F.M. v. T.M. et al, 2019 ONSC 90

COURT FILE NO.: FS-16-85855

DATE: 2019 01 07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: F.M., Applicant

AND:

T.M., Respondent

BEFORE: Justice G.D. Lemon

COUNSEL: K. Maurina, Counsel for the Applicant

K. Whitley, Counsel for the Respondent, T.M.

A.M., In Person

No one appearing for the Respondents, G.T. and Paul Pellman

HEARD: November 29, 2018

ENDORSEMENT

The Issue

1This family law dispute involves a total of six lawyers; three parties and three counsel. I must decide what the lawyer husband earns.

2In her notice of motion, F.M., whom I shall refer to as the ‘wife’ or ‘mother’, requests retroactive and prospective interim child and spousal support depending on how income is imputed to T.M. without prejudice to her claims in this proceeding.

3In response, T.M., whom I shall refer to as the ‘husband’ or ‘father’, seeks interim “set off” child support retroactive to the date of separation and ongoing, along with a calculation of s.7 expenses.

4The Respondent, A.M., is the husband’s brother and legal partner in their joint law firm. While he seeks no particular order, he made submissions with respect to his own interests and attempted to make submissions in favour of his brother.

5The materials were voluminous and, to a large extent, irrelevant. The matter was set for a one-hour motion and, given the number of issues to be covered, I encouraged the parties to narrow the issues. Those issues were then narrowed simply to the wife’s claim for spousal and child support from October 1, 2018, to trial.

6While the record is not clear with respect to the balance of the issues, I shall adjourn them to the settlement conference or such other mutually agreed upon date as the parties may determine.

Background

7The parties moved in together in July of 1988 and married November 29, 2002. The wife says that the parties separated in March 2015 and the husband says that they separated in March 2014.

8The parties have two children. It is agreed that the 18-year-old son resides with the father while the 15-year-old daughter spends time with both parents. The parties agree that there is a shared custody regime for the purposes of child support calculations and obligations.

9The application was commenced in 2016 and was, apparently, stalled due to production issues. That is still a matter of dispute between the parties.

10After almost three years of litigation, I am advised that questioning has not been completed.

The Wife’s Position

11The wife submits that she is entitled to interim spousal support. She submits that the husband has an annual income of $248,356 and that spousal support should be determined at the upper range based on the Spousal Support Advisory Guidelines. Child support should then be payable by the husband in the amount of $453.00 per month.

The Husband’s Position

12The husband submits that the wife is not entitled to spousal support. However, if I find that she is entitled to support, his income should be imputed to be either $183,154 or $192,764 depending on whether some employment expenses should be added back to his income.

A.M.’s Position

13A.M. submits that he will be impacted by the support ordered to be paid by his law partner brother.

14A.M. has filed an affidavit in support of his position. It is primarily made up of hearsay. It appears to have been sworn by his brother. I place no weight on this affidavit. Since A.M has no obligation to pay his brother’s family law support obligations, I do not find that he has any real interest in this motion other than to support his brother and denigrate his brother’s ex-wife.

Analysis

15The affidavits are breathtaking in their contrariness and anger. I say that after more than 35 years of practicing and judging in the area of family law. The damage that must be occurring to the two children is heartbreaking.

16I cannot determine which of the three deponents is lying but there is no doubt that at least one is doing so, if not all. I leave that to the trial judge.

17The husband denies that the wife is entitled to support. On this record, I cannot make that determination on an interim basis. From the wife’s Financial Statement, I can see that she has a present need for support. That may be as a result of her conduct (as he says) or his conduct (as she says). The issue of compensatory support is for the trial judge. For now, I am satisfied that the wife is entitled to interim support.

18With respect to imputing income, there are some items that I can rely upon.

19The parties agree that the husband’s line 150 income for 2017 is $156,196. They both rely on this as the starting point and then seek to add to it based on expenses deducted from his gross income from his law partnership.

20In the husband’s affidavit of November 16, 2018, he deposes:

For support purposes, my income for 2017 is $156,443.00. In support calculations that follow, and for the court’s assistance (although I maintain that these expenses are professional in nature), I also add back $15,000.00 of certain of these expenses (meals, office expenses).

21The wife noted that the husband had included his payments to his family law counsel in his business expenses. That, obviously, is not a proper business deduction. The husband agreed. In his reply affidavit sworn November 28, 2018, he said:

I will agree that the $33,321.00 of legal fees should be added back to my income in lieu of the $15,000.00 of business deductions that I addressed in my prior affidavit.

22At the outset of argument, the husband’s counsel submitted that I should not rely on this entry because it was in error. No correcting affidavit was proffered.

23A.M. submitted that only half of that legal expense should be added to his brother’s income because A.M. was required to pay half that expense as part of their partnership. Again, without evidence to support that submission. Absent a partnership agreement that requires each to pay one half of the personal expenses of the other, I cannot accept this. That will be for the trial judge.

24Legal fees, meals and office expenses are three separate areas of expense. For now, I accept the husband’s evidence that those expenses should be added back. I see no reason to ignore his earlier affidavit. Whether he “agrees” or not to the effect, that is his evidence.

25Accordingly, I accept the husband’s evidence that his line 150 income was $156,443. Added to that should be the $15,000 for expenses unreasonably deducted along with the $33,321 of legal expense.

26Both parties provided their DivorceMate calculations; these were the only figures in dispute. I note that while A.M. submits that the wife earns more than she says, the husband used her stated income for his calculations.

27For the purposes of the Spousal Support Advisory Guidelines, these expenses must be “grossed up” for income calculations. The parties have provided those calculations.

28Using those calculations, I find that, for interim support purposes, the husband earns $248,356.

29There is insufficient reliable evidence upon which I can make a determination of where the spousal support should lie in the range. I am left, therefore, simply using a midpoint of $2300 per month.

30The parties do not appear to dispute that child support is owing from the husband depending on my determination of his income. On the DivorceMate calculations, that child support is $459 per month.

31I leave it to the trial judge to determine both retroactive spousal and child support from the date of separation and going forward. That judge will be better able to determine the truth of the allegations put forward by both parties.

Result

32On that basis, the husband is ordered to pay spousal support in the amount of $2300 commencing October 1, 2018.

33The husband shall also pay child support in the amount of $459 commencing October 1, 2018.

34By consent order dated October 26, 2018, the husband was to make a without prejudice payment to the wife in the amount of $2,850. Presuming that he has paid that amount, it shall be deducted from this order.

Future Steps

35This case would benefit from case supervision. That was recommended by the case conference judge in March 2018 but it does not appear that the administration has been able to assist in that regard.

36I am aware that there are far more cases that require supervision in Brampton than can obtain it. I do not know the priorities of other cases. I leave that to the administration. However, this case has been lingering since 2016. There are five parties and only three of them have counsel. There are significantly different issues between some of the combinations of litigants such that it is quite possible that no step would necessarily require all parties to be in the same place at the same time.

37I attempted to impose a schedule upon the parties; however, I am satisfied that, without two of the parties in attendance, that would have been either impossible or inappropriate.

38Despite the ever lengthening case law decrying the failure of parties to produce relevant documents, there is either a reality or perception of a failure to disclose. Either way, judicial oversight on that matter may be of assistance.

39There have been two case conferences. Despite coming up to three years of litigation, there are outstanding requests for questioning. Accordingly, forcing a settlement conference on the parties would likely waste time.

40Finally, I believe that either intentionally or unintentionally, the parties cannot work together well enough to move this matter forward; judicial prodding would be of assistance to all.

Costs

41If costs cannot be agreed upon, the wife shall provide her costs submissions within the next 15 days. The husband shall provide his response within 15 days thereafter. If the wife seeks costs against A.M., he shall provide his response within 15 days thereafter as well.

42If A.M. seeks costs, he will provide those submissions within the next 15 days. Any party that he seeks costs against, shall have 15 days to respond.

43No reply submissions shall be filed unless I request them.

44Each submission shall be no more than three pages, not including any Bills of Costs or Offers to Settle.

45Written submissions shall be forwarded to me at my office at the Superior Court Office, 74 Woolwich Street, Guelph, Ontario, N1H 3T9. I shall ensure that they are filed in Brampton when I have finished with them

Lemon J.