Court File and Parties
CITATION: Saperia v. Vlasiu 2020 ONSC 2301 COURT FILE NO.: FS-20-015049 DATE: 20200416
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ADAM JARED SAPERIA Applicant
– and –
JENNIFER ANNE VLASIU Respondent
COUNSEL: Kenneth A. Cole and Meaghan O’Connor, lawyers for the applicant Self-represented and acting in person, for the respondent
HEARD: April 15, 2020
Endorsement
DIAMOND J.:
Overview
[1] Since the release of my Endorsement dated March 30, 2020, the parties exchanged and filed responding and reply materials in accordance with the timetable set out in my Endorsement.
[2] In accordance with the Endorsement dated March 25, 2020 of Justice Hood, only the respondent’s specific request for interim child support presumptively fit the “urgency requirement” for motions as set out in the Chief Justice’s Notice to the Profession dated March 15, 2020 and updated on April 2, 2020 (the “Notice”).
[3] Once again, the applicant does not challenge his legal obligation to pay child support for the parties’ newborn son. Rather, the respondent submits that since he is currently paying over $6,000.00 per month in expenses associated with the family home, his contributions towards the respondent’s share of those monthly expenses is higher than any table amount for child support.
[4] The respondent’s motion was argued by telephone conference before me on April 15, 2020. Some minor related issues were raised and canvassed during argument of the respondent’s motion, and will be addressed hereinafter.
[5] At the conclusion of the hearing of the respondent’s motion, I took my decision under reserve.
The Purchase of the Family Home
[6] The family home is municipally known as 1370 Avenue Road, Toronto, Ontario (the “property”), and is currently owned by both parties as tenants in common, each with an undivided 50% interest therein.
[7] The Agreement of Purchase and Sale was signed by both parties in late July 2019. The purchase price was $1,470,000.00. The transaction closed on October 30, 2019.
[8] On August 2, 2019, the parties delivered a deposit to the real estate agent in the amount of $73,500.00. The applicant has provided a copy of his bank statements evidencing the transfer of 50% of that deposit (i.e. $36,750.00) to the respondent’s account. The full deposit was then paid from the respondent’s account on August 2, 2019.
[9] There is no dispute that earlier that year, the applicant sold his interests in two businesses, and earned approximately $730,000.00 from those transactions. The parties have offered different versions of events as to how and why those proceeds were ultimately used to fund the purchase of the property. While I need not make any definitive findings on this interim motion (as the trial judge will be in a much better position to complete that task), there appears to be no dispute that the balance of funds required to close the transaction was $776,200.00, and the remainder of the purchase price was funded through a CIBC mortgage in the amount of $570,000.00.
[10] On October 29, 2019, the applicant transferred $650,000.00 into the respondent’s bank account. The respondent then delivered a bank draft drawn on her account in the amount of $776,200.00 to the parties’ real estate lawyer in order to close the purchase of the property.
[11] The respondent takes the position that the applicant’s transfer of $650,000.00 transfer to her was an inter vivos gift, and as a result the applicant’s post-closing monthly payments towards the $570,000.00 CIBC mortgage are his own responsibility as the respondent already paid for her 50% interest in the property using the funds gifted to her by the applicant.
[12] The applicant denies the respondent’s allegations, and maintains that the $650,000.00 transfer came from the sale proceeds of his own investments, and represented his own share of the balance of the down payment required to close the transaction.
[13] The applicant has provided evidence that, since the closing of the transaction, he has not only been funding the $5,418.88 CIBC mortgage payment each month, but he has also made payments each month towards property insurance, gas, hydro and other utilities such as cable, phone and internet. The applicant submits that his monthly payments total over $6,000.00, thus rendering his contribution towards the respondent’s share of those payments to be more than $3,000.00 per month.
[14] The respondent testified that since the parties’ separation on January 10, 2020, she has incurred household expenses totalling $3,276.98 including water, heating, hydro, property insurance and property tax expenses. On the record before me, it appears that both parties appear to have made contributions towards various expenses, but there is no dispute that the applicant is funding the major monthly expense being the CIBC mortgage payment.
Issue #1: What is the Applicant’s income for child support purposes?
[15] The applicant has produced his 2019 T4 slips which total $165,277.82. However, he is prepared to accept his 2018 line 150 income of $194,688.00 for the purpose of calculating his table child support obligations, which total $1,621.00 per month.
[16] The respondent accepts the two 2019 T4 slips produced by the applicant, but argues that the applicant’s 2019 income should also include the $730,000.00 which the applicant earned from the sale of his investments. The respondent argues that the applicant’s total 2019 income for the purpose of calculating child support should be $895,277.82.
[17] On the record before me, I cannot accept the respondent’s argument. In my view, this is an obvious example of double dipping, as according to the respondent the $730,000.00 was allegedly gifted to her from the applicant. In other words, the respondent seeks to treat the $730,000.00 - which was a “one time earning” - as investment income to the applicant, yet at the same time claim the $730,000.00 as her own money through an alleged gift. The respondent wants to reap the benefit of the $730,000.00 for her own purposes, and yet impute the same sum back to the applicant for the purpose of calculating his child support obligations. This would be an unreasonable and frankly untenable result.
[18] Accordingly, I find that the applicant’s 2019 income for the purpose of calculating child support is $194,688.00, and his monthly table child support obligation for the parties’ son is $1,621.00.
Issue #2: Was the $650,000.00 transfer a gift?
[19] As held by Justice Boswell in Lihou v. Lihou, 2011 ONSC 761, when a non-custodial parent pays for the carrying costs of a matrimonial home for the benefit of the children of the marriage, that non-custodial parent is making the equivalent of child support payments. The payment of those carrying costs can stand in lieu of both ongoing and retroactive child support obligations.
[20] The applicant is funding over $6,000.00 in monthly expenses associated with the property. Relying upon Lihou, the applicant submits that his contributions towards payment of the respondent’s share of those monthly expenses should stand in lieu of (and is more than) his table child support obligations.
[21] The respondent counters the applicant’s position by claiming that the applicant’s $650,000.00 transfer was not payment of his share of the down payment for the property, but a gift from which the respondent funded her 50% share of the total purchase price for the property.
[22] The onus of proof that the $650,000.00 transfer was a gift lies squarely with the respondent, who must lead sufficient evidence to establish that (a) the $650,000.00 transfer to her was gratuitous, and (b) there was an intention on the part of the applicant to pass both legal and equitable title to the $650,000.00 to the respondent.
[23] While I do not intend to bind the hands of any future motions judge or the trial judge in this proceeding, on the record before me I find that the respondent has failed to discharge her onus of proof. I make this interim finding for several reasons:
- In his Application (drafted well before the respondent’s Notice of Motion), the applicant seeks an order granting him an interest in the property in proportion to his (much) greater contribution to the purchase price, pursuant to the equitable doctrines of constructive trust and unjust enrichment.
- After being served with the Application, the respondent’s Answer included a nearly 60 paragraph summary of the events leading up to the commencement of this proceeding. Nowhere in the summary did the respondent allege or even mention that the $650,000.00 transfer was a gift from the applicant to herself.
- Similarly, in the respondent’s Notice of Motion and supporting affidavit, she made no mention whatsoever of the $650,000.00 transfer being a gift from the applicant to herself. In fact, the first time she raised it was during the March 30, 2020 telephone hearing before me in response to counsel for the applicant taking the position that the applicant’s payment of the carrying costs for the property ought to stand in lieu of his ongoing and retroactive child support obligations.
- Both parties are mortgagors on the CIBC mortgage. Why would the respondent agree to be jointly liable for the CIBC mortgage if she already funded her 50% share of the purchase price? The respondent’s answer to that question was that she became a mortgagor solely because she happened to be on title to the property. At this early stage, I find this explanation to lack any air of reality.
- Once the CIBC mortgage was registered, it became due and owing. In November 2019, the respondent attempted to deposit her $2,750.00 share of the CIBC mortgage payment, and when she encountered difficulty making that deposit online, she followed up with the parties’ CIBC representative to ensure that both parties could “just go in and pay our portion” of the CIBC mortgage.
- In a subsequent email dated December 4, 2019 to the parties’ CIBC representative, the respondent wrote “I find it perplexing that I have a mortgage that I cannot make contributions towards”.
- There is simply no written documentation exchanged between the parties, or sent to and/or received by third parties, that evidence the existence of a gift, or an agreement between the parties to treat the $650,000.00 transfer as a gift.
[24] On the record before me, I reject the respondent’s submission that the $650,000.00 transfer was a gift from the applicant to herself. I adopt the approach used by Justice Boswell in Lihou, and on the basis that the applicant continues to fund payment of the monthly expenses associated with the property (on an interim and without prejudice basis, and subject to potential re-adjustments at a later date), I dismiss the respondent’s motion as being not urgent.
Issue #3: Health Benefits
[25] The respondent gave evidence that she has recently encountered difficulty in availing herself of the applicant’s extended health benefits coverage, and that the parties’ son is apparently not listed as a beneficiary. The applicant denied removing the respondent as a beneficiary, but confirmed that he has yet to add the parties’ son as an additional beneficiary.
[26] During the telephone hearing, counsel for the applicant confirmed that on an interim and without prejudice basis, the applicant will use his best efforts to ensure that both the respondent and the parties’ son are properly listed as beneficiaries on his extended health benefits coverage, and I hereby make that Order.
Costs
[27] If the parties are unable to agree on the costs of this motion, they may serve and file written costs submissions (totalling no more than five pages including a Costs Outline) in accordance with the following schedule:
a) the applicant’s costs submissions to be served and filed within seven (7) business days of the release of this Endorsement; and, b) the respondent shall thereafter have an additional seven (7) business days from the receipt of the applicant’s costs submissions to serve and file her responding costs submissions.
Summary
[28] In summary, I make the following interim Order:
a) This Endorsement is an Order of the Court, enforceable by law from the moment it is released. b) The respondent’s motion is dismissed as not being urgent. c) On an interim and without prejudice basis, the applicant shall continue to fund payment of the monthly expenses associated with the property, including the mortgage, property insurance, gas, hydro, phone, cable and internet and property taxes if due and owing. The respondent shall forward copies of any invoices for those expenses to counsel for the applicant and the applicant shall remit payment of those expenses in accordance with the applicable payment terms. d) On an interim and without prejudice basis, the applicant shall use his best efforts to ensure that both the respondent and the parties’ son are listed forthwith as beneficiaries on the applicant’s extended health benefits coverage. e) In the event the parties are unable to agree on the costs of this motion, they may serve and file written costs submissions, (totalling no more than five pages including a Costs Outline) in accordance with the following schedule: i. The applicant’s costs submissions be served and filed within seven (7) business days of the release of this Endorsement; ii. The respondent shall thereafter have an additional seven (7) business days from the receipt of the applicant’s costs submissions to serve and file her responding costs submissions.