Awada v. Awada, 2021 ONSC 4049

Court File and Parties

COURT FILE NO.: FC-20-311

DATE: 2021-06-04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dallal Awada, Applicant

AND

Mounzer Awada, Respondent

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Russel A. Molot, Counsel for the Applicant Ronan Blake, Counsel for the Respondent

HEARD: May 13, 2021 by video conferencing

ADDITIONAL REASONS FOR DECISION

M. Smith J

1On May 5, 2021, I released my decision (2021 ONSC 3343) regarding the Motion, which dealt with five issues: (1) disclosure; (2) imputation of income; (3) child and spousal support; (4) parenting time; and (5) sale of the matrimonial home.

2I invited the parties to agree on the amounts of the retroactive payment for support and the fixed monthly amounts to be paid by the Father. Also, I asked that the parties agree to the terms of the sale of matrimonial home and the distribution of the net proceeds of sale. The parties were unable to reach a consensus on most of these matters.

THE ISSUES

3The issues to be determined in the continuation of this Motion are: (1) amounts payable for the child support and spousal support; and (2) distribution of the net proceeds of sale.

Issue # 1 – Child Support and Spousal Support

Position of the Mother

4The Mother advances a new position regarding her eldest daughter, Rukiya. She now claims that Rukiya resides with her 45% of the time. In support of this new assertion, the Mother deposes in her updated affidavit that Rukiya sleeps at her house at least two days per week, she eats most meals at her home, and she has her own bedroom. Moreover, Rukiya has used her Mother’s address for income tax purposes.

5The Mother says that based upon the imputed incomes, the amount of child support is $1,777.00 per month, effective January 1, 2020.

6Regarding the spousal support, the Mother argues that, given the circumstances of this case, it would be unreasonable for the Court to default to the mid-range. It is submitted that, given the roles played during the marriage and the disparity of incomes, the Court should utilize the higher level of support under the Spousal Support Advisory Guidelines (“SSAG”). The Mother says that sections 15.2 (2), (4) and (6) of the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.) need to be considered by the Court when making an interim spousal support order.

7For the period of January 1, 2020 to February 28, 2021, the Mother argues that the spousal support payment should be $931.00 per month. Afterwards, the monthly spousal support should be fixed at $1,391.00.

Position of the Father

8The Father says that at the March 9, 2021 Motion, the parties agreed that the two youngest children resides with the Mother, while the eldest lived with the Father. The Father notes that the Mother has previously sworn three separate financial statements, claiming that two children live with her.

9The Father argues that Rukiya has resided primarily with him since the date of separation. He deposes that his daughter has her own bedroom, workout equipment and stays at his home 5-6 nights per week.

10The Father has calculated the child support arrears at $7,056.00, as of May 31, 2021 and ongoing child support payable at $1,698.00 per month, commencing June 1, 2021.

11The Father takes the position that the mid-range of the SSAG is the most appropriate in the circumstances. He says that the mid-range amount of support will enable the Mother to maintain a reasonable lifestyle and greatly improve her standard of living.

12The Father claims that once full disclosure has been provided, he is confident that he will “clear his name” and there will be a finding that the amount of imputed income is higher than his actual income.

13The Father states that the total spousal support arrears should be set at $1,014.00 as of May 31, 2021 and ongoing spousal support be fixed at $586.00 per month, commencing June 1, 2021.

Analysis and disposition

14Dealing with the new position being advanced by the Mother regarding the eldest daughter’s residency, I am not prepared to a make a finding that Rukiya resides primarily with the Mother. First, despite the Mother’s reasons for not fully explaining Rukiya’s living arrangements at the original Motion, it is nonetheless contrary to her previous testimony. Second, the Father offers an entirely different scenario, which may be as plausible as the Mother’s version of events. The conflicting affidavit evidence on this issue precludes me from making a proper finding of fact. It will need to be resolved at trial.

15I agree with the Father’s calculations regarding the arrears of child support as well as the ongoing child support payments.

16As to the question of interim spousal support, I am reminded that its purpose is to address hardship or inequity based on the means of the parties, and not to maintain incomes that existed prior to the separation. Justice McDermot summarized it well in the decision of Rushton v. Cuff, 2020 ONSC 490 at para. 36:

36 It is trite to say that on a motion for interim spousal support, the intent is to address hardship or inequity between the parties on a means and needs basis; it is not a place to conduct an exhaustive analysis as to the quantum of spousal support. As mentioned above, this is largely because spousal support can involve a complicated analysis of a number of factors and it is inappropriate to conduct that type of analysis on the basis of conflicting affidavits after one hour of argument on a busy motions day. The court must base its decision on mostly uncontested facts that are either common ground or unquestioned; otherwise, the court must be cautious about going beyond a means and needs analysis in determining spousal support.

17The Mother urges me to consider several important factors in this case which should lead to the conclusion that the high range of the SSAG is appropriate: the financial hardship, the economic self-sufficiency difficulties, the length of the relationship, the functions of each spouse during cohabitation and the termination of her employment at the Father’s company.

18There is no doubt that the parties were involved in a long-term relationship and the Mother set aside her career to assist the Father with his company. She is currently experiencing some difficulties in becoming self-sufficient (partially due to the pandemic) and she may (not necessarily will) require some additional training and education to improve her earning capacity.

19On an interim basis, I will not embark on a detailed analysis of the various factors which includes understanding the precise nature of the Mother’s needs, the children’s needs, the standard of living or the Father’s ability to pay. Affidavit material alone does not allow me to make this determination. This analysis is best left to a trial judge who will be better positioned to properly consider the factors that will determine the amount and duration of the spousal support.

20Since the separation, the Mother has been able to purchase a new home. There is some debate as to how she was able to accomplish such a purchase. She was able to find employment within four months of her termination, and in the absence of the pandemic, she would have earned full-time income. She has demonstrated an ability to obtain employment, utilizing the skills and experience that she learned in the construction industry. Importantly, it is anticipated that the matrimonial home will be sold within the next few months and it said that its value exceeds $750,000. The Mother will receive a substantial amount from her share of the net proceeds of sale. This will, in my view, provide her with some security and capital to fall back upon.

21Considering the circumstances of this case, I believe that the mid-range of the SSAG will achieve the objective of an interim spousal support order. I agree with the Father’s calculations with respect to the spousal arrears and the ongoing mid-range figure.

Issue #2 – Distribution of the net proceeds of sale

22During argument, the parties confirmed that they have agreed that Jack Marsala shall be the listing agent for the sale of the matrimonial home.

Position of the parties

23The Mother had requested that the Father’s entire share of the net proceeds of sale be held in trust. She believes that the Father will dissipate his assets and she is concerned that her equalization payment will be jeopardized. As I wrote in my initial decision, I was not prepared to grant the Mother’s request that the Father’s full share be held in trust. I asked the Father to provide his submissions on this issue. The Father submits that his half of the net proceeds of sales should be disbursed to him immediately, less any amounts ordered for support arrears.

24The Father argues that he must buy a new primary residence for Rukiya and himself. He states that it would be prejudicial to his eldest daughter if he was unable to purchase a new home.

25In response to the Mother’s claim that she will be entitled to an equalization payment of $175,000.00, the Father says that the Mother failed to account for a lot that she sold in 2019 for $198,000.00. In addition, the Father argues that the Mother obtained a line of credit, without his consent, in the approximate amount of $83,000.00, which has encumbered the matrimonial home.

Analysis and disposition

26As referred to in my initial decision, the evidence has shown that, over the years, the Father withdrew $216,834.13 from his company, while he was arguing that it was closer to $100,000.00. The Father has repeatedly taken cash advances from the company’s credit card and he has failed to provide the complete financial disclosure. With this type of behaviour, I am not fully comforted by the Father’s submission that any equalization payment owed will be paid by the retained earnings in the company. There is some merit to the Mother’s fear that the Father may dissipate his assets.

27The Mother argues that, based on the Father’s figures, a substantial equalization payment will be owed by the Father. I have reviewed the Mother’s Net Family Property Statement that was included in her November 26, 2020 affidavit. In calculating the equalization payment, the Mother listed in part 4(a) the vacant property sold in the amount of $198,000.00 as an asset that she owned on the valuation date. In my view, this addresses the Father’s concern that the Mother did not account this asset in her calculations. This leaves the Father’s argument that the Mother obtained a line of credit in the amount of $83,000.00 that encumbered the matrimonial home. I agree that this issue remains debatable.

28In my opinion, it is important for the Father have some funds to find alternate accommodations, all while balancing and addressing the Mother’s fears regarding dissipation. I believe that, in the circumstances of this case, withholding 25% of the Father’s share of the net proceeds of sale is reasonable.

29At the time of writing these additional reasons, I am unaware if a sale price has been determined. In argument, counsel for the Mother believes the value of the matrimonial home to be in excess of $750,000,00. In the original motion materials, a valuation carried out by Independent Appraisal Corp. dated August 6, 2019 had fixed the market value at $525,000.00. If the matrimonial home is sold at $525,000 or more, I believe that 25% to be held in trust from the Father’s share is appropriate. If the sale falls below $525,000.00, the parties may provide further submissions on whether 25% should remain.

CONCLUSION

30For the reasons set out above, I make the following interim Orders:

a. Child support arrears are fixed at $7,056.00, as of May 31, 2021.

b. Commencing June 1, 2021 and on the first of each month thereafter, the Father shall pay child support in the amount of $1,698.00 per month.

c. Spousal support arrears are fixed at $1,014.00, as of May 31, 2021.

d. Commencing June 1, 2021 and on the first of each month thereafter, the Father shall pay spousal support in the amount of $586.00 per month.

e. Upon closing of the sale of the matrimonial home, the Mother shall receive her half share of the net proceeds. The Father’s share shall be distributed as follows: (i) $8,070.00 shall be paid to the Mother as child and spousal arrears; (ii) 25% of the remaining proceeds of sale shall be held in trust by the real estate lawyer pending Court Order or agreement between the parties; and (iii) the balance to be released to the Father.