Court File and Parties

COURT FILE NO.: FS-15-406517

DATE: 20210603

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Gregory Howard Borschel Applicant

– and –

Debaroti Mullick Borschel Respondent

Applicant, Self-represented

Harold Niman and Jen-Yii Liew, counsel for the Respondent

HEARD: in writing

Kiteley J.

Background

[1] This is a motion by the Respondent for an order requiring the Applicant to pay temporary child support table amount and s.7 expenses. The context in which this proceeded is described in an endorsement dated January 13, 2021. [2021 ONSC 293]

[2] The parties were born in the United States and married there on June 15, 1996. Their daughter A. was born in the United States in May 2003 and their son N. was born in April 2005. The parties are both physicians, having taken extensive training at medical schools in the United States. The parties and the children are American citizens.

[3] The family moved to Toronto in September 2009 when the Applicant obtained a position as a full-time staff surgeon specializing in paediatric plastic and reconstructive surgery at the Hospital for Sick Children.

[4] The parties separated in Toronto on October 9, 2015. The children resided primarily with the Respondent.

[5] On November 12, 2015 the Applicant commenced these proceedings.

[6] The Respondent served an Answer and Claim dated January 4, 2016 in which she asked for a divorce as well as for orders with respect to sole custody, child support, spousal support and related claims.

[7] Based on a review of the Case History Report, the Applicant did not file an Answer to the Claim by the Respondent. I will address that issue below. I do not consider it a barrier to the Applicant participating in this motion.

[8] The parties attended a case conference on February 8, 2016. They subsequently agreed to submit all outstanding issues to arbitration.

[9] On September 7, 2016, the Arbitrator, Stephen Grant, issued an interim award with respect to the parenting schedule and a consent order with respect to the matrimonial home.

[10] The parties scheduled an arbitration hearing to take place from May 29 to June 2, 2017 on the issues of support, parenting and property. Those dates were postponed.

[11] In August 2017, with the agreement of the Applicant, the Respondent and the children relocated to Memphis, Tennessee where they continue to reside.

[12] Prior to the arbitration hearing the parties resolved the parenting issues and property issues. On consent, Mr. Grant issued a Final Arbitral Award on Property and a Final Arbitral Award on Parenting both dated December 21, 2017.

[13] The parties scheduled a three-day Arbitration hearing to take place on August 8 to 10, 2018 with respect to the remaining issues, namely ongoing and retroactive spousal support and child support (table amount and s. 7 expenses).

[14] That Arbitration hearing did not take place.

[15] In paragraphs 2 to 19 of the endorsement dated January 13, 2021, I outlined the proceedings that did take place, including the decision by Sossin J. [2020 ONSC 4395].

[16] In an endorsement dated October 27, 2020 I made an order prohibiting the Hospital for Sick Children from releasing certain funds, I directed the Hospital to provide disclosure, and I made an order restraining the Applicant from disposing of the proceeds of sale of his Toronto home in the amount of $352,248.12 USD which had been transferred to an account with the Chase Bank.

[17] In paragraphs 34 to 67 of the endorsement dated January 13, 2021, the events that occurred are summarized, including that the Applicant accepted an offer of employment at the Indiana University School of Medicine and Riley Children’s Hospital.

[18] In paragraph 145 of the endorsement dated January 13, 2021 I made an order dismissing the Applicant’s motion for an order that the Superior Court decline to exercise jurisdiction over specified matters. In paragraph 146 I made an order dismissing the Applicant’s motion for a stay of these proceedings. In paragraph 147 I established a timetable for the hearing in writing of the Respondent’s motion for temporary child support (table amount and s. 7 special and extraordinary expenses) for the period starting no earlier than August 1, 2019. In paragraph 147(a) I directed the Respondent to file her motion, affidavit and factum by February 1, 2021. In paragraph 147(b), I directed the Applicant to file responding motion record by February 15, 2021. In both cases, I listed the documents and information that each party was required to provide and specifically with respect to their respective incomes in 2018, 2019, 2020 and 2021. In paragraph 147(c) I permitted the Respondent to file a brief responding record by February 22, 2021.

[19] Following the release of that endorsement, the following occurred:

(a) On February 1, 2021, the Respondent filed a motion record that included an affidavit of 13 pages with 24 exhibits and, counting the motion record but not the factum, a total of 525 pages. In paragraph 2 of her notice of motion, she asked for the disclosure listed in Schedule A. In paragraphs 3,4,5 and 6, she asked for orders consistent with the endorsement dated January 13, 2021.

(b) The Applicant asked for an extension of the February 15th date and the Respondent agreed. On February 23, 2021, the Applicant filed material that included an affidavit of 12 pages with 24 exhibits and, counting the motion record but not the factum, a total of 587 pages. In his motion dated February 19, he asked for various orders.

(c) In an endorsement dated March 1, 2021, [2021 ONSC 1526], I gave directions to the parties, namely I dismissed the Respondent’s request for the disclosure, I dismissed the Applicant’s motion with the exception of two paragraphs relevant to the motion for temporary child support, I extended the deadline for the Respondent to file reply affidavit to March 12, 2021 and I denied costs to either party of any matter dealt with in that endorsement.

(d) In that March 1 endorsement, I indicated that the Applicant’s material had been filed on February 23, 2021 and, while the affidavit sworn February 19 was referred to, it did not appear in the court file. In an email dated March 1, 2021, the Applicant contacted court staff in which he indicated that the endorsement was “factually incorrect” and he was giving the court “the opportunity to modify” the endorsement. He insisted that his affidavit (and all other material) had been properly filed. Court staff investigated and confirmed to the Applicant that his affidavit had not been properly filed. In his email to court staff on March 2, 2021, he acknowledged the explanation and asked that court staff accept his apologies.

(e) On March 12, 2021, the Respondent filed a reply affidavit sworn March 12, 2021, a notice of motion amended to be consistent with the ruling in the March 1, 2021 endorsement that requests for disclosure would not be entertained in the context of this motion, and an amended factum.

(f) On March 22, 2021, the Applicant filed a form 14B motion in which he asked for an order that he be permitted to file a tax document correcting information he had provided in his February 19 affidavit.

(g) On April 6, 2021, the Applicant filed a form 14B motion in which he asked for an order striking the Respondent’s March 12, 2021 affidavit and her supplementary factum. In the alternative, he asked for permission to file the affidavit in response to what he said were “new issues and fresh evidence” contained in the Respondent’s motion sworn March 12, 2021.

(h) On April 12, 2021, the Respondent filed an affidavit in reply to the Applicant’s April 6 affidavit.

[20] In the endorsement dated January 13, 2021, I established a timetable for written submissions on the issue of child support (retroactive to no earlier than August 1, 2019) and prospective. That timetable ended February 22, 2021. The Applicant was given a brief indulgence to file his responding material. The content of his notice of motion filed February 19 necessitated an endorsement dated March 1 and an extension of time for the Respondent to file a reply affidavit. The Applicant formed the opinion that the contents of the reply affidavit sworn March 12 were “new issues and fresh evidence” and on that basis brought his form 14B motion to which the Respondent appropriately replied. All of that served to extend the time from February 22, 2021 to April 12, 2021 which led to delay in completing these reasons. These delays were unfortunate because the older child had to make university selection by the end of April.

[21] Having read the Respondent’s affidavit sworn March 12, 2021, I am satisfied that the evidence is reasonable and admissible. It does respond to the Applicant’s evidence. Furthermore, as the Respondent pointed out, her counsel had asked for disclosure of the Applicant’s income before the Respondent had to file her motion record and he refused. On that basis, her reply affidavit was justified.

[22] The endorsements referred to above, along with endorsements dated August 4, 2020, September 4, 2020, October 8, 2020 and October 27, 2020 reflect the context in which this motion was heard.

Respondent’s Amended Notice of Motion

[23] In her reply affidavit, the Respondent modified her claims based on the evidence that the Applicant had provided in his motion record served February 23, 2021. In her amended notice of motion, she asks for orders as follows:

(a) A temporary order that the Applicant shall pay Table Guideline Child Support temporary child support to the Respondent for the children in the amount of $8874 CAD per month commencing March 1, 2021, on a without prejudice basis pending decision by a trial judge or further agreement;

(b) a temporary order that the Applicant shall pay 72.3% of the children’s section 7 expenses including their high school tuition and post-secondary education related expenses (e.g. tuition, books, residence/room and board) commencing March 1, 2021, on a without prejudice basis pending decision by a trial judge or further agreement;

(c) an order requiring the Applicant to pay to the Respondent the sum of $114,941 CAD within 30 days, for retroactive table child support for the period August 1, 2019 to February 18, 2021, without prejudice to the Respondents claim for child support retroactive to the date of separation;

(d) An order requiring the Applicant to pay to the Respondent the sum of $97,794.89 within 30 days, for retroactive section 7 special and extraordinary expenses for the period August 1, 2019 to February 28, 2021, without prejudice to the Respondent’s claim for section 7 expenses retroactive to the date of separation;

(e) Costs of this motion on a full indemnity basis including any applicable H.S.T.

Applicant’s Notice of Motion

[24] As indicated in the endorsement dated March 1, 2021, the Applicant had served a notice of motion, most of which I dismissed in that endorsement. The following requests remain:

(6) an order that the Applicant shall pay temporary and without prejudice child support to the Respondent for the children in the amount of USD $3200 per month with the Respondent providing a 50% reimbursement for access costs;

(7) an order that the Applicant and respondent share on a without prejudice basis the children’s ongoing section 7 expenses on a 50/50 basis, limited to private school tuition, and post-secondary expenses, after the children’s educational savings have been applied

Issues

[25] On this motion for retroactive and ongoing child support, the materials filed raise the following issues:

(a) Do the Federal Child Support Guidelines apply?

(b) Assuming that the Federal Child Support Guidelines apply, are there reasons to alter the table amount having regard to income over $150,000; having regard to the fact that the Guidelines are based on costs of living in Ontario but the children reside in Tennessee; and having regard to the shared parenting arrangement?

(c) What is the income of the Applicant starting August 1, 2019?

(d) What is the retroactive table child support that the Applicant is required to pay for the period August 1, 2019 to the present?

(e) Section 7 expenses: (i) What is the income of the Respondent for the period starting August 1, 2019? (ii) What is the ratio of incomes between the Applicant and the Respondent that is applicable to s. 7 expenses? (iii) What are the retroactive s. 7 expenses? (iv) What is the total owed by the Applicant for retroactive s.7 expenses?

(f) What amount of credit is the Applicant allowed against the amount that he owes for retroactive table child support and s.7 expenses?

(g) Summary of amounts owed by the Applicant for retroactive table child support and s.7 expenses from August 1, 2019?

Analysis

[26] As indicated above, each party has filed hundreds of pages of documents. In paragraph 10 of the endorsement dated March 1, 2021, I held as follows:

However, for purposes of dealing with this not complicated in writing motion I intend to read only the affidavits of the parties, the exhibits that I consider relevant to the motion, form 13 financial statements each party has filed, and the factum each has filed. I have no intention of reviewing any exhibit by either party that I do not consider relevant.

[27] In paragraph 136 of the endorsement dated January 13, 2021, I authorized the Respondent to bring this motion. These children have been entitled to child support since the separation of their parents on October 9, 2015. The Applicant concedes that he is obliged to pay child support and concedes that he is obliged to pay limited s.7 expenses. The only issue is how much should he pay for table amount and for s.7 special and extraordinary expenses.

[28] A motion for temporary child support is not meant to attract such voluminous materials. In this case, they filed more than 1000 pages of materials, partly because I directed them to provide income information for 2018, 2019, 2020 and 2021. In addition, the Applicant in particular has many grievances about how the proceedings have unfolded and his criticisms of the Respondent. As I indicated in the January 13, 2021 endorsement, I do not intend to review the evidence to make findings as to which parent is correct on much of the background information. I focus on the evidence that I am satisfied is relevant to the motion for temporary child support.

(a) Do the Federal Child Support Guidelines Apply?

[29] When the Application was issued in November 2015 and the Answer and Claim was filed in January 2016, the Applicant and the Respondent and the children lived in Toronto. On consent, the Respondent relocated with the children to Memphis, Tennessee in August 2017. The Respondent lives and works in Tennessee. The Applicant lived and worked in Toronto until the fall of 2020. He now lives and works in Indiana.

[30] While conceding that jurisdiction in Ontario has been established as a result of the decision dated January 13, 2021, the Applicant takes the position that the Child Support Guidelines do not apply.

[31] The Applicant starts with the definition of “table”. In his factum, he refers to s. 2 of the Ontario Guidelines [O. Reg. 391/97: Child Support Guidelines under the Family Law Act, R.S. O. 1990, c. F.3.]

[32] The issues that are outstanding in this court arise from the Answer and Claim in which the Respondent made claims for child and spousal support pursuant to the Divorce Act and pursuant to provincial legislation. In this motion, the paramount statute under which the Respondent claimed relief with respect to child support is the Divorce Act and therefore the Federal Child Support Guidelines apply.

[33] Section 2 of the Federal Child Support Guidelines defines “table” as “a federal child support table set out in Schedule I”. Those tables are listed by province.

[34] Pursuant to s. 3 (3), the “applicable table” is as follows:

(a) if the spouse against whom an order is sought resides in Canada

(i) the table for the province in which that spouse ordinarily resides at the time the application for the child support order, or for a variation order in respect of a child support order, is made or the amount is to be recalculated under section 25.1 of the Act; . . .

(b) if the spouse against whom an order is sought resides outside of Canada, or if the residence of that spouse is unknown, the table for the province where the other spouse ordinarily resides at the time the application for the child support order or for a variation order in respect of a child support order is made or the amount is to be recalculated under section 25.1 of the Act.

[35] Based on the evidence, both parents and the children ordinarily resided in Ontario at the time the Application was issued on November 12, 2015 and at the time the Answer and Claim was issued on January 4, 2016. Pursuant to s. 3(a), the Federal Child Support Guidelines applied in January, 2016.

[36] In my view, the Applicant’s submission that the Guidelines do not apply has no merit.

(b) Assuming that the Federal Child Support Guidelines apply, are there reasons to alter the table amount having regard to income over $150,000; and having regard to the fact that the Guidelines are based on costs of living in Ontario but the children reside in Tennessee; and having regard to the parents shared parenting arrangement?

[37] The Applicant takes the position that the Guidelines do not apply because his income exceeds $150,000.

[38] The Applicant relies on s. 4(b)(ii) of the Guidelines that indicate that where the income of the payor is over $150,000, the amount of a child support order is the amount determined under s. 3 (i.e. the table amount) or, if the court considers the table amount to be inappropriate in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children.

[39] The refers to these Notes to Schedule I of the Federal Child Support Guidelines indicate the following:

5. The amounts in the tables are based on economic studies of average spending on children in families at different income levels in Canada. They are calculated on the basis that child support payments are no longer taxable in the hands of the receiving parent and no longer deductible by the paying parent. They are calculated using a mathematical formula and generated by a computer program.

6. The formula referred to in note 5 sets support amounts to reflect average expenditures on children by a spouse with a particular number of children and level of income. The calculation is based on the support payor’s income. The formula uses the basic personal amount for non-refundable tax credits to recognize personal expenses, and takes other federal and provincial income taxes and credits into account. Federal child tax benefits and the portion of the Goods and Services Tax/Harmonized Sales Tax credit that is attributable to children are excluded from the calculation. At lower income levels, the formula sets the amounts to take into account the combined impact of taxes and child support payments on the support payer’s limited disposable income.

[40] The Applicant argues that, because the children are not residing in Ontario, it would be arbitrary and hence inappropriate for the court to apply the Ontario Child Support Table to parties residing in a different country because the underlying presumptions on which the formula of the Table is based do not apply in different jurisdictions. [Sangale v. Abdalla, 2013 ONSC 5655 and Kasprzyk v Burks 2005 2062 (ON SC), [2005] O.J. No. 289]

[41] The Applicant argues that the costs for maintaining the pre-divorce standard of living for the children is significantly lower in Memphis than in Toronto. The Applicant has provided a report prepared by Elizabeth Armstrong sworn February 11, 2021 in which she concludes that the cost of living in Memphis is presently 65% less than the cost of living in Toronto.

[42] The focus of the Applicant’s evidence on this subject is in paragraphs 6, 40, 44 and 45 of his affidavit sworn February 19.

[43] In paragraphs 42 to 49 of her affidavit sworn March 12, 2021 the Respondent challenged that evidence for these reasons. The affidavit was served on February 23rd and in that brief interval before meeting the deadline to file her reply affidavit, she had not had an opportunity to review and respond comprehensively. Ms. Armstrong’s material does not indicate that she is recognized as an expert on cost of living issues in Ontario. The Respondent agreed that housing costs are lower in Memphis than in Toronto but pointed out that, based on the material provided, the biggest difference is the cost of renting property. She owns her home and she explained how and why she depleted capital so as to avoid the necessity of a mortgage. She deposed that, with respect to these children, her costs are not 65% lower than the costs that she incurred when she lived with them in Toronto. She also challenged the database on which the Applicant relied.

[44] The Respondent’s evidence challenging the Armstrong material is logical. The Applicant’s evidence and submissions with respect to cost-of-living do not persuade me to reject the application of the Federal Child Support Guidelines on this motion for retroactive and ongoing child support.

[45] The Applicant also relies on an affidavit of Tennessee Attorney Charles Hodum, sworn February 12, 2021. In his affidavit, Mr. Hodum provides information about how child support is calculated in Tennessee. Mr. Hodum provided a calculation based on the Applicant’s “confirmed income” for 2018 and the Respondent’s “purported income” for that year that indicated that the “appropriate child support amount would have been $2,428 USD per month in 2019”. The Applicant presented his evidence on this subject primarily in paragraphs 7 and 41-43 of his affidavit sworn February 19, 2021.

[46] That evidence of the relationship between child support and custody and access issues in Tennessee is not relevant to this motion.

[47] The Applicant has overlapped his submission under s. 4(b)(ii) with his standard of living submission. Having not accepted his standard of living submission, I consider his s. 4(b)(ii) submission independently. Section 3 of the Guidelines is presumptive. In respect of income over $150,000, in order for the court to order an amount other than the table amount, the payor must provide evidence that the s. 3 amount is inappropriate. He has failed to do so in the context of his standard of living submission and he has failed to do so in the context of the factors listed in s. 4(b)(ii). The Applicant does not like the amount of table child support yielded by the application of s. 3 but that does not mean it is “inappropriate”.

[48] In my view, the Applicant’s submission that it would be arbitrary and hence inappropriate to apply the Federal Child Support Guidelines has no merit.

[49] Section 3 of the Federal Child Support Guidelines applies.

[50] The Applicant has referred to their shared parenting which is reflected in the Final Arbitral Award on Parenting dated December 21, 2017, namely that the parents “share in the responsibility for care and upbringing of the children”. The Applicant has not developed a submission that that agreement engages s. 8 of the Guidelines. There is no evidence that his time with the children achieves the 40% threshold required for that analysis. I do not consider that the agreement as to shared responsibility for the children is a factor on this motion for temporary child support.

(c) What is the income of the Applicant starting August 1, 2019?

[51] In paragraph 147(b) of the endorsement dated January 13, 2021, in anticipation of this in-writing motion, I directed the Applicant to deliver a form 13 financial statement as well as proof of income in 2018, 2019, 2020 and 2021.

[52] In paragraph 19 of his affidavit sworn February 19, 2021, the Applicant deposed as follows:

The relevant income for purposes of this motion are taxation years 2018, 2019 and 2020 as child support is based on the payor’s income from the year prior. I disagree with the Respondent’s position in her affidavit dated February 1, 2021 that the support paid in 2019, 2020 and 2021 should be based on my income in that particular year. This point also applies to a determination of the parties’ proportionate sharing of the children’s section 7 expenses. In any event, we cannot even ascertain the Respondent’s income in 2018, 2019 or 2020 due to her ongoing lack of disclosure.

[53] In paragraph 24 of that affidavit he deposed that he had provided his full income tax returns for 2017, 2018 and 2019 and that his “relevant income for this motion” was as follows:

2018

$425,909 line 150 of his 2018 Notice of Assessment

2019

$422,004 line 150 of his 2019 Notice of Assessment

2020

“presently concretely unknown”.

[54] In paragraphs 25 to 29 of that affidavit, the Applicant said that due to leaving his position at Sick Kids in September 2020 and starting new employment in the U.S. his “2020 income is much more complex than all previous years in this case and therefore requires explanation”. He resigned from SickKids on October 3, 2020. SickKids have “noted” that his “YTD income for 2020 was $636,342.08” but that “that amount has not been finalized”. He had asked for a T4 statement for 2020 but had been told it would not be ready until the week of February 22, 2021. He provided additional evidence as to why he thought that his income for 2020 at SickKids was uncertain and anomalous.

[55] The Applicant received an email dated September 2, 2021 attaching a Memorandum of Understanding regarding the offer of Chief of Pediatric Plastic Surgery at the Indiana University School of Medicine and Riley’s Children’s Hospital. He did negotiate an employment agreement, as a result of which he started on November 16, 2020 although his credentials were not finalized until January 2021.

[56] In paragraph 31 of his affidavit, he provided this information about his current income:

The employment contact that I signed with IU has a confidentiality clause that prohibits me from sharing it with third parties. However, I am able to share a letter dated October 15, 2020 from IU confirming that my annual compensation for academic work (university) is $30,000 a year, commencing in November 2020 and my clinical work (IU Health) compensation going forward will be based on a performance/productivity model known as the RVU model with a base. I would note that due to delays caused by Covid-19 I did not receive my full credentialing to do my job until January 29, 2021 which was confirmed in correspondence sent to me from IU. All of this correspondence is attached as Exhibit “M” along with all of the paystubs from Indiana University Health for January 2021.

[57] In Exhibit M the Applicant has provided a pay slip from Indiana University Health Care Associates, Inc. that confirms his hiring date was November 16, 2020. His base salary is shown as USD $120,000 and he is paid bi-weekly in the amount of USD $6137. As of January 30, 2021, his year to date payment was USD $18,413. He has also provided a pay slip dated January 29, 2021 from Indiana University that shows his pay rate at USD was $2500 monthly.

[58] In paragraph 33 of his affidavit sworn February 19, 2021, the Applicant provided this summary of his income:

2018

CDN $425,909 = USD $320,232.33 (at exchange rate of 1.33)

2019

CDN $422,004 = USD $319,700 (at exchange rate of 1.32)

2020

CDN $636,342.08 + CDN $313.43 (at exchange rate of 1.27) + USD $29,000 + USD $399 = USD $530,702.55.

[59] He also deposed that it would be “fair” to average his income over the last three years as “this would then capture those payments for my international work that was done in prior years and not just paid out in 2020”. He said that, based on the calculation in paragraph 59, his average income over the last three years was the amount of USD $390,211.63 or CDN $507,275.11 using the average exchange rate during this time. On that basis, he said that child support would be in the amount of CDN $6,364.30 per month.

[60] I note that that is a significant increase over the amount of USD $3200 per month that he specified in paragraph 6 of his notice of motion, referred to in paragraph 24 above.

[61] The Applicant did not refer specifically to s. 17 of the Guidelines that provides that 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… during those years”.

[62] I do not accept the submission that his income should be averaged. He has provided no detailed information about the ‘”international work that was done in prior years”. He did not advise whether his “international work” was continuing. Based on his evidence, the amount of YTD income established by SickKids was “presently concretely unknown”, and he gave no indication that it would go down. The Applicant filed materials after February 22, including a “correction” by his current employer with respect to the W2, but he did not file the “finalized” T4 for 2020. I infer that he did not file it because it would have been harmful to his position. The Applicant has failed to establish that the actual income is not the “fairest determination”. His opinion to that effect is not a basis on which the court should arrive at that conclusion.

[63] In paragraphs 23 to 29 of his affidavit, the Applicant asserted that he had provided all financial disclosure available, pointing out that his T4 for 2020 was not available as of February 19, 2021. His employment contract with Indiana University “does not permit disclosure” of his income. Instead he provided a letter setting out his annual income for academic work as well as the compensation model for his clinical work. He provided pay stubs from Indiana University and Indiana Health. He noted that he would receive $100,000 from IU as an incentive to move. While it was structured as a loan, it is payable to IU if he leaves the institution in less than 3 years. He argued that for purposes of determining child support obligations, the payment should be disregarded and taken into income in 2023. He pointed out that he had received “additional income from SickKids in 2020” and he explained that it had been outstanding “from several years ago”. He pointed out that the “precise amount owing will not be available for another few months”. He blamed the freezing order dated October 27, 2020 for causing confusion and delay at SickKids in providing an accurate determination of his 2020 income. In light of all of that, he took the position that his income over the last three years should be averaged at $507,275.11. He insisted that he was not “hiding business accounts” at SickKids.

[64] The Applicant provided a form 13 financial statement sworn February 19, 2021 with this information: “last year” his gross income from all sources was “Est. USD $530,702.55 (reconciliation with SickKids has yet to be completed”. Under “current income” he provided this information: “I have received USD $6259.15 paid biweekly, and $USD $2500 paid monthly”. With a small amount of “self-employment income” in the amount of USD $33.25, his total monthly income is USD $16,061.49 and his annual income is USD $192,737.90. He has significant employment benefits (medical, dental, life, health savings account and base retirement Plan with a yearly market value of approximately USD $17000) which I do not take into consideration.

[65] In his form 13 financial statement, the Applicant has provided a list of his expenses that totals USD $8,865.94 monthly and USD $106,391.28 yearly. It is a superficial budget. Based on this financial statement, he has income of USD $192,737.90 and expenses of only USD $106,391.28. The content of his income and expenses in his form 13 financial statement is not helpful in assessing the Applicant’s financial circumstances.

[66] The Applicant has not provided any clarity with respect to his 2021 income and his 2020 income is not yet reconciled. He asks that the court rely on an average of his income in 2018, 2019 and 2020.

[67] It is the case that the payor’s line 150 income in the year preceding the support obligation is typically relied on to establish the table support amount. However, in the endorsement dated January 13, 2021 I specified that I expected detailed information about 2021 income. Pursuant to s. 2(3) of the Federal Child Support Guidelines, where any amount is determined on the basis of specified information, the most current information must be used.

[68] I infer that the Applicant has failed to provide the detailed information about his 2021 income for two reasons. First, he is hiding behind a confidentiality agreement to provide as little information as possible. In my view, an employee who wants to provide a court in good faith with current reliable income information can make arrangements with the employer to provide sufficient information on which the court can rely. He has not explained whether he even made the attempt, from which I infer that he did not make the attempt.

[69] Second, he wants to rely on the average of past income. From that I infer that if he did properly disclose his current income, it would be prejudicial to him. Furthermore, I see no point in averaging when his income is known for 2019, when his income for 2020 is about twice what he disclosed in his form 13 financial statement sworn August 25, 2020, and when that 2020 income may well increase once SickKids finishes its analysis.

[70] I am aware that the Respondent has incorporated 1/3 of the stay-on bonus of approximately USD $100,000 arising from his current employment. The Applicant takes the position that it is a loan, which he says is verified by the amended W2 form that he submitted in his March 22, 2021 affidavit. For purposes of this motion for temporary child support, he received the amount and it ought to be included in his income. If he leaves before the three years and has to make a repayment, it may be considered in the year in which that happens.

[71] In the absence of evidence from the Applicant on which this court could rely to establish his 2021 income, I accept and rely on the analysis reflected in the Respondent’s supplementary factum dated March 12, 2021. Since the Applicant has deliberately not provided reliable evidence as to his 2021 income, relying on the preceding year to establish income for the current year is reasonable because 2020 is the latest and most comprehensive information available. I find that the Applicant’s income is as follows:

2019

CAD $422,004

2020

CAD $716,387.33

2021

CAD $716,387.33.

[72] Although the Applicant had taken the position that the calculation in the table amount ought not to be used because his income was over $150,000, as indicated above in paragraph 59, when he averaged his income, he arrived at a monthly child support of CDN $6364.30 per month. I infer from that that the Applicant has acquiesced in using the calculation contemplated by s. 4 of the Federal Child Support Guidelines.

[73] I note that the parties sometimes use the same currency exchange rate and sometimes they do not. For purposes of this motion for temporary support, more precision is not required.

(d) What is the retroactive table child support the Applicant is required to pay for the period starting August 1, 2019 to the present?

[74] Based on those income amounts, the Applicant is required to pay child support as follows:

2019

CAD $5341 per month

2020

CAD $8874 per month

2021

CAD $8874 per month.

[75] The calculation of the total retroactive table child support will be incorporated in the table below at paragraph 96.

(e) Section 7 expenses: (i) What is the income of the Respondent for the period starting August 1, 2019? (ii) What is the ratio of incomes between the Applicant and the Respondent that is applicable to the s.7 expenses? (iii) What are the retroactive s.7 expenses? (iv) what is the total owed by the Applicant for retroactive s.7 expenses?

(i) Respondent’s income

[76] Having made findings as the Applicant’s income, I turn to the Respondent’s income because it is relevant to the amount owing for s. 7 special and extraordinary expenses.

[77] The Applicant has many grievances about the disclosure provided by the Respondent. For example, the Applicant insists that the Respondent has redacted her tax returns, notwithstanding the order in paragraph 147(d) that neither party was to redact in any fashion. In paragraph 32, the Applicant asserts that the Respondent “has deliberately misled the Court with respect to her previous and current income information” and he refers, inappropriately to her previous Case Conference Brief. He attached an article from a Memphis newspaper confirming the “Respondent’s further appointment”. He relied on salary guidelines for full time physicians in Tennessee that suggested that her income should be much higher. He also attached a compensation chart from the American Medical Group Association showing salaries for internal medicine doctors. He suggested that the Respondent’s income should be at least USD $337,557 or CAD $428,697.

[78] That “evidence” is based on conjecture. As an example, at paragraph 24 of her affidavit sworn March 12, 2021, the Respondent denied having receiving any additional “appointments”. She said the newspaper article was about a curriculum she was helping to develop but it was within her current job description. I accept and rely on her evidence in paragraphs 14 to 25 of her affidavit sworn March 12, 2021 in response to those many grievances.

[79] I also accept and rely on the Respondent’s evidence that her income is as follows:

2019

CAD $274,331

2020

CAD $276,408.98

2021

same as 2020 CAD $276,408.98.

(ii) Ratio

[80] Based on those findings as to their respective incomes, the ratio for purposes of establishing the obligations of the Applicant and the Respondent pursuant to s.7 is as follows:

2019

60.6% and 39.4%

2020

72.3% and 27.7%

2021

72.3% and 27.7%.

(iii) What are the retroactive s.7 expenses?

[81] Section 7(1) and (1.1) defines the term “extraordinary expenses”. In this case, the Applicant concedes that he is obliged to pay s.7 expenses. He does not agree with the categories claimed by the Respondent. Furthermore, regardless of the ratio of their incomes, he takes the position that the parties should pay the s.7 expenses on a 50/50 basis. According to the Respondent, the Applicant has not made any contribution to any of the children’s medical expenses, their orthodontics, vision related expenses, medical insurance, car insurance, extracurricular activities (including private voice lessons, piano lessons, tutoring and sports and other related expenses. The Applicant does not challenge the evidence that he did not pay. He challenges the nature of the expenditures.

[82] The Respondent deposed that in January 2020, she learned that, although he had confirmed that he would pay one-half of the children’s private school, he failed to pay his share for their 2018-2019 academic year and their 2019-2020 academic year which compromised their ability to re-enrol for the 2020/2021 academic school year and select their first choice of classes. The Respondent pointed out that that was particularly detrimental for their daughter as her last year of high school was 2020/2021. In June 2020, the Respondent paid the amount that the Applicant had failed to pay.

[83] The Respondent had provided a detailed spreadsheet setting out the children’s section 7 expenses for the period August 2019 to the date of her affidavit totalling USD $120,786.11 (or CAD $153,398). The Respondent listed the categories in paragraph 53 of her factum, namely:

(a) private school tuition for both children for the 2019 to 2021 school year, and related school expense;

(b) A’s voice lessons;

(c) A’s tutoring;

(d) sport related expenses for N’s including lacrosse;

(e) A’s college application and testing;

(f) orthodontic expenses (not covered by insurance);

(g) therapy expenses for the children;

(h) car insurance for A;

(i) UTHSC health insurance difference for the Respondent alone vs the Respondent and the children;

(j) dental insurance difference for the Respondent alone vs the Respondent and the children;

(k) vision insurance difference for the Respondent alone vs the Respondent and the children.

[84] In her original factum, based on the financial disclosure he had provided to that point, the Respondent took the position that the Applicant should be responsible for 60% of those expenses, namely CAD $92,039.

[85] After receiving the Applicant’s affidavit sworn February 19, 2021, the Respondent took the position that his share was 72.3%, namely CAD $97,794.89.

[86] In paragraphs 52 to 55 of his affidavit sworn February 19, 2021, the Applicant asserts many challenges to the evidence with respect to the s.7 expenses some of which are these. He insists that the Respondent has not provided sufficient documentation to prove her income. He disagreed with her currency conversion calculation for her income. The Respondent had failed to provide documents to verify the expenditures. The Respondent has not provided detailed information about the health care professionals and service providers. The Respondent has refused to provide information regarding the children’s educational savings accounts. He deposed that he has “always been committed to ensuring that my children attend University. However, I take issue with the Respondent playing a “shell game” with my children’s jointly-funded educational savings accounts for her benefit.”

[87] The Applicant asserted that the information the Respondent provided in her affidavit for the motion was different from the information in a case conference brief, thereby ignoring, again, the privilege that attaches to case conference material. He said he “was aware” that the Respondent had received “a considerable raise”.

[88] In paragraph 57 of his affidavit sworn February 19, 2021 the Applicant deposed that even though there were no contracts, as he stated in his “previous numerous offers to settle”, he was agreeable to paying for half of agreed upon private school tuition and post-secondary education costs on a going forward basis.

[89] Paragraph 58 of his affidavit contains a lengthy list of his criticisms of the Respondent’s list. I will identify a few of them. The Applicant deposed that the Respondent had never consulted him regarding the children’s s.7 expenses. He asserted that the “alleged corresponding receipts included in her Exhibit “W” do not substantiate the majority” of the amounts claimed. He took issue with the orthodontics claim. He said that the Respondent had included claims prior to August 1, 2019 and gave the example of a payment to the children’s private school in the amount of USD $8,015 dating from June 2019. He said that the “numerous tutoring charges” were “wholly unnecessary”. He compiled his own “detailed chart responding to her list” attached as Exhibit S: yellow were expenses he asserted preceded August 1, 2019; blue were items he did not agree were s.7 expenses; green were expenses for which inadequate proof was provided; red was “legitimate s. 7 expense showing proof of payment and that expense was for children”; pink was for expenses which the Respondent “chose to incur w/o consultation or consent from Applicant”; grey were duplicates. The only expenses in the red category were private school tuition and expenses incurred and paid after August 1, 2019.

[90] In paragraphs 26 to 35 of her affidavit sworn March 12, 2021, the Applicant provided sufficient responses to most of the issues he has raised to lead to my conclusion that the Applicant’s criticisms do not undermine the strength of the claims that she has asserted.

[91] I comment only on the Applicant’s criticism that the Respondent has claimed some private school expenses that preceded August 1, 2019. The Respondent has included two payments to the school dated June 1, 2019 totalling approximately USD $18,000 and one dated July, 2019 in the amount of USD $8,000. As his chart indicates, they were all deposits with respect to September 2019 and are appropriately covered by my direction. In any event, in the Final Arbitral Award on Parenting dated December 21, 2017, it was agreed that the children would move to Memphis and attend a specific school that required tuition payments. He failed to make those private school instalments for the year starting September 2018. He is required to pay for the school year starting September 2019.

(iv) What is the total owed by the Applicant for retroactive s. 7 expenses?

[92] I accept the Respondent’s evidence, including the documentation that provides sufficient corroboration for this motion. I also accept her calculation of the retroactive s. 7 expenses and I find that the Applicant’s share is $97,794.89.

(f) What amount of credit is the Applicant allowed for retroactive child support table amount and s.7 expenses?

[93] In paragraph 38 of his affidavit sworn February 19, 2021, the Applicant indicated that he agreed with paragraph 49 of the Respondent’s affidavit as to the amount he had paid in 2019 but asserted that she had understated his payments for 2020 by CDN$3000. In the table at paragraph 13 of her supplementary factum, the Respondent has accepted that correction. The parties agree that the Applicant’s total direct contribution to the support of the children since August 1, 2019 is $36,000.

[94] The Applicant seeks credit for indirect expenditures, primarily for a percentage of his “high access costs” since the Respondent left Ontario in August 2017. In Exhibit O the Applicant provided a 20 page table covering the period from August 1, 2019 to February 2021 which he said totalled over CAD $52,000 spent on his children. In the table at paragraph 36 of his affidavit, he deposed that he had “extracted” what he believed was “a reasonable reflection of the costs” incurred to exercise access which he quantified at CAD $27,894.39. He suggested that that amount be prorated over the period between August 2019 and February 2021, less the months of April 2020 to September 2020 in which he said access was impossible because of border closure, in other words a period of 13 months. Pro-rated access costs for that period totalled CAD $2,145.72 per month. Since moving to Indiana in September 2020, he had calculated his access costs for six trips at CAD $13,743.92 and, over 5 months from October 2020 to February 2021, that averaged CAD $2,768.78. He asked that he be credited with those amounts on a monthly basis.

[95] I am not persuaded that, in the circumstances of this case, the Applicant should be given any credit for access costs. I do not agree that such costs are a factor pursuant to s. 4(b)(ii).

(g) Summary of the amounts owed by the Applicant for retroactive table child support and s.7 expenses from August 1, 2019

[96] This chart is taken from paragraph 13 of the Respondent’s supplementary factum which I accept as containing the correct calculation:

Child Support Payable by the Applicant pursuant to the Child Support Guidelines	2019	2020	2021
Greg’s income	$422,004 CAD	$716,387.33 CAD	$716,387.33 CAD (estimated for the year)
Tina’s income	$274,331 CAD ($216,009USD x 1.27)	$276,408.98 CAD ($214,644.29USDx1.27; plus $3,403.70 CAD)	$276,408.98CAD (estimated for the year)
Greg’s payable Table Child support/month	$5,341 CAD	$8,874 CAD	$8,874 CAD
Total Child Support Owing	$26,705CAD August 1, 2019 to December 31, 2019	$106,488 CAD	$17,748 CAD (January 1, 2021 to February 28, 2021)
Total Amount Paid by Greg for August 2019 to February 2021	$7,500 CAD $1,500/m for August 1, 2019 to December 31, 2019	$21,500 CAD $1,500/m for January, May, June, July and August; $3,500/m for September, October, November and December	$7,000 CAD $3,500/m for January and February
Total Outstanding amount of Child Support	$19,205 CAD	$84,988 CAD	$10,748 CAD
Greg’s share of the s.7 expenses	60.6%	72.3%	72.3%
Amount outstanding owed by Greg for s. 7 expenses	$22,630.48 CAD	$58,502.58 CAD	$16,661.83 CAD

[97] Based on that analysis which I adopt, the Applicant owes the following:

(a) retroactive table child support in the amount of CAD $114,941.00 for the period of August 1, 2019 to February 28, 2021 plus the amount of CAD $8874 for the months of March, April, May and June 2021 for the total of CAD $35,496 less credits for those months in the amount of CAD $3500 per month in the amount of CAD $14,000 leaving the amount owing from and including June 1, 2021 in the amount of $21,496 for a total owing on retroactive table child support in the amount of CAD $136,437;

(b) retroactive s.7 expenses in the amount of CAD $97,794,89 for the period August 1, 2019 to February 2021.

Ongoing child support table amount and s.7 expenses until disposition after trial

[98] Having found that the income of the Applicant is CAD $716,387, the Applicant is obliged to continue to pay CAD $8874 per month commencing July 1, 2021 and until disposition after trial.

[99] In her draft order, the Respondent proposed that the Applicant pay 72.3% of the children’s ongoing section 7 expenses including their school tuition and post-secondary education related expenses.

[100] In paragraph 8 of his affidavit sworn February 19, 2021, the Applicant proposed that his s.7 expenses be limited to 50% of any “contractually agreed upon private school tuition bills and post-secondary education costs, with anything beyond to be discussed between the parties as was our previous agreement”.

[101] While they do not agree on the ratio, they do appear to agree on the categories of ongoing s.7 expenses.

[102] It was agreed in the Final Parenting Arbitral Award in December 2017 that the children would attend the identified private school. I consider that LC School is a “contractually agreed upon private school”. As long as N attends that school, the tuition and associated expenses constitute s. 7 expenses.

[103] In February when the Respondent prepared her affidavit, A was in the process of applying for university and had broadly applied including to CU, her top choice. The cost of one year at CU is USD $80,400 (or CAD $102,108). The Respondent noted that the parents had both attended universities in the U.S. and graduate universities (with the Applicant applying for “early decision” at John Hopkins University). She deposed that the parents always expected that the children would apply to university and graduate school.

[104] In paragraph 67 of his affidavit sworn February 19, 2021 he reported that A had not been accepted to the CU and he went on to explain how he had not been consulted about universities. He said that he did “not think it is appropriate that I simply be tapped for funds without any discussion when the costs of schools being applied to are extremely high”. He also said that the children are “able to attend excellent state schools, at substantially lower tuition”. He said he had offered to pay for the entire tuition for A to attend IU and he asked her to apply. She did not. He said that the parents agreed that the children would attend university but he did not agree that the parents expected the children would go to graduate school.

[105] It is unfortunate that A has been left in uncertainty as to how her first year of university is to be financed. It is unfortunate that the Applicant took the position that A should attend a state school, given the nature of the post-secondary education that her parents had. I do not consider that the Applicant is “being tapped for funds” when he has the income he has acknowledged, let alone the income that he has not disclosed, and he has over USD $2million in liquid assets.

[106] I expect that by now A has finalized her university plans for September 2021 or if not, will shortly do so. Because of the uncertainty in making arrangements for her for this year, whatever decision she makes must be implemented by her parents and paid on the ratio of 72.3% and 27.7%

[107] In paragraphs 59 to 66, the Applicant raised the issue of the use of the children’s educational funds. The Applicant claims that the Respondent “drained” their son’s education funds and has not properly disclosed all of the accounts of the children. In paragraph 66 of his affidavit, he “noted” that all of these educational accounts could be used for private school as well as post –secondary studies. He attached as Exhibit “W” what he described as an expert opinion to confirm the use of such funds.

[108] This is a motion for temporary child support. A is starting post-secondary education in September 2021. If the parties are committed to moving ahead efficiently, a decision at trial may be made before the end of her first year, but for sure before the end of her second year. Whether she attends post-graduate education is irrelevant. Whether some educational funds should be applied against A’s education costs in year 1 or N’s continuing education is irrelevant. Those issues will be addressed in the future.

Payment of retroactive table child support and s. 7 expenses

[109] In his form 13 financial statement sworn February 19, 2021, the Applicant has listed liquid assets totalling over USD $2.2 million. That includes USD $352,291 in the Chase bank that is subject to the order dated October 27, 2020 as follows:

As security for any financial obligations to the Respondent including retroactive child and/or spousal support, contributions to section 7 expenses and costs, the Applicant is restrained from directly or indirectly depleting, transferring, disposing of, removing or otherwise dealing with the proceeds of sale of his residence in Toronto held in account ending 1629 at the Chase Bank pending further order.

[110] The Applicant is permitted to use those funds to pay CAD $136,437 for retroactive table child support plus CAD $97,794.89 in retroactive s.7 expenses.

[111] Pending the trial, the Applicant is required to comply with this order as to retroactive amounts owing and on an ongoing basis. As indicated below, the Applicant will be given an opportunity to file an Answer to the Respondent’s claim. Once filed, if he fails to comply with this order for child support, he risks having that Answer to Claim struck out with the result that he may lose the opportunity to participate in the trial.

[112] The court is required to issue a Support Deduction Order but the Respondent may consider withdrawing from the Family Responsibility Office.

Next Steps

[113] In paragraph 136 of the endorsement dated January 13, 2021, I held as follows:

The Superior Court is the only forum for retroactive child support and spousal support. The Superior Court is the only forum for prospective spousal support. The Superior Court is the preferable jurisdiction for prospective child support.

[114] As contemplated by paragraph 147 of the endorsement dated January 13, 2021, this motion has addressed child support (table amount and s.7 expenses) retroactive to August 1, 2019 and temporary child support (table amount and s.7 expenses) until the conclusion of the trial on the remaining issues as directed in paragraph 148 of that endorsement. The parties need to take steps to be ready for that trial. As indicated below, I have scheduled a case conference to schedule those steps.

[115] Having now established the Applicant’s obligations for table child support and for s. 7 expenses for the period starting August 1, 2019, it is possible that the parties will be able to settle the amount and the terms of payment for the Applicant’s obligations for the period between the relocation of the Respondent and the children on consent in August 2017 to the end of July 2019.

[116] In her amended notice of motion the Respondent asked for retroactive child support for the period between October 9, 2015 when the parents separated in Toronto and the relocation to Tennessee in August 2017. There should be little controversy over that period of time when the parties resided in Ontario. I encourage the parties to attempt to resolve child support issues during that period.

[117] Both parties ask for disclosure. As indicated in the endorsement dated March 1, 2021, I declined to hear formal motions for disclosure. The RFI should cover only the issues identified in paragraphs 136 and 145 of the endorsement dated January 13, 2021. The Applicant included in his form 13 financial statement a receivable that he described as “equalization monies owed to me by the Respondent”. That is not an issue in this proceeding; nor is any other issue arising out of property claims that have been resolved in the Final Arbitral Award on Property.

[118] The Applicant has requested questioning and I expect that the Respondent will make the same request. At the case conference, I expect that an order will be made for questioning, specifying the amount of time and the subject matters. Based on the disdainful attitude of the Applicant towards the Respondent demonstrated in his evidence and submissions, this is a case in which it would not be fair to the Respondent to permit the Applicant to conduct the questioning. Pursuant to Family Law Rule 2(3)(a), the Applicant must retain a lawyer to conduct the questioning.

[119] Until this point, the parties have filed materials in the court file. Recently the court introduced CaseLines. In the future, the parties are required to file in both locations: for data entry purposes in the court file and for document management purposes in CaseLines. The parties are required to comply with naming protocols.

Costs of this motion

[120] The Respondent was successful in this motion and pursuant to rule 24(1) of the Family Law Rules, she is presumptively entitled to costs. The only variables will be the content of offers to settle and the amount to which the Respondent is entitled.

TEMPORARY ORDER TO GO AS FOLLOWS:

[121] The Applicant shall pay temporary child support to the Respondent for the children [full names and birthdates to be inserted in formal order] in the amount of CAD $8,874 per month commencing July 1, 2021 until a decision by the trial judge or further agreement.

[122] Commencing March 1, 2021, the Applicant shall pay to the Respondent 72.3% of the section 7 expenses for the children [full names and birth dates to be inserted in formal order] including their school tuition and post-secondary education related expenses (e.g. tuition, books, residence/room and board) until a decision by the trial judge or further agreement provided that:

(a) the LC School [full name to be inserted in final order] which N [full name and birth date to be inserted in formal order] has attended is a s.7 expense without formal agreement by the Applicant;

(b) the university that A [full name and birth date to be inserted in final order] has selected or selects for first year starting September 2021 is a s. 7 expense without formal agreement by the Applicant.

[123] By June 30, 2021, the Applicant shall pay to the Respondent the sum of CAD $136,437 for retroactive child support for the period August 1, 2019 to and including June 1, 2021, without prejudice to the Respondent’s claim for retroactive child support prior to August 1, 2019.

[124] By June 30, 2021,the Applicant shall pay to the Respondent the sum of CAD $97,794.89 for retroactive section 7 special and extraordinary expenses for the period August 1, 2019 to February 28, 2021 without prejudice to the Respondent’s claim for retroactive section 7 expenses prior to August 1, 2019.

[125] Support Deduction Order to issue.

[126] The Applicant is permitted to withdraw from the account ending 1629 at the Chase Bank the amounts referred to in paragraphs 123 and 124 and such amounts for costs as the Applicant is ordered to pay. After payment of those sums, and as security for any financial obligations to the Respondent including retroactive child and/or spousal support, contributions to section 7 expenses and costs, the Applicant is restrained from directly or indirectly depleting, transferring, disposing of, removing or otherwise dealing with the proceeds of sale of his residence in Toronto held in account ending 1629 at the Chase Bank pending further court order.

[127] Paragraph 2 of the signed order dated October 27, 2020 continues to apply until a decision by the trial judge or further agreement.

[128] The requests in paragraphs 5 and 6 of the Applicant’s notice of motion dated February 19, 2021 are dismissed.

[129] The Applicant has permission until June 30, 2021 to serve and file an Answer to the Respondent’s Claim.

[130] Any order permitting questioning will provide that the Applicant is not permitted to question the Respondent; he must retain a lawyer to do so.

[131] The parties shall attend a case conference before me on July 26, 2021 from 2:00 to 4:00 p.m. for purposes of establishing a timetable for next steps provided that:

(a) by July 5, 2021 the Respondent shall serve on the Applicant the following: a consolidated Request for Information and a list of issues for discussion at the case conference;

(b) by July 12, 2021, the Applicant shall serve on the Respondent the following: a consolidated Request for Information and a list of issues for discussion at the case conference;

(c) by July 19, 2021, the Respondent shall serve and file a case conference confirmation form, attached to which are the documents referred to in (a) and (b).

[132] Pursuant to rule 24(1) of the Family Law Rules, the Respondent is presumptively entitled to costs of this motion. The parties shall make submissions as to costs of this motion of no more than 3 pages plus offers to settle and costs outline on this schedule:

(a) by the Respondent by June 16, 2021;

(b) by the Applicant by June 23, 2021;

(c) reply by the Respondent if any by June 30, 2021.

[133] Both parties and counsel shall comply with Rule 1.09 of the Rules of Civil Procedure which states as follows:

When a proceeding is pending before the court, no party to the proceeding and no party’s lawyer shall communicate about the proceeding with a judge, master or case management master out of court, directly or indirectly, unless,

(a) all the parties consent, in advance, to the out-of-court communication; or

(b) the court directs otherwise.

[134] Neither party may bring any motion prior to the case conference scheduled for July 26, 2021 and after that date, only with leave of the court.

[135] This order takes effect immediately without a formal order being signed and entered.

[136] This order bears interest at the rate provided by the Courts of Justice Act.

[137] Counsel for the Respondent shall serve a draft order consistent with paragraphs 121 to 136. If the Applicant approves the draft order, either of the parties may forward it to the Trial Co-Ordinator to my attention for signing. If the Applicant fails to approve the draft order within 10 business days of service, pursuant to rule 1.09(b) of the Rules of Civil Procedure, counsel for the Respondent may forward to the Trial Co-ordinator an unapproved draft order to my attention for signing.

[138] The Assistant Trial Co-ordinator shall arrange to send to the parties an “invitation” to use CaseLines.

Kiteley J.

Released: June 03, 2021

COURT FILE NO.: FS-15-406517

DATE: 20210603

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Gregory Howard Borschel Applicant

– and –

Debaroti Mullick Borschel Respondent

REASONS FOR JUDGMENT

Kiteley J.

Released: June 03, 2021