Nature of Motion

[1] The applicant husband has brought a motion, seeking temporary child and spousal support on the basis that, for support purposes, his annual income is $240,000 and the respondent wife’s is $1,087,231. More particularly, the husband seeks the following temporary orders:

a. That the wife pay him monthly child support in the sum of $12,370, being the Table Amounts set-off of child support, for the parties’ three children;

b. That the parties equally share the cost of the nanny expense and other s.7 expenses of the three children (i.e. extra-curricular activities, summer camps, music lessons, sports activities, etc.); and

c. That the wife pay him spousal support in the monthly sum of $5,705, being the low end of the range of spousal support calculated under the Spousal Support Advisory Guidelines (“SSAGs”) [resulting in the parties each being left with equal net disposable incomes (“50/50 NDI”)].

[2] The wife has brought a cross-motion, seeking the implementation of a support regime and the following orders:

a. A temporary, “without prejudice” order that the wife not be required to pay a monthly amount of Table child support to the husband, but that she pay 100% of the children’s section 7 expenses, as well as 100% of the operating expenses of the jointly-owned matrimonial home, with a review to take place on or after May 1, 2021, the order to commence on September 1, 2020;

b. In the alternative to (a), an order that the wife’s income be imputed at $710,000.00 a year on a “without prejudice” basis and requiring the wife to pay the husband spousal support in the sum of $223.00 a month (the low end of the SSAGs) and child support of $6,862.00 a month, being the Table Amount set-off of child support, along with an order that the husband pay to the wife $2,085.00 a month on account of the children’s s.7 expenses, the order to commence on September 1, 2020;

c. In the alternative to (b), and in the event that the set off Table child support terms are different than set out in (b) above, an order that the parties contribute equally to the children’s s.7 expenses;

d. If the court orders the wife to pay child and spousal support in the amounts set out in (b) above, then that the husband pay the wife the sum of $3,987.36 a month, representing his 50% contribution toward the property taxes, property insurance and encumbrances registered against the matrimonial home, reduced to account for his rental expenses; and

e. If the court orders the wife to pay child and spousal support to the husband in the amounts set out in (b) above, that the husband pay to the wife $3,333.33 a month for 12 months as repayment of the sum of $40,000.00, which was effectively advanced to him out of her equity in the home (on consent) from the parties’ joint line of credit.

[3] In support of the husband’s motion and in response to the wife’s cross-motion, he relies on the following material:

a. His Notice of Motion, dated March 27, 2020;

b. His affidavit, sworn on March 27, 2020;

c. His affidavit, sworn on April 6, 2020;

d. His Financial Statement, sworn on May 8, 2020;

e. An affidavit in the name of Natalie Hamam, sworn on April 6, 2020;

f. His affidavit, sworn on July 22, 2020;

g. His Factum, dated July 30, 2020; and

h. The transcripts of Questioning of the wife, taken on July 24, 2020.

[4] In support of the wife’s cross-motion and in response to the husband’s motion, she relies on the following material:

a. Her Notice of Motion, dated July 14, 2020;

b. Her amended Notice of Motion, dated July 27, 2020;

c. Her Amended Amended Notice of Motion, dated July 30, 2020;

d. Her affidavit, sworn on April 1, 2020;

e. Her affidavit, sworn on April 7, 2020;

f. Her Financial Statement, sworn on May 8, 2020;

g. The affidavit of Marylou Palaspa, sworn on April 2, 2020;

h. Her affidavit, sworn on July 20, 2020;

i. Her affidavit, sworn on July 27th, 2020;

j. The affidavit of Diana Elia, sworn on August 5, 2020;

k. Her Factum, dated July 30, 2020; and

l. The transcripts of Questioning of the husband, taken on July 23, 2020.

Procedural History

[5] On March 27, 2020, the husband issued an Application and filed a Financial Statement and a Form 35.1 Affidavit for Custody and Access. Simultaneously, he sought to bring an urgent motion, seeking exclusive possession of the jointly-owned matrimonial home, primary residence of the parties’ three children, and temporary child and spousal support.

[6] On March 30, 2020, Shore, J., as the triage judge, designated Moore, J. to hear the motion and ordered the parties to participate in a case conference on March 31, 2020 before Moore, J., to establish a timetable for the exchange of material and to determine how the motion would proceed.

[7] The Endorsement of Moore, J., dated March 31, 2020, set out a timetable within which the parties were to exchange material. The motion was scheduled to be heard on April 9, 2020 before Moore, J.

[8] Prior to the hearing of the motion on April 9, 2020, the parties agreed that the wife would have temporary exclusive possession of the matrimonial home and that during her parenting time, the children would reside with her there. In addition, the parties agreed to adjourn the issues of decision-making, which he did, and child and spousal support to an urgent case conference. That left only the parenting schedule to be decided by Moore, J. on the motion.

[9] On April 9, 2020, Moore, J. heard the child-related issues on the motion and cross-motion on an urgent basis by way of a long motion and reserved his decision.

[10] The Endorsement of Hood, J. on April 14, 2020, sets out that the parties would case conference the issues of their respective claims for exclusive possession of the matrimonial home and the husband’s claim for support before Nakonechny, J. on April 16, 2020.

[11] On April 14, 2020, Moore, J. released his decision on the temporary parenting schedule. Moore, J. determined that the children should reside primarily with the wife on a schedule where the children have six overnights with the husband and eight overnights with the wife out of 14.[^1]

[12] In determining the parenting schedule, Moore, J. referred to the affidavit of the parties’ nanny and stated that:

“[the nanny’s] evidence stands in clear contra-distinction to [the husband’s] evidence about the role he played in parenting the children in matters of attending to their care and feeding in the home on weekdays. And it supports [the wife’s] evidence of her parenting role with the children during weekdays.”

[13] On April 20, 2020, Nakonechny, J. made a temporary consent order, allowing the husband to withdraw funds from the parties’ joint RBC line of credit in the sum of $40,000, and ordered that on a temporary “without prejudice” basis, the wife was to pay all of the expenses associated with the jointly-owned matrimonial home, including the mortgage, the line of credit, property taxes, property insurance, utilities, etc. This consent order also addressed a process for the division of the parties’ household contents.

[14] Between May and June 2020, the parties had several case conferences before Nakonechny, J., as follows:

a. On May 22, 2020, the issues of child support, spousal support and financial disclosure were canvassed;

b. On May 27, 2020, they settled terms of a draft order and addressed financial disclosure issues;

c. On June 1, 2020, counsel for both parties had a conference call with Nakonechny, J. It was decided that the husband wanted to proceed with his temporary child and spousal support motion and the wife indicated that she wanted to proceed with a cross-motion. The Endorsement of Nakonechny, J. sets out that the motions would proceed by way of a “long motion” and that counsel had to attend the Return to Operations Court (“RO”) on July 6th, 2020, to schedule the date;

d. On June 6, 2020, at the RO Court, Shore, J. scheduled the hearing of the “long motion” for August 5, 2020; and

e. On June 9, 2020, counsel for both parties had a conference call with Nakonechny, J. and a consent order was entered into regarding the timetabling of the voluntary production of financial disclosure for purposes of the long motion.

[15] I heard the long motion on August 5, 2020 and reserved my decision on the substantive issues. These Reasons for Order contain my decision on the substantive issues, summarize the disposition I made on the procedural issues during the course of the hearing and include my reasons for the determination of all of the issues I was asked to decide on the “long motion”.

Procedural Issues on the Motion and Cross-Motion

[16] At the start of the hearing on August 5th, 2020, two procedural issues were raised by the parties, as follows:

a. Whether the husband’s July 22nd affidavit, or a portion of it, ought to be sealed as a result of confidentiality concerns relating to certain Exhibits attached to it; and

b. Whether the wife’s July 27th affidavit ought to be struck from the record or admitted into the evidence to be considered on the motion and cross-motion.

[17] The wife sought an order striking certain Exhibits from the husband’s reply affidavit, sworn July 22, 2020 (“husband’s July 22nd affidavit”), pursuant to Rule 1(8.2) of the Family Law Rules (FLRs), or an order that these documents be treated as confidential, sealed and not form part of the public record, pursuant to s.137(2) of the Courts of Justice Act.

[18] Specifically, the husband sought an order striking the wife’s supplementary affidavit, sworn on July 27, 2020 (“wife’s July 27th affidavit), from the record, pursuant to Rule 20 of the FLRs, because it was filed after her Questioning, which was conducted on July 24, 2020.

(A) Should the Court File be Sealed, or Exhibits attached to the Husband’s July 22nd Reply Affidavit be Struck?

[19] The wife is a partner at a large, well known law firm in Toronto. The wife seeks to have certain Exhibits struck from the husband’s July 22nd affidavit or to have the affidavit sealed because of the confidential nature of the documents. She claims that a sealing order is “necessary” to “prevent a serious risk to an important interest” - in this case, the wife’s continued partnership at her law firm.

[20] The wife acknowledges and agrees that the documents are relevant to the case and does not oppose the Court having the documents for purposes of the motion, cross-motion and trial (if this case does not settle). However, given the confidentiality of the documents, she seeks to have these Exhibits struck or sealed.

[21] The husband asserts that the Exhibits to his July 22nd affidavit about which the wife is concerned, ought not to be struck, firstly, because the parties had agreed during a case conference that the husband would attach these documents as Exhibits to his July 22nd affidavit, and secondly, because the Exhibits contain documents that are relevant and necessary for him to be able to prove his spousal support claim, particularly in relation to the issue of his entitlement to spousal support. Specifically, the documents relate to the wife’s work product at the law firm and, according to the husband, will prove his claim that he assisted the wife with her work responsibilities and career development in a variety of ways.

[22] The parties agreed that a separate motion was necessary to address the wife’s confidentiality concerns about these documents.

[23] Ms. Boulby indicated to the Court that the wife’s motion to seal the file would not be opposed by the husband. The wife intended to bring a separate motion, heard by another judge (due to my unavailability to hear the motion at the time that it would be returnable before the Court) to address whether the husband’s July 22nd affidavit, or a portion of it ought to be sealed. The parties initially intended that that motion be heard and the decision on it be released prior to the release of these Reasons. They have since advised this Court that the wife’s motion may proceed at a later date, but that these Reasons are to be released without the need to wait for the wife’s motion to be heard.

(B) Should the Wife’s July 27th Supplementary Affidavit be struck from the Record?

[24] The husband submits that the wife’s July 27th, 2020 affidavit ought to be struck from the record, for the following reasons:

a. The affidavit was not filed in accordance with the timetable set for this long motion by Nakonechny, J.;

b. The wife had no right to reply to the husband’s July 22nd reply affidavit; and

c. The import of allowing the July 27th affidavit to remain in the Record would be to allow the wife to attempt to fix testimony she gave during her Questioning, conducted on July 24th, 2020.

[25] The husband’s motion material was filed on March 27, 2020, after he initiated this application. He sought to bring an urgent motion for an equal parenting schedule and temporary child and spousal support. Again, on March 30, 2020, Shore, J., as the triage judge, directed the parties to attend a case conference by teleconference on March 31, 2020. Pursuant to a timetable set by Nakonechny, J. during a case conference before her, the wife was to file a responding affidavit by July 10, 2020, and the husband was to file his reply affidavit on or before July 22, 2020.

[26] The wife filed her responding affidavit on July 20th, 2020. As a result of her delay, the husband needed additional time to respond to the wife’s July 20th affidavit, which resulted in the Questioning of the parties being slightly delayed.

[27] The Questioning of the husband took place on July 23rd, 2020, and the Questioning of the wife took place on July 24th, 2020.

[28] On July 27th, 2020, after she was questioned, the wife filed a further affidavit. The wife submits that her July 27th affidavit is not a “reply reply” affidavit, as asserted by the husband. The wife submits that:

a. The husband’s affidavit of July 22nd, 2020, was not a proper “reply” affidavit because it addressed new issues, which provided the wife with a right to file a “responding” (her word) affidavit on July 27th, 2020; or alternatively, that:

b. The husband’s July 22nd affidavit was a responding affidavit on the wife’s cross-motion; thus, she had the right to file and serve an affidavit in reply, which she did on July 27th, 2020, and that:

c. The wife’s responding affidavit, sworn on July 20, 2020, responded to the husband’s March 27th, 2020 affidavit and was also filed in support of her cross-motion. Accordingly, the husband’s July 22nd affidavit was a reply affidavit on his motion but also a responding affidavit on her cross-motion. Accordingly, the wife’s July 27th affidavit was not a “reply reply” affidavit, but simply a “reply” affidavit.

[29] The wife submits that the husband’s July 22nd affidavit included new allegations and evidence, which responded to her cross-motion. Given that the husband’s July 22nd affidavit was served on her one day prior to the husband’s Questioning, she did not have sufficient time to reply to the July 22nd affidavit before the Questioning.

[30] As a result, the wife filed her further affidavit on July 27th, 2020, along with an Amended Notice of Motion. The only change to the original Notice of Motion was the fact that she sought to strike or seal certain Exhibits to the husband’s July 22nd affidavit as a result of allegations made in his July 22nd affidavit.

[31] After the wife’s July 27th affidavit was served, Mr. Moldaver (the wife’s counsel) offered Ms. Boulby (the husband’s counsel) an opportunity to cross-examine the wife on the affidavit prior to the hearing of the long motion, which offer was declined.

[32] More specifically, the wife submits that her July 27th affidavit ought to be admitted on the following bases:

a. It is proper “reply” material, filed in compliance with Rule 14(11.5) of the FLRs. The Rule provides that a party who uses a notice of motion (Form 14) and who is served with a response to it may serve and file a reply not later than 2 p.m. three days before the motion date.; and

b. It is proper “reply” material, even if the husband claims that it is “reply” material and was not served in compliance with Rule 14(20)(3) of the FLRs, because it replies to new matters raised by the husband in his July 22nd affidavit, filed in response (at least in part) to the wife’s cross-motion: Rule 14(20). Rule 14(20)(3) provides as follows:

RESTRICTIONS ON EVIDENCE

(20) The following restrictions apply to evidence for use on a motion, unless the court orders otherwise:

The party making the motion shall serve all the evidence in support of the motion with the notice of motion.
The party responding to the motion shall then serve all the evidence in response.
The party making the motion may then serve evidence replying to any new matters raised by the evidence served by the party responding to the motion.
No other evidence may be used. O. Reg. 114/99, r. 14 (20).

c. The July 27th affidavit was filed more than three days before the long motion, which was heard on August 5th, 2020. Even though the July 27th affidavit was filed by the wife after her Questioning, in my opinion, this did not prevent her from filing it because the affidavit qualifies as “further material” in reply to the answers or information obtained on Questioning: See Rule 20(8)(b).

d. Under Rule 20(8)(b) of the FLRs, a party who wants to question a person or obtain information by affidavit or by another method may do so if the party promises not to serve or file any “further material”, except in reply to the answers or information obtained. Rule 20(8) of the FLRs is reproduced below:

QUESTIONING OR DISCLOSURE — PRECONDITIONS

(8) A party who wants to question a person or obtain information by affidavit or by another method may do so only if the party,

(a) has served and filed any answer, financial statement or net family property statement that these rules require; and

(b) promises in writing not to serve or file any further material for the next step in the case, except in reply to the answers or information obtained. O. Reg. 114/99, r. 20 (8).

e. The reference to “further material” in Rule 20(8)(b), includes “affidavits”. In Gordon v. Starr, 2007 19137 (Ont. SCJ), the husband’s Affidavit purported to “reply” to statements made on the Questioning and to “give an update” with respect to his efforts to find employment. Quinn, J. interpreted Rule 20(8), holding as follows at 16-17:

“Further material” in clause 20(8)(b) includes an affidavit. Therefore, this means that, even after questioning, the flow of affidavits is not staunched. And, any affidavit may lead to more questioning as long as the preconditions in subrule 20(8) and the condition in subrule 20(5) are satisfied”.

f. The July 27th affidavit ought not to be struck from the record. In Cavarra-Aitoro v. Aitoro, 2019 ONSC 1460 (Ont. S.C.J.), the husband objected to the wife’s affidavit on the basis that it was served and filed after Questioning. She was allowed to file the affidavit on the basis that Rules 2(2), (3) and (4) of the FLRs are to be “given a broad and liberal interpretation and adjusted to the circumstances of each individual case.” In particular, at 41-43 and 45, Jarvis, J. noted that:

“Family Law Rule 14(20), upon which the husband relies, provides a guideline with respect to motion evidence. It is intended, and the framers of the rules intended, this kind of rule to avoid what before 1999 was a serial affidavit war between the parties. But importantly, the framers of the rules recognized that there may be circumstances in which the strict application of that rule would not serve the primary directive. That is found by the reference in rule subsection (20) “unless the court ordered otherwise”.

[33] The husband submits that the wife’s July 27th affidavit ought to be struck from the record on the following specific bases:

a. The July 27th affidavit was filed after the Questioning of the Wife, as an attempt by the wife to fix the answers she gave at her Questioning;

b. Rule 20(8) of the FLRs prohibits the filing of the July 27th affidavit as it provides that the party who is being questioned has to file material before the questioning takes place; and

c. Rule 20(8) sets out that only materials that are in “reply to answers” can be filed after the questioning and the July 27th affidavit was not filed as proper “reply” to the husband’s answers during Questioning.

[34] I did not strike the wife’s July 27th affidavit from the Record and provided that decision to counsel during the hearing. The wife had offered the husband an opportunity to cross-examine her on the July 27th affidavit. As a result of the suspension of regular Court operations after the Covid-19 health crisis began (mid-March 2020), the parties had been given a long motion date at the RO Court of August 5, 2020. The husband clearly did not want to lose the opportunity for the long motion to be heard on that date. That was his choice. The motions were not of such urgency that the long motion could not be delayed, in my view. I was not told by the husband’s counsel that they had checked and that a new return date within a reasonable period of time as not available. While the delay in the delivery of material did start when the wife served her responding material and cross-motion material late, with a resulting need to delay the Questioning, the delay simply did not leave the wife with enough time to file a reply affidavit on her cross-motion, accepting that that was at least part of the purpose of filing the July 27th affidavit.

[35] In all of the circumstances, the strict application of Rule 14(20) of the FLRs would not serve the primary objective of the FLRs, namely, to enable the Court to deal with cases justly. Taking guidance from Rules 2(2), (3), and (4), I concluded that the affidavit was admissible. I was not satisfied that the wife’s July 27th affidavit was simply an attempt to correct answers she gave on her Questioning. In the affidavit, she did reply to new matters raised by the husband in his affidavit in response to the wife’s cross-motion. To the extent that a statement in the affidavit appeared to correct an answer as opposed to provide information in response to a new allegation that the husband made in his July affidavit, I was in a position to consider the impact of an attempted “fix” on her evidence. Again, the husband was given the opportunity to question the wife on her July 27th affidavit. He opted not to in favour of proceeding with the August 5th hearing date.

[36] When I disposed of this issue during the oral hearing, I provided the husband with the opportunity to adjourn the long motion so that he could cross-examine his wife on the affidavit. The husband declined the offer to adjourn. The husband asked that this court consider the wife’s July 27th affidavit in terms of her credibility when reviewing the transcripts of her Questioning which I have done.

Background Facts

[37] The parties were married on September 25, 2004. They separated on January 29, 2020, after 15 years of marriage.

[38] There are three children of their marriage, namely Matteo Omar Hamam, born November 16, 2020, age 9; and Alessandra Pauline Hamam and Nestrine Elyse Hamam (twins), born January 2, 2014, 6-year old twins.

[39] The husband and wife are both lawyers. The husband has worked as an in-house lawyer at RBC. The wife worked as a lawyer at Goodman’s LLP until 2017, at which time she moved to Osler, Hoskin & Harcourt (“Osler’s). The wife is a partner in the Financial Services Group, where she focuses on insolvency, debt restructuring and derivatives.

[40] The wife deposes that she currently receives a draw of approximately $20,000 a month from her law practice and that, every quarter, the firm pays additional monies to its partners, based on its profitability (paid in installments).[^2]

[41] In 2018, the wife’s Line 150 income (Taxable Income) on her 2018 T1 income Tax Return was $904,169. She has not yet filed her 2019 income tax return. Her 2019 and current incomes are addressed below in these Reasons.

[42] In 2018, the husband left his employment at RBC. At that time, the husband was earning $280,000 a year. The reasons for the husband’s resignation from his employment in 2018 are disputed. The wife asserts that the husband left due to mental health issues he was experiencing, namely, anxiety and depression. The husband submits that he left RBC because the parties agreed he would take on a bigger role at home in terms of looking after the household and children, given the demands of the wife’s relatively new position at Osler’s. The evidence as between the parties on this point is in conflict. In my view, for purposes of this temporary motion, it does not matter whether he resigned for the reason he gives versus the reason the wife gives.

[43] Throughout the marriage, the parties employed a full-time nanny and part-time housekeeper.

[44] The husband asserts that he was the primary parent to the children when he was not working during the period between the Spring of 2018 and March of 2020. However, Moore, J., in the reasons he gave for his order, dated April 9th, 2020, preferred the evidence of the parties’ nanny, which was in direct conflict with the husband’s in terms of the parenting role he played with the three children. The evidence of the nanny is that the husband did not eat meals with the children or take them to or from school while he was off work for two years.

[45] The parties separated in January 2020 and lived separate and apart in the matrimonial home until March 20, 2020.

[46] In mid-March 2020, after the separation, the husband returned to work with RBC on a one-year contract. He is currently earning an annual salary of $240,000. The husband deposes that he was offered four different employment opportunities at RBC when he applied to resume employment in March 2020.

[47] On March 14, 2020, the wife travelled to Chile for work. Given the Covid-19 health crisis, when the wife returned to Toronto from Chile, she was required to quarantine for 14 days. She did so in the basement of the matrimonial home, isolated from the husband and children.

[48] On March 20, 2020, the parties had an argument. The husband deposes that the argument was the result of the wife resisting the self-quarantine and asking to watch a movie with the children. The wife deposes that the husband had an outburst during which he slammed a door on her mother, who was at the matrimonial home.

[49] The situation escalated and the wife called the police. The police attended at the matrimonial home. The husband was charged with uttering death threats. He was not taken into custody. However, the husband gave an Undertaking not to have any direct or indirect contact with the wife, except for arranging parenting time. The husband is defending the criminal charge. He claims that the call to the police was manipulated by the wife in a successful attempt to get him to leave the matrimonial home.

[50] The police directed the husband to take the children with him from the matrimonial home on March 20, 2020, because the wife was self-isolating.

[51] The children and husband stayed at his parents’ condominium until the wife’s self-isolation period ended on April 3, 2020, as per the government guidelines. The husband then returned the children to the matrimonial home pending the hearing of their urgent parenting motions by Moore, J. on April 9th, 2020.

[52] Again, the children currently reside with their parents pursuant to the parenting regime ordered by Moore, J., such that they spend 8 overnights with the wife and 6 overnights with the father on a 14-day cycle. Specifically, the three children reside with the father from Tuesday, at noon to Thursday, at noon, every week; and on alternate Fridays, at noon to Sunday, at noon. At all other times, the children reside with the wife.

[53] The husband is seeking temporary child and spousal support, commencing on August 1, 2020, reserving his right to make retroactive support claims at trial for the period from the date of separation to August 1st, 2020.

Temporary Spousal Support

[54] Before the Court can order temporary spousal support, the issue of entitlement to spousal support must first be addressed.

[55] There are three bases upon which a spouse may be entitled to spousal support: compensatory need; and by contract.

(a) The Husband’s Position that He Has Both Compensatory and Needs-Based Entitlement to Spousal Support

[56] The husband claims that he has a prima face entitlement to spousal support, based on both compensatory principles and need, given the following facts:

a. This was a 15-year marriage with three children;

b. The husband contributed to the care of the children and to the household in a meaningful way;

c. The husband was equally involved with the care of the children in their early years;

d. The husband’s contribution toward parenting and the household was significantly increased in 2017, when the wife left Goodmans, LLP and became a partner at Osler’s;

e. The husband’s contribution toward the parenting and household roles were further increased when he left his employment at RBC in the Spring of 2018 and until he resumed working for RBC in mid-March 2020;

f. The husband managed the parties’ financial investments and household in the later years of the marriage when the wife’s work responsibilities became more demanding;

g. The husband supported the wife in her career development;

h. The husband took on the parenting duties to support and enable the wife to travel for work purposes. There is conflicting evidence about how often the wife travelled for work purposes, the husband deposes that the wife was away 130 days over the last 15 months of the marriage. The wife deposes that she was away 40 days during this same time period. Regardless, the husband asserts that even on the wife’s evidence that she was away for 40 days, with three small children, he was present as their parent when the nanny left at 5:00 p.m. daily.[^3]

i. The husband introduced the wife to banking clients, given his connections to the banking world, through his employment at RBC;

j. The husband assisted the wife in making submissions to Osler’s regarding her compensation package; and

k. The husband assisted the wife with her work responsibilities and duties, including assisting her in answering work-out emails and preparing various analyses. In particular, in the husband’s July 22nd affidavit, he deposes that he assisted the wife in her career and law practice in the following ways:

i. Answering questions posed by her clients and colleagues;

ii. Drafting memos and parts of memos to her colleagues and clients;

iii. Drafting and revising slides for her business presentations;

iv. Drafting a “Canadianized” version of a global industry standard contract for a client of the wife (with whom the husband had worked closely during his career);

v. Reviewing contracts and drafting amendments of other documents the wife prepared in the course of her work;

vi. Creating a 29-page document to assist the wife with a project involving the harmonization of two different forms of industry standard agreements for securities finance transactions;

vii. Completing work for the wife that her associates were unable to do;

viii. Creating a comparison document to summarize a review of contracts for a major client of the wife; and

ix. Reviewing the wife’s application to Osler LLP.

[57] In addition to the factors listed above, which the husband asserts establishes his prima facie entitlement to spousal support on compensatory grounds, the husband also claims entitlement to spousal support on non-compensatory grounds, namely, on a needs-based basis, which he acknowledge that he has mitigated to some degree by resuming employment with RBC in mid-March 2020, now earning $240,000 a year. During the marriage and at least from 2018 onward, the parties had between approximately $1,100,000 - $1,300,000 of combined annual income at least from 2018, available to the family. On the husband’s income of $240,000, he asserts that there is no way he can maintain the standard of living to which the parties became accustomed without receiving spousal support from the wife.

[58] In my view, it does not matter whether the husband resigned from his employment to assist in the care of the children by agreement with the wife or because he was experiencing the health issues referred to by the wife. Either circumstance, among others referred to below in these Reasons, militate in favour of his spousal support claim.

(A) The Wife’s Position that the Husband has Not Established a Prima Facie Entitlement to Spousal Support

[59] The wife submits that the husband has not established that he has a prima facie case for entitlement to spousal support. Specifically, she submits that the husband cannot establish that he has a compensatory-based entitlement to spousal support for the following reasons:

a. The husband has not experienced any lost career opportunities connected to the marriage or the roles he played in the marriage. He has always worked as in-house counsel for a Bank, and he continues to be employed in this position;

b. The husband has not demonstrated that he has suffered any economic disadvantage by virtue of the parties’ marriage or since its breakdown;

c. The husband did not lose any opportunities in his career or in the development of his career, even with his two-year hiatus from RBC. Even though the husband deposes that he left his position at RBC because he wanted to be available to the children, given the wife’s increased demands at Osler’s, he admitted in his Questioning that all three children were in full-time school during the two years when he was unemployed[^4]. Further, the husband’s testimony in Questioning was that he chose to leave RBC because he “thought that the extra work that [the wife] was going to have to undertake was necessarily going to mean less time for her to be around the children”[^5] but not that she had actually spent less time with the children;

d. In fact, the husband admitted that when he decided to return to work in mid-March 2020, he was informally offered four employment positions at RBC, one of which would have provided him with an annual income of $300,000, which is greater than the income he had earned in 2017 before he left and greater than his current income[^6]. The husband chose not to accept this employment position because of the early start time of 6:30 a.m., even though the husband also admitted that he has never taken the children to school. When the husband left RBC, he was earning $280,000 in 2018. He chose to take a position that paid him a salary of $240,000. The wife submits, therefore, that is it solely the choice of the husband that he is currently earning $240,000 a year. Accordingly, the husband cannot now claim that he suffered an economic disadvantage by the roles he played during the marriage;

e. Both parties worked full-time outside of the home during the marriage. Even though there was a two-year period when the husband was not working, the wife remained the primary parent that she had been throughout the marriage, as found by Moore, J. on the April 9th motion.

f. The evidence demonstrates that the husband did not have dinner with the children or engage in activities with the children, even when he was not working. He himself deposes, he deferred to the nanny. During his Questioning, the husband admitted that during the time he was unemployed, the children did not arrive home from school until 3:45 p.m. to 4:00 p.m.; the nanny prepared dinner for the children; and he did not eat dinner with the children.[^7]

g. There is no evidence that the husband is in a worse position than he would have been because of the roles each party playing during the marriage. The husband is qualified to do the same work upon separation as he did during the marriage. In fact, the husband admitted during his Questioning that he has not tried to secure a position at a private law firm because he has “other priorities” and that “making as much money as [he] can possibly make is not [his] top priority”[^8].

[60] The wife asserts that she has had a successful legal career without the husband is assistance. She deposes that she did not need the husband’s help with her work responsibilities, other than to assist her with computer technology - in particular, the home printer.[^9] The wife explains that, if she sent the husband emails with work-related attachments, they were sent to him only to have him print these documents on the family printer and not to garner his assistance or input on the attached documents.

[61] The wife vehemently denies that the husband assisted her in her career or in its development at Osler’s or previously at Goodman’s. The wife’s position is that both parties are lawyers in the same field. She asserts that it is common for partners to talk about their work and bounce ideas off each other. According to the wife, any dialogue between the parties about her work was merely indicative of a reciprocal relationship where the parties discussed their work responsibilities with one another.[^10]

[62] According to the wife, the husband is also not able to establish that he has a needs-based entitlement to spousal support. The wife submits that the husband has not demonstrated that he has any need, for the following reasons:

a. There is no evidence of any capital depletion on the part of the husband or in the accumulation of debt by him since the parties’ separated in January 2020.

b. The husband’s savings have increased since separation[^11] and his debts have decreased[^12] because post-separation, the wife has used her income to pay down the parties’ joint debts[^13].

c. The wife submits that the husband’s budget from his Financial Statement, sworn on May 8, 2020 is not a “real” budget. The husband spent $870 in March 2020; $21,000 in April 2020, which included his first and last month’s rent and purchases for a new home; and $10,000 in May 2020. During Questioning, the husband admitted that the budget in his Financial Statement of $32,000 a month represents the family’s spending during the marriage and not the husband’s current spending. Some of the expenses listed in his budget “have not yet been incurred”.[^14]

[63] It is clear to me the husband has not had to increase his debt post-separation because he has only, relatively recently set up his own home and also not yet contributed to the children’s expenses in any meaningful way. He has an obligation to pay child support under the Child Support Guidelines (“CSGs”) and he does not want to be seen as not paying child support. He has sought to pay half the children’s expenses out of this net disposable income, as discussed below in these reasons.

(B) Quantum of Spousal and Child Support and Income of the Payor Wife

[64] The husband asserts that the income the Court ought to impute to the wife for support purposes is $1,087,231 since that is the actual income that the wife earned in 2019. As such, it is the best evidence of what her income will be in 2020.

[65] The wife has not yet filed her 2019 income tax return. The parties agree that the wife has three sources of income from Osler’s: her partnership income; interest income earned on her capital and investments in the partnership; and income from a family trust diverted by Osler’s, which is paid to the wife as the only beneficiary. Generally, the wife takes a draw against her projected income each year. In each year, the firm hold backs some of her income until the following spring.

[66] In these proceedings, the wife has produced copies of the following documents to verify her 2019 income:

a. Her T5013 Statement of Partnership Income for 2019[^15], which discloses her 2019 partnership income;

b. Her “Final Income and Investment Summary for the Year Ended December 31, 2019”[^16];

c. The 2019 Equity Partner Payment Schedule, dated December 11, 2018 provided to her by Osler’s[^17], representing Osler’s projections for the wife’s 2019 income;

d. The 2020 Equity Partner Payment Schedule, dated December 18, 2019 provided to her by Osler’s[^18], representing Osler’s projections for the wife’s 2020 income; and

e. Her 2020 Equity Partner Payment Schedule, dated April 13, 2020 provided to her by Osler’s[^19], representing Osler’s adjusted projections for the wife’s 2020 income.

[67] The financial disclosure provided by the wife to date demonstrates that her total annual income for 2019 was $1,087,231[^20], broken down as follows:

i. $1,007,328.60 from partnership income;

ii. $79,023.12 from the 2017 Mantello Lisa Family Trust, of which the wife is the only beneficiary; and

iii. $878.67 from investment income on account of her capital in the firm.

[68] The husband further deposes that:

Osler’s has prepared a cash payment schedule for the wife for 2020 that was updated on April 5, 2020 (“April Projected Schedule”) and reflects a cash distribution, which shows that she will receive $1,076,652 by year end 2020, made up of $997,629 in draws and distributions and payments made to her family trust totaling $79,023, which is a “flow through” to her.
Prior to the April 5th, 2020 updated April Projected Schedule, the wife received her projected 2020 Equity Partner Payment Schedule in December 2019, where her compensation for 2020 was projected to be $1,059,628 from partnership income and $78,549 being paid to the Family Trust[^21]. This was confirmed in her Questioning[^22]. It was further confirmed in a text she sent to the husband.[^23]

[69] As with any law partnership, the precise income a partner can expect from the law firm is not a precise number until the year is completed. The actual cash distributions the wife will receive from Osler’s in 2020, will be based on the profit of the firm.

[70] The wife deposes that the April Projected Schedule provides for a reduction of the projected disbursement in 2020 and a delay in terms of when the disbursements will be paid. In paragraph 22 of the wife’s July 20th affidavit, she states,

“In terms of my income, and for clarity, I have received approximately $610,000 (gross) in 2020, to date. I am not guaranteed any further disbursements, over and above my regular gross monthly draw, with approximately $100,000 remaining for the year, being $20,000 per month for August to December. Accordingly, my actual known projected income for 2020, is approximately $710,000”.

[The wife does not explain what amounts are included to arrive at the figure of $610,000. Accepting that the wife received only the amounts referred to in the April Projected Schedule, including the bonus, tax installments, RRSP contribution, family trust payments, regular monthly draws, interest on her capital and fixed investment with Osler’s, the wife would have received $486,638 up to the date she swore her affidavit on July 20, 2020[^24]].

[71] The wife claims that Osler’s has been negatively affected by the Covid-19 health crisis. The partnership income was reduced, and the December 2019 projections did not come to fruition. The wife’s position is that the best evidence of her income for support purposes is to look only at her cash distributions based on the April 2020 Osler’s schedule which is the cash she has received thus far in 2020, given the current uncertainty arising from the Covid-19 health crisis.

[72] In particular, the wife asserts that her best-known current income in 2020 will be $710,000. Thus far, the wife deposes that she has received cash income of $610,000 gross[^25]. She deposes that she is not guaranteed any further disbursements, over and above her regular gross monthly draw which will be approximately $20,000 a month for August to December 2020 (totaling $100,000), for the total income of $710,000 for 2020.

[73] The wife asserts that the Court cannot rely on projections from Osler’s that she will receive any other amounts in terms of partnership profits. The wife further submits that there is no reason to speculate as to what additional amounts the wife will receive especially with the uncertainty of Covid-19.

[74] As mentioned above, the April Projected Schedule sets out that the projected cash the firm anticipates that the wife will receive in 2020 is $1,076,652, broken down as follows:

i. $997,629 from partnership income; and

ii. $79,023 to the Family Trust.

[75] Despite the wife’s assertions that $710,000 is the best evidence this Court has on which to base her current child and spousal support obligations, the April 2020 Osler’s Projected Schedule is the only objective third-party evidence that the court has and upon which it can fairly rely. This is particularly so, given that the wife’s evidence that she had received $610,000 gross as of the date of her July 20th affidavit (see paragraph 22) appears to prove that she had received all anticipated payments up to the time of her July affidavit.

[76] Notwithstanding the statements made by the wife in paragraph 85 of her July 20th affidavit, it is clear from her statement that she had received $610,000 gross as of July 2020, and thus did receive a disbursement in April 2020 based on the April Projected Schedule from Osler’s not the December Projected Schedule. Paragraph 85 of the wife’s July 20th affidavit is misleading. She states that the amount projected for the April distribution set out in the December projection from Osler’s was “not made”. However, what she does not say, and what is clear from her evidence in paragraph 25 of her July 20th affidavit, that “to date, [she] has received $610,000, gross”, is that she received a distribution in April in the amount that the updated April 20 projection provided for.[^26] Thus, this gives some reason to be concerned about her evidence that the only guaranteed payments that she will have for the balance of 2020 are her regular draws. It is clear from the April 20th projected budget, that the wife had received, every amount in the April Projected Schedule as of July 2020. Thus, there is no reason to doubt that she will receive the balance of anticipated payments referred to in the Osler’s April 2020 projected budget.

[77] As of the date of the wife’s last affidavit she filed in this proceeding (July 27th) there was no evidence that Osler’s had further changed its 2020 Income Projections. Thus, there is no reason to believe that the balance of the projected payments will not be made to her. While the wife did disclose the $610,000 she had received thus far from Osler’s, her evidence was misleading in paragraph 85. For support purposes at this point, the wife should be imputed with an income of $1,076,652.

Parties’ Budgets – Needs and Means Analysis

[78] The husband’s budget, set out in his Factum, dated July 30, 2020, is $34,196.50 a month. According to the husband, this budget does not include the cost of a nanny, which he deposes he may have to hire require once he is no longer able to work from home after the Covid-19 health crisis subsides. The husband asserts that his budget is based on the parties’ standard of living prior to separation. The wife submits that the husband’s budget is not a “real” budget because it includes many line items that he does not incur such as the nanny, RESP, cottage related expenses, children’s activities, donations and debt payments.

[79] The wife’s budget, set out in her financial statement, sworn on May 8, 2020, is $82,506.20 a month. However, in the wife’s July 20th affidavit, she deposes that her monthly expenses are in the approximate amount of $46,000[^27]. The wife asserts that her monthly budget is higher than the husband’s budget because her income tax obligations are higher, she pays a full-time nanny at a cost of $6,000 a month, without contribution from the husband, and she pays for the entirety of the costs of the jointly-owned matrimonial home.

[80] The wife further deposes that since her monthly expenses exceed her monthly draw of approximately $20,000 a month gross, she has had no alternative but to deplete capital to maintain the family’s status quo. The wife asserts that when she swore her financial statement on May 8, 2020, she had savings of approximately $81,000 in her RBC account, which, by the time she swore her July 20th affidavit, had been depleted to $14,000.

[81] It is clear that, except for those expenses that must be paid at this time, the reasonableness of the budgets will have to be assessed at trial once the parties’ incomes are determined and other issues such as the final parenting plan and arrangements relating to the matrimonial home are finalized.

Husband’s Position on the Quantum of Temporary child and Spousal Support

[82] The husband’s position on temporary child and spousal support is set out in Schedule “A” to his factum in a Supportmate calculation and can be summarized as follows:

i. The wife’s income for support purposes ought to be $1,087,231. The husband’s income for support purposes is $240,000.

ii. Set-off Table child support for 3 children would result in the wife owing monthly Table child support of $12,370 to the husband;

iii. The cost of the nanny according to the husband is $67,720 a year. The child care deductible portion to the wife is $21,000. The husband’s s.7 payment toward the nanny would be $1,092 a month.

iv. The low end of the SSAGs results in the wife paying deductible/taxable spousal support to the husband in the sum of $5,705 a month.

v. Each party is left with $26,393 in net disposable income. The husband asserts that from his net disposable income he will pay 50% of the children’s s.7 expenses.

[83] The husband proposes, therefore, that this Court make the following order, which will leave the husband and wife with equal net disposable incomes:

i. The wife will pay child support to the husband in the sum of $12,370 a month (strict set-off of Table Amounts);

ii. The wife will pay spousal support to the husband of $5,704 a month (low end of SSAGs); and

iii. The husband will pay $1,092 a month toward the wife’s nanny costs (as a s.7 expense); and the parties to equally share the remainder of the children’s extracurricular and other s.7 expenses.

The Wife’s Position on the Quantum of Temporary Child and Spousal Support

[84] The wife asserts that she does not currently have the ability to pay monthly child or spousal support. For this reason, she seeks an order that provides for no support being paid to the husband pending trial but, which may be reviewed after May 1, 2021, if the trial has not taken place before that date. She proposes that she simply pay 100% of the expenses associated with the matrimonial home and all of the children’s s.7 expenses on a temporary and “without prejudice” basis.

[85] The wife deposes that, after she pays the matrimonial home expenses and children’s expenses, she has $7,229.38 left in net disposable income (“NDI”) as compared with the husband’s NDI of $12,218. This is demonstrated by her in paragraph 95 of the wife’s July 20th affidavit and reproduced below:

$30,419.00 Wife’s NDI based on an income of $710,000;

($9,450.01) Less mortgage

($3,282.98) Less LOC interest, based on a 4-month average;

($1,064.73) Less property taxes (estimated)

($177.00) Less property insurance (estimated)

($8,215.00) Less $98,585 being the net section 7 expenses in 2019, including nanny)

($1,000.00) Less children’s clothing, entertainment, books, birthday gifts, supplies)

$7,229.28.

[86] In the alternative, the wife submits that, if the Court is inclined to order temporary child and/or spousal support, then an income of $710,000 a year be used for her. Based on this income and an income of $240,000 for the husband, without accounting for child or spousal support or any s.7 expenses, the wife has net disposable income of $30,419 a month and the husband have net disposable income of $12,218, after taxes. This results in the wife having 71.3% of the parties’ combined incomes and the husband having 28.7% of the parties’ combined incomes. These figures are supported by the Divorcemate calculation attached to the wife’s July 20th affidavit as Exhibit “T”.

[87] According to the wife, the husband would have $12,218 in net disposable income to cover his own housing expenses, other personal expenses for himself and expenses he incurs for the children when they are with him. She believes that an order that she pay no child or spousal support to the husband but that she continues to pay the above-listed expenses without contribution from the husband, is better for both parties.

[88] The wife’s position on temporary child and spousal support can be summarized as follows:

i. The wife’s income for support purposes ought to be $710,000. The husband’s income for support purposes is $240,000;

ii. Set-off Table child support for 3 children would result in the wife owing monthly Table child support of $6,862 to the husband;

iii. The cost of the nanny according to the wife is $71,054 a year, not $67,720 a year as the husband asserts. The child care tax deduction to the wife is $21,000. The wife also calculates that the children’s s.7 expenses are $38,722 a year (based on her 2019 figures). The husband’s s.7 payment toward the nanny and section 7 expenses would be $2,096 a month.

iv. The low end of the SSAGs results in the wife paying deductible/taxable spousal support to the husband in the sum of $223 a month.

v. Each party is left with $17,333 a month in net disposable income, after each party makes the payments above for support and s.7 expenses.

[89] Again, if the court is inclined to order the wife to pay the husband child and/or spousal support, then the wife also seeks an order requiring the husband to repay to her $40,000 advanced to him post-separation from the parties’ joint line of credit, which is secured against the matrimonial home, in monthly installments, and repay her for his 50% share of the expenses associated with the matrimonial home. This is the wife’s position, even though she has been residing in the matrimonial home since mid-March 2020.

[90] The wife submits that there is no evidentiary basis for imputing any income to her. She is not currently earning the income in 2020 that the husband claims she earned in 2019. She is depleting capital and incurring debt to meet the family’s expenses. She deposes that she has also used her cash distributions from Osler’s to pay off the parties’ joint debt. The wife is solely paying the parties’ mortgage and joint line of credit, without contribution from the husband, which has benefitted the husband.

[91] As set out above, this court finds that the best available evidence as to the wife’s current 2020 income results in a determination that her income for support purposes in this case should be imputed at $1,076,652. Using an annual income of $1,076,652 for the wife and an income of $240,000 for the husband, and applying a strict Table Amount set-off calculation, Divorce mate calculates as follows:

i. A strict application of a set-off of Table Amount child support for 3 children using incomes of $1,076,652 (the wife’s) and $240,000 (the husband’s), results in the wife owing monthly Table Amount of child support of $12,215 to the husband;

ii. The cost of the nanny according to the wife is $71,054 a year and according to the husband it is $67,720 a year. $69,000 is used as a reasonable compromise figure for the nanny expense. The child care tax deduction to the wife is about $21,000. The husband’s s.7 payment toward the nanny then would be $1,122 a month assuming he paid his pro-rata share of the nanny of 23.3%;

iii. The low end of the SSAGs results in the wife paying deductible/taxable spousal support to the husband in the sum of $5,567 a month;

iv. Each party is left with $26,105 a month in net disposable income (NDI)[^28].; and

v. Each party would then have to pay their proportionate share of the balance of the children’s s.7 expenses at a ratio of 76.7% for the wife and 23.3% for the husband.

Analysis

[92] On this motion, it is obvious that the husband is seeking a strict set-off child support arrangement and an order for spousal support and the wife is seeking an arrangement that results in her paying no child support or spousal support to the husband. The court is not bound to order either arrangement.

[93] The wife has been covering 100% of the children’s s.7 expenses and paying the day-to-day expenses of the household and paying no support to the husband since he moved out of the house in March. Since Moore, J. made an order respecting the parenting schedule at the beginning of April, it cannot be said that a financial status quo existed before the court intervened on April 9, 2020, that should simply be maintained until trial. The wife’s budget is $46,000 a month, which includes all of the children’s expenses and the costs related to the matrimonial home. The wife pays the cost of a full-time nanny in the approximate amount of $69,000 a year. According to the wife, the matrimonial home costs themselves total $15,000 a month.

[94] The parties agreed to the wife having temporary exclusive possession of the jointly-owned matrimonial home and the husband has rented a property in the same neighbourhood. I note that the husband is to have the children overnight during the week and weekends, with him having 6 overnights out of 14. The husband’s housing costs are significantly less than the wife’s housing expenses. His housing costs are approximately $7,000 a month. The wife’s again, are about $15,000 a month.

Temporary child and spousal support orders

[95] The court may make an interim order requiring a spouse to pay for the support of the children of the marriage under s. 15.1(2) of the Divorce Act. In making an interim order, s. 15.1(3) provides that the Child Support Guidelines (“CSGs”) apply.

[96] The objectives of the CSGs are set out at s.1, as follows:

a. to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

b. to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

c. to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

d. to ensure consistent treatment of spouses and children who are in similar circumstances.

[97] The court may make an interim order for spousal support, pursuant to s. 15.2(2) and 15.2(4) of the Divorce Act having regard to the conditions, needs, means and other circumstances of the parties, including the length of the relationship and the functions performed by each spouse during the marriage. An interim order should meet the objectives of support set out in s. 15.2(6) of the Divorce Act, including recognizing any economic advantages or disadvantages arising from the marriage, apportioning between the spouses the financial consequences arising from child care, and relieving economic hardship flowing from the breakdown of the marriage.

Temporary Child Support

[98] Section s.9 of the CSGs provides that where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by considering:

a. the amounts set out in the applicable tables for each of the spouses;

b. the increased costs of shared custody arrangements; and

c. the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[99] Under section 9 of the CSGs, where there is a shared parenting regime, child support must be determined by first looking at the set-off of the Table Amounts of child support each parent owes the other, then at the increased costs of the shared custody arrangement and the condition, means and needs of the family.

[100] In Contino v. Leonelli-Contino, 2005 SCC 63 (S.C.C.) (“Contino”), the Supreme Court of Canada held that the framework of s.9 requires a two-part determination: first, establishing that the 40 percent threshold has been met; and second, where it has been met, determining the appropriate amount of support. The specific language of s.9 warrants emphasis on “flexibility and fairness”. The discretion bestowed on Courts to determine the child support amount in shared custody arrangements calls for acknowledgement of the overall situation of the parents (conditions and means) and the needs of the children. The case law under s.9 of the CSGs suggests that the weight of each factor under s. 9 will vary according to the particular facts of each case.

Section 9(a): Amounts Set Out in the Applicable Tables for Each of the Spouses

[101] Section 9(a) requires that the Court determine the parties’ incomes and calculate the simple set-off amount. The simple set-off is the “starting point” of the s.9 analysis, but the set-off amounts are not presumptively applicable and the assumptions they hold must be verified against the facts. The Court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another.

Section 9(b): Increased Costs of Shared Custody Arrangements

[102] Section 9(b) requires that the Court consider the increased costs of the shared custody arrangements. Contino explains that the Court should examine the budgets and actual expenditures of both parents in addressing the needs of the children and determine whether shared custody has, in effect, resulted in increased costs globally because of the duplication of costs in providing two homes for the children. The Court should also consider the ratio of incomes between the parties as the child care expenses will be apportioned between the parents in accordance with their respective incomes.

Section 9(c): Conditions, Means, Needs and Other Circumstances

[103] Section 9(c) allows the Court discretion to conduct an analysis of the resources and needs of both parents and the children. The analysis should be contextual and remain focused on the particular facts of each case. There are three factors to be considered under this subsection:

a. Actual spending patterns of the parents;

b. Ability of each parent to bear the increased costs of shared custody (which entails consideration of assets, liabilities, income levels and income disparities); and

c. Standard of living for the children in each household.

[104] The Court has discretion to assess the ability of each parent to assume any increased costs of shared custody by considering income levels, disparity in incomes and the assets and liabilities and net worth of each party.

[105] The Court is required to review the child expense budgets and consider both fixed and variable costs. It is possible to presume, in the absence of evidence to the contrary, that the recipient parent's fixed costs have remained unchanged and that his or her variable costs have been reduced only modestly by the increased access. Thus, when no evidence is adduced, the Court should recognize the status quo regarding the recipient parent. It goes without saying that he has rented accommodation in the neighbourhood of the matrimonial home at a cost of approximately $6,000 a month, not including utilities. He also seeks to play a role in the children’s lives by contributing toward the children’s expenses equally.

[106] Further, the Court has discretion to assess the ability of each parent to assume any increased costs of shared custody by considering income levels, disparity in incomes and the assets and liabilities and net worth of each party.

[107] The Court has full discretion under s.9(c) to consider “other circumstances” and order the payment of any amount, above or below the Table Amounts. This discretion, if properly exercised, should not result in hardship. Further, given the broad discretion of the Court conferred by s. 9(c), a claim by a parent for special or extraordinary expenses falling within s. 7 of the CSGs can be examined directly under s. 9 with consideration of all the other factors. Section 9(c) is conspicuously broader than s. 7.

[108] The wife asserts that the Court ought not to simply apply a set-off calculation for child support.

[109] The Contino analysis is meant to apply flexibility and fairness given the overall circumstances of the family, when looking at the condition, means and needs of both parents and the children. Again, the set-off Table Amounts are not presumptive but must be verified on the facts of the case.

[110] In analyzing s.9(c) of the CSGs - the conditions, means and needs of the parties and children - the court has discretion to look at the actual spending of the parents and the standard of living in each parent’s home.

[111] The wife submits that the husband has an onus to establish that his costs have increased, and that the wife’s costs have decreased as a result of the shared parenting arrangements. The wife asserts that he has not met this onus. Again, however, the costs did not really have a chance to increase or decreased from a particular standpoint because the shared parenting arrangement did not evolve out of a status quo for the parents after the separation. The changes were that the father had to set up a home that was suitable for himself and the children from March onward.

[112] The wife submits further that there is no hardship demonstrated by the husband and since the husband cannot establish that his expenses increased as a result of the shared parenting arrangement, then the Table Amount set-off child support arrangement is not necessarily applied.

[113] The wife’s position is that her monthly housing expenses in the matrimonial home are $15,000, which includes the totality of the mortgage payments, the joint line of credit, property taxes and property insurance. By contrast, the husband’s monthly housing costs are $6,065, being his lease and property insurance expenses, which are roughly 40% of the wife’s housing expenses, not including utilities. Further, it is reasonable to expect that the parties will have generally equal food expenses given the schedule.

[114] Thus, according to the wife, she has depleted capital and increased her debt, while the husband has increased his savings, not depleted capital, and apparently had the benefit of the wife paying down joint debt in 2020, which benefitted the husband. As of May 2020, the husband had $47,000 in his savings account. He has a line of credit in his name with a zero balance. While he, therefore, has $50,000 available to meet expenses, he has not had to do so. In these circumstances, this is not a case for a set-off of his monthly Table Amount child support.

[115] In Hilliard v Johnston, 2010 ONSC 5819 (Ont. SCJ) the father sought set-off child support from the mother on the basis that he had the children for more than 40% of the time, and his income was $43,956 while the mother’s income was $61,274. Having considered the 3 factors set out in s.9, the Court found that the set-off approach whereby the mother would pay monthly child support to the father in the sum of $146.00 per month would not be reasonable, having regard to the following:

a. The mother provided most of the clothing for the children and a much greater proportion of their food and school activities than the father. She also paid for the children’s health and dental plans;

b. The mother did not decrease her expenses as a result of the shared custody arrangements; and

c. If the child support was reduced and/or the mother had to pay child support to the father (There was a temporary order requiring the father pay child support of $400 a month prior to the variation of his parenting time with the children), this would affect the mother’s household budget and the standard of living of the children in her home.

[116] The father was ordered to pay the mother temporary child support of $100 per month and to contribute to his proportionate share of s7 expenses, including child care expenses.

[117] The wife, however, pays the entirety of the nanny cost of approximately $70,000 a year (including her taxes) and the children’s entertainment costs, recreation expenses, their clothing and piano lessons. Since separation, the wife has paid for the entirety of the children’s s.7 expenses which in 2019 amounted to $92,651.39, not including the nanny[^29]. Many of these lessons and sports have been suspended due to the Covid-19 pandemic but will, hopefully, resume in the fall. The wife clearly provided the lion’s share of the children’s school and activity expenses than the husband has since the separation.

[118] According to the wife, I must also consider the impact that a change in the current arrangement, where the wife pays all of the child-related expenses without contribution from the husband would have on the standard of living of the children in each of the households. The wife has not had a decrease in her expenses as a result of the shared custody arrangements. However, if she is ordered to pay child support to the husband, this will affect her household budget and standard of living of the children in her home.

[119] Notwithstanding the above, it is also appropriate for me to consider that the husband earns far less gross annual income than the wife and that the children’s standard of living in his home should not be substantially dissimilar to the standard of living in the wife’s home.

[120] A significant consideration in determining the issues on this motion is the importance of the father directly contributing to the children’s daily lives. He has asked to contribute equally to the children’s costs out of his and the wife’s equal net disposable incomes (“NDIs”). The husband ought to be contributing toward the children’s activities, lessons, clothing purchases and their s.7 expenses. Further, both parents ought to be making decisions about the extra-curricular lessons and activities in which the children are enrolled. If the husband is contributing to these expenses, he will likely be more involved in the choices made and less likely to be regarded by the wife and the children as a wallet than an interested, involved parent.

[121] Having considered the three factors set out in Section 9 of the CSGs, I find that the result of the Table Amounts set-off approach whereby the wife would pay monthly child support to the husband in the sum of $12,215 per month is not reasonable or appropriate in the circumstances, having regard to the following:

a. If the set-off of the Table Amounts were strictly applied in this case, then the wife would owe the husband child support in the sum of $12,215 a month. With the wife’s net disposable income, she has no choice but to use $15,000 of that net monthly income just to cover her housing expenses, whereas the husband only has to use about $7,000 of his net monthly disposable income to cover his housing expenses. The difference of $8,000 is significant. It means that the wife would not, effectively, have the same NDI as the husband after housing expenses are paid, despite the fact that the children are in her care 8 nights out of 14. This makes little sense and seems unfair. Further, it is obvious that a portion of the interest payment that the wife makes monthly on the parties’ joint line of credit relates to the funds that she consented to the husband borrowing against the line of credit a number of months ago. But for her consent to his doing so, she would have had more NDI available in her home with which to support the children.

b. The parties, having only separated in January 2020, lived separate and apart in the matrimonial home until March 2020. The wife and children remain in the jointly-owned matrimonial home. At this time, it is not reasonable to expect that the wife’s housing arrangements are going to change before trial. In fact, she has apparently temporary exclusive possession of the matrimonial home, to which the husband apparently agreed. The wife is shouldering the entire cost of the mortgage, joint line of credit secured against the house and the operating expenses at a significantly higher cost than the husband’s current housing costs. This includes the wife’s payment of monthly debt accrued when the husband borrowed the money from the parties’ joint line of credit on consent earlier this year. The wife has not provided the amount she pays monthly on account of the amount the husband borrowed against the line of credit on consent earlier in the year. Her evidence relating to her monthly payments on the joint line of credit are found in paragraph [85] above. The $3,282.98 average monthly amount the wife asserts she pays in interest only toward the joint line of credit cannot be said to be a repayment on account of the principal and interest that the husband borrowed and should rightfully repay over the next 12-months. However, he should be contributing a small amount of the interest to reflect the borrowing she agreed to.

c. It is only fair in these circumstances, that the parties share in the increased housing costs the wife has to bear more reasonably.

[122] For all of the above reasons, I find that a strict Table Amount set-off approach whereby the wife would pay monthly child support to the husband in the sum of $12,215 per month (based on her being imputed with income of $1,076,652 and the husband’s having income of $240,000) is not appropriate in the circumstances of this case. Instead, I find that the difference between the party’s monthly housing expenses ought to be shared more equitably. There is an approximate $8,000 difference between the wife’s monthly housing-related expenses ($15,000 a month) and the husband’s approximate monthly expenses (about $7,000 a month). Since child support is paid in net dollars and the housing expenses are paid with each party’s NDI and in order to adjust somewhat for the line of credit payments mentioned above, the set-off amount ought to be reduced by about $4,200 so the husband is effectively sharing in the significant housing costs. This results in a modification of the set-off calculation such that the wife would owe the husband child support of approximately $8,000 a month. Again, as stated in paragraph [109] above, the Contino analysis is meant to apply flexibility and fairness given the overall circumstances of the family, when looking at the condition, means and needs of both parents and the children.

[123] The Divorcemate calculations attached to these Reasons as Schedule “A”, show that if the husband paid his proportionate share of the nanny’s cost that would amount to 23.3% or $1,122 a month. However, if the husband paid an equal share (50%) of the nanny’s cost, it would amount to $2,407 a month, as compared to the $1,122 shown on the Divorcemate calculation. Therefore, the modified child support should be further reduced by $1,285.50, representing the difference between the husband paying his proportionate share of the nanny and the equal portion (50%) that the husband fairly and equitably proposes to pay. This results in a further modification of the set-off calculation such that the wife would owe the husband child support of $6,714.50 a month.

Temporary Spousal Support

[124] In Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420 (S.C.C.), the Supreme Court of Canada established that there are three conceptual bases for awarding spousal support: compensatory, contractual and non-compensatory. In this case, given that there is no contractual basis for spousal support, the husband’s entitlement to spousal support can only be established on a compensatory and needs-basis grounds.

[125] The husband maintains that he has prima facie claim to an award of spousal support both on compensatory and needs based grounds. The compensatory component would recognize his claim that he fulfilled the role as primary parent, at least for the past two years when he was not working; his active and specific contributions to the wife’s career; and according to him, will ensure an equitable sharing of the economic consequences of the relationship.

[126] However, again, in his Order dated April 9, 2020, Moore, J. found that the husband was not the primary parent of the children. In fact, Moore, J. preferred the evidence of the party’s nanny, which not only contradicted the husband’s insistence that he is a primary parent but also verified that the husband did not play an active parenting role even when he was not working between the Spring of 2018 and mid-March 2020, when he resumed working for RBC.

[127] In terms of the husband’s assertions that he made an active and specific contribution to the wife’s career, the wife vehemently denies that he made the contribution that he alleged that he had made. The evidence is in conflict on this point. The husband has attached documents as Exhibits to his July 22nd affidavit, which he claims prove his contribution to the wife’s career and career advancement. However, in the wife’s evidence, she explains that she sent those documents to the husband in order to have him assist her in printing the documents.

[128] On the evidence before the Court on this temporary motion, the wife’s position - that there is no compensatory element to the husband’s spousal support claim - is certainly not devoid of any merit. However, the issue should be determined at a trial where the trial judge will be able to hear the oral testimony of the parties. I am not prepared to make a finding at this stage in the proceedings that the husband’s compensatory element to his spousal support entitlement has no merit.

[129] Again, the husband also asserts that he has a needs-based entitlement to spousal support. He submits that he cannot achieve the family’s accustomed lifestyle without the wife’s support. On the husband’s income and even after paying child support to the wife, he submits that the wife has the ability to pay temporary support to him, to allow him to continue to live as at close to or at the same standard of living at this time as he did when the parties resided together as a family. Although the wife disputes this, in my view, the husband’s position is not devoid of merit and, in fact, on the evidence before me, he has a prima facie needs-based claim.

[130] The husband submits that it is a well-established principle of law that on interim motion for spousal support, the motions judge is not required to conduct a detailed examination of the merits of a spousal support claim. Rather, an interim order is meant to create a holding pattern that maintains the lifestyle that the family was used to pending trial. The husband relies on Knowles v. Lindstrom, 2015 ONSC 1408 (Ont. S.C.J.), at para. 8, in which Penny, J. stated “These tasks are for the trial judge”.

[131] Further, the husband relies on Blackstock v. Comeau, 2018 CarswellOnt 175 (Ont. S.C.J.), where it was held that the purpose of an interim spousal support order is to achieve a holding order to maintain an accustomed lifestyle pending trial. Need and ability to pay take on a greater significance. Support should thus be ordered within the SSAG ranges.

[132] Finally, the husband refers to Giglio v. Giglio, 2015 ONSC 8039 (Ont. S.C.J.), where LeMay, J. referred to the principles that the court should consider on interim support motions:

a. The applicant's needs and the respondent's ability to pay assume greater significance;

b. An interim order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;

c. The court does not embark on an in-depth analysis of the parties' circumstances, which is better left to trial. The court achieves rough justice at best;

d. The courts should not unduly emphasize any one of the statutory considerations above others;

e. The need to achieve economic self-sufficiency is often of less significance;

f. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;

g. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and

h. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

[133] The wife argues that there is no need for this Court to apply “rough justice” or make a temporary order that is a “holding order” because the parties have exchanged affidavits; filed financial statements; exchanged financial disclosure and conducted Questioning. The wife submits that, other than viva voce testimony, this Court is in a strong position to determine the temporary spousal support order on the merits and the Court should dismiss the claim.

[134] The wife asserts that the husband has not met the required threshold and has not established a prima facie case of his entitlement to spousal support either on a compensatory or needs-basis as required by Fisher v. Fisher, 2009 ABQB 85 and Charbonneau v. Charbonneau, 2004 CarswellOnt 5211 (Ont. SCJ).

[135] She submits that the husband, being the party claiming temporary spousal support, has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum. If a spousal support claimant cannot establish an arguable case for entitlement to spousal support, then as was held in Damaschin-Zamifirescu v. Damaschin-Zamifirescu, 2012 ONSC 6689 (Ont. SCJ), a motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay.

[136] In Orlow v Tuily, 2010 ONSC 3545 (Ont. SCJ), Justice McGee held that the compensatory model and the non-compensatory model (i.e. need and ability to pay) are interrelated when assessing entitlement. In her opinion, a successful claim for spousal support must have all of the elements of need and ability to pay within the context of a loss or lost opportunity arising from the breakdown of the relationship. Justice McGee further noted that it is helpful to consider the nature of the spousal relationship and how the parties have conducted their affairs. This analysis is mirrored in the SCC decision of Moge v Moge, 1992 25 (SCC), 1992 CarswellMan 143 (SCC).

[137] The wife submits that the Courts have held that, where there is an issue as to entitlement to spousal support and there is conflicting evidence, the better approach is to proceed to a Trial on an expedited basis so that the matter can be dealt with on its merits[^30].

[138] This case can be distinguished from Fisher v Fisher, 2009 ABQB 85 (Alta. Q.B.), in which the Court found that the wife did not prove entitlement to spousal support due to “the mere fact that the husband now earn[ed] considerably more than her.” In Fisher, the wife was independent and self-sufficient both before the marriage and after she left the marriage. In this case, however, the parties have been married for 15 years; have 3 children and the family lived on a combined income of in excess of $1.2 million a year toward the end of the marriage. This case is unlike Fisher, where the significant change in the husband’s income could not be said to have resulted, even in part, from the contributions of the wife.

[139] Although the husband’s claim to support on a compensatory basis should await a trial where viva voce evidence will be adduced and the trial judge will be in a better position to consider the credibility of the parties’ versions of the history of the marriage, the husband’s needs-based claim, bearing in mind the evidence before the Court respecting the family’s standard of living, militates in favour of an order for temporary spousal support.

Income of the Payor and Quantum of Spousal Support

[140] The appropriate amount of child and spousal support is driven by the determination of the payor parent’s income. Section 2(3) of the CSGs provides that where, for the purposes of the CSGs, any amount is determined on the basis of specified information, the most current information must be used. As found in Coghill v. Coghill, 2006 28734, (Ont. S.C.), under the legislative scheme, the court is not in the business of projecting future income because support will be adjusted prospectively on the payor’s actual future income. The court must consider the actual current sources of income listed on the payor parent’s T1 General tax return. The objective is to determine current income.

[141] In Lee v. Lee, 1998 18000 (NL CA), [1998] N.J. No. 247 (C.A.), the Newfoundland Court of Appeal held that the husband should pay child support based on his current/projected income, rather than on his historical earnings. The Court noted that,

“it would be illogical, having determined that there was a change in the financial circumstances of a spouse which reflects on the expected levels of income out of which future child support is to be paid, not to take account of those changes and, instead, continue to base the calculation of support on outdated historical information.”

[142] The Court in Dickie v Dickie, 2001 28203 (ON SC), [2001] O.J. No. 2885 (ONSC), at 13-14, confirmed the decision in Lee and held that section 2(3) of the CSGs is relevant because it provides that the most current income information must be used when determining support.

[143] The husband earns $240,000 per year. By contrast, the wife’s 2019 income was $1,087,231.

[144] Again, the wife maintains that an income of $710,000 should be used for her 2020 income. She submits that using her 2019 income is not appropriate in the circumstances, given the Covid-19 health crisis. Instead, she asserts that the Court should look only at the cash received by her. Her argument is that, if the Court uses an income of $1,087,231 in calculating temporary child and spousal support, it would be imputing income to her. She relies on the Court of Appeal decision in Drygala v Pauli, 2002 41868 (ON CA), 2002 CarswellOnt 3228 (ON CA), submitting that s.19 of the CSGs is “not an invitation to the Court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the Court’s discretion must be grounded in evidence”.

[145] Further, the wife maintains that the husband has not established a proper evidentiary basis to support a finding that her income is $1,087,231, relying on Homsi v. Zaya, 2009 ONSC 322 (ONCA). The wife also asserts that, as noted by Justice Vogelsang in Jesse v Jesse, 2010 ONC 861 (Ont SCJ),

“temporary Motions for child support are notoriously difficult where adequate income information is not available and Judges are always told to adopt a cautious approach to income in these circumstances….Laskin J.A. emphasized the better position of a Trial Judge who can benefit from a full review of the merits and correct past support.”

[146] Courts have generally approached the assumption of family debt as a reduction in the payor's means to provide spousal support. It also justifies a departure from the general SSAGs ranges: see Castedo v Haldorsen, 2016 ONSC 3870 (Ont. SCJ), at 100. Some Courts have found that, in circumstances where the payor assumes the payment of family debt, spousal support was not appropriate because the assumption of debt provides a benefit to the recipient that can substitute for support. Other Courts have found that spousal support should be reduced to account for the payor’s assumption of family debt. (see, for example, Castedo v Haldorsen, supra, and Trottier v Prud’homme, 2012 ONCJ 641 (Ont. SCJ), at 16).

[147] In Dunn v Dunn, 2014 ONSC 7277 (Ont. SCJ), the Court considered the fact that the husband was paying for the wife’s share of the joint debts when calculating the husband’s income for support purposes and the range of support that should be paid under the SSAGs. As a result, the husband’s income for support purposes was reduced from $225,000 per annum to $148,000 a year, and spousal support was based on the lower range of the SSAGs.

[148] As discussed above in these Reasons, based on the evidence before me, the wife’s income from Osler’s in 2020 for child and spousal support purposes on a “without prejudice”, temporary basis ought to be imputed at $1,076,652. The husband’s income is $240,000 a year. While there is caselaw that has held that a significant disparity in income does not, on its own, entitle a spouse to spousal support upon the breakdown of a relationship[^31], in these circumstances, without spousal support, the husband will not be able to meet his needs and those needs arise from the standard of living the family had before the parties separated. Given that the order being made is temporary: the parties roughly have the children on an equal basis (that is, the only difference is the children do not stay overnight on their weekends with their father and the combined incomes of the parties while they cohabited he will not likely be able to meet his budget without receipt of temporary spousal support, but on a temporary basis, without prejudice to either party’s right to seek an adjustment at trial, retroactive to August 1, 2020, this Court finds that spousal support in the amount of $5,567 a month is reasonable.

[149] The Divorcemate calculation attached as Schedule “A” to this Order sets out as follows:

a. The calculation is based on a 2020 income for the wife of $1,076,652 and a 2020 income figure for the husband of $240,000;

b. The nanny cost is listed as an expense on the wife’s side at an annual cost of $69,000 (average of both party’s position), along with the child care expense tax deductible portion of $21,000;

c. The set-off Table Amount of child support is $12,215 a month, payable by the wife to the husband;

d. Spousal Support of $5,567 a month is payable by the wife to the husband;

e. The husband’s proportionate obligation to contribute to all children’s s.7 expenses amounts to 23.3% and wife’s proportionate obligation is 76.7%.; and

f. The husband and wife are each left with equal net disposable incomes of $26,105.

[150] In accordance with the husband’s position that he is prepared to pay 50% of the children’s nanny and remaining s.7 expenses out of the parties’ equal NDIs which is fair and equitable, notwithstanding the lower proportion that he would have had to pay according to the pro-rata calculation of s.7 expenses in the CSGs, I order that he pay 50% of these expenses on a temporary basis. In his Notice of Motion, the husband had indicated that he was prepared to receive an appropriate amount of spousal support and a monthly Table Amount of set-off child support and that he would be equally pay the children’s s.7 expenses.

Conclusion

[151] Accordingly, in view of the above, this Court orders on a temporary, “without- prejudice” basis, the following:

a. Based on an imputed annual income of $1,076,652 for the wife in 2020, and an annual income of $240,000 for the husband, the wife shall pay child support for the parties’ three children of the marriage, namely, Matteo Omar Hamam, born November 16, 2010; Alessandra Pauline Hamam, born January 2, 2014, and Nesrine Elyse Hamam, born January 2, 2014, in the sum of $6,714.50 a month, commencing on August 1, 2020, and on the first day of each following month, pending further agreement of the parties or court order;

b. Commencing on August 1, 2020, and on the first day of each following month, the parties shall share the children’s s.7 expenses, including the expense for the nanny employed by the wife, on a 50/50 basis. Neither party shall incur any other s.7 expense for a child(ren) for which he/she seeks reimbursement from the other parent, without first obtaining his/her consent to the s.7 expense, such consent not to be unreasonably withheld. Section 7 expenses for the children may include, but not be limited to, extra-curricular activities and lessons, all sports activities and related equipment costs; tutoring, uninsured therapy, etc. To clarify, the Divorcemate calculation attached as Schedule “A” to these Reasons sets out the husband’s proportionate share of the nanny expense at 23.3%, which paragraph [123] above confirms is $1,122 a month. As paragraph [123] explains, “if the husband paid an equal share (50%) of the nanny’s cost, it would amount to $2,407 a month, as compared to the $1,122 shown on the Divorcemate calculation.” The child support quantum of $6,714.50 set out in a. above, adjusted for 26.7% of the nanny costs (to bring the husband to 50%). Therefore, the husband must pay the wife $1,122 a month toward the nanny expense to ensure he is paying 50% of the nanny expense. Accordingly, commencing on August 1, 2020, and on the first day of each following month, pending further agreement of the parties or court order, the husband shall pay to the wife $1,122 a month.

c. Commencing on August 1, 2020, and on the first day of each following month, pending further court order or agreement of the parties, the wife shall pay the husband temporary, “without prejudice” spousal support of $5,567 a month;

d. For clarity, either party may seek an order adjusting the quantum of child and spousal support and/or the ratio of s.7 expense-sharing set out above at trial, on a retroactive basis;

e. Given that Questioning of both parties has taken place and there have been two motions and several case conferences; one to determine the parenting schedule and one to determine temporary child and spousal support: the next step in this case shall be a settlement conference and, if the case does not settle, then the trial shall be expedited;

f. The case shall be case managed between now and the date of the trial by a judge to be assigned by a Family Team Leader. The case management judge is to preside over all conferences. Any non-urgent or urgent motions that must be heard before trial shall be heard by Kraft, J., so long as she is a member of the Family Team and available within a reasonable period of time to hear the particular motion in issue.;

g. Notwithstanding rule 25 of the Family Law Rules, the terms of this paragraph constitute an order of this Court which is effective from the date it was made and is enforceable as an order of the court without the need for a formal version of the order to be prepared, approved of by the parties and then issued by the court office. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one becomes necessary for enforcement by a third party. A party who wishes to prepare a formal order for approval and issuance may do so and submit the materials by Form 14B to the court;

h. If a party seeks costs of this long motion, if the parties cannot resolve the costs issue on consent, then a party seeking costs shall serve and file written submissions that are no longer three pages (plus a bill of costs and copies of any dockets or disbursements) and any relevant offers to settle by August 31, 2020, and the other party shall serve and file any written responding submissions (in similar form as the submission seeking costs) and a copy of any relevant Offer to Settle, filed within five days of receipt of a party’s submission for costs. Reply submissions, if any, shall be no more than 2 pages and served and filed within 3 days of receipt of responding submissions.

M. Kraft, J.

Released: September 4, 2020

COURT FILE NO.: FS-20-00016296

DATE: 20200904

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Omar Hamam,

Applicant

– and –

Lisa Mantello

Respondent

REASONS FOR JUDGMENT

Kraft, J.

Released: Friday September 4, 2020

[^1]: Specifically, Moore, J. ordered the children to reside with the mother in Week One, on Sundays, from 9:00 a.m. to Tuesday morning, at 9:00 a.m.; and Thursdays, from 9:00 a.m. to Friday morning, at 9:00 a.m., and in Week Two, on Sundays, from 9:00 a.m. to Tuesday morning, at 9:00 a.m., and Thursdays, from 9:00 a.m. to Tuesdays, at 9:00 a.m. This translates into the children having overnights with the husband in Week One, on Tuesdays, Wednesdays, Fridays and Saturdays, and in Week Two (4 overnights), on Tuesdays and Wednesdays in Week Two (2 overnights), totaling 6 overnights out of 14.

[^2]: Affidavit of the wife, sworn July 14th, 2020 (“Wife’s July 14th affidavit”), paragraph 6.

[^3]: Transcripts of the wife’s Questioning conducted on July 24, 2020, Q: 295-310, the wife’s testimony was that from January 2019 to March 2020 when the Covid-19 lockdown occurred, she had travelled to Fort Lauderdale, Laguna Beach, Hong Kong, Mexico, London, England (2X), Madrid, Hawaii, Rome, Montreal, New York, Tuscany, Paris and Chile, for work-related travel.

[^4]: Transcript from the husband’s questioning conducted on July 23, 2020 (“Husband’s Transcripts”), page 113; Q433.

[^5]: Husband’s Transcripts, page 19, Q:63.

[^6]: Husband’s transcripts, pg. 116, 125, 127-132.

[^7]: Husband’s transcripts, pg.69, Q: 247.

[^8]: Husband’s Transcripts, pg. 116-119.

[^9]: Wife’s Transcripts, pg. 67, Q: 344.

[^10]: Wife’s Transcripts, pg. 63, Q:321.

[^11]: His assets increased from $625,158.80 as at the date of separation to $670,350.66 at the time of the Questioning, husband’s transcripts, pp. 83; Q: 300-302.

[^12]: His debts decreased from $1,302,067 as at the date of separation to $1,239,237.41 at the time of the Questioning. husband’s Transcripts, pp.83-84, Q: 305-308.

[^13]: Husband’s Transcripts, pg. 80-88; 91-92; 95-108.

[^14]: Husband’s Transcripts, pgs. 77-80, Q: 272-298

[^15]: Exhibit “D” to the husband’s affidavit, sworn July 22, 2020 (“husband’s July 22nd affidavit).

[^16]: Exhibit “E” to the husband’s July 22nd affidavit.

[^17]: Exhibit “F” to the husband’s July 22nd affidavit.

[^18]: Exhibit “G” to the husband’s July 22nd affidavit.

[^19]: Exhibit “H” to the husband’s July 22nd affidavit.

[^20]: See T5103; T5 and T3 for 2019 at Exhibit “D” to the husband’s July 22nd affidavit.

[^21]: The 2017 Mantello Lisa Family Trust distributed the monies to the wife each year as she is the sole beneficiary of the Trust.

[^22]: Wife’s Transcripts, pg.23-24, Q: 114

[^23]: Exhibit “B” to the Husband’s affidavit sworn on March 27, 2020, is an email the wife writes to the husband dated December 6, 2019, which states, “It’s, 1,093,000 all in. it’s very bad. It’s barely a raise. I told Malcolm I am so mad.”

[^24]: Regular monthly draws of $22,589 for Jan, Feb. Mar./20; reduced regular monthly draws of $19,243 for the months of April through July, inclusive; RRSP draw of $27,230 received in Jan/20; Tax installment of $101,651 received in March, 2020; Bonus of $125,000 received in Feb/20; Interest payments on Osler fixed equity of $7,659 paid monthly Jan through July, inclusive; Interest on notes payable of $1,337 paid monthly between Jan and July, inclusive and ; $79,023 paid to the Family Trust in two installments in Jan and March, 2020.

[^25]: Wife’s July 22nd affidavit, paragraph 22.

[^26]: The April 2020 projected budget assumed that the wife will receive $123, 112.

[^27]: Wife’s July 20th affidavit, paragraphs 21 and 8. Note this budget does not include legal fees.

[^28]: See Divorcemate calculation attached to this Order as Schedule “A”.

[^29]: Schedule “B” to the wife’s financial statement sworn on May 8, 2020, lists the children’s current special or extraordinary expenses.

[^30]: Albuquerque v Albuquerque, 2007 CarswellOnt 856 (Ont. SCJ) at 17.

[^31]: Calvert v. Stewart, 2009 CarswellOnt 671 (Ont SCJ) and Berger v. Berger, 2016 ONCA 884 (Ont C.A.).

Hamam v. Mantello, 2020 ONSC 4948

Case Summary

Nature of Motion

Procedural History

Procedural Issues on the Motion and Cross-Motion

(A) Should the Court File be Sealed, or Exhibits attached to the Husband’s July 22nd Reply Affidavit be Struck?

(B) Should the Wife’s July 27th Supplementary Affidavit be struck from the Record?

Background Facts

Temporary Spousal Support

(a) The Husband’s Position that He Has Both Compensatory and Needs-Based Entitlement to Spousal Support

(A) The Wife’s Position that the Husband has Not Established a Prima Facie Entitlement to Spousal Support

(B) Quantum of Spousal and Child Support and Income of the Payor Wife

Parties’ Budgets – Needs and Means Analysis

Husband’s Position on the Quantum of Temporary child and Spousal Support

The Wife’s Position on the Quantum of Temporary Child and Spousal Support

Analysis

Temporary child and spousal support orders

Temporary Child Support

Section 9(a): Amounts Set Out in the Applicable Tables for Each of the Spouses

Temporary Spousal Support

Income of the Payor and Quantum of Spousal Support

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legal Tests 2

Legislation 3