COURT FILE NO.: FS-1942419
DATE: 20210114
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: T.O., Applicant
AND:
D.O., Respondent
BEFORE: Conlan J.
COUNSEL: Ms. U. Cebulak, for the father, T.O.
Mr. R. Kostyniuk, for the mother, D.O.
HEARD: January 14, 2021
ENDORSEMENT
The Court Attendance
[1] There was a relatively brief Zoom attendance on January 14, 2021, with both parties and both counsel present. I am case managing this file.
The Pleadings Issue
[2] First, Mr. O. wants to amend his pleading to change the date of separation and to add a party to the proceeding. Given the stage of this file, leave is hereby granted for those amendments to be made. Mr. O. shall have fourteen calendar days from January 14th to deliver his amended pleading; and Mrs. O. shall have thirty calendar days thereafter to deliver her amended response thereto.
The Custody Issue
[3] Second, in her Cross-Motion dated October 16, 2020, Mrs. O. asks for temporary custody of the child, C. (who turns 16 years old next month). Mr. O. consents to that relief, and on that basis this Court orders the same. I am satisfied on balance that it is in the best interests of the young man to be in the care of his mother, and although I am not generally inclined to make a custody order for a child of this age, there are good reasons to do so here.
The Child Support Issue
[4] Third, and this is the most contentious issue between the parties, in her Cross-Motion, Mrs. O. asks for a temporary order for child support to be paid by the father - $1695.00 monthly starting May 1, 2018 based on an imputed annual gross income of $200,000.00. Mr. O. suggests that he pay, on a go-forward basis only (nothing retroactive), $461.00 per month based on an imputed annual gross income of $50,000.00.
[5] In oral submissions, Mr. Kostyniuk conceded that a temporary order that commences on November 1, 2020 (the first day of the first month after the date of the Cross-Motion) may be appropriate, leaving the issue of retroactivity to the trial. I agree with that concession.
[6] In oral submissions, Mr. Kostyniuk further conceded that an imputed income of $150,000.00 (rather than $200,000.00) may be appropriate given that the job that Mr. O. had in 2018, with Bruce R. Smith Limited, had a base salary of $150,000.00 (the additional $50,000.00 was made-up of benefits). I agree with that further concession.
[7] Ms. Cebulak, quite properly, does not dispute that the test for intentional unemployment/underemployment has been met here. She does, however, challenge the income figure suggested by the other side. She points out, correctly, that the onus is on Mrs. O., on a balance of probabilities. She further points out, correctly, that there is no evidence filed by Mrs. O. concerning current job opportunities available for someone like Mr. O. that would pay him an income in the range suggested by the mother.
[8] Whatever income figure is chosen by this Court, there must be a rational basis for it. Not a scientific one, but some reasonable explanation for why the Court chose that amount. Berta v. Berta, 2015 ONCA 918.
[9] I agree with Mr. Kostyniuk that the job with Bruce R. Smith is the most recent and the best evidence available to base the imputed income figure on. Simply put, if Mr. O. could get that job, however brief the stint was, then it is reasonable to infer that he could get a similar paying job just a couple of years later. His overall situation today is no worse than it was in 2018.
[10] There is a caveat, however. That job was in the pre-COVID-19 world. I think that this Court can take judicial notice of the fact that the virus has significantly impacted employment in North America. I am of the view that it would be an error to ignore that reality.
[11] Thus, I will deal with it by reducing the $150,000.00 down to an even $100,000.00. This is, I confess, more art than science, but that is the income figure that this Court imputes to Mr. O. for child support purposes, on a temporary basis. I order that Mr. O. shall, commencing November 1, 2020 and on the first day of each consecutive month thereafter, pay child support for the benefit of C. as per the Federal Child Support Guidelines based on an imputed gross annual income of $100,000.00. Counsel can review the updated Table and have the monthly amount inserted in the formal Order when it is issued. Unless both parties consent to an order otherwise, the child support shall be enforced through the Family Responsibility Office, and a Support Deduction Order shall issue accordingly.
The Questioning Issue
[12] Fourth, and finally, the mother’s counsel wants to question Mr. O. He has already been questioned, twice, but there have been hiccups each time, and as well the father recently provided thousands of pages of additional financial disclosure. Additionally, as noted above, he is in the process of amending his pleading. Thus, I grant the mother’s request and order that Mr. O. shall attend for more questioning, provided that the said questioning shall take place by videoconference and shall not exceed six hours total on two different dates. That, to me, is a reasonable compromise between the two positions advanced (the mother wanted unlimited further questioning, while the father suggested one further session, maximum).
The Result
[13] In the result, the mother’s Cross-Motion is allowed in part, and a Temporary Order shall issue as per this Endorsement.
Costs
[14] On costs, if not resolved between the parties, I may be spoken to by way of a brief teleconference or Zoom videoconference to be arranged through the Trial Office in Milton.
The Next Step
[15] I agree with counsel that we should move soon to a determination of the validity of the marriage contract. I undertake to speak to the Trial Office about that.
[16] I thank both counsel for their help with the issues discussed at Court on January 14th.
(“Original signed by”)
Conlan J.
Date: January 14, 2021