COURT FILE NO.: FS-12-35193-003
DATE: 2020 08 31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: J.G., Applicant
AND:
T.-L. G., Respondent
BEFORE: Conlan J.
COUNSEL: John W. Bruggeman, Counsel for the Applicant Darryl A. Willer, Counsel for the Respondent
HEARD: August 31, 2020
ENDORSEMENT
I. Introduction
The Background
[1] A consent Final Order was made by Miller J. dated September 22, 2015. The annual gross incomes of the parties were imputed to be as follows: $350,000.00 for the father, J.G., and $30,000.00 for the mother, T.-L.G. The father was ordered to pay support as follows: $5,491.00 monthly for three children, and spousal of $6,232.00 per month.
[2] The mother has brought a Motion to Change the said Final Order, arguing that both types of support should be increased because of a material change in the father’s income. The father opposes the Motion to Change.
The Interim Motions and the Hearing
[3] Via Zoom on August 31, 2020, this Court heard two motions. The first was brought by the mother seeking additional financial disclosure from the father. The second was brought by the father seeking a reduction in both child support and spousal support payable by him due to the eldest child (18 years) now living with him.
[4] In addition, this Court was called upon to determine an evidentiary matter, namely, the admissibility of the mother’s affidavit sworn on August 11, 2020. The father requests that the said affidavit be struck, but for paragraphs 9 and 10 therein, as being inflammatory and a waste of the Court’s time under subrule 1(8.2) of the Family Law Rules.
II. Analysis
[5] It was a pleasure dealing with these two lawyers. They did not waste any time in their submissions, after having prepared and filed thorough materials, and I shall adopt their style in delivering relatively economical reasons.
The Evidentiary Matter
[6] The father’s request is granted, and (except for paragraphs 9 and 10 therein) the mother’s affidavit sworn on August 11, 2020 is struck.
[7] The said evidence, including but not limited to (i) allegations of domestic abuse at the hands of the father, (ii) complaints about the father having improperly involved the children in the litigation, and (iii) complaints about the father having invaded the mother’s personal privacy regarding health issues, is totally irrelevant to any issue before this Court stemming from either motion. As such, it is a waste of judicial resources and must be struck.
[8] It is determinative not whether the said evidence is truthful and/or important. Those are not barometers for relevance.
The Mother’s Disclosure Motion
[9] I agree with Justice Faieta, at paragraph 12 of the decision in Pasquali v. Cox, 2017 ONSC 7654, that the following are some of the factors that should be considered by a judge who is confronted with a financial disclosure motion such as this one: (i) past compliance with other disclosure orders on the part of the responding party, (ii) the cost of producing the requested items, (iii) whether the outstanding items are essential to the issue of the respondent’s income for support purposes, (iv) whether the court would be able to fairly and justly adjudicate the support issues absent the requested items, (v) how reasonable the requesting party has/will be on the timeline for providing the requested items, (vi) whether the requested items can be fairly characterized as over-reaching, (vii) whether the requesting party has been vigilant in repeatedly asking for the items, (viii) whether a lesser remedy would suffice, and (ix) whether the requesting party has discharged the burden of proof.
[10] On balance, employing those factors, I find that most of the items requested by the mother ought to be provided by the father.
[11] Beyond those factors, however, and perhaps most important, we have the following, all undisputed. First, the father’s income for support purposes has never been tied to his income tax filings or results. For example, Miller J. imputed, with the father’s consent, an income to him of $350,000.00 in 2015, while his line 150 figure was a fraction of that, $149,383.00. Second, the father’s line 150 income has increased steadily and substantially since 2015, up to about $310,000.00 in 2019.
[12] So what’s going on? The mother says that she does not really know but has hired an expert, Mr. Buist, to find out. The father says that the documents that he has provided to date say everything that needs to be said, such as financial statements and affidavits sworn by him and his company’s accountant, Mr. Sorra.
[13] With respect, the father’s position is not sustainable. Especially for self-employed persons who have a history of income being attributed to them, it is not an answer to a relatively basic financial disclosure motion to say, essentially, “read and rely exclusively on my own sworn documents and those of the accountant who works for me”. To the extent that it is relevant and proportionate to do so, the mother is entitled to go behind the said evidence.
[14] Thus, this Court orders that the father shall, within 90 calendar days of August 31, 2020, provide the following items of financial disclosure:
everything requested at clauses (i) through (v) of paragraph 46(a) of the factum filed on behalf of the mother [for the reader’s benefit, those relate to personal bank statements, RRSP statements, investment statements, credit cards statements, and loan(s) details, all from October 1, 2015 to the present day]; and
everything requested at clauses (vi) through (x) and (xii) through (xiv) of paragraph 46(a) of the factum filed on behalf of the mother [for the reader’s benefit, those relate to a corporate organization chart, corporate financial statements and ledgers including interim statements, shareholders’ agreements, T4 summaries and slips, corporate banking statements, corporate credit cards statements, and an authorization for the mother’s business valuator to speak to Mr. Sorra].
[15] Clause (xi), dealing with corporate life insurance policies, has been deliberately omitted from the Order made herein. The mother has failed to demonstrate its/their relevance to any issue raised by her Motion to Change.
[16] In addition, three clarifications are a part of the within Order. First, the shareholders’ agreements may be edited by the father before they are disclosed to the mother in order to excise out anything related to any shareholder’s estate planning, which information I think is irrelevant and unduly intrusive. Second, copies of cheques of Pro-Way need not be disclosed, as I accept that would be too onerous of a task given the time period involved and the massive number of cheques in question. Third and finally, the mother shall pay for any expenses that result from her business valuator communicating with Mr. Sorra, whether those are rendered by the valuator or Mr. Sorra.
[17] In making this disclosure Order, I have considered carefully what I thought was a decent argument raised by counsel for the father – that the lack of any affidavit from the valuator filed on the mother’s motion, or at least an updated letter from the valuator, is fatal to her disclosure motion. Clearly, it would have been preferable to have received some evidence directly from the valuator. Having said that, this is fairly basic financial disclosure that is being ordered, and I have concluded that it should be provided nonetheless.
The Father’s Motion to Decrease Support
[18] In the course of oral submissions, it became clear that the father’s primary objective is to deal with child support. His request to temporarily reduce spousal support does not find favour with this Court, as that is a more nuanced issue than is support for the eldest child.
[19] Without dispute, the 18-year old child has lived with the father since sometime in September 2018.
[20] The mother consents to an Order that, starting now, the father’s overall child support obligation be reduced to $4477.00 monthly (for two, rather than three, children), based on an imputed income to the father of the same $350,000.00 as what was ordered, on consent, in September 2015.
[21] But the mother opposes the father’s request to make that change retroactive to October 1, 2018, and she opposes further his request that she pay support for the eldest child of $256.00 per month starting that same date, based on an imputed income to her of $30,000.00.
[22] The mother’s position is based on an argument that the eldest child may not be a “dependant” (he is allegedly working full-time and not presently in school), and further that the retroactivity issue does not meet the test outlined in the case law.
[23] With respect, I reject the first argument. Before the hearing of the father’s motion, the mother was content to continue receiving support for the eldest child, which meant that she was effectively conceding that the child was a “dependant” and was about to soon start a college program that he has been accepted into. One cannot have it both ways.
[24] I also reject the second argument. The mother points to decisions like that of Justice Gauthier in Innocente v. Innocente, 2014 ONSC 7082. I agree with Justice Gauthier that the temporary variance of a final support order generally requires exceptional circumstances – (i) to prevent undue hardship, and (ii) where the failure to make the variance would result in something absurd, and (iii) where there is pressing an immediate urgency.
[25] The problem is that the mother is already consenting to an interim variance of the child support ordered back in September 2015. There is already an acknowledgement by the mother that exceptional circumstances exist.
[26] In light of the admitted facts, it would be bizarre for this Court to order a change in the father’s go-forward child support obligation but ignore his clear overpayment since mid-September 2018 (when the eldest child came to live with him) and, even worse, permit the mother to pay nothing for the support of that child.
[27] Thus, except with regard to spousal support, which shall remain unchanged, the father’s motion is granted, both in terms of the reduction of his child support obligation to $4477.00 monthly commencing October 1, 2018 and the mother having to pay $256.00 per month in support for the eldest child starting on the same date.
III. Conclusion
[28] For these reasons, each motion is allowed in part.
[29] If counsel cannot resolve the issue of costs, they may file written submissions or schedule an audio and/or video conference through the trial office. If the former, they can work out the timetable on their own and advise the Court.
(“Original signed by”)
Conlan J.
Date: August 31, 2020