SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-20-1395
DATE: 2021/09/21
RE: Micheline Luisa Barta , Applicant
AND
Robert David Barta, Respondent
BEFORE: Justice Engelking
COUNSEL: Bryan Delaney, For the Applicant
Philip W. Augustine, For the Respondent
HEARD: June 24, 2021
ENDORSEMENT
[1] This is a motion brought by the Applicant, Ms. Barta for the following temporary relief:
• An order that an expert be retained to determine the Respondent, Mr. Barta’s income for support purposes;
• An order that an expert be retained to value Mr. Barta’s book of business;
• An order for an appraisal of the family property retained in Mr. Barta’s office;
• An order requiring Mr. Barta to obtain a letter from Sun Life Insurance identifying whether he has any pension holdings or accounts, and if so, outlining the details of same;
• An order deeming the parties’ eldest son, Deklan Barta, born July 13, 2002, a dependant in need of support;
• An order varying the Order of Master Kaufman dated December 10, 2020 to increase temporary spousal support on an imputed income to Mr. Barta and actual income to her, and to include Deklan in the temporary child support payable;
• An order for retroactive support to April 30, 2020, or in the alternative to September 1, 2020 with reimbursement to Ms. Barta for expenses paid between April 30, 2020 and August 28, 2020;
• An order for reimbursement of Mr. Barta’s proportionate share of special and extraordinary expenses;
• An order for consent in writing to future special and extraordinary expenses, not to be unreasonably withheld; and,
• Costs of the motion.
[2] Although he is of the view that an expert report on his income is unnecessary and will likely ultimately show an income lessor than that upon which he is currently paying support, Mr. Barta has consented to this request of Ms. Barta. Similarly, he has consented to having an expert determine the value of his “book of business”, though he contends that as a T4’d employee, that too is not necessary. On both, Mr. Barta seeks to preserve the right to be fully indemnified at trial for the costs of retaining such experts. Mr. Barta also agrees for Ms. Barta to retain and arrange for an appraiser to attend his office to value property located there. For the purposes of this motion, therefore, these requests for relief are resolved.
[3] What continues to be unresolved are the issues of Deklan’s status as a dependent, the parties’ incomes for support purposes and appropriate temporary spousal and child support emanating therefrom, contribution/reimbursement for special and extraordinary expenses and repayment of expenditures made by Ms. Barta post-separation.
Background Facts
[4] The parties were married on September 11, 1993 and separated on April 30, 2020. They have three adopted children, Deklan (19), Haydon (16) and Biya (16).
[5] The parties lived separate and apart in the matrimonial home until it was sold on August 28, 2020. Haydon and Biya continue to reside with the parents and, pursuant to the order of Master Kaufman (now Associate Justice Kaufman), dated December 10, 2020, Mr. Barta pays child support to Ms. Barta for them.
[6] Deklan has struggled with behavioural and emotional self-regulation for some time, and he started to abuse alcohol and drugs in high school in 2016. Deklan left the family home in November of 2018. He “couch surfed” for approximately four months, and then found rental accommodations. In the winter of 2018/2019, Deklan dropped out of high school without finishing grade 11.
[7] In August of 2019, Deklan was admitted to CHEO for an overdose on Benadryl, and he subsequently was evicted from three rental properties. In January of 2020, Ms. Barta attempted to live with Deklan in a rental apartment, but within three weeks, this arrangement broke down, and he was once again removed. Deklan remained in the YSB Young Men’s Shelter until he was kicked out on March 22, 2020. He was then allowed back into the family home until March 31, 2020, at which time he was removed by police. He was admitted to CHEO on April 1, 2020 and diagnosed with psychosis on April 8, 2020. Deklan was discharged back into his parents’ care on April 17, 2020. He remained in the family home until June of 2020, when he was again removed for safety concerns. Deklan turned 18 years of age on July 13, 2020.
[8] Deklan stayed with friends in Cornwall from July until September of 2020, after which he moved into a rented room in Ottawa. Deklan was hospitalized from October 1 to 9, 2020, and after two days at the Ottawa Mission, returned to his rented room, where he remains. Ms. Barta has continued to provide support to Deklan, including financial support, indicating that she spends approximately $500 to $600 per month on him. Ms. Barta indicates this assistance is for groceries, transportation for appointments, clothing, toiletries, haircuts and bus passes. Deklan is also in receipt of ODSP.
[9] A case conference was held in this matter on December 10, 2020. Master Kaufman (as he then was) granted an order on consent which provided that on an interim and without prejudice basis, Mr. Barta would pay to Ms. Barta child support for Haydon and Biya of $2,573 per month “based on the Respondent’s acknowledged 2020 income of $362,511 and an imputed income of $30,000 for the Applicant, retroactive to September 1, 2020”. In paragraph 6 of the order, Master Kaufman noted: “The applicant does not agree that any income should be imputed to her.” In paragraph 7, Master Kaufman ordered that Mr. Barta pay to Ms. Barta on an interim and without prejudice basis, spousal support of $6,228 per month, also retroactive to September 1, 2020.
Positions of the Parties
[10] Ms. Barta’s position is that Deklan continues to fall within the definition of a dependant child, and that, despite that he does not live with her, he is entitled to receive child support (payable to her) from Mr. Barta, on an imputed income to him of $400,000. It is her further position that the spousal support payable by Mr. Barta to her pursuant to the temporary order of Master Kaufman should be varied to be based on an imputed income of $400,000 to Mr. Barta and on her actual income in 2020, which was $6,873.35. Ms. Barta bases her claim for this temporary variation on a) Mr. Barta’s income having been reduced in 2020 to $365,148 when it was over $400,000 for the previous three years, and b) Master Kaufman noting that she did not agree with an income of $30,000 being imputed to her. Ms. Barta seeks that such support be payable as of the date of separation (April 30, 2020), or in the alternative that she be reimbursed in the amount of $5,633.73 for payments she made towards certain expenses from separation to August 28, 2020, and that such support be payable commencing September 1, 2020.
[11] Mr. Barta’s position is that the issue of whether or not Deklan would fall into the definition of a child or child of the marriage such that child support would still be payable to Ms. Barta for him is one to be properly decided at trial. Similarly, Mr. Barta’s position with respect either to the imputation of income to him and/or a corresponding variation of child and spousal support, including retroactively, should not be determined on an interim motion of this nature. His reason for the latter is that there is already an adequate “holding order” on spousal support in place, and that determinations about the imputation of income for the purposes of spousal or child support require further and viva voce evidence, and are also best left to trial.
Analysis
[12] With Mr. Barta, I agree.
[13] First, with respect to the issue of temporary spousal support, Master Kaufman’s order sufficiently attends to the issue of immediate need.
[14] In a motion for temporary spousal support, the court is not required to “conduct an in-depth analysis of the standing and entitlement issues. If the Applicant is able to make out a good, arguable case for standing and entitlement, the court will assess support on the basis of the parties’ needs and means.” The questions to be answered in an application for temporary spousal support are: does the Applicant have standing; is the Applicant entitled to the support; what are the dependant’s needs; and, does the payor have the ability to pay? (Robertson v. Hotte, 1996 8083 at paras 7 and 8.)
[15] As noted by Labrosse J. in Kelly v. Kelly, 2016 6476 at para 17, “interim support motions are not intended to involve a detailed examination of the merits of the case. Orders for interim support are based on a triable or prima facie case: see Knowles v. Lindstrom, 2015 ONSC 1408 at para 8.”
[16] As indicated in Bawa v. Bawa, 2016 ONSC 4713, at paragraph 33:
This is a motion for interim relief. This motions court cannot conduct a complete inquiry into all the aspects and details at issue or make final findings of fact regarding entitlement and quantum of support. An interim order is designed to be a “holding order” to get the parties to trial by considering the strength of the claims, on (usually conflicting and incomplete) motion materials. The court strives, in the particular circumstances of the case, to achieve fairness to the parties by balancing financial needs, means and any hardship to the parties pending trial. (Emphasis added.)
[17] Notwithstanding this, in this case, the court was subjected to six pages and twenty-three paragraphs of Ms. Barta’s evidence and/or position on entitlement to spousal support, and three pages and seven paragraphs on duration of spousal support, none of which are relevant on an interim motion once a prima facie case has been made. Ms. Barta has a prima facie right to spousal support as per the temporary order of Master Kaufman. So long as an adequate holding order is in place, which I find is the case here, the proper quantum and appropriate retroactivity of such support become issues to be determined at trial.
[18] With respect to the imputation of income to Mr. Barta and corresponding child support and special or extraordinary expense claims, again, this is an issue best suited to trial on all of the relevant evidence, including potentially from Mr. Barta’s (and Ms. Barta’s) employer, Edward Jones (as opposed to Ms. Barta’s evidence on Mr. Barta’s Edward Jones income) and/or Mr. Barta’s now retained expert on the value of his income for support purposes.
[19] Finally, with respect to the issue of whether Deklan may be deemed to be a dependant child pursuant to section 31 of the Family Law Act, R.S.O. 1990, c.F.3, as am., or a child of the marriage pursuant to s. 15.1 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am., such that child support is payable to Ms. Barta, the evidence is extremely conflicting, and, in my view, a trial of the issue is required. Indeed, all of the cases upon which Ms. Barta relies in support of her position regarding Deklan are trial decisions (or on Motions to Change final orders), which to me is indicative of the complexity of the issue and the comprehensive analysis that must be undertaken by the court at first instance on the totality of tested evidence. The law, moreover, reflects that support cases for adult children are fact specific, and this one is no exception. The facts upon which this claim is based will need to be proven at trial.
[20] For all of the above reasons, Ms. Barta’s motion, but for the relief already agreed to, is dismissed.
[21] If the parties are able to resolve the issues of the appropriate quantum of child support, spousal support and special or extraordinary expenses contributions from Mr. Barta once his income for support purposes has been expertly determined, this may be an appropriate case for a focused hearing on the issue of Deklan’s status. If not, it is a case which will have to proceed to settlement conference and be added to the next available trial list in the ordinary course.
Costs
[22] If the parties are unable to reach an agreement as to the liability or quantum for cost of the motion by October 15, 2021, they may make written submissions of no more than three pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.
Engelking J.
Date: September 21, 2021
COURT FILE NO.: FC-20-1395
DATE: 2021/09/21
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Micheline Luisa Barta , Applicant
AND
Robert David Barta, Respondent
BEFORE: Justice Engelking
COUNSEL: Bryan Delaney, For the Applicant
Philip W. Augustine, For the Respondent
ENDORSEMENT
Engelking J.
Released: September 21, 2021