ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEPHANIE GENE BONAS
Applicant
– and –
CHRISTOPHER MICHAEL HOUSTON
Respondent
Harold Niman and Hayley Cairns, for the Applicant
William Abbott and Amit S. Dror, for the Respondent
HEARD: March 11, 2021
M.D. Faieta j.
reasons for decision
1The parties separated on March 6, 2019 following more than eight years of marriage. Their son, Lennox Gene Houston, was born on April 11, 2012. Each party has brought a motion for various temporary orders, including orders for parenting time, decision-making, child support, spousal support, occupancy rent, the sale of the matrimonial home.
BACKGROUND
2The Applicant mother is 43 years old and was raised in Orange, California. The Respondent father is 46 years old and was raised in Unionville, Ontario. The parties met while they both worked for Boost Mobile in California. They began living together on July 4, 2003. The parties moved to Toronto in 2006. The Applicant is a photographer and the Respondent is an entrepreneur that develops start-up tech businesses.
3The parties were married on January 11, 2011 in Thailand. Lennox was born April 11, 2012. He was diagnosed with Type 1 diabetes in 2016. Type 1 diabetes is an incurable condition in which the pancreas produces little or no insulin. Lennox’s diabetic condition is monitored by the medical professionals at The Hospital for Sick Children. The treatment of this condition focuses on managing blood sugar levels with insulin, diet and lifestyle: See https://www.aboutkidshealth.ca/article?contentid=1720&language=english
4The parties experienced difficulties in their marriage in 2018. The Respondent moved into a guest bedroom in August 2018. The parties unsuccessfully attempted to reconcile in early 2019. It is agreed that the parties separated on March 6, 2019. The Respondent transferred $25,000 to the Applicant and encouraged her to seek independent legal advice.
5On May 1, 2019, the Respondent moved out of the matrimonial home located at 40 Beaconsfield Avenue, Toronto (“the Matrimonial Home”) and into a rental condominium in Liberty Village.
6The Respondent states that the Applicant would not agree to a “week on, week off” schedule, so he sought to move back into the Matrimonial Home, but the Applicant would not permit him to return. This assertion is not denied.
7Lennox resides primarily with the Applicant under a 5/14 parenting time schedule.
8There is no Order that addresses parenting time, decision-making, child support, spousal support or any of the other requests that are the subject matter of this interim motion.
9A case conference was held on January 31, 2020. The parties consented to an Order that granted leave for questioning of the parties and required the exchange of information. In addition, the Order maintained “the current financial status quo” on a without prejudice basis.
10Since June 2020, the Respondent has paid $5,000.00 per month in uncharacterized support. He has also paid for the insurance and property taxes on the Matrimonial Home. In total, the Respondent states that, directly or indirectly, he is paying the Applicant about $6,600.00 per month.
ISSUES
11The motions brought by the parties raise the following issues:
Should an interim parenting order be granted that provides for shared decision-making in matters pertaining to Lennox’s welfare and that provides for parenting time to be granted on a week on, week off basis, as requested by the Respondent father, or should the status quo be maintained, as requested by the Applicant mother?
What is the income of each party for purposes of calculating temporary child and spousal support?
What amount of interim child support should be granted?
Should the Applicant be granted interim spousal support?
Should an interim order be granted for the sale of the Matrimonial Home?
Should an interim order requiring the Applicant mother to pay occupancy rent in respect of the Matrimonial Home be granted?
Should the Respondent pay interim costs to the Applicant?
ISSUE #1: INTERIM PARENTING ORDER
12The Applicant submits that the status quo in respect of decision-making and parenting time should be maintained until trial. Her draft Order is silent on decision-making. The Applicant seeks a parenting order pursuant to the following 5/14 schedule:
a. Week One: From Monday after school or 2:00pm until 7:30pm, from Tuesday after school or if there is no school 2:00pm until Wednesday morning drop off at school or if there is no school 9:00am;
b. Week Two: From Monday after school or if there is no school 2:00pm until 7:30pm, from Tuesday after school or if there is no school 2:00pm until Wednesday morning drop off at school or if there is no school 9:00am, and from Friday after school or if there is no school 2:00pm until Monday drop off at school or if there is no school at 9:00am.
13The Respondent father seeks an interim parenting order that grants joint decision-making and an order that allocates parenting time equally to each parent on a temporary, without-prejudice basis, as follows:
a. Lennox will be with the Applicant every other Monday starting at 10:00 am to the following Monday at 10:00 am (7 full days).
b. Lennox will be with the Respondent every other Monday starting at 10:00 am to the following Monday at 10:00 am (7 full days) and will reside with the Respondent at his cottage in Gravenhurst, Ontario.
14The Respondent father also seeks an order that Lennox re-enter the Toronto District School Board school system immediately either for online or in-person learning. The Applicant opposes this request and seeks to continue home schooling Lennox.
The Divorce Act
15The recently amended Divorce Act, R.S.C. 1985, c. 3 (2d. Supp.), provides that a court may make a parenting order, as well as interim parenting order, for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage by a spouse, a parent of the child or a person who stands in the place of a parent or intends to stand in the place of a parent, whether or not the child is physically with that person during that entire time”: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 16.1(1), (2).
16A parenting order may:
(a) allocate parenting time and decision-making responsibility;
(b) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and
(c) provide for any other matter and impose any terms, conditions and restrictions that the court considers appropriate, including requiring the parties to attend a family dispute resolution process, authorize or prohibit the removal or relocation of the child, and require that the parenting time or the transfer of the child from one person to another be supervised: Divorce Act, s. 16.1. [Emphasis added]
17“Parenting time” means the time that a child of the marriage spends in the care of a spouse, a parent of the child or a person who stands in the place of a parent or intends to stand in the place of a parent, whether or not the child is physically with that person during that entire time: See Divorce Act, s. 2(1).
18“Decision-making responsibility” means the responsibility for making significant decisions about a child’s well-being, including in respect of (a) health; (b) education; (c) culture, language, religion and spirituality; and (d) significant extra-curricular activities: See Divorce Act, s. 2(1). Decision-making responsibility, or any aspect of that responsibility, in respect of a child of marriage may be allocated to either spouse, a parent of the child or a person who stands in the place of a parent or intends to stand in the place of a parent, or to any combination of those persons: Divorce Act, s. 16.1(4), 16.3. Unless the court orders otherwise, a person to whom parenting time is allocated in a parenting order has exclusive authority to make, during that time, day-today decisions affecting the child: Divorce Act, s. 16.2(2).
19“Family dispute resolution process” means a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law: See Divorce Act, s. 2(1). It includes the use of the mediation/arbitration services of a parenting coordinator once a parenting order has been made: See the Department of Justice Factsheet https://www.justice.gc.ca/eng/fl-df/fsfdr-firdf.html.
20There are certain responsibilities imposed on spouses by the Divorce Act.
7.1 Best interests of child
A person to whom parenting time or decision-making responsibility has been allocated in respect of a child of the marriage or who has contact with that child under a contact order shall exercise that time, responsibility or contact in a manner that is consistent with the best interests of the child.
7.2 Protection of children from conflict
A party to a proceeding under this Act shall, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding.
7.3 Family dispute resolution process
To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.
7.4 Complete, accurate and up-to-date information
A party to a proceeding under this Act or a person who is subject to an order made under this Act shall provide complete, accurate and up-to-date information if required to do so under this Act.
21In making a parenting order, the best interests of the child is the only relevant consideration: Divorce Act, s. 16.1
22The court must consider the following matters:
16(2) Primary consideration
When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
16(3) Factors to be considered
In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child,
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
16(4) Factors relating to family violence
In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
16(5) Past conduct
In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
16(6) Maximum parenting time
In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
The Child’s Needs
23As noted, Lennox is 8 years old and was diagnosed with Type 1 Diabetes in 2016. He has lived in the Matrimonial Home since its purchase in 2017.
24Prior to COVID-19, he attended Givins/Shaw Junior Public School (“Givins/Shaw”). He transitioned to online learning provided by the TDSB at the end of the 2019/2020 school year.
25Until September 2020, Lennox attended a public school in his neighborhood. At the Applicant’s insistence, Lennox has been home-schooled since September 2020 with two other children in the Matrimonial Home.
26The advantages of Lennox being home-schooled from a health perspective are unclear. There have been no confirmed cases of COVID-19 at Givins/Shaw as of November 16, 2020. One of Lennox’s treating physicians, Dr. Diane Wherrett, an endocrinologist, advised the Respondent by email dated March 13, 2020 “… there are no specific concerns for children with diabetes with COVID-19. In general, children who have had the disease have had a very mild illness, much like a bad cold or mild flu. … As usual the biggest concern during an illness is the effect illnesses can have on blood sugars and the need for extra monitoring and adjusting insulin accordingly. I have attached a copy of our illness management guidelines.”
27The advantages of Lennox being home-schooled from an academic perspective are questionable. The Respondent states that the home-schooling program adopted by the Applicant is not recognized by the TDSB nor does it follow the TDSB curriculum.
28The Applicant has devoted herself to developing what she views as the best possible diabetes management plan for Lennox. She has admittedly been Lennox’s primary caregiver in this regard. The Applicant has developed a low-carbohydrate meal plan for Lennox in consultation with Vanita Pais, a dietician at The Hospital Sick Children, with a view to achieving stability in his blood sugar levels. Lennox has been on this diet for at least three years. More recently, out of a concern that Lennox is short for his age, the Respondent began to use a diet with a larger carbohydrate component. The Applicant views the Respondent’s diet as unhealthy as it drives his blood sugar levels far outside his normal range when he returns to the Applicant’s care. No clear answer has been provided. On February 22, 2021, Ms. Pais sent an email to the Applicant which states:
It is well recognized that the issue of very low carbohydrate diets in children with type 1 diabetes is controversial. One publication has shown good results but there is also much evidence and clinical practice experience that children can attain very good diabetes control eating more typical amounts of carbohydrate. As in all things in life and with diabetes, the issues are not black and white.
29There is no medical evidence that suggests that the Respondent’s management plan is any better than the Applicant’s management plan. However, it is clear that Lennox is being adversely impacted by the use of inconsistent management plans. Consistency is required until medical evidence demonstrates a change of course is necessary.
Nature and Strength of Lennox’s Relationship with his Parents and Others
30On questioning, the Applicant acknowledged that Lennox has a close relationship with the Respondent’s family in the Greater Toronto Area and that they spent all of their holidays exclusively with the Respondent’s family during their relationship. The Applicant’s mother, brother and sister reside in California.
31The Applicant states that since the date of separation, Lennox visited her in California in December 2019 and that her sister came to visit them two or three times.
Each Spouse’s Willingness to Support the Development and Maintenance of the Child’s Relationship with the Other Spouse
32There is no evidence to suggest that the Respondent does not support Lennox’s relationship with the Applicant, nor did the Applicant submit that this was the case.
33On the other hand, it is clear from the Applicant’s own words that she does not support the development and maintenance of Lennox’s relationship with the Respondent.
34During her questioning on January 29, 2021, the Applicant stated that it is her intention to return to California with Lennox because California is her home. In questioning she appeared to have little, if any, concern about the negative consequences that moving to California would have on Lennox’s admittedly very close relationship with the Respondent. She stated:
Q: All right. So, you believe there’s no issue with uprooting Lennox from Toronto and moving him to Orange County, California?
A: I don’t think that there any insurmountable issues with that.
Q: And Chris and Lennox have a very close and loving relationship, correct?
A: They do.
Q: And Lennox enjoys spending time with his father?
A: I think so.
Q: Well, you’d know so. You are the mother.
A: I wouldn’t go on record talking about most people’s feelings. I believe that he does.
Q: Okay. And you don’t have any concerns with regards to Chris caring for Lennox, do you?
A: I would prefer he does it another way, but there’s nothing I can do about it, so I have accepted the way that Chris takes care of Lennox.
Q: But Chris has Lennox’s best interests at heart doesn’t he?
A: I believe that he does.
Q: And Lennox is not in any harm in spending time with Chris, is he?
A: No
Q: Okay. And the relationship between Lennox and Chris would dramatically change if you moved to California, wouldn’t it?
A: I think it would dramatically change from pandemic conditions, but I think it would – I think the nature of their relationship or the nature of any relationship changes over time anyway.
Q: Let me put it in a different way, then. Mr. Houston sees Lennox every single week, doesn’t he?
A: He does.
Q: And Mr. Houston would like to have a true shared parenting agreement with Lennox, wouldn’t he?
A: I would imagine so, yeah.
Q: Well, that’s what he’s asked for in his Answer, and you have read his Answer and so you know that he wants shared parenting with Lennox?
A: I know that he’s asked for it, yeah.
Q: And that would not be possible if you moved to California, would it?
A: Not in its current format.
Q: And in fact he’d only be able to see him at great expense either having Lennox fly to Toronto or him flying to California?
A: Yes.
Q: Right. And you are aware that Lennox is too young to fly across the international border unaccompanied?
A: I am.
Q: So that would mean you’d have to fly to Canada with Lennox or Mr. Houston would have to fly down to get him, you are aware of that?
A: Yes. [Underlining added for emphasis]
The History of Care of the Child
35The Applicant states that she has been an attentive, caring and devoted mother to Lennox. She states that she spent her prime income earning years tending to Lennox.
36The Respondent states that although much of his time and attention from 2011 to 2015 was diverted to the establishment and success of his tech start up, SurfEasy, he was nevertheless a loving and devoted father. He attended all medical appointments related to Lennox’s diabetic condition and regularly put Lennox to bed and got him ready for school. On weekends, he was primarily responsible for Lennox and would take him to the family cottage, to visit family, and other activities. He has always been solely responsible for Lennox’s extracurricular activities.
37After he sold SurfEasy in 2015, the Respondent’s work obligations significantly decreased and he assumed a greater share of the day-to-day family and household responsibilities.
38The parties agree that the parenting schedule largely reflects a coparenting plan developed in May 2019 at mediation with Dr. Karen Kaffko, a registered psychologist and coparenting mediator. The plan has not been formalized. While both parties agree that they have used a 5/14 parenting time schedule they disagree on its precise terms.
39The Respondent states that the parties have used the following 5/14 parenting time arrangement both before and after the onset of the COVID-19 pandemic:
a. Lennox is with the Respondent every Monday from 10:00 am (or after school) until after dinner at 7:30 pm, when he drops Lennox off at the Respondent’s home to sleep.
b. Lennox is with the Respondent every Tuesday overnight;
c. Lennox is with the Applicant every Wednesday and Thursday overnight;
d. Lennox spends alternate full weekends with each parent, being Friday, Saturday, and Sunday overnights.
40The Applicant states that the Respondent has “repeatedly misstated” the parenting time schedule in order to increase the amount of time that he has with Lennox. The Applicant also states that the parenting time arrangement follows the 5/14 schedule; however, she uses the following language:
a. Week One: From Monday after school or 3:00 pm until 7:30 pm, from Tuesday after school or if there is no school 3:00 pm until Wednesday morning drop off at school or if there is no school between 9:00 am and 10:00 am; and
b. Week Two: From Monday after school or if there is no school 3:00 pm until 7:30 pm, from Tuesday after school or if there is no school 3:00 pm until Wednesday morning drop off at school or if there is no school between 9:00 am and 10:00 am, and from Friday after school or if there is no school 3:00 pm until Monday drop off at school or if there is no school between 9:00 am and 10:00 am.
41There is no evidence before me to support either party’s view of the status quo.
42With respect to decision-making, the Applicant states that although she and the Respondent have difficulties communicating, all necessary decisions relating to Lennox’s care have been made. She seeks no order related to decision-making. The Respondent states that although the Applicant behaves as if she has sole decision-making authority, he seeks an order which confirms that he has an equal say in decision-making concerning Lennox’s health, education and other important issues.
The Child’s Views and Preferences
43There is no evidence of Lennox’s views and preferences.
44On questioning, the Applicant denied that Lennox has asked her if he could spend more time with the Respondent.
The Child’s Cultural, Linguistic, Religious and Spiritual Upbringing and Heritage, including Indigenous Upbringing and Heritage
45Other than the fact that it appears that Lennox has lived his entire life in Toronto, there is little evidence regarding his cultural, linguistic, religious and spiritual upbringing and heritage.
Plans for the Child’s Care
46The parties have not agreed upon a parenting plan for Lennox. However, they have expressed their plans for his care and upbringing in their evidence.
47The Applicant proposes to continue to care for Lennox in the near future by continuing to home school Lennox in the Matrimonial Home while he continues to live with the Respondent on a 5/14 day basis. The Applicant states that she is unemployed so that she can dedicate herself to caring for Lennox.
48The Respondent’s plan of care for Lennox in the near future is Lennox to live with each parent on a week on, week off basis. The Applicant confirmed in questioning that Lennox spent ten days over Christmas 2020 with the Respondent without complaint. The Respondent would prefer that homeschooling ended and that Lennox enroll in online education with the TDSB. He prefers to have Lennox live with him at his cottage in Gravenhurst, Ontario during parenting time as he feels that Lennox would have a lower risk of acquiring the COVID-19 virus living at the cottage rather than in a condominium in Toronto. The Respondent states that his work commitments are flexible and he can work remotely.
Ability and Willingness to Care and Meet the Needs of the Child
49The Applicant was not questioned on the following evidence, nor did she dispute the Respondent’s evidence, that:
After their separation the Applicant demanded that the Respondent move to an area far from the Matrimonial Home because she did not want to risk a chance encounter with the Respondent in their neighborhood. To accommodate her demand, the Respondent turned down two rental homes that were within walking distance of Lennox’s school and instead selected a condominium which is within driving distance of his school;
The Applicant refuses to support any of Lennox’s extracurricular activities during her parenting time for the express reason of avoiding the possibility of interacting with someone who has interacted with the Respondent. The Respondent states that Lennox has repeatedly expressed frustration with her behaviour;
The Applicant refuses to do any of Lennox’s pick-ups and drop-offs and as a result, the Respondent has accepted that responsibility;
The Applicant refuses to allow the Respondent to enter the Matrimonial Home on pickup and requires that Lennox stand outside the front of the Matrimonial Home to wait for the Respondent to arrive regardless of the weather conditions; and
After separation and before the pandemic, the Applicant refused to allow Lennox to socialize with any of his school friends solely for the purpose of ensuring that Lennox did not interact with anyone who had interacted with the Respondent. The Applicant demanded that the parties segregate his social circle so that Lennox would not spend time with the same friends during his time with the Respondent as he did while in her care. This eventually resulted with the Applicant no longer allowing Lennox to socialize with nearly any friends from his school during the Applicant’s parenting time. In addition, the Applicant has cut ties with parents at the public school because their children socialized with Lennox during his time with the Respondent. This has resulted in Lennox missing birthday parties and other social activities. Lennox has repeatedly asked the Respondent for an explanation of why he was being limited socially.
50On questioning, the Applicant state that she and the Respondent only attend half of Lennox’s quarterly medical appointments at The Hospital for Sick Children because she does not “want to be in the same room” with the Respondent.
51The Respondent states that he was primarily responsible for Lennox on weekends and that he was and remains solely responsible for Lennox’s extracurricular activities such as swimming, soccer and skiing. Since separation the Applicant has not enrolled Lennox in extra-curricular activities and confirms that the Respondent has made a “great effort” to have Lennox participate in extra-curricular activities during his parenting time. The Applicant chooses not to support Lennox’s participation in extra-curricular activities. She states:
Q: If Lennox were to participate after COVID in a team sport, are you prepared to take him the times when he needs to participate in that sport?
A: The way that we agreed to do it was that Chris could have Lennox in extracurricular activities on his time and that would be his thing. Because communication is poor and we don’t get along, we’re definitely trying to do parallel parenting.
Q: But you agree with me that it’s impossible for a child to property participate in a team sport when they spend different weekends with each parent?
A: I don’t think that’s impossible. Things aren’t really that competitive in grade three. I think it might get more complicated as he gets older, but right now that’s pretty manageable.
52On questioning, the Applicant refused to directly acknowledge that it was in Lennox’s best interests for his parents to put their differences aside for his benefit:
Q: But you are angry at him right now, aren’t you?
A: I don’t know that angry is the word I’d use.
Q: What word would you use then?
A: Disappointed. Maybe embarrassed. …
Q: The feelings of disappointment you feel about Chris, are you prepared to put them aside and work with him for the benefit of Lennox?
A: In what way?
Q: Well, by having a cordial exchange between the two of you so that Lennox does not feel as though he’s put in the middle of this. By assisting in driving. By allowing the both of you to go to an event so Lennox can see both parents at a piano recital or a sporting event. You have to put those differences behind you for the benefit of Lennox. You’d agree with me that that’s in the best interests of Lennox, wouldn’t you?
A: I think it’s equally fair to say that having parallel parenting where I go with him to some events and Chris goes with him to others is just as good.
Ability and Willingness to Communicate and Cooperate on Matters Affecting the Child
53The Respondent states that he has accommodated the Applicant’s requests for changes to the parenting time schedule. The Respondent has attempted to put tools in place to support a coparenting arrangement such as proposing Our Family Wizard and Coparenter.com (with online mediation support), setting up shared Google calendars and other tools. The Applicant has refused to use any of these tools.
54The Applicant states that the Respondent wanted Lennox to attend online schooling in September 2020. The Applicant states that the Respondent did not want Lennox to be home schooled; however, after “arguing” about that issue, the Respondent relented.
55The Applicant states that she does not provide the Respondent with a report of her quarterly meetings with Lennox’s endocrinologist at The Hospital for Sick Children because she does not want to initiate contact with him. She states that “it was upon Chris to keep in touch” with the doctor.
56The Respondent states that the Applicant has been “inappropriate, difficult and hostile” in her communications with him. He states:
She has refused to use co-parenting communication tools, sent sarcastic and demeaning message and repeatedly engaged in inappropriate communication in front of our son. She has done all this despite insisting that I not contact her, a rule she does not apply to herself.
57In her third affidavit, sworn March 3, 2021, the Applicant states:
I have a challenging relationship with Christopher. He is critical of me and is condescending in the way that he communicates with me. He has no appreciation for what I have sacrificed for Lennox’s well-being, and instead accuses me of being “inappropriate, difficult and hostile”.
I admit that I had a difficult time upon separation and that I was angry with Christopher. I was upset about the way that he had treated me, and I was very hurt. For a period of time post-separation, I did not want to see or speak to Christopher. I needed space from him. I now understand that we need to move forward as co-parents for Lennox.
Unfortunately, in my efforts to communicate with Christopher on issues that pertain to Lennox, he almost always brings the conversation back to equal parenting or to the financial issues in this case. Every single conversation ultimately comes back to what Christopher wants. I am not prepared to have these types of conversations with Christopher. I find them extremely stressful and unnecessary. This makes it very difficult for me to communicate with Christopher on day-to-day issues.
58A fourth set of affidavits were not exchanged by the parties and, as a result, the above statements are unchallenged.
Family Violence
59There is no reported history of family violence.
Civil or Criminal Proceeding, Order, Condition or Measure Relevant to the Safety, Security and Well-Being of the Child
60The parties advise that no civil protection orders or any other type of order referenced in s. 7.8(2) of the Divorce Act have been issued in relation to these spouses or Lennox.
Conclusions
61It has been long established that the status quo will be maintained on an interim motion for custody and access unless cogent evidence that the best interests of the child dictate otherwise. In Papp v. Papp, 1969 (ON CA), [1970] 1 O.R. 331, at para. 34, Laskin, J.A. stated:
It may be taken as a working rule that evidence to warrant an order for interim custody must more cogently support disturbance of the de facto situation than evidence to support an order for custody after trial on the merits. But, as in custody after trial so in respect of interim custody, the welfare of the children is the paramount consideration; and any difference in the required weight of evidence is a matter of degree and not of kind. The conduct of the parties inter se may not as such have any bearing on custody, let alone interim custody; but if it offers any assistance on how the children are likely to fare in their material and moral upbringing in the hands of the one parent or the other, it has relevancy.
62Although the nomenclature has changed, the principle in Papp equally applies to a motion for an interim parenting order.
63In light of all of the evidence described above, it is my view there are compelling reasons to make the following interim parenting order:
The parties shall have joint decision-making responsibility for Lennox in that they shall have joint responsibility for making significant decisions about his well-being;
The following parenting time schedule shall continue until the earlier of July 1, 2021 or the closing of the sale of the Matrimonial Home:
a. Week One: From Monday after school or 3:00 pm until 7:30 pm, from Tuesday after school or if there is no school 3:00 pm until Wednesday morning drop off at school or if there is no school between 9:00 am and 10:00 am; and
b. Week Two: From Monday after school or if there is no school 3:00 pm until 7:30 pm, from Tuesday after school or if there is no school 3:00 pm until Wednesday morning drop off at school or if there is no school between 9:00 am and 10:00 am, and from Friday after school or if there is no school 3:00 pm until Monday drop off at school or if there is no school between 9:00 am and 10:00 am.
- After the earlier of July 1, 2021 or the closing of the sale of the Matrimonial Home, Lennox shall spend equal time with each parent as follows:
a) Lennox will be with the Applicant every other Monday starting at 10:00 am to the following Monday at 10:00 am (7 full days);
b) Lennox shall be with the Respondent every other Monday starting at 10:00 am to the following Monday at 10:00 am (7 full days);
During July, 2021 and August, 2021 Lennox may reside with the Respondent at his cottage in Gravenhurst, Ontario;
Unless the parties otherwise agree in writing:
a) Both parties may communicate by Facetime or other electronic communication once per day with Lennox for up to 15 minutes while the child is in the care of the other parent;
b) Neither party shall remove Lennox from Ontario without order of the court.
c) During his parenting time with Lennox, the Respondent shall take all reasonable efforts to ensure that Lennox uses the same diabetes management plan, including diet plan, that is used by the Applicant;
d) At the end of their week of parenting time, a party shall be responsible for dropping off Lennox at the other party’s residence in Toronto;
e) Lennox shall attend the Givins/Shaw school for the 2021/2022 school year, whether for online learning or in-person learning;
f) Each party shall maintain a residence in the catchment area of the Givins/Shaw school for the exercise of their parenting time with Lennox and for this purpose the Respondent’s rental apartment in Liberty Village is deemed to satisfy this requirement;
g) Both parties shall provide the other with the names and telephone numbers of all professionals in Lennox’s life (such as doctors, teachers, therapists, social workers, dentists, counsellors, etc.) and shall advise the other party if there is any change in the professionals caring for Lennox;
h) Neither party shall disparage or speak ill of the other or discuss any issues regarding parenting arrangements, spousal support, child support or other financial issues between them with the children or in their presence.
i) The parties shall not communicate with each other through Lennox.
j) The parties shall each purchase a subscription to the Our Family Wizard (“OFW”) application and shall communicate through the OFW platform for all child-related communication. The parties shall share information in a timely manner regarding Lennox, particularly in relation to his health and education;
k) The parties shall equally share the cost of a parenting coordinator to assist them in implementing this interim parenting order and to resolve any disagreements in relation to this interim parenting order through a mediation/arbitration process. The parenting coordinator shall be Dr. Karen Kaffko. The parenting coordinator shall not have jurisdiction to make any changes to this interim parenting order in terms of decision-making and/or the parenting schedule;
ISSUE #2: WHAT IS THE INCOME OF EACH PARTY FOR SUPPORT PURPOSES?
64The Applicant asks that support be based on the Respondent’s annual income being $1,388,000 and the Applicant’s annual income being nil, with the result that the Respondent would pay child support in the amount of $10,213.00 per month and spousal support (high range) in the amount of $42,049 per month.
65The Respondent seeks to pay support based on his income being $144,000 and the Applicant’s income being nil, with the result that the Respondent would pay child support of $1,255 per month and spousal support (mid-range) in the amount of $3,814 per month.
66The income of a spouse for the purposes of calculating child support under the Divorce Act is outlined in sections 15-19 of the Federal Child Support Guidelines, SOR/97-175 (“CSG”).
Determination of annual income
15 (1) Subject to subsection (2), a spouse’s annual income is determined by the court in accordance with sections 16 to 20.
Agreement
(2) Where both spouses agree in writing on the annual income of a spouse, the court may consider that amount to be the spouse’s income for the purposes of these Guidelines if the court thinks that the amount is reasonable having regard to the income information provided under section 21.
Calculation of annual income
16 Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.
Pattern of income
17 (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
Non-recurring losses
(2) Where a spouse has incurred a non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the spouse’s annual income under section 16 would not provide the fairest determination of the annual income, choose not to apply sections 6 and 7 of Schedule III, and adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate.
Shareholder, director or officer
18 (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include
(a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or
(b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.
Adjustment to corporation’s pre-tax income
(2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances.
Imputing income
19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
Reasonableness of expenses
(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.
67In Mason v. Mason, 2016 ONCA 725, 132 O.R. (3d) 641, at paras 161-162, Simmons J.A. explained that:
the purpose of ss. 15 to 20 is to arrive at an income figure that fairly and fully reflects the payor’s income;
s. 15 provides that a spouse's annual income is determined in accordance with ss. 16 to 20;
s. 16 provides that, subject to ss. 17 to 20, a spouse's annual income is the spouse's line 150 income;
under s. 17, if a court determines that s. 16 produces an amount that would not be the fairest determination of annual income, the court may have regard to the spouse's income over the last three years to determine a fair and reasonable amount in light of, among other things, any pattern of, or fluctuations in, income;
under s. 18, if the spouse is a shareholder, director or officer of a corporation and the court determines that s. 16 produces an amount of annual income that does not fairly reflect all the money available to the spouse to pay support, the court may determine the spouse's annual income to include all or part of the pre-tax income of the corporation for the most recent taxation year; and
s. 19 sets out a non-exhaustive list of circumstances in which a court may impute income to a spouse.
68Section 6.1 of the SSAGs states: “[t]he starting point for the determination of income under the Spousal Support Advisory Guidelines is the definition of income under the Federal Child Support Guidelines.” The income provisions of the Federal Child Support Guidelines are “virtually identical” to the Ontario Child Support Guidelines, O. Reg. 391/97 (“CSGs”): Mason, para. 53.
Applicant Mother’s Income
69Although her questioning refers to her financial statement sworn November 4, 2019, only the Applicant’s financial statement, sworn December 18, 2020 (“Applicant’s FS 2020”), was filed with the court. It shows that the Applicant is self-employed and carries on a sole proprietorship under the name House of Bonas in the Matrimonial Home.
70The Applicant’s FS 2020 states that she earns no income. However, in 2020, the Applicant received $10,000 for renting the Matrimonial Home for a photoshoot. She states that these funds did not appear on the Applicant’s FS 2020 because she received this payment after December 18, 2020.
71The Applicant states that she has been financially dependent on the Respondent since her arrival to Canada in 2006.
72The Respondent states that he supported the Applicant in her development as a photographer by paying for classes, equipment and renovating the Matrimonial Home to include a photography studio. He also states that the Applicant is a highly sought-after photographer in Toronto. He states that their dining room doubles as her photography studio. The Respondent states that on one occasion, the Applicant earned over $3,000 for a day’s work, which she did not report to the Canada Revenue Agency. The Applicant denies this assertion.
73The Respondent also states that the Applicant has chosen to be very selective concerning when she works and what types of photography she is willing to do, with the result that she earns a fraction of what she is capable of earning. He submits that the Applicant is underemployed and capable of earning $100,000 per year.
74The Applicant states that she has been a stay-at-home mom since Lennox was diagnosed with Type 1 diabetes in 2016, although she did one job prior to COVID-19. The Applicant “shut down” her business so that she could focus on learning about diabetes and caring for Lennox. Nevertheless, the Applicant states that she continued to earn income, although not a “significant income”. In a subsequent affidavit the Applicant states that she has not worked in five years and that her skills and equipment have become outdated. The Applicant does not intend on returning to photography once COVID-19 ends but rather wishes to focus on making educational diabetes videos. On questioning the Applicant stated that over the course of 2020 she discussed with The Hospital for Sick Children and a pharmaceutical company the possibility of making educational diabetes videos in her home in collaboration with the hospital and with funding from the pharmaceutical company. The Applicant believes that is “pretty likely” that this project will materialize and that it will pay her about $50,000 per year.
75A spouse that seeks to impute income must adduce evidence that establishes that the other spouse is intentionally under-employed or unemployed. Once the spouse seeking an imputation of income presents evidence to support a prima facie case for imputation, then the onus shifts to the other spouse to defend their claimed income: Drygala v Pauli (2002), 2002 (ON CA), 61 O.R. (3d) 711, at para. 38.
76The Applicant admits that she is capable of earning an income; however, she has chosen to give up her career as a photographer in order to care for Lennox. The Applicant has led no evidence to support her view that she was required to be unemployed in order to support Lennox’s needs. I find that the Applicant is intentionally unemployed within the meaning of the CSG.
77In the circumstances, I find that it is appropriate on this interim motion to impute the sum of $25,000 per year in income to the Applicant.
Respondent Father’s Income
78The Respondent is an entrepreneur in the tech industry. He states that throughout his career and during his marriage, nearly all of his income was derived from a start-up tech venture, whether as a founder or employee. To varying degrees, these start-up ventures have had a low likelihood of success, low guaranteed income and offsetting potential of high returns. During his marriage, the Respondent was involved in about one dozen start-up tech ventures and to date, only one, SurfEasy Inc., a company that he started in 2010 or 2011, was successful.
79In 2015, SurfEasy was sold by the Respondent and its other shareholders to Opera Software. The Respondent was identified in the sale agreement as one of SurfEasy’s key employees. To ensure his retention, the proceeds of sale paid to the Respondent were distributed over four years. For instance, his 2017 income tax return include $1.8 million of his gain on the sale to Opera.
80In July 2017, the Respondent and Opera signed another agreement that provided him with a share of the profits earned by Opera on the re-sale of SurfEasy if he complied with the terms of his employment agreement with SurfEasy. At this point, the Respondent owned no shares in SurfEasy.
81Later in 2017, SurfEasy was acquired by Symantec Corporation. The Respondent received a salary of $330,000, an annual bonus and restricted share units (“RSUs”) from Symantec as a retention incentive.
82In 2019, the Respondent received $280,000, being his final share of the gain on the sale of SurfEasy to Opera. By the summer of 2019, the Respondent’s work in integrating SurfEasy into Symantec’s operations was complete and his employment agreement was terminated. The Respondent received a full year’s salary of $330,000 as a severance payment and benefitted from his 2019 RSUs which were worth about $310,000.
83In October 2019, the Respondent was hired by Basecamp Partners Inc. which is an entity related to Mantella Venture Partners. The Respondent joined Mantella’s Fund 3 as a venture partner. Mantella invests in tech start-ups using borrowed money. If the start-up is successful, then it is acquired by a larger company. Fund 3 would then receive a share of the proceeds of sale after its loans were repaid. The net proceeds are shared by the venture partners of Fund 3. While the objective of Fund 3 is to make up to 12 investments, to date, it has only made one investment into a company called Felix Health. The Respondent also has a small ownership interest in Felix that he purchased for $50,000.00. He estimates that his interest is now worth $100,000 and that Felix has a value of about $20 million. As a venture partner in Fund 3, the Respondent receives a base salary of $144,000 plus a 5% share of the total profits of Fund 3.
84The Respondent states that his role at Mantella is to help find early-stage technology companies for Fund 3 to invest in and to advise those companies. He states that this role is far less demanding than that of an entrepreneur and allows him a very flexible work schedule and a healthy work/life balance.
85In addition to his role with Fund 3, the Respondent owns a small interest in two start-up companies, Wisk and Ritual, that are part of Mantella’s Fund 2. He also has an advisor agreement with Wisk that provides him with stock options.
86Effective May 1, 2020, the Respondent was given an additional non-working day each week with the result that his annual salary at Mantella was reduced by 20% from $180,000 to $144,000.
87The Respondent is now seconded to one of the Mantella portfolio companies (Ritual.co) for a year as their “CMO”. As a result, the Respondent’s salary has returned to $180,000.
88The Respondent states that:
Profits from the fund (if any) are impossible to predict, highly speculative and will not occur inside of the next 3 years. It is common for funds to have no profits. If I receive any proceeds from the profit sharing, I am, of course, willing to true-up support payments for the year that they are received
89The parties retained chartered business valuators to determine the Respondent’s income. The Applicant retained Wayne Rudson of Rudson Valuation Group Inc. The Respondent retained Steve Ranot of Marmer Penner Inc.
90A summary of their findings is as follows:
| Year | Line 150 Income / Valuator’s Opinion | Respondent father’s income |
|---|---|---|
| Projected 2021 | Marmer Penner Scenario 1 [Before adjustments for non-recurring items and investment income] | 440,000 |
| Marmer Penner Scenario 2 [After adjustments for non-recurring items and investment income] | 177,000 | |
| Projected 2020 | Line 150 Income | Unknown- not filed |
| Marmer Penner Scenario 1 [Before adjustments for non-recurring items and investment income] | 570,000 | |
| Marmer Penner Scenario 2 [After adjustments for non-recurring items and investment income] | 156,000 | |
| 2019 | Line 150 Income | 1,362,195 |
| Marmer Penner Scenario 1 [Before adjustments for non-recurring items and investment income] | 1,010,000 | |
| Marmer Penner Scenario 2 [After adjustments for non-recurring items and investment income] | 290,000 | |
| Rudson Valuation Group Scenario 1 [No adjustment for non-recurring income] | 1,388,000 | |
| Rudson Valuation Group Scenario 2 [Adjustment for non-recurring and unusual income such as capital gains from sale of SurfEasy and retirement allowance from Symantec] | 1,109,000 | |
| 2018 | Line 150 Income | 550,041 |
| Marmer Penner Scenario 1 [Before adjustments for non-recurring items and investment income] | 540,000 | |
| Marmer Penner Scenario 2 [After adjustments for non-recurring items and investment income] | 340,000 | |
| Rudson Valuation Group Scenario 1 [No adjustment for non-recurring income] | 537,000 | |
| Rudson Valuation Group Scenario 2 [Adjustment for non-recurring and unusual income such as capital gains from sale of SurfEasy and retirement allowance from Symantec] | 537,000 | |
| 2017 | Line 150 Income | 2,859,578 |
| Marmer Penner Scenario 1 [Before adjustments for non-recurring items and investment income] | 4,750,000 | |
| Marmer Penner Scenario 2 [After adjustments for non-recurring items and investment income] | 390,000 | |
| Rudson Valuation Group Scenario 1 [No adjustment for non-recurring income] | 4,760,000 | |
| Rudson Valuation Group Scenario 2 [Adjustment for non-recurring and unusual income such as capital gains from sale of SurfEasy and retirement allowance from Symantec] | 1,932,000 |
91In reference to sections 16 and 17 of the CSG, the Alberta Court of Appeal in Ewing v. Ewing, 2009 ABCA 227, stated at para. 22:
…[S]ection 16 provides the starting point for assessing income for child support purposes. If the court concludes that a section 16 calculation would not be a fair determination, section 17(1) requires the court to determine a "fair and reasonable amount" having regard to the payor's income over the last three years and any "pattern of income, fluctuation of income or receipt of a non-recurring amount during those years."
92In determining the Respondent’s income for support purposes, the default approach under section 16 of the CSG is his Line 150 income as shown on his income tax return. The last tax return filed by the Respondent was in 2019. His Line 150 income in 2019 was $1,362,197.00.
93The Respondent, relying upon section 17 of the CSG, submits that his income for support purposes is $180,000.00, which is his current salary with Basecamp. The Respondent submits that his income in the years 2017, 2018 and 2019 reflect non-recurring capital gains and other items and that those non-recurring amounts should be removed. In this regard, the Respondent relies on the Scenario 2 income figures from the Marmer Penner report which results in a three-year average income of $340,000.00 for the period 2017-2019.
94In Ewing, at paras. 33-35, the Alberta Court of Appeal provided the following guidance on whether it would be fair and reasonable to exclude a non-recurring gain from income.
33 Thus, the nature of the sale of a capital asset, or other extraordinary gain or fluctuation in income, should always be considered when determining fair income. Frequently the fairest method of income may be to exclude the gain. On the other hand, where a non-recurring gain is in the nature of an employment bonus, in the sense that it is truly income for work done, its inclusion in section 16 income may not make that method of calculation unfair. The sale of stock options as part of annual compensation may be such an example.
34 In addition to considering the nature of the non-recurring gain, or fluctuation of income, it is also important to consider the purpose of support orders when deciding whether a section 16 calculation of income is fair. Support orders are directed at ensuring that, to the extent possible, that children enjoy the same standard of living they would have experienced if the marriage had not broken down. Thus, when determining a fair and reasonable income, the day-to-day standard of living the family would have enjoyed, had it remained intact, is relevant. A court might want to consider whether a specific non-recurring gain would have resulted in a change in lifestyle of a particular family, had it remained intact. For instance, if the family's standard of living is high to begin with, the unusual gain may not affect the family's standard of living at all but may simply be seen as a means of providing security for future years. Thus, notwithstanding a large gain, a section 16 calculation which includes the gain might not be the fairest method of calculation.
35 While the courts have the discretion to determine whether the section 16 income calculation is fair, having regard to non-recurring gains and patterns of income, the following, although not an exhaustive list, outlines some of the matters a court might consider:
Is the non-recurring gain or fluctuation actually in the nature of a bonus or other incentive payment akin to income for work done for that year?
Is the non-recurring gain a sale of assets that formed the basis of the payor's income?
Will the capital generated from a sale provide a source of income for the future?
Are the non-recurring gains received at an age when they constitute the payor's retirement fund, or partial retirement fund, such that it may not be fair to consider the whole amount, or any of it, as income for child support purposes?
Is the payor in the business of buying and selling capital assets year after year such that those amounts, while the sale of capital, are in actuality more in the nature of income?
Is inclusion of the amount necessary to provide proper child support in all the circumstances?
Is the increase in income due to the sale of assets which have already been divided between the spouses, so that including them as income might be akin to redistributing what has already been shared? [Emphasis added]
Did the non-recurring gain even generate cash, or was it merely the result of a restructuring of capital for tax or other legitimate business reasons?
Does the inclusion of the amount result in wealth distribution as opposed to proper support for the children? [Emphasis added]
95The test in s. 17(1) of the CSG is what is “fair and reasonable” having regard to the payor's income in the preceding three years: Marquez v. Zapiola, 2013 BCCA 433, at para. 53. While it may be appropriate to average a spouse’s income over the last three years, there is no obligation to do so: Decaen v Decaen, 2013 ONCA 218, at para. 50. When a spouse's income fluctuates significantly due to the inherent unpredictability of income from business interests, the averaging approach can certainly be appropriate: Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, at para. 128. In Jakob v. Jakob, 2010 BCCA 136 the British Columbia Court of Appeal, at para. 46, stated:
The calculation of income for the payment of support is based on a payor's capacity to pay; it is a payor's income or earning capacity that determines the amount of support he or she will be required pay. Actual income may not always reflect a payor's capacity to pay. Where income has fluctuated in previous years, in the sense that it has increased and decreased over a fixed period of time, and it is anticipated that it will continue to fluctuate in that manner, it may be appropriate to take an average of fluctuating income for a fixed number of years to calculate a payor's income or earning capacity.”
96In this case, the Respondent’s stated income of $144,000 as well as his current salary of $180,000 does not “fully and fairly” reflect his income when viewed from a three-year perspective. In the last three years, the Respondent’s salary has been only one aspect of his compensation. Amongst other things, scenario 2 of the Marmer Penner report excludes from the Respondent’s income the retention bonuses and RSUs that he has received. I find that the Scenario 2 figures of the RVG report are a better representation of the Respondent’s income for purposes of this interim support motion. Accordingly, taking the three-year average of his 2017-2019 income, I find that it is fair and reasonable to conclude that the Respondent’s income for purposes of this interim support motion is $1,192,666.67 rather than his Line 150 income in 2019 of $1,362,197.00 or his current salary.
ISSUE #3: INTERIM CHILD SUPPORT
97Based on the application of the CSG to the findings regarding income described above, I order that the Respondent pay interim child support in the amount of $8,607 per month to the Applicant commencing April 1, 2021. A copy of the DivorceMate calculation is attached as Schedule “A” to this decision.
98The Applicant’s claim for retroactive child support is better addressed at trial on a fuller examination of that claim.
ISSUE #4: INTERIM SPOUSAL SUPPORT
99The Applicant seeks an interim spousal support order requiring that the Respondent pay the sum of $42,049.00 per month retroactive to March 6, 2019. This figure is based on income for the Respondent of $1,388,000 and income of nil for herself.
100The Respondent seeks an Order setting the Respondent’s spousal support payments of $3,814 per month commencing June 1, 2020 so that the Respondent may receive tax relief on his voluntary support payments. This figure is the mid-range amount and it is based on the Respondent’s income being $144,000 and the Applicant’s income being NIL. It results in the Applicant receiving 50.4% of Net Disposable Income (“NDI”) and the Respondent receiving 49.6% of NDI.
101In addition the Respondent seeks: (1) On a without prejudice basis to the Respondent only, an Order that both parties shall claim spousal support of $60,000 in their 2020 income tax returns as third-party payments made by the Respondent on the Applicant’s behalf, which shall trigger no tax being owed by the Applicant; (2) In the event no Order for occupation rent is made below, an Order that the Applicant shall be responsible for, maintain all costs associated with, and make all payments concerning the Matrimonial Home, for as long as she continues to live there solely; (3) An Order that the Applicant shall be responsible for paying her automobile insurance; (4) An Order that the Applicant cease incurring debt in the Respondent’s name and that she pay the balance of debt incurred by the Respondent on her behalf of $29,455, as of October 15, 2020. I decline to make these specific orders and they may be raised at trial.
102In addition to the $5,000 in uncharacterized support that has been paid since June 2020, the Respondent states that from May 2019 to June 2020 he paid in cash and in-kind payments of $302,202.28 to the Applicant as follows:
| Item | Applicant’s View | Amount |
|---|---|---|
| Transferred to Applicant’s Personal Account | Half of Respondent’s Severance from Symantec | $119,697.50 |
| Paid on the Applicant’s Credit Card | $40,000.00 | |
| Credit Card Paid off by Applicant in March 2020 | Was part of a $50,000 advance that the Respondent was to pay | $24,662.35 |
| Spent via Shared Account Online Bills | Denies that these expenses should be shared equally | $30,940.83 |
| Spent via Shard Account Cash | Relate to gas, utilities and taxes and should not be categorized as “advances” | $6,990.20 |
| Transferred to Applicant’s Personal Account | $75,000.00 | |
| Spent via shared savings account | Relate to gas, utilities and taxes and should not be categorized as “advances” | $4,121.07 |
103Section 15.2 of the Divorce Act governs spousal support and interim spousal support. It states:
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
Interim order
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).
Terms and conditions
(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Spousal misconduct
(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
104In Liddell-MacInnis v. MacInnis, 2021 ONSC 1787, at paras. 65, 67 & 68, Justice Kraft summarized the following additional principles that apply on a motion for interim spousal support:
a. 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. The merits of the case in its entirety are to be dealt with at trial;
b. In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay;
c. The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case, or to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. That task is for the trial judge;
d. The primary goal of interim spousal support is to provide income for dependent spouse from the time the proceedings are commenced until the trial. Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial;
e. Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs. The objective of encouraging self-sufficiency is of less importance; and
f. The Spousal Support Advisory Guidelines (“SSAGs”) is a non-binding guideline that provides a “valuable litmus test” for assessing both the range within which spousal support, whether interim or final, should be ordered and the duration of such support.
105I find that the Applicant has an arguable case for entitlement to interim spousal support on a compensatory basis as well as a needs basis.
106While the Respondent may not be earning income today sufficient to pay a significant award of spousal support, I find that he has the means to do so given his liquid assets.
107The Applicant’s financial statement claims expenses of about $8,111 per month. However, it largely excludes the carrying costs of her accommodation because it is mortgage-free and also because the Respondent pays most of the operating costs of the Matrimonial Home.
108I find that an award based on the SSAG, even at the low-end range, which would result in award of $29,422 per month (and $15,873 per month after tax) based on nearly a 50% split in net disposal income, goes far beyond maintaining the Applicant’s lifestyle pending trial while she lives in the Matrimonial Home. Accordingly, I order that the Respondent pay spousal support of $13,014 per month (which will result in $8,111 per month after tax for the Applicant) commencing April 1, 2021 until the Matrimonial Home is sold.
109The Applicant’s evidence was that a film production company is renting the semi-detached house adjacent to the Matrimonial Home at a price of $10,000 per month. Once the Matrimonial Home is sold, the Applicant will be assuming the payment of her own costs of accommodation. Accordingly, on the first day of the month after the Matrimonial Home is sold, the Respondent shall commence paying spousal support of $29,422 per month to the Applicant until the trial of this Application.
110Once again, given the amounts that have been paid by the Respondent to the Applicant, I defer adjudication of the Applicant’s claim for retroactive spousal support to the trial judge.
ISSUE #5: SALE OF THE MATRIMONIAL HOME
111The Respondent asks that the Matrimonial Home be sold as well as an Order that, in the event any issue arises concerning any aspect of the sale of the home, that either party may move on short notice for an Order concerning the sale.
112The Matrimonial Home is solely owned by the Respondent. The Applicant advances a trust claim against the Matrimonial Home. The Applicant and Lennox have continued to live there in the two years since the date of separation.
113According to the appraisal evidence of Jim Parthenis, the Matrimonial Home is a 3,200 square foot, three-bedroom home in downtown Toronto. As of January 11, 2021, the Matrimonial Home had a fair market value of $4,150,000.00.
114Upon application by a spouse, a court may order that a property be sold for the purpose of realizing his or her interests in it: See Family Law Act, R.S.O. 1990, c. F.3, s. 10 (1)(c).
115An order for the sale of a matrimonial home prior to trial should not be granted as a matter of course and only when in all of the circumstances it is appropriate to do so. An interim order for the sale of a matrimonial home may be granted where:
(a) the opposing spouse’s arguable claims under the FLA would not be prejudiced by the sale: Binkley v. Binkley, [1988] O.J. No. 414 (C.A.), at para. 3; Martin v. Martin, (1992), 1992 (ON CA), 8 O.R. (3d) 41 (C.A.), at para. 26; or
(b) the best interests of the children are not impacted by the sale: Fernandes v. Darrigo, 2018 ONSC 1039 (Div. Ct.) paras. 19-21.
116The Applicant does not submit that her claims under the FLA would be prejudiced if an order for the sale of the Matrimonial Home is granted. The Respondent has undertaken to ensure that the Applicant receives a one-half share of the sale proceeds (about $2 million) as an advance against the equalization payment to purchase her own home.
117Further, there is no evidence that the health-related needs would be prejudiced by the sale of the Matrimonial Home. On the other hand, Lennox is being home-schooled for the remainder of the 2020/2021 school year. It would de-stabilize that routine to have the home sold during that period.
118In all the circumstances, I find that it is appropriate to order the sale of the Matrimonial Home on condition that the closing of the sale shall not occur before July 1, 2021.
ISSUE #6: INTERIM OCCUPATION RENT
119The Applicant seeks the following order:
An Order that the Applicant be ordered to pay Occupier’s Rent in an amount to be determined for the use of the matrimonial home property municipally known as 40 Beaconsfield Avenue, Toronto, Ontario M6J 3HJ, which is solely owned by the Respondent, with the Respondent to receive credit for occupation rent against any amounts found to be owing to him or by him in this proceeding, including on account of property and support;
120Section 24(1)(c) of the Family Law Act states:
Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,
(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;
121Section 24(2) of the Family Law Act provides that a temporary or interim order for occupation rent may be made under s. 24(1)(c) of the Act.
122Occupation rent may be ordered if it is “reasonable and equitable to do so”. The relevant considerations include the timing of the claim for occupation rent, the duration of the occupancy, the inability of the non-resident spouse to realize on their equity in the property any reasonable credits to be set off against occupation rent and any other competing claims in the litigation: Griffiths v. Zambosco (2001), 2001 (ON CA), 54 O.R. (3d) 397 (C.A.), at para. 49.
123I dismiss this motion for occupation rent given that such motions are usually deferred to the trial judge who can better balance the equities between the parties on a more complete record with fuller submissions: Wu v. Wu, 2013 ONSC 5804. Further, given that the Matrimonial Home has been ordered to be sold, it makes no sense to engage in this exercise only a few months before its sale.
ISSUE #7: INTERIM COSTS
124The Applicant submits that she is “entitled” to an order for the payment of interim costs in the amount of $120,000 from the Respondent. In asking for this amount, the Applicant states that she has accounts receivable with RVG of about $7,000 and her legal team of about $62,000.00. The Applicant states that the parties have attended one conference, one mediation and questioning. The Applicant states that her additional legal fees up to a settlement conference are about $66,000.00 and RVG’s additional fees of about $8,000.00.
125Rule 24(18) states:
The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.
126The leading cases on the principles associated with the award of interim costs are Stuart v. Stuart, 2001(Ont. S.C.) and Ludmer v. Ludmer, 2012 ONSC 4478. A judge's discretion under Rule 24(18) is to be exercised to further the primary objective of fairness by levelling the playing field between the parties: Ma v. Chao, 2016 ONSC 585 (Div. Ct.), at para. 4.
127In Ludmer, Justice Mesbur summarized the applicable principles as follows:
14 The law concerning orders for interim disbursements or interim fees and costs in family law cases has evolved over the years. Here, the relevant rule is rule 24(12) of the Family Law Rules, which deals with orders for interim fees and costs in family law cases. It simply says: "The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer's fees." One of the primary themes of the case law is that orders may be required in order to "level the playing field" between the litigants.
15 The jurisprudence surrounding rule 24(12) was neatly summarized by Rodgers J in Stuart v. Stuart and has been followed in many cases since then. Simply put, when considering a request for interim disbursements under the Family Law Rules, it is no longer necessary to find exceptional circumstances in order to make an order. The order is a discretionary one. In exercising discretion under the rule, the court must ensure the primary objective of fairness under the Family Law Rules is met.
16 As the court said in Stuart,
The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possible [sic] go to trial. Simply described the award should be made to level the playing field.
An order under section [sic] 24(12) should not immunise a party from cost awards. The order is to allow the case to proceed fairly and should not be such that a party feels a license to litigate. ...
The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available ...
The claimant must demonstrate that he or she is incapable of funding the requested amounts.
The claim or claims being advance in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the request for disbursements.
17 Thus, the wife's evidentiary burden includes establishing the necessity and reasonableness of the fees and disbursements, given the nature of the case and the funds available. She must also show she is incapable of funding the fees and disbursements herself. Last, she must show that her claims are meritorious.
128The Applicant submits that the playing field is not level in this case. The Appellant has about $392,000 in bank accounts, savings and registered savings plans with about $100,000 being in liquid, unregistered accounts. The Appellants notes that the Respondent has about $1.6 million in unregistered liquid assets and over $7 million in unencumbered real estate. The Respondent denies that he has the means to make the requested interim payment given the amounts for spousal and child support sought by the Applicant. He submits that their resources, following the payment of support, are not significantly imbalanced. I reject this submission. His resources far exceed those of the Applicant.
129I find that: (a) the Applicant has a meritorious claim for a significant equalization payment; (b) the disbursements are necessary and reasonable given the nature of the case; (c) the Applicant is incapable of funding the requested amounts from her own savings and other resources; (d) an interim disbursements order is required to level the playing field.
130There shall therefore be an order that the Respondent shall, within 30 days, advance to the Applicant the sum of $120,000. This advance shall be repaid by the Applicant to the Respondent from her equalization payment or her notional share of the proceeds of sale of the Matrimonial Home, whichever occurs first.
CONCLUSIONS
131Pursuant to the Divorce Act, I make the following interim parenting order:
(1) The parties shall have joint decision-making responsibility for Lennox in that they shall have joint responsibility for making significant decisions about his well-being;
(2) The following parenting time schedule shall continue until the earlier of July 1, 2021 or the closing of the sale of the Matrimonial Home:
a. Week One: From Monday after school or 3:00 pm until 7:30 pm, from Tuesday after school or if there is no school 3:00 pm until Wednesday morning drop off at school or if there is no school between 9:00 am and 10:00 am; and
b. Week Two: From Monday after school or if there is no school 3:00 pm until 7:30 pm, from Tuesday after school or if there is no school 3:00 pm until Wednesday morning drop off at school or if there is no school between 9:00 am and 10:00 am, and from Friday after school or if there is no school 3:00 pm until Monday drop off at school or if there is no school between 9:00 am and 10:00 am.
(3) After the earlier of July 1, 2021 or the closing of the sale of the Matrimonial Home, Lennox shall spend equal time with each parent as follows:
a. Lennox will be with the Applicant every other Monday starting at 10:00 am to the following Monday at 10:00 am (7 full days);
b. Lennox shall be with the Respondent every other Monday starting at 10:00 am to the following Monday at 10:00 am (7 full days);
(4) During July, 2021 and August, 2021 Lennox may reside with the Respondent at his cottage in Gravenhurst, Ontario;
(5) Unless the parties otherwise agree in writing:
a) Both parties may communicate by Facetime or other electronic communication once per day with Lennox for up to 15 minutes while the child is in the care of the other party;
b) Neither party shall remove Lennox from Ontario;
c) During his parenting time with Lennox, the Respondent shall take all reasonable efforts to ensure that Lennox uses the same diabetes management plan, including diet plan, that is used by the Applicant;
d) At the end of their week of parenting time, a party shall be responsible for dropping off Lennox at the other party’s residence in Toronto;
e) Lennox shall attend the Givins/Shaw school for the 2021/2022 school year, whether for online learning or in-person learning;
f) Each party shall maintain a residence in the catchment area of the Givins/Shaw school for the exercise of their parenting time with Lennox and for this purpose the Respondent’s rental apartment in Liberty Village is deemed to satisfy this requirement;
g) Both parties shall provide the other with the names and telephone numbers of all professionals in Lennox’s life (such as doctors, teachers, therapists, social workers, dentists, counsellors, etc.) and shall advise the other party if there is any change in the professionals caring for Lennox;
h) Neither party shall disparage or speak ill of the other or discuss any issues regarding parenting arrangements, spousal support, child support or other financial issues between them with the children or in their presence;
i) The parties shall not communicate with each other through Lennox;
j) The parties shall each purchase a subscription to the Our Family Wizard (“OFW”) application and shall communicate through the OFW platform for all child-related communication. The parties shall share information in a timely manner regarding Lennox, particularly in relation to his health and education;
k) The parties shall equally share the cost of a parenting coordinator to assist them in implementing this interim parenting order and to resolve any disagreements in relation to this interim parenting order through a mediation/arbitration process. The parenting coordinator shall be Dr. Karen Kaffko. The parenting coordinator shall not have jurisdiction to make any changes to this interim parenting order in terms of decision-making and/or the parenting schedule.
(6) The Respondent shall pay interim spousal support in the amount of $13,014 per month commencing April 1, 2021 until the sale of the Matrimonial Home closes;
(7) The Respondent shall pay interim spousal support in the amount of $29,422 per month commencing on the day of the month after the closing of the sale of the Matrimonial Home until trial; and
(8) The Respondent shall pay interim child support in the amount of $8,607.00 per month to the Applicant commencing April 1, 2021.
132Pursuant to the Family Law Act, I order that the Matrimonial Home shall be sold in a manner to be quickly agreed upon by the parties. If the parties cannot agree to a sales process within ten (10) days of the date of this Order, then they shall proceed as follows:
(a) The parties shall agree upon a real estate broker to list the Matrimonial Home for them, and sign a listing agreement with that real estate broker, within fifteen (15) days from the date of this Order. If the parties fail to do so, then the Respondent shall within twenty (20) days from the date of this Order bring a Rule 14B motion before me in which both parties shall submit two names of qualified realtors and the court will choose;
(b) Unless the parties agree otherwise: (a) the parties shall list the Matrimonial Home for sale at a price set by the listing broker; (b) the parties shall accept and sign the first offer received by the listing broker that they recommend that the parties accept; (c) the listing shall not commence before May 1, 2021 and no later than May 15, 2021 and the closing of the sale shall not occur before July 1, 2021; and,
(c) The proceeds of sale shall be held by the listing broker and shall be applied first to commissions, legal fees, and other proper costs of sale. The remaining amount, after any charges or liens, shall be notionally split equally between the parties. The amount in each party’s notional account shall then be used to pay costs of this motion, if any, as may be ordered. Any amounts then remaining in each party’s notional account shall then be released to the respective parties.
In the event any issue arises concerning any aspect of the sale of the Matrimonial Home, either party may move on short notice for an Order concerning the sale.
133Pursuant to the Courts of Justice Act, R.S.O. 1990, Chapter C.43, and the Family Law Rules, O. Reg. 114/99, I order that:
(1) the Respondent shall advance to the Applicant the sum of $120,000.00 within 30 days from the date of this Order. This advance shall be repaid by the Applicant to the Respondent from her equalization payment or her notional share of the proceeds of sale of the Matrimonial Home within ten days of the closing of the sale of the Matrimonial Home, whichever occurs first;
(2) the parties shall attend a Trial Management Conference/Settlement Conference before me on July 2, 2021 at Noon; and
(3) the trial of this Application shall be heard commencing on October 25, 2021 for a period of up to seven days.
134Pursuant to the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, I order that:
(1) a Support Deduction Order to issue;
(2) unless the Support Order and the Support Deduction Order are withdrawn from the Director of the Family Responsibility Office, they shall be enforced by the Director and the amounts owing under the Support Order shall be paid to the Director, who shall pay them to the party to whom they are owed.
135I remind the parties of their statutory obligations under s. 7.1-7.4 of the Divorce Act, described earlier.
136Finally, I note that the parties filed extensive materials on this interim motion. There were over 2,500 pages of materials electronically filed, including transcripts from two days of questioning of the parties and about 1,500 pages of case law. While the volume of material that was delivered on this interim motion might not shock some lawyers who practice in this area, it is difficult to see how this “pedal to metal” approach to a family law motion accords with the primary objective of the Family Law Rules or the principles of law that do not invite a detailed inquiry on interim motions for parenting orders and support
137Should the parties be unable to resolve their claims for costs of this motion, then they shall deliver their costs submissions by April 14, 2021, their responding submissions by April 21, 2021 and their reply submissions by April 28, 2021. Each costs submission shall be no more than three pages exclusive of their offers to settle and outlines of costs.
Mr. Justice M.D. Faieta
Released: March 29, 2021