Court File and Parties

COURT FILE NO.: 41320/18

DATE: 2021-04-12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sameh Nour, Applicant

AND:

Samah Youssef, Respondent

BEFORE: Kurz J.

COUNSEL: J. Stankiewicz, for the Applicant

S. Razzouk, for the Respondent

HEARD: March 24, 2021

ENDORSEMENT

Introduction

[1] The Applicant husband (“the husband”) moves to vary or stay two temporary orders requiring him to pay child support and unallocated payments in lieu of spousal support to the Respondent wife (“the wife”). He further seeks the release of funds held in trust from the sale of the matrimonial home. His notice of motion includes a request for disclosure.

[2] There was not sufficient time to deal with the disclosure request within the context of a 59-minute motion. For that reason, I adjourned the disclosure portion of the husband’s motion to May 27, 2021.

[3] On August 23, 2018, Gibson J. granted a temporary order that required the husband to pay $1,493 per month in table support for the parties’ child, Adam, to the wife. Pending a determination of the parties’ incomes, the husband was also required to pay 100% of the child’s s. 7 daycare, educational and recreational activities. While the determination of incomes was described as pending, this figure was based on the husband’s income at the time of $177,000 per annum.

[4] On March 29, 2020, I ordered, on consent, that the husband pay to the wife $1,500 per month in unallocated, without prejudice payments. The payments were effectively in lieu of interim spousal support. They were to continue:

until the return of the matter to court for determination of spousal support once the sale of the matrimonial home has closed. The payments shall be adjusted by the parties at a later date or by the court if the parties are unable to agree.

Because the payments were not expressly described as spousal support payments, they were made tax-free.

[5] In this endorsement, I describe the Gibson J. order of August 23, 2018 and my order of March 29, 2020, collectively as “the support orders”.

[6] On February 4, 2020, I ordered the release of $55,000 to each of the parties from the proceeds of sale of their matrimonial home. This represented the second release of joint funds to the parties. In his August 23, 2018 order, Gibson J. had ordered the release of $30,000 to each party from a joint account, whose funds had been previously removed by the wife.

[7] The husband is an unemployed professional airline pilot who formerly flew for Korean Airlines (“KAL”). The reasons for his present unemployment are somewhat complex and subject to controversy. In essence, he says that he was forced to take a leave of absence from his job, lest he lose his Canadian immigration status and be unable to see the parties’ child. After that leave of absence, the husband became subject to two intervening events. First, the pandemic grounded much of the fleet of the world’s passenger airplanes. Second, the husband then developed tinnitus, which he says made it unsafe to pilot large commercial jets until he is fully treated for that malady.

[8] The husband asserts that he is unable to pay any support at all, having subsisted on Canada Emergency Response Benefit (“CERB”) payments for some time in 2020. He now claims no source of income. Instead, he says, he is living on his assets, particularly what remains of the funds released to him from the proceeds of sale of the former matrimonial home.

[9] The wife says that the husband voluntarily gave up his employment and should have his full previous income imputed to him, notwithstanding the pandemic and his medical condition. She opposes any reduction in support or release of funds to him.

[10] For the reasons that follow, I vary the support orders in order to suspend the husband’s support obligations to the wife. This order is subject to review with regard to both prospective support and support from July 1, 2020 onward and upon terms set out below. I also release $35,000 to each party from the proceeds of sale of the matrimonial home.

Background and Issues

[11] The parties were both born and raised in Egypt. They met in Egypt but married in Canada on April 28, 2011. They have one child, Adam, who is now six years old.

[12] The husband began his job with KAL in 2012. Legally, he worked for CCL Aviation, an Australian employment agency that serves the airline industry, but flew for KAL. He earned $168,883.20 in 2019.

[13] The husband’s parenting, immigration and work arrangements conflicted with each other. He remains an Egyptian citizen but is a permanent resident of Canada whose son and former spouse live in Ontario. Until he took his leave of absence and was then laid off by KAL, his job required him to work literally half-way around the world for most of the year. He was able to arrange his airline and parenting schedule to allow him to be in Canada about once per month to see Adam.

[14] In May 2016, the husband’s permanent residence status was renewed for five years. Under s. 28(2)(a) of the Immigration and Refugee Protection Act, 2001 (“IRPA”), he was required to be physically present in Canada for a total of at least 730 days, or 40% of the time, over a five-year period. That provision reads as follows:

Application

(2) The following provisions govern the residency obligation under subsection (1):

(a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are

(i) physically present in Canada,

(ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,

(iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province,

(iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or

(v) referred to in regulations providing for other means of compliance.

[15] Because of his job, the husband was not able to meet that residency requirement, Thus, he required an exemption under IRPA s. 28(3) on “humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination”. At the time, the husband was still together with the wife. They shared a Canadian home and a child. Those facts assisted his 2016 request for a humanitarian exemption. His situation changed when the parties separated, and the matrimonial home was sold.

[16] Between July 2015 and December 2019, the husband spent a total of 454 days in Canada. He calculated that if he remained in his KAL job, he would not be able to spend the requisite remaining 276 days in Canada before his residency permit expired. In light of his marital and job situation, his immigration lawyer advised him that he was unlikely to qualify for another humanitarian exemption. Further, if his permit were to expire while out of the country, it would be difficult for him to regain entry to Canada.

[17] The husband took two steps to resolve his quandary. First, he applied for a Canadian pilot’s licence so that he could work in Canada. Second, he took a temporary leave of absence from his job with KAL, beginning January 2020. That allowed him to remain in Canada for the time needed to regain his permanent residence status for a further five years, commencing in 2021.

[18] The Canadian pilot licensure requirements included a medical examination. The husband’s examination raised urological issues that required a referral to a urologist. That referral was delayed by the pandemic. Because of the delay, the husband’s application process remains incomplete. He may have to redo the entire medical portion of his licensure procedure.

[19] The pandemic affected airlines all over the world. KAL laid off all of its foreign pilots.

[20] In addition, the husband began to experience symptoms of tinnitus, a constant ringing of the ears. His malady may be related to the ambient sound of the large jetliners that he flew for twenty-two years. The husband says that some of his tinnitus symptoms include headaches, insomnia, lack of concentration, sleep difficulties, and sound sensitivity. He is currently receiving counselling and is using hearing devices in each ear. It is hoped that this combination of therapies will help him overcome his tinnitus problems.

[21] In an October 30, 2020 report from a hearing and tinnitus clinic. Justyna Lorenc, Doctor of Audiology and Alicia Maria Tobola, M.A., “Tinnitus Specialist”, opined that the husband’s tinnitus Handicap Inventory (“THI”) score is at a “SEVERE” level. They add that:

This level of THI suggest the patient always hears the tinnitus and the tinnitus often leads to disturbed sleep patterns. It can affect normal daily activities. Mr. Nour also has hyperacusis, which is a sensitivity to sound that affects his hearing and tinnitus.

[22] Dr. Lorenc and Ms. Tobola said nothing about the husband’s ability to work with tinnitus.

[23] Dr. Philip Lai, the husband’s treating Otolaryngologist, wrote a brief note on January 11, 2021, stating that the husband:

Has been having symptoms of pulsatile tinnitus since Dec 2019. He has been investigated so far with US and awaiting for and [sic] MRA study. He is a pilot and has told me that this would affect his work and he is asking to be off work until this symptom improves/resolves. I support his request given his occupation and safety.

[24] From this brief report, the diagnosis is clearly that of the doctor. However, it is less clear how much of the medical opinion that the husband remain off of work is that of the doctor and how much comes from the patient.

[25] The husband argues that he is unable to either rejoin KAL or to fly as a pilot in Canada. He lacks a Canadian pilot’s licence. He asserts the belief that until his tinnitus is resolved, it would be unsafe for him to fly and impossible to pass the medical examination required for a Canadian licence.

[26] The wife’s response is simply that the husband is lying, that he has a history of mendacity with her and the court, and that he has effectively left her and Adam high and dry. She asks the court to impute his income at its previous level, arguing that he is intentionally unemployed.

[27] The wife says that the husband has not paid child support since July 2020, which is seven months after he left KAL. As set out below, that statement is not entirely accurate. However, what the wife says that is accurate is that the husband was $18,171 in arrears of table child support and unallocated monthly payments at the time that this motion was argued. In addition, the wife claims that he is $3,356 in arrears of daycare and $2,624 in arrears of what she claims to be s. 7 expenses, such as clothing, school lunches, camps, school trips and medicine”. Although the point was not argued, it is questionable whether any or all of those non-daycare expenses are properly claimed under s.7.

[28] The Applicant points to the funds released to the husband as well as herself from the proceeds of sale of the matrimonial home, implying that he should have used that money to pay full child and unallocated spousal support. She claims that he owns a $900,000 “villa” in Egypt and another Egyptian property that she values at $163,000. She further points to his financial statement, which shows annual expenses of $120,000, including all of the court ordered support payment, which replicates his previous spending patterns.

[29] In response, the husband filed an affidavit of his lawyer’s law clerk, offering the hearsay comments of the husband, without stating why that form of affidavit was necessary. In the affidavit, the law clerk deposes that the husband informed her that:

• The wife is not incurring the s. 7 expenses that she claims. They are pre-pandemic expenses;

• The appraisal of his Egyptian “villa” is a fake. The website of the company purporting to offer the assessment, “Between ET Real Estate Services” is not online and its phone number listed is not in service. Further, there was no attempt to contact him to obtain entry to inspect the property. Finally, the report fails to list any value for the property.

• The expenses set out in his financial statement are pre-pandemic ones.

[30] In considering the evidence and arguments of the parties, I find that the key issues in this motion are:

1. Has the husband has met the test for an interim variation or a stay of the support orders?

2. Should the court impute income to the husband in light of his decision to take a leave of absence from KAL?

3. What support or stay order, if any, I should make? and

4. Should I release further funds from the proceeds of sale of the matrimonial home to the husband, and if so, upon what terms?

Issue No 1: Has the husband met the test for an interim variation or stay of the support orders?

The Test for an Interim Variation or Stay

[31] Neither party offered arguments about the test for the interim variation of an interim support order. Further, the Divorce Act does not specifically set out the jurisdiction of the court to make an interim variation of either a temporary or final order. The Divorce Act’s provisions for a final variation of a final order under s. 17 do not apply to interim variations: Brooks v. Brooks 1998 CanLII 7142 (ON CA), [1998] O.J. No. 3186.

[32] Ontario courts have traditionally discouraged the variation of interim orders unless the circumstances were urgent: Brooks v. Brooks, at para. 60, Thompson v. Thompson, 1995 CarswellOnt 2004 (Ont. Prov. Div.) and Pakka v. Nygard (2004), 2004 CanLII 5071 (ON SC), 47 R.F.L. (5th) 184 (Ont. S.C.J.).

[33] In Berta v. Berta, 2019 ONSC 505, I reviewed a number of authorities with regard to the test for an interim variation of a final support order. I found that the test has four components, requiring the moving party to prove:

1. A strong prima facie case [that there has been a material change in circumstances since the time of the order in question];

2. A clear case of hardship;

3. Urgency; and

4. That the moving party has come to court with "clean hands".

[34] In Innocente v Innocente, 2014 ONSC 7082, Gauthier J. considered the test for the variation of both final and interim support orders. He found that the same principles should apply to each. The test that he relied upon was based on the first three factors that I found in Berta, above. For the reasons that I set out in paras. 33-40 of Berta, the “clean hands” requirement applies as well.

[35] The same four-part test applies to a stay of an interim order: Berta v Berta at paras. 28-40, Hayes v. Hayes, 2010 ONSC 3650.

The Husband has raised a Strong Prima Facie case

[36] Here, the material change that the husband alleges is the loss of his employment. He is no longer employed in any manner and appears to have no source of income. I will have more to say about his decision to take a leave of absence below, when considering whether he is intentionally unemployed. But even absent his voluntary leave of absence, the father raises two other issues, the pandemic and his medical condition.

[37] There can be no question and the court can take judicial notice of the enormous effect that the COVID-19 pandemic has had on the world’s economy. One obvious area in which there has been tremendous change is in the travel industry. With borders closed and people afraid to travel unless necessary, the airline industry has suffered great losses.

[38] Beyond the areas in which it is open to the court to take judicial notice, the husband has produced evidence that, even if he took no leave of absence, his employer would still have laid him off on “Leave Without Pay” (“LWOP”). After the pandemic struck, the husband received a text notice from KAL, through his employment agency, that it was laying off all foreign pilots from its fleet on LWOP. KAL cited the “force majeure” clause in his employment contract for its LWOP decision.

[39] In Atlantic Paper Stock Ltd. v. St. Anne-Nackawic Pulp and Paper Co., 1975 CanLII 170 (SCC), [1976] 1 S.C.R. 580, Dickson J., as he then was, writing for the court, defined the term, force majeure, as follows:

An act of God clause or force majeure clause, and it is within such a clause that the words "non-availability of markets" are found, generally operates to discharge a contracting party when a supervening, sometimes supernatural, event, beyond control of either party, makes performance impossible. The common thread is that of the unexpected, something beyond reasonable human foresight and skill.

[40] The husband does not say when he received this text but from its wording, it appears to have been sent in May 2020. The employer’s text stated:

Unfortunately, the force majeure conditions deriving from the COVID-19 pandemic, which brought forth the LWOP measure, are still valid. Though flights will slightly increase in June compared to April or May, KAL operation continues to remain below 30% of the norm compared to the same period in the previous year. Many countries’ border control and quarantine on international travellers continue, and we’ve seen a second rise in COVID-19 numbers in Korea after the early-May holidays.

Therefore, it is with a heavy heart that we decide to extend the LWOP for all expat crew members until conditions improve.

At the same time, we are discussing longer-term operation plans and resource management conditions with relevant departments. Based on these studies, we will be able to determine our plan to call pilots back to work, in stages per fleet, to meet operational needs and training capacity. Detailed information will be provided as soon as we can.

[41] There is no evidence that the husband has been recalled by his employer. His sole source of income in 2020 came in the form of CERB payments between April 19 - October 3, 2020. Because he did not work in Canada, he states that he is ineligible for further benefits.

[42] The husband argues that even if he is recalled by KAL, he would be unable to resume his former employment because of his tinnitus. His employment contract requires that he be in good health. Even assuming that he has been able to extend his permanent resident status in Canada, the husband’s Canadian pilot licence application is incomplete. That means that he cannot fly professionally in Canada at this time, whatever his health may be.

[43] Accordingly, the husband demonstrates a prima facie case that there has been a material change in circumstances since the time of the support orders. That being said, I still must consider whether his decision to voluntarily take a leave of absence starting in January 2020, in order to obtain his Canadian residence status, should cause the court to impute his previous income or another level of income to him.

Clear Case of Hardship

[44] There are two clear cases of hardship here. The husband has no source of income at this time. I do not know how long that state of affairs will last. While this province is again in lockdown at the time of release of these reasons, the pandemic will not last forever. Korea is likely in far better shape regarding the pandemic than Canada. The husband is obtaining treatment for his tinnitus that will hopefully allow him to resume flying. He has spent sufficient time in Canada since January 2020 to enable him to regain his Canadian permanent residency status. I assume that he would want to apply for Canadian citizenship.

[45] In other words, it is quite possible that his present inability to pay support will be a temporary one that could resolve later in this year. However it persists to this day.

[46] The other case of hardship is that of the wife, whose income is only about one-third over the Ontario minimum wage standard. She has to support herself and Adam on that income despite the fact that she had arranged her affairs on the understanding that she would be receiving support payments of almost $3,000 per month. In other words, her total monthly income has been more than cut in half, while her fixed expenses, including $2,500 per month in rent, have not. My consideration of the husband’s hardship cannot diminish that of the wife.

Urgency

[47] Like hardship, there are really two forms of urgency here. The urgency arises from the same reasons that I have relied upon to find hardship. They are two sides of the same coin. The husband appears to simply have no income to pay support.

“Clean Hands”

[48] The remaining issue for an interim variation or stay is whether the father comes to the court with “clean hands”. The mother vociferously asserts that he fails to do so. As set out above, she insists that he stopped paying any support in July 2020, that he swore a financial statement showing unchanged spending patterns, and that he is simply lying to the court. The father, of course denies all of that.

[49] The mother’s assertions about the father’s support payments are careless and inaccurate. Despite his voluntary leave of absence, he met his support obligations in full for the six months following his leave of absence. That included at least three months during the pandemic. Following June 2020, rather than terminate payments, the father voluntarily paid $1,000 per month, while FRO was able to divert other sources of income towards support. The father paid that $1,000 towards support in the months of July – October 2020. He then paid $750 per month from November 2020 to and including January 2021. Since then, he has paid nothing. As of March 4, 2021, he was $18,171 in arrears of support, according to FRO’s statement of arrears.

[50] On the other hand, the husband’s financial statement was not carefully drafted. It asserted that he spent as much after-tax income as he previously earned as an airline pilot. His lawyer’s law clerk, rather that the husband himself, then swore an affidavit correcting his financial statement. No reason was given for his failure to swear his own affidavit. This was not a matter of simply updating a few expenses. The use of such hearsay affidavits which go to the merits of a case, and which here contradict the direct evidence of the original deponent, is to be discouraged.

[51] Nonetheless, based on all of the evidence, I accept that the husband’s present spending patterns are not accurately reflected in his last sworn financial statement. He does not spend money as he did when he flew for KAL. By way of example, he states in his financial statement that he still pays the full amount of the support orders when he is candid in saying that he does not make those payments. He even attaches the FRO statement of arrears to his own affidavit.

[52] With regard to the wife’s claims that the father owns a $900,000 Egyptian villa, I accept that he does own the Egyptian property in question. But there is no credible evidence that its value is $900,000.

[53] The mother relies on a property valuation that she obtained from an Egyptian firm called “Between ET Real Estate Services” (“ET”). I find that the ET valuation report is inadmissible as evidence in this motion for the following reasons.

[54] First, there is no form 20.2 acknowledgement of expert’s duty signed by the author of the report. In fact, the report fails to even disclose the author’s identity, let alone their credentials. Second, as the husband points out, the report does not even ascribe a value to the home. All of that, in itself is sufficient to exclude the report as evidence in this motion.

[55] I add that the father deposes, without contradiction, that ET is non-existent or at least has no internet presence or telephone number. In light of my rejection of the report above, I needn’t make findings regarding those claims.

[56] At the end of the day, the father paid full support for six months after he took a voluntary leave of absence. Thereafter, he paid some support until February 2021, even though he had been laid off by KAL and had no source of income but just under six months of CERB. All of that tells me that for the purpose of this motion, he does not approach the court with “unclean hands”.

Issue No. 2: Should the court impute income to the husband in light of his decision to take a leave of absence from KAL?

[57] The Child Support Guidelines (the “CSG”) s. 19(1) sets out a non-exclusive list of criteria that would allow a court to impute income to a support payor, including intentional underemployment. The relevant provision states:

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;

[39] The leading Ontario case regarding the imputation of income to a support payor is the decision of the Ontario Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.). At para. 32 of that decision, the Court described the imputation of income as:

... one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning.

[58] As Chappel J. of the Superior Court Family Division explained in Szitas v. Szitas, 2012 ONSC 1548, at para. 56, citing Drygala v. Pauli:

The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart child support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances.

[59] In reviewing the case law, Chappel J. cites seven principles that apply to the imputation of income to a support payor:

1. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children.

2. Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.

3. The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.

4. If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations.

5. When a parent experiences a change in their income, they may be given a "grace period" to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. 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.

6. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.

7. The amount of income that the court imputes to a parent 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. (at para. 57, citations omitted).

[60] Amplifying on Chappel J.'s seven points, while I have broad discretion to impute income to a payor, that discretion is not untrammeled. As the Ontario Court of Appeal stated in Drygala v. Pauli:

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence. (at para. 44).

[61] In Drygala v. Pauli the Ontario Court of Appeal set out the following three questions which should be answered by a court in considering a request to impute income under s. 19 (1) (a) of the CSG:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable or health educational needs?

3. If not, what income is appropriately imputed?

[62] The test set out in Drygala v Pauli was refined by the Ontario Court of Appeal in Lavie v Lavie, 2018 ONCA 10. There, Rouleau J.A., speaking for the court, set out a very clear black line test for intentional underemployment. It is one in which the subjective reasons for the underemployment (other than health or education needs) are not relevant. He wrote:

26 There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment: Drygala v. Pauli, at paras. 24-37. the reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed.

[Emphasis added]

[63] Here if the pandemic had not hit, I would likely find that the husband was intentionally underemployed. He was, in the months immediately following his voluntary leave of absence, earning less than he could have, as Rouleau J.A. put it in Lavie. Because of his duty to pay support as set by the support orders, he had a duty to manage his employment so that he was, to the extent possible, able to obey those orders. I would still impute income to him for the period of time from January 2020 until his layoff by KAL. But that would be of little practical value in determining this case as he was laid off by KAL, likely in May 2020 and his support payments were paid in full until the end of June 2020.

[64] At this point, there is no evidence that he has been recalled by KAL/ CCL Aviation or that he is eligible for recall by his former employer(s). Further, he lacks a Canadian pilot’s licence. Thus, I cannot say that today he has been intentionally unemployed since his layoff. No evidence has been presented that would point to any potential sources of employment income at this time. That being said, at some point in the reasonable future he will have to resolve his employment issues as the effects of the pandemic wane.

[65] There is also the issue of the husband’s health. The main health issue appears to be whether his tinnitus prevents him from flying and thus offers a further defence to a claim of intentional unemployment. There are also further urological tests that he will have to take as part of the application process for his Canadian pilot’s licence. He may well have to recommence the process of applying for that licence because of pandemic delays and government time limits for completing his application with all relevant medical test results. The wife will be entitled to disclosure regarding all of these health-related issues.

[66] In light of the factors set out above, I would not impute any income to the husband at this time. But that finding is made without prejudice to any future findings that may be made, even on an interim basis, after further and better evidence is available.

Issue No 3: What support or stay order, if any, should I make?

[67] Put simply, I find that the husband has no income at this time and thus no ability to pay support, whether prospectively or in regard to current arrears. Since I do not find him intentionally unemployed or underemployed at this time, I do not impute income to him. Thus, I cannot require him to pay support at this time.

[68] Accordingly, on an interim and without prejudice basis, I vary the support orders in order to suspend the husband’s support obligations to the wife. This order is subject to review with regard to both prospective support and support from July 1, 2020 onward upon:

1. The father obtaining any form of employment;

2. The father obtaining a Canadian pilot’s licence;

3. The successful treatment of the father’s tinnitus;

4. The receipt of any further evidence that demonstrates the ability of the father to earn income.

[69] As a further term of this order, the father shall keep the mother informed of the progress of:

1. His medical treatment for tinnitus, including the disclosure of any reports prepared by any professionals treating him for that malady;

2. The progress of any application he may make for a Canadian pilot’s licence;

3. His immigration status in Canada, including the production of any documents demonstrating the state of that status;

4. Any attempts to gain or regain employment, whether as a pilot or otherwise.

[70] As a term of the disclosure set out above, any information or documentation produced to the wife as set out above will be subject to the deemed undertaking rule. The wife shall not interfere in any manner in regard to his applications for immigration status in Canada, a Canadian pilot’s licence, or in regard to his present or potential employment with KAL and/or CCL Aviation.

Issue No . 4: Should I order the release of further funds from the proceeds of sale of the matrimonial home to the husband, and if so, upon what terms?

[71] The husband seeks the release of one half of the net proceeds of the sale of the matrimonial home, or $216,117 to himself and nothing to the wife. He argues that, based on his NFP statement, he is entitled to all of the home proceeds.

[72] He adds that the wife has already received $85,000: $55,000 from the matrimonial home proceeds under my order of February 4, 2020, and $30,000 from joint funds, as ordered by Gibson J. on August 23, 2018. The father contends that if I release any money to the mother, he would never be able to recover the money to which he claims to be entitled if he is successful regarding equalization.

[73] The wife argues that the husband actually owes her an equalization payment and that she will require further disclosure to prove that claim. She was a joint owner of the home.

[74] The father asserts that he is running out of the money released to him in 2020 and that he has no present source of income. However, he makes no offer to do anything to assist in the support of Adam, let alone the wife. If the parties were together, they would use some of their assets to support the family, including Adam.

[75] While the husband requires some funds to pay his expenses, so too does the wife. She earns about $39,600 per year. Her after-tax income barely covers her monthly housing expenses of $2,566 per month. Her annual expenses, as set out in her financial statement, total $79,001.18. She began to incur expenses at that level when she was receiving $1,493 per month in table support and $1,500 per month in unallocated expenses, for a total of $2,993 per month, after tax, along with her employment income.

[76] Until the husband obtains employment, both he and the wife need additional funds.

[77] The matrimonial home was jointly owned. At this time, the proceeds of its sale remain a joint asset as well.

[78] As a further term of the order suspending the father’s support obligations, I release $35,000 to each of the parties from the funds held in trust from the proceeds of sale of the jointly owned matrimonial home. This money will assist each party in meeting their expenses until the father obtains employment and/or the entitlements of each party become clearer. These funds are subject to recalculation and if necessary, reimbursement, with regard to support and/or equalization claims at either a subsequent motion regarding those issues or trial.

[79] I will deal with the costs of this motion when I deal with the costs of the disclosure motion.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz,

Original will be placed in court file

Date: April 12, 2021