COURT FILE NO.: FS-20-43613

DATE: 2021 04 09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: N.M., Applicant

AND:

N.S., Respondent

BEFORE: Conlan J.

COUNSEL: Mr. Maltz, for the Applicant

Mr. Fogelman and Ms. Daneman, for the Respondent

HEARD: April 8, 2021

ENDORSEMENT

I. Introduction

The Motions

[1] There are two Motions before the Court. They were both argued on the same date, April 8, 2021, with about ninety minutes total of hearing time.

[2] Argued first was the Motion brought by the Applicant husband, N.M., dated March 17, 2021, seeking disclosure. Argued second was the Motion brought by the Respondent wife, N.S., dated March 30, 2021, seeking temporary child and spousal support and the release of funds, currently being held in trust, from the net proceeds of sale of two jointly owned properties.

The Result

[3] For the reasons that follow, the husband’s disclosure Motion is dismissed entirely, and the wife’s Motion is granted (not completely, but in large part).

The Costs of the Motions

[4] On costs, failing a resolution between the parties, this Court will accept written submissions. As it would appear that the wife, as the successful party, is presumptively entitled to some costs, the wife shall file her written submissions first, within thirty (30) calendar days of the date of this Endorsement. The husband shall file his written submissions within fifteen (15) calendar days of his counsel’s receipt of the wife’s submissions. Without leave of this Court, no reply is permitted.

II. Analysis and Conclusion

The Husband’s Disclosure Motion – the Positions of the Parties

[5] Reference should be had to the husband’s Form 14C, Confirmation of Motion, dated April 1, 2021, and the draft Order attached thereto. The following 24 disclosure items are sought:

i. all title documents regarding 77-A Punjab Cooperative Housing Society in Lahore, Pakistan (“77-A”);

ii. an appraisal of 77-A;

iii. an accounting of the rent received on 77-A over the last three years, and proof of who collects the rent;

iv. an appraisal of No. 1 Ashraf Street, Bosan Road, Multan, Pakistan (“No. 1”);

v. all title documents regarding No. 1;

vi. proof that the wife holds two-thirds of No. 1 in trust for her brother;

vii. receipts for all jewellery, gold, watches, rings, necklaces, earrings, designer handbags, and semiprecious and precious stones;

viii. a list and appraisal of all items listed in (vii) above;

ix. all documents regarding two accounts at Allied Bank;

x. proof of all deposits made, and from where, to those two Allied Bank accounts over the last five years;

xi. all statements for those two Allied Bank accounts over the last three years pre-separation;

xii. all documents regarding an unspecified MCB account;

xiii. all statements for three specific MCB accounts for the last three years;

xiv. proof of who opened those three MCB accounts;

xv. all financial records for a medical centre corporation over the last three years pre-separation (I am calling it a “medical centre corporation” in order to protect the parties’ privacy, but it will be obvious to the litigants and their counsel what I am referring to – see clause 15 of the draft Order attached to the husband’s April 1, 2021 Confirmation Form);

xvi. all income ledgers for that medical centre corporation for the last five years;

xvii. all documents regarding the ownership of that medical centre corporation filed over the last three years;

xviii. all title documents regarding the premises of that medical centre corporation (in Multan, Pakistan);

xix. an appraisal of that medical centre corporation’s premises;

xx. a certified business valuation of that medical centre corporation as of the separation date;

xxi. all documents relating to the sale of the wife’s shares in that medical centre corporation;

xxii. the wife’s Pakistani and Canadian income tax returns for 2020;

xxiii. all statements for the last three years of several other specified bank accounts; and

xxiv. all documents pertaining to those same bank accounts specified in (xxiii) above.

[6] Of course, far more than 24 items of disclosure are actually being sought, as many of the above clauses include more than one item. It is a remarkably omnibus disclosure Motion, yet compliance within just thirty (30) days is sought in the draft Order filed on behalf of the husband, together with a rather draconian request that the wife be banned from bringing any spousal support or financial relief motion (for her) unless and until the disclosure ordered has been fully satisfied.

[7] I say “draconian” because, as it turns out, the wife’s entitlement to spousal support is not contested by the husband. Only her income for support purposes is the subject of some debate.

[8] The wife contests, in its entirety, the husband’s disclosure Motion. She submits that her affidavit evidence is a complete answer to what is being sought.

The Wife’s Financial Relief Motion – the Positions of the Parties

[9] On support, the wife seeks $4153.00 per month for the two children and $6361.00 per month for her. As well, she asks that the husband pay 75% of the children’s section 7 expenses.

[10] Those figures are based on gross annual incomes of $323,000.00 for the husband and $10,000.00 for the wife. The spousal support is the mid-range number as per the Spousal Support Advisory Guidelines (“SSAG”).

[11] The suggested start-date for the requested child and spousal support is May 1, 2021, although there is a claim by the wife to go back to November 2020 on some aspects of the child support award. Details of the latter are unimportant here because I decline to order anything pre-May 1, 2021; the wife can pursue those issues at trial.

[12] On the other financial relief, the wife seeks the release of her 50% share of the net proceeds of sale of the jointly owned matrimonial home in Oakville, plus her 50% share of the net proceeds of sale of a second jointly owned income property in Oakville. Those funds are currently being held in trust by a lawyer. The wife asks that the husband’s shares of those funds continue to be held in trust.

[13] Alternatively, the wife suggests that each party take $400,000.00 now from the total net proceeds of sale.

[14] As alluded to above, the husband does not dispute that the wife is entitled to spousal support. He suggests that a more appropriate temporary order would be to have him pay to her $1188.00 monthly, based on his income of $306,134.00, and hers of $166,834.83, and the mid-range SSAG figure (paragraph 116 of the husband’s affidavit sworn on April 1, 2021, together with exhibit “GG” attached thereto).

[15] On child support, the husband submits that he should pay $3951.00 per month, based on his 2020 income of $306,134.00 (paragraphs 125 and 126 of the husband’s affidavit sworn on April 1, 2021, together with exhibits “II” and “JJ” attached thereto). Presumably, although not said so expressly, he would agree to pay section 7 expenses at a percentage that is in proportion to the respective incomes that he submits should govern - $306,134.00 for him and $166,834.83 for her.

[16] On the proposed release of funds to the wife from the net proceeds of sale of the two jointly owned properties, the husband is not in agreement with that. As his counsel submitted in oral argument, the husband is of the view that there must be evidence that the wife will be owed an equalization payment, and there is no such evidence. Rather, the husband has calculated that she will owe to him a massive equalization payment – more than one million dollars.

The Non-Contentious Background Facts

[17] Very briefly stated, the following background facts are not in dispute:

i. the parties were together for about 18 years and separated in July 2020;

ii. the parties are Pakistani;

iii. the parties had an arranged marriage;

iv. the wife is from a particularly wealthy and influential family;

v. the parties are both currently in their early/mid-forties;

vi. the parties have two children – now 18 and 12 years old;

vii. the parties moved to Canada in late 2004, after the birth of their first child;

viii. the wife was the primary caregiver for the children;

ix. the wife is a foreign-trained medical doctor but has not practised medicine in Canada and has no valid licence to do so;

x. the wife is trained as an esthetician and, in 2015, opened a business in that industry;

xi. in 2019, in place of the former business, the couple opened a spa business (jointly owned), which spa still exists and is currently being run by the wife;

xii. the husband is an accountant;

xiii. the real estate lawyer currently holds more than $1.6 million dollars in net proceeds of sale from the matrimonial home, plus more than $376,000.00 in net proceeds of sale from another jointly owned income property;

xiv. the wife currently lives with both children in a rental property in Oakville, and the rent is $4900.00 monthly; and

xv. the current status quo is that the husband pays no spousal support and pays $3265.00 per month in child support (in accordance with the consent Order of Kurz J. made on December 18, 2020).

The Basic Legal Principles

Disclosure

[18] The duty to disclose financial information is a fundamental aspect of family law. It is a basic obligation that is immediate and is ongoing throughout the entire proceeding. A party’s failure to respect that obligation only serves to impede the progress of the case, cause delay, disadvantage the other side, waste valuable judicial resources, increase costs, stall a final determination of the substantive issues on their merits, and generally make a mockery of the proper administration of justice. Roberts v. Roberts, 2015 ONCA 450, at paragraphs 11 and 12; Mullin v. Sherlock, 2018 ONCA 1063, at paragraph 32.

[19] Full and frank disclosure, however, does not necessarily equate with exhaustive disclosure. Proportionality must be considered, as that is another basic tenet of the law. Kovachis v. Kovachis, 2013 ONCA 663, at paragraph 34; Mullin, supra, at paragraph 33.

[20] In addition, some basic common sense has to prevail. Depending on the nature of the document being requested, it may not be possible for the responding party to produce it immediately. Where the document must be obtained from a third party, like a bank, the timing of the responding party’s demand to the bank is what governs an assessment of how seriously that responding party takes her financial disclosure obligations. Has the responding party made her very best efforts to obtain the document from the third party – by demanding it promptly, and by following-up if necessary, and so on? Those are the questions to be asked. The responding party cannot necessarily be held to account for delays on the part of the third party, where those delays are found to have reasonably been beyond the control of the responding party.

Support and the Release of Funds

[21] A parent should pay child support in accordance with his/her gross annual income and the Federal Child Support Guidelines (“Guidelines”), regardless of whether a formal demand or motion has been made/brought for the same.

[22] The Court is required to determine issues relating to income based on the most current information available. The intention is to ascertain the payor’s income based on the sources set out under the heading “total income” (line 150) in the T1 General Form issued by the Canada Revenue Agency, subject to adjustments. Section 16 of the Guidelines; Templeton v. Nuttall, 2018 ONSC 815, at paragraph 55.

[23] In terms of the law on imputation of income, Justice Chappel stated the following at paragraphs 58 through 62 of the decision in Templeton, supra, and I agree with and adopt the below analysis.

[58] The Guidelines provide that the court may impute income to a party in appropriate circumstances. The relevant section of the Guidelines is section 19, which provides as follows:

Imputing income

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

(b) the parent or spouse is exempt from paying federal or provincial income tax;

(c) the parent or 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 parent’s or spouse’s property is not reasonably utilized to generate income;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

(g) the parent or spouse unreasonably deducts expenses from income;

(h) the parent or 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 parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. O. Reg. 391/97, s. 19 (1); O. Reg. 446/01, s. 6.

Reasonableness of expenses

(2) For the purpose of clause (1) (g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada). O. Reg. 391/97, s. 19 (2).

[59] Income imputation provides a means by which the court can ensure that parents meet their joint and ongoing obligation to support their children (Drygala v. Pauli, 2002 41868 (ON CA), [2002] O.J. No. 3731, 2002 CarswellOnt 3228 (C.A.), additional reasons 2003 48241 (ON CA), 2003 CarswellOnt 17 (C.A.); Tillmans v. Tillmans, 2014 ONSC 6773 (S.C.J.); B.(G.T.) v. B.(Z.B.), 2014 ONCJ 382 (O.C.J.); Morden). As the Ontario Court of Appeal stated in Korman v. Korman, 2015 ONCA 578, at para 51:

[t]he courts retain discretion to impute income to a payor spouse in excess of that spouse’s presumptive income where the imputed income is supported by the evidence and is consistent with the objective of establishing “fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution” Bak, at para. 36; Drygala v. Paul (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711, 29 R.F.L. (5th) 2983 (Ont. C.A.), at para 44.”

[60] The specific inclusion in the Guidelines of authority for the court to impute income highlights that the fundamental obligation of a parent to support their children takes priority over the parent’s own interests and choices. It also reinforces that parents must act responsibly when making financial decisions that may affect the level of income available from them for the support of their children (Duffy v. Duffy, 2009 NLCA 48 (NLCA)). The list of circumstances set out in section 19 in which the court may impute income is not exhaustive, and therefore it does not circumscribe the court’s general discretion to impute income in other situations where it considers it appropriate to do so. These other situations need not be analogous to the circumstances listed in section 19 in order to provide a foundation for imputation of income (Bak v. Dobell, 2007 ONCA 304; Riel v. Holland, 2003 3433 (ON CA), [2003] O.J. No. 3901, 67 O.R. (3d) 417 (C.A.); Korman).

[61] The imputation of income to a party is a fact-driven exercise that turns on the unique circumstances of the case before the court (Bak, at para. 73; Korman, at para. 49). Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute (Korwin v. Potworowski 2007 CarswellOnt 6852 (C.A.); Froelich-Fivey v. Fivey, 2016 ONCA 833; Korman).

[62] The Ontario Court of Appeal addressed the issue of imputation of income pursuant to section 19(1)(a) of the Guidelines on the basis of intentional unemployment or under-employment in Drygala and more recently in Lavie v. Lavie, 2018 ONCA 10. The following general principles derive from those decisions and other cases which have considered section 19(1)(a):

1. Section 1 of the Guidelines stipulates that one of the objectives of the Guidelines is to establish a fair standard of support for children so as to ensure that they benefit from the financial means of both parents after separation. To this end, there is a duty on the part of the payor to actively seek out reasonable income-earning opportunities that will maximize their earning potential so as to meet the needs of their children. If a parent is earning less than they reasonably could be, they are intentionally underemployed and income may be imputed to them (Drygala; Lavie).

2. A finding of deliberate under-employment or unemployment does not require evidence of bad faith on the part of the payor parent or an attempt on their part to evade support obligations. A parent is intentionally under-employed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. The parent is intentionally unemployed when they choose not to work when capable of earning an income (Drygala; Lavie).

3. In determining whether a party is intentionally under-employed or unemployed, the court should consider the party’s capacity to earn income in light of their age, education, health, work history and the availability of work that is within the scope of the party’s capabilities (Marquez v. Zapiola, 2013 CarswellBC 3038 (B.C.C.A.); Lawson v. Lawson, 2006 26573 (ON CA), 2006 CarswellOnt 4789 (C.A.)).

4. A self-induced lack of income or reduction of income with no realistic prospect of future financial advancement is not a basis upon which to avoid or reduce child support payments. Accordingly, the court may find the party to be deliberately under-employed and impute income where the party has persisted in un-remunerative employment or self-employment, or where they have pursued unrealistic or unproductive career aspirations (Hanson v. Hanson, 1999 6307 (BC SC), 1999 CarswellBC 2545 (B.C.S.C.); Drygala; Donovan v. Donovan (2000), 2000 MBCA 80, 190 D.L.R. (4th) 696 (Man. C.A.); Lawson; Blake v. Blake, 2000 CarswellOnt 2477 (S.C.J.))

5. The court may also impute income to a party on the basis of deliberate under-employment or unemployment if the party quits their employment for selfish or bad faith reasons (Ronan v. Douglas Walsh (1994), 1994 3826 (ON CJ), 5 R.F.L. (4th) 235 (Ont. Prov. Div.)), or if they engage in reckless behaviour which affects their income-earning capacity (Rogers v. Rogers, 2013 ONSC 1997, 2013 CarswellOnt 4068 (S.C.J.); Costello v. Costello, 2012 ONCJ 399 (O.C.J.); Aboagye v. Sakyi, 2012 ONCJ 56 (O.C.J.); Tillmanns).

6. When a party experiences an involuntary loss of employment or self-employment, they may be given a “grace period” to investigate options and seek out income earning opportunities in their field at a comparable rate of remuneration before income will be imputed to them (Lavrinenko v. Lavrinenko, 2014 ONSC 4097 (S.C.J.); Tillmanns). However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities or options outside of the area of their expertise in order to satisfy their obligation to contribute to the support of their children (Barta v. Barta, 2005 CarswellOnt 74 (S.C.J.); M. (S.D.) v. M. (K.F.), 2004 CarswellBC 70 (S.C.); Quintel v. Quintel, 1997 CarswellOnt 3213 (Gen. Div.); D. (P.) v. D. (C.), 2011 CarswellNB 442 (Q.B)).

7. Even if the court determines that the payor parent is deliberately under-employed or unemployed, the court has the discretion to decide whether or not to impute income to them. This decision will turn on the court’s overall assessment of the reasonableness of the payor’s decisions and actions in relation to their income. If an employment decision results in a significant reduction of income, it must be justified in a compelling way (Riel; Rilli v. Rilli, 2006 34451 (ON SC), 2006 CarswellOnt 6335 (S.C.J.); Tillmanns).

8. Finally, in determining the amount of income to impute on the basis of deliberate under-employment or unemployment, the court must consider what is reasonable in the circumstances of the particular case. The factors that the court is required to consider include the age, education, experience, skills and health of the payor, their past earning history and the amount of income that the payor could reasonably earn if they worked to capacity (Drygala; Lawson; West v. West, 2001 28216 (ON SC), [2001] O.J. No. 2149 (S.C.J.); Tillmanns).

[24] With respect to the law of spousal support, the wife’s counsel filed a document titled “Respondent’s Statement of Law on Interim Spousal Support”, dated April 8, 2021. I have reviewed the jurisprudence and the legislation referred to therein. I conclude that the document represents an accurate summary of the law that this Court must apply, and I note that the husband’s counsel did not suggest otherwise in his submissions. I set out below paragraphs 1-5 and 13-14 of the said document, with all of the applicable footnotes included.

1. In making an interim order for spousal support, section 15.2(4) of the Divorce Act sets out that a 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.

2. The four objectives that a spousal support order should strive to achieve, as set out in Section 15.2(6) of the Divorce Act are:

a. To recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

b. To 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. To relieve any economic hardship of the spouses arising from the breakdown of the marriage; ad

d. Insofar as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

3. As per Justice Chappell in Damaschin-Zamfirescu v. Damaschin-Zamfirescu,1, on a motion for interim support, the party seeking support needs only to prove that a triable or arguable case exists, leaving a detailed inquiry of that case to the trial judge for final determination.2

4. For interim support, greater significance is placed on the parties’ respective needs and means as opposed to a full review of the evidence.3 This approach is consistent with the court’s view that interim support is meant to be a “holding order”, to, “insomuch as possible, maintain the accustomed lifestyle pending trial.”4

Entitlement

5. For the purpose of interim support the Respondent must establish that she has a prima facie case for entitlement to support.5

Footnotes:

1Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689

2 Ibid at para 24(1).

3 Ibid.

4 Ibid at para 24(5).

5 Damaschin-Zamfirescu, supra at para 24(1).

13. The ranges under the SSAG’s should generally be followed, with interim support based on income sharing rather than a minute analysis of each party’s budgets.6 For this purpose, there is recognition that there may be inadequate evidence to ascertain precise income figures at the interim stage; this does not prevent the court from awarding interim support based on estimated ranges of income.7

14. As articulated by Justice Kraft in the recent case Liddell-MacInnis v. MacInnis,8 the SSAG’s are the ideal tool to assist motions judges on temporary support motions and should only be deviate from in the most compelling financial circumstances, such as overwhelming debt.9

Footnotes:

6 Spousal Support Advisory Guidelines: The Revised User’s Guide; Department of Justice, April 2016 at section 5(a)

7 Ibid at section 5(b).

8 Liddell-MacInnis v. MacInnis, 2021 ONSC 1787

9 Ibid at para 68 and 70.

[25] Regarding the law as it pertains to the release of a party’s share of the net proceeds of sale of a jointly owned property, in the context of matrimonial litigation, I was not provided with any authority for the proposition advanced on behalf of the husband, nor could I find one using my own resources, that it is a necessary prerequisite to the wife’s relief being granted that she prove that she is owed an equalization payment equal to or greater than the quantum of the release of funds being sought.

[26] To the contrary, the general rule is that a joint owner is presumptively entitled to his/her share of the net proceeds of sale of the property. Creasey v. Chretien, 2009 17349 (ON SC); Godfrey v. Godfrey, 2019 ONSC 3093. Notably, the husband has not moved for a preservation order related to the net proceeds of sale of either property, and I disagree with any argument that the Coats J. Temporary Order of November 13, 2020, particularly clauses 10 and 13 therein, precludes this Court from granting the relief being sought by the wife.

The Law as Applied to Our Case

The Husband’s Disclosure Motion

[27] I agree with Mr. Maltz that disclosure is a seminal part of, and fundamentally important in, family litigation.

[28] I respectfully disagree, however, that this disclosure Motion should be granted. It is premature in many respects. In others, the wife has already offered to do all that she can.

[29] Let me explain. Take the medical centre corporation as just one example. Affidavits go back and forth, culminating in the husband’s assertion that his repeated requests for all kinds of documentation and information related to the said entity have gone unanswered because the wife “refuses to provide this information stating that she has no interest in [the corporation]” (paragraph 90 of the husband’s affidavit sworn on April 1, 2021). He then goes on to say that he can prove otherwise – that she does have an interest in the medical centre corporation (paragraph 93 of the said affidavit, and exhibits “D” and “J” attached thereto).

[30] First, I have examined exhibits “D” and “J”. They do not prove that the wife has any ownership interest in the medical centre corporation.

[31] Second, and more important, if the husband is correct, then that is an issue for questioning of the wife, and for cross-examination of the wife at trial, and for an invitation, perhaps, that the trial judge draw an adverse inference against the wife. But it surely is not an issue for a disclosure order. What would this Court order? That the wife shall produce documents of a corporation that she says she has no interest in? I do not think so.

[32] One further example will suffice. The husband is very interested in 77-A. He wants an appraisal of that property. The wife obtained a letter of opinion, dated January 23, 2021, listing a value for the property. The husband remained dissatisfied, although it should be noted that there is no general rule that a family law litigant must obtain a formal appraisal of every real property or business asset that s/he owns. The wife has now, before the hearing of the two Motions, albeit late in the game, agreed to make her best efforts to obtain and produce, within relatively short order (60 days), a formal appraisal of the property (paragraph 5 of her April 6, 2021 affidavit).

[33] That is all that she can do. The relief ought to have been abandoned by the husband, subject to costs.

[34] The record is replete with other examples that fall into one or both of these two categories:

i. disclosure requests that have been answered by the wife, but not to the satisfaction of the husband who thinks that she is lying and that he has the documents to prove it, in which case he should simply proceed to questioning and use other tools in the toolbox at a later time; and

ii. disclosure requests that the wife has now agreed to commission the documents to satisfy.

[35] If the wife’s strategy ever was “catch me if you can”, as suggested by the husband, that is certainly not her position now.

[36] I am not saying that the husband is on a fishing expedition, or that his disclosure requests were all spurious when they were made, but what is clear to me is that the Motion is premature, misguided, and (in some respects) completely moot. With respect, it ought to have been approached by obtaining a consent Order for those many items that the wife has now agreed to, subject to costs, and adjourning other aspects of the Motion until after questioning of the parties.

[37] The husband’s disclosure Motion is therefore dismissed. It sought exhaustive financial disclosure, essentially forthwith, and subject to severe penalty for non-compliance, in circumstances where it was inappropriate to so order.

The Wife’s Financial Relief Motion

[38] I repeat, I decline to order anything pre-May 1, 2021, without prejudice to the wife’s ability to litigate at trial the issues related to retroactivity.

[39] In determining the husband’s income for support purposes, I agree with the husband. His T4 from his employer for the tax year 2020 (exhibit “II” of his April 1, 2021 affidavit) is the most current information available, and the income figure suggested by the husband is higher than the employment income as stipulated in that document, in any event.

[40] On a temporary basis, I fix the husband’s income for support purposes at $306,134.00, as suggested by the husband.

[41] Commencing on May 1, 2021, and on the first day of each and every consecutive month thereafter, the husband shall pay support for the two children as per the table amount in the Guidelines, based on that income. The husband’s counsel has calculated that to be $3951.00 per month. Assuming that is correct, Temporary Order accordingly.

[42] In determining the wife’s income for spousal support purposes, I agree with the wife.

[43] On a temporary basis, I fix the wife’s income for support purposes at $10,000.00, as per the tax documentation for the year 2019 (paragraph 28 of the wife’s affidavit sworn on March 30, 2021, together with exhibit “E” attached thereto). I accept her evidence that the spa business has been adversely affected by the ongoing health pandemic, which makes common sense given the nature of the business, its location, and the government restrictions that have been in place for more than a year now, and therefore the said $10,000.00 remains a reliable estimate of her current gross annual income (paragraphs 29-30 of the said affidavit).

[44] The wife must, however, disclose, as it becomes available to her, all of her tax documentation post-2019, including income tax returns, Notices of Assessment, and Notices of Reassessment (if any).

[45] I have reviewed carefully the evidence submitted by the husband, including but not limited to paragraphs 100 through 121 of his affidavit sworn on April 1, 2021, along with the exhibits referred to therein, under the heading “spousal support”. There is no allegation by the husband that the wife is underemployed. Instead, the imputation of income argument appears to be founded on a combination of things, including the alleged diversion of income to hidden places, and the alleged non-reporting of income to the tax authorities, and the alleged dealings in cash, and the alleged fraud involving electronic transfers of funds from the spa to the wife personally, and so on.

[46] These accusations may prove to be true. I do not know. That is what a trial is for. For now, the uncertainty of it all is borne out by the husband’s own candid admission that he cannot place any reliable figure on what he believes is the wife’s income; in fact he can only provide a range that spans some $150,000.00, from a low of $166,000.00 to a high of $310,000.00 (paragraph 107 of the husband’s affidavit sworn on April 1, 2021, together with exhibit “DD” attached thereto). And he is a seasoned professional accountant. What is this Court supposed to do with that, I ask rhetorically.

[47] The burden is on the husband to demonstrate on balance that income should be attributed/imputed to the wife. On the totality of the evidence filed, I conclude that the burden has not been met. At trial, perhaps with the benefit of an expert’s report, and/or perhaps with the benefit of questioning and the satisfaction of undertakings emanating therefrom, the result may be different.

[48] Commencing on May 1, 2021, and on the first day of each and every consecutive month thereafter, the husband shall pay support for the wife as per the mid-range figure contained in the SSAG and based on incomes of $306,134.00 for the husband and $10,000.00 for the wife. Temporary Order accordingly.

[49] This Court accedes to the request of the wife that the husband shall pay 75% of the children’s section 7 expenses. That forms part of the Temporary Order being made herein. Using the above incomes for the parties as fixed by this Court, the husband should actually pay more than 75% of those expenses, however, I will not grant relief beyond what was asked for.

[50] On the other financial relief, to be as fair as possible to both sides, and given the uncertainty at this early stage of what will ultimately be owed by whom to whom in terms of an equalization payment, I accept the wife’s alternative argument that each side receive the same amount of money from the total net proceeds of sale being held in trust by the real estate lawyer.

[51] This Court orders that the sum of $400,000.00 shall be released, forthwith, to each party.

[52] The wife’s Motion is therefore granted, in large part.

(“Original signed by”)

Conlan J.

Date: April 9, 2021