that have been dismissed without a trial. He has also complained that being ousted from his home office has impacted his legal practice, a position somewhat inconsistent with his alleged inability to practice due to his medical condition. These are questions best reserved to trial. The divergence in the parties’ positions is too great for this Court to determine what further disclosure is required.
96Similarly, it would be unfair for the respondent to have to proceed to trial without having a firm understanding as to how the applicant has been subsisting since separation in the absence of any meaningful support from him. It is noted that the applicant denies operating as an unlicensed mortgage broker and that she denies having any financial interest in properties owned in Greece by her father. If the respondent has evidence to the contrary, then he can anticipate a successful attack on the applicant’s credibility at trial. At trial the Judge will also be able to determine if the respondent contributed to the applicant’s loss of employment from RBC as she suspects. It appears at this stage that the applicant has provided answers as to her financial situation that the respondent does not wish to accept as conclusive of the issue.
97Much as this Court is requiring the respondent to resubmit disclosure, he maintains he has already provided, so, too, shall the applicant. The respondent alleges he requires answers to the requests reflected in Schedule “C” to his July 8, 2019 affidavit. The applicant shall provide responses to the items hi-lited in red; if the information is not available, then the applicant shall provide the respondent with authorizations allowing him to pursue the disclosure. If he is successful in obtaining what the applicant states cannot be obtained and if that disclosure is proven to be relevant, another Court will be able to assess appropriate costs sanctions.
98Neither party requested an Order for Questioning. Considering the imminent Settlement Conference, that is an issue to be raised with the Case Management Justice and this Court will not make an Order on its own volition.
99What is evident is that the ultimate determination of credibility will be left to the trial Judge. However, it would be unfair for the applicant to have to proceed to trial without having the responses to her requests regarding the respondent’s income from 2011 to the present. The questions pertaining to the gross income earned, the net income claimed and the deposits into the parties’ personal accounts are relevant and proportional. It is insufficient to simply rely upon the Income Tax Returns and corresponding Notices of Assessment as being determinative. If the respondent satisfies a trial Judge that he is unable to work for the medical reasons upon which he relies, his past earnings may not be as relevant but if he is unsuccessful in satisfying the trial Court on this issue, then his past ability to earn income will have considerable relevance.7
100In the event the respondent is accurate in his position that he has already provided responses to the questions pertaining to his income then he can easily provide the disclosure again and thereby enhance his credibility with a trial Judge. If he has not provided the supporting responses, then he shall do so within the next thirty days. To be specific, the respondent shall provide responses to the requests reflected in the chart contained at paragraph 43 of the applicant’s Factum dated July 16, 2019. In addition, the respondent shall produce proof of his accounts rendered to his clients for the past seven years with the identity of the client redacted. This Court can take judicial notice that there is a legal requirement for lawyers to maintain their files for that length of time. The applicant has suggested that the respondent typically had 5-8 clients on an ongoing basis. If this was an accurate assessment as to the respondent’s client base, production of his accounts should not be too onerous a task. The respondent shall also provide proof of all bank accounts into which he has deposited his income since 2013. It is insufficient for the respondent to attribute deposits and withdrawals to the applicant in her position as his bookkeeper and office manager. This disclosure is not a fishing expedition as suggested by the respondent. The disclosure ordered herein is most relevant and not disproportionate to the issues at hand. This disclosure shall be provided by February 14, 2020.
101With respect to the remaining allegations of outstanding or deficient disclosure, the parties must be cautioned that at trial, if the presiding Judge finds that relevant disclosure has not been provided, an adverse finding can be made.
Income determination
102To impute or not to impute, that is the question before this Court.
103As noted above, the respondent wishes the Court to impute the applicant with an income equivalent to what the applicant would be earning if still employed at RBC. He challenges her position that she has no sources of income. She implies that she lost her position at RBC by virtue of the respondent’s actions. The applicant claims to be seeking employment but has been unsuccessful. On these conflicting positions, this Court is unable to impute the applicant with any income.
104The applicant maintains that the respondent is understating his income. Based on allegations of spending on luxury items totalling $41,233.33 expended from July 2018 until March 2019 and a history of the respondent having substantial unreported income, the applicant submits that the respondent should be imputed with an annual income of $500,000 for support purposes. In addition, the respondent should be required to contribute the sum of $4,500 per month towards the home expenses as proposed by him in his draft Order. The applicant qualifies this request as representing her best guess as to the respondent’s income.
105The respondent maintains that he has lost his law practice because of the impact on him resulting from, yet again, being wrongfully charged by the applicant with the charges being dismissed at an early stage. He repeats his belief that the charges were an attempt by the applicant to have him removed from the matrimonial home. The respondent claims to have extensively sought employment opportunities without success.
106At the conclusion of argument on June 19, 2019, this Court allowed the parties to file additional information restricted to the issues of income analysis, imputation and temporary spousal and child support. At the conclusion of argument on August 7, 2019 this Court invited the parties to file a three-page summary on the issue of imputation of income with reference to materials already before the Court either in affidavits or facta.
107This court has reviewed, at length, the applicant’s affidavit sworn June 14, 2019 and the respondent’s responding affidavit sworn July 8, 2019. It has also reviewed the summaries submitted following completion of argument. The Court has ordered the respondent to make payment of $2,500 per month towards the home expense. The respondent has proposed payments of child support based on an income of $80,000. The Court does not accept the applicant’s submissions requesting support on $500,000 per annum. The Court has difficulties with the respondent’s lack of responses to the requests regarding the deposits of his income into personal accounts. The dilemma is fixing an appropriate level of support based on an imputed income at this stage of the proceeding.
108A brief summary of the information received as reflected in the preceding paragraph reflects the following:
(i) Mr. Noxon’s Report on the respondent’s income raises many questions. Many of these questions could have been resolved if the parties had jointly retained a CBV as discussed with the Court at the Case Conference on January 11, 2019. Whether or not the home office qualifies as an expense to reduce income is unresolved. Whether the applicant was an employee (other than receiving payment that could be income-splitting) is unresolved. Whether or not the respondent does or does not write off expenses that are personal is nature was not part of the mandate of the Valuator; it should have been. Why the respondent apparently deposited income directly into personal accounts rather than a firm account is still problematic.
(ii) Long motions should proceed following Questioning. Questioning provides some sworn evidence that has been subjected to cross-examination and would be of benefit to the Motions Judge where credibility is such a crucial issue.
(iii) The difficulty in conducting Questioning before disclosure is substantially completed is symptomatic of the problems in this case. From this Court’s perspective, disclosure is incomplete but will be substantially complete once there is compliance with this Order even if the Court-ordered disclosure has already been provided.
(iv) The forthcoming Settlement Conference provides an opportunity for the Court to set timelines to enable this case to proceed to its conclusion. Allowing for the completion of the disclosure followed by Questioning suggests that a trial in May 2020 is an overly optimistic goal.
(v) This Court is ordering that there will be no more Long Motions between now and trial unless the issues being advanced have been separately conferenced by the Case Management Judge who provides permission for a Long Motion to proceed. If that permission is granted, the Case Management Judge is requested to provide that only one Motion proceed at a time and that the filing and number of Affidavits be strictly enforced;
(vi) The respondent indicates that his bank statements, his practice billings, his expense receipts and all practice related receipts for each year are provided to his accountant; it would be helpful if the accountant identified which bank statements are provided to him for each year as this information would address the legitimate concerns of the applicant;
(vii) The parties disagree on the characterization of the transfer of $545,749.67 on July 18, 2012. Clearly if a new line of credit was established and registered against the jointly held matrimonial home, the respondent would have been involved in the transaction and would certainly know whether the existing mortgage on the home was discharged by the new line of credit. A search of title would easily clarify this issue;
(viii) The note from Dr. Forman is sparse. It states that the respondent should be off work for six months due to medical reasons. It does not preclude this Court from considering from wondering why the respondent has not been working; as noted elsewhere, the respondent sought interim exclusive possession of the home to enable him to maintain his practice;
(ix) The respondent is critical of this Court’s comments made prior to the commencement of the Hearing on June 19, 2019. These comments were made as part of the standard vetting practice of this Court in trying to organize its list on any given Motions day. Having said that, this Court still has no idea of what the respondent earns; hopefully the completion of the disclosure will be of assistance to the next Court assigned this case. The respondent must also understand that, unlike a trial, a Motions Judge may well predetermine a case based on the material filed (or not filed);
(x) A court cannot take notice of a fact that bank’s rarely fire female employees. If the respondent intends to pursue that line of thinking, expert evidence will be required. There is no negative inference to be drawn;
(xi) It is fully anticipated that once the parties comply with the disclosure Order hereunder, that the case should proceed to trial. That is an Order to be requested from the Case Management Judge if he is so inclined.
The Law
109In Drygala v. Pauli (2002), 2002 41868 at paragraphs 56 and 57, the Court of Appeal stated that the onus is on the party requesting imputation of income to establish an evidentiary basis for it and the determination to impute income is always discretionary based on the circumstances of each case.
110In the same case, the Court notes:
First, the court should determine whether the spouse in question is intentionally under-employed or unemployed. In this context, “intentionally” means a voluntary act; i.e., where the parent chooses not to work, or to earn less than he or she can earn. Existence of such an intention does not require a finding of bad faith, or a specific intent to evade or secure child support. A parent is intentionally under-employed within the meaning of s.19(1)(a) of the Guidelines if he or she earns less than he or she can earn, having regard to all the circumstances. He or she is intentionally unemployed, within the meaning of s.19(1)(a) of the Guidelines, when he or she chooses not to work when capable of earning an income.
Second, if the court finds intentional under-employment or unemployment, in the sense required, the court must then determine whether that was and/or is required by virtue of the parent’s reasonable educational needs, the needs of a child, or reasonable health needs.
Third, if the answer to the first stage question is “yes”, and the answer to the second stage question is “no”, the court normally moves on to determination of the income that should be imputed in the circumstances.
111The law is clear that using historical income is inappropriate; the only time that a historical approach may be appropriate is where there is no more current information available to the Court; the Court’s task is to determine present income. Whora v. Whora [2016] O.J. No. 2851; Morrissey v. Morrisey [2015] P.E.I.J. no. 51; Meyer v. Content 2014 ONSC 6001, [2014] O.J. No. 4992;
112The applicant has the burden of persuading the court that the application of section 16 of the Guidelines would not be the fairest determination of that income: Fung v. Lin, 2001 28193 (ON SC), [2001] O.J. No. 456 (S.C.J.) at para. 11.
113The onus is on the party to establish that the opposing party is intentionally underemployed. He/she must establish an evidentiary basis upon which this finding can be made: Homsi v. Zaya, 2009 ONCA 322, [2009] W.D.F.L. 2480 at para. 28.
114The Supreme Court of Canada has held that payors must not arrange their financial affairs to prefer their own interests over those of their children. (Citation omitted). Further, a parent will not be permitted to knowingly avoid or diminish his or her obligation to support his or her children. Wilson v. Wilson, 2011 ONCJ 103 at 20.
115In Wilson v. Wilson, supra, the Court stated as follows with respect to padding back certain business expenses:
…. the Guidelines expressly provide in section 19(2) that the determination of whether an expense is reasonably deducted from a payor’s income is not governed by whether it is properly deducted for income tax purposes. Common expenses that may legitimately be deducted for income tax purposes, but personally benefit the payor to the detriment of his or her children include expenses for car, home office, travel and entertainment.
116A self-employed person has the onus of clearly demonstrating the basis of his or her net income. As stated in Wilson, supra, this includes demonstrating that the deductions from gross income should be considered in the calculation of income for support purposes.
117Such payors have an inherent obligation to put forward not only adequate but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established…The onus rests upon the parent seeking to deduct expenses from income to provide meaningful supporting documentation in respect to these deductions, failing which an adverse inference may be drawn.” Wilson, supra at 22, citing Whelan v. O’Connor, 2006 13554 (ON SC), 2006 CarswellOnt 2581; Meade v. Meade, 2002 2806 (ON SC), 2002 CarswellOnt 2670; and Orser v. Grant, 2000 CarswellOnt 13554.
118Of course, it is difficult for a party seeking to impute income to get to the first step, laying the evidentiary foundation, where the party against whom income is sought to be imputed makes little or no financial disclosure to the court: Di Bratto v. Sebastiao, 2015 ONSC 1996, at para. 179.
Determination
119Utilizing the above principles, this Court is not inclined to impute the applicant with income at this stage. After Questioning, depending upon the delay in scheduling the trial, the situation may be different.
120The Court has stated its concerns with the apparent absence of responses as to where the respondent’s income has been deposited and why it was deposited into personal accounts. The Court also has concerns with the expenses deducted by the respondent. Mr. Noxon notes that he has not conducted any independent investigation to verify the completeness of the disclosure provided to him by the respondent. At a minimum, the respondent should have provided Mr. Noxon with the applicant’s affidavits wherein she questions the respondent’s income calculations to enable Mr. Noxon to address these concerns.
121The Court does not undertake the same process as a Valuator. The Court relies upon the Valuators for their expertise. If the applicant had retained her own Valuator, by now, this case would be much further advanced. This Court has no concerns about the value placed on the practice. Apparently, the respondent had an expertise that was valued by his clientele, but that expertise is personal to him. However, the Court has concerns about the expenses from income that are deducted and reflected on the schedules to the CBV Report. Using the last complete year of 2018, amortization, car usage, meals, advertising, professional, travel and telephone expenses require more scrutiny.
122Regarding spousal support, at this stage the applicant has a need for support, but the Court is not satisfied as to the extent of the ability of the respondent to pay. The Court accepts that in consideration of the marriage duration and the roles of the parties and the applicant’s health problems, that entitlement is not an issue. The lost of two employment positions, allegedly for cause, requires more investigation. Apart from insinuating that the loss of the RBC position is attributable to the respondent, no other explanation for these losses of employment has been given. As such, at this stage the Court cannot determine whether the applicant should be imputed with income. The law suggests that the onus is on the respondent which he has not satisfied but the applicant’s material is not satisfactory to satisfy the Court’s concerns. Indeed, if the applicant has lost two positions for breaching the Bank’s rules and procedures, that may be a reason why she has been unable to secure a new position. The monthly contribution to the home expenses commencing January 1, 2020 will assist the applicant in carrying the home pending sale. The claim for spousal support, at this time, is dismissed without prejudice to being advanced at a further stage.
123If I am incorrect in not awarding spousal support at this time, in utilizing the income I have imputed to the respondent and in characterizing the $2,500 per month that the respondent has been ordered to pay to the applicant towards the home expenses as net income to the applicant, mid-range support would have been $393.
124Although the most current year’s income is to be utilized, pending the respondent’s further (or replacement) disclosure, an explanation is required for the disparity in net income as far back as 2012 and deposits into the respondent’s accounts. Net income of $80,722 based on gross income of $200,450 requires an explanation. Deposits in excess of $724,000 most definitely require an explanation. The year 2017 requires explanation where net income is claimed in the sum of $14,433.40 but $254,411 was deposited into personal accounts. In 2018, a loss is claimed of $7,872.48 but deposits total in excess of $104,445.
125On the basis that the respondent has not satisfied this Court as to his true net income, the Court will utilize an average of the gross income earned over the past three taxation years resulting in an income determination of $146,633.32. Child support shall be payable for Thomas and the middle son. The eldest son is not known to be enrolled in school on a fulltime basis. The Court does not accept that this child has withdrawn from parental control but cannot award child support until such time that he returns to school on a fulltime basis.
126Commencing January 1, 2020 and monthly thereafter and without prejudice to the date of commencement, quantum and entitlement to support by the older son and contribution to special expenses, the respondent shall pay to the applicant for child support the sum of $1,529 per month. This calculation provides support for Thomas on a fulltime basis and his brother for the summer months only.
127A Support Deduction Order shall issue.
Costs
128If the parties cannot agree on costs, the respondent shall serve and file his costs submissions on or before January 17, 2020. The applicant shall serve and file her costs submissions by January 31, 2020. There will be no right of reply. All costs submissions are to be filed in the Continuing Record, but for a Casebook, which if needed, is to be bound and placed in the file separately. Costs submissions are limited to four pages, double spaced, exclusive of a Bill of Costs, any Offers to Settle and a Comparison of Offers. Upon filing the costs submissions, counsel and Mr. Atis are asked to confirm the filing by email to my judicial assistant Nicole.Cruise@ontario.ca.
Justice R.P. Kaufman
Date: December 31, 2019
1 In his original Notice of Motion, the respondent sought a Declaration that this property was jointly owned by the applicant and respondent and that it is not held in trust for their children. This relief was not pursued on the return of the adjourned Motion.
2 In the respondent’s Confirmation of Motion filed in advance of the return date of August 7, 2019, this relief was crossed out.
3 In the respondent’s Confirmation cited above, this relief was crossed out.
4 R.S.O. 1990, c. F.3, as am.
5 R.S.O. 1990, c. C.12, as am.
6 R.S.O. 1990, c. C.43, as am.
7 As an aside, the respondent has indicated an intention to seek damages against the applicant and Police Department for his wrongful arrest. If the respondent intends to present a wage-loss claim in that litigation, he will be required to substantiate his losses.