Sanvictores v. Sanvictores , 2021 ONSC 6355

COURT FILE NO.: FS-20-20794

DATE: 20210924

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kyle Sanvictores

Applicant

– and –

Nancy Sanvictores

Respondent

Lauri Daitchman, for the Applicant

James B.C. Edney and Joseph Slavec, for the Respondent

HEARD: September 16, 2021

PINTO J.

REASONS FOR DECISION

Introduction

1I heard competing motions from the parties on September 16, 2021 via Zoom.

2The applicant father brought a motion seeking:

(a) an order that the respondent mother comply with the December 18, 2020 ex-parte order of Shore J.

(b) an order preventing the respondent from operating AKA Creative Inc. ("AKA") and thus allowing him to do so;

(c) the return of his belongings and login details that would allow him to run AKA and his personal accounts; and

(d) disclosure related to AKA and the respondent's finances.

3The respondent mother brought a motion seeking an order that:

(a) The applicant provide further disclosure as requested within 30 days.

(b) The applicant pay child support for the two children of the marriage based on an imputed income of $300,000.

(c) The applicant pay his proportionate share (73.2%) of the children's special or extraordinary expenses, retroactive to January 1, 2021;

(d) The applicant reimburse the respondent for his proportionate share of the children's private school expenses incurred by the respondent for the period of January 1, 2021, to the present, in the amount of $49,221.14, within 30 days; and

(e) The applicant pay interim spousal support in the amount of $5,562 per month, retroactive to January 1, 2021.

The Oral Ruling

4On September 16, 2021, after hearing the parties’ submissions, I made the following oral ruling:

I consider this to be effectively a motion that is a return motion for the ex-parte order of Justice Shore from December 18, 2020. And while there are a lot of competing arguments and competing facts, my overall concern is that the respondent has not respected the ex-parte order of Justice Shore. I think she has partially admitted that herself but beyond that, there are a fair number of indications in the record and explanations that simply don't add up, and I'm very concerned that that has effectively resulted in Kyle not being able to properly run the business. I'm also of the view that these two individuals, locked in a high conflict family law dispute, are not going to be able to run the business if they are both allowed to do that, and so I am prepared to allow the applicant's motion and in a minute I will talk about the specific relief.

Basically, the applicant's motion is to complete and affirm the order of Justice Shore and allow Kyle to actually run AKA. There's nothing in my order that would change the underlying share structure but what we're talking about is the management of that organization, because that is going to be the source of this family's income, or at least one source of income. So that's one general comment.

So let me then turn to what the specific relief is. As I said, I'm looking at the applicant's order that's being sought and I went through line by line, and I'm prepared to simply allow that relief to be granted subject to any particular comment that it is moot, or that it is no longer necessary, but that's something that the parties can advise me about.

Let me then turn to the respondent's motion. I am prepared to allow a part of the respondent's motion because I do think that both of these parties have some income, albeit not at the level that the respondent claims that the applicant has. So if we look at the relief being requested by the respondent, I'll go carefully through this because you'll probably want to take some notes.

The first clause says, "On a temporary, without prejudice basis, pending the production of the Applicant's outstanding financial disclosure as provided for at paragraph 2 herein."

And under number 1, I would vary that and attribute income of $50,000 to Kyle, and $18,720 to Nancy. And those figures, the $50,000, is largely a rounding up of the $48,000 that has come into the account, and the $18,720 is, at this point, just the CRB (Canada Recovery Benefit) income, so that is an imperfect exercise, but it is based on the view that, number one, both parties are enjoying some income but it is reduced because of all the challenges associated with AKA but I do think that there is, on balance, an obligation on Kyle to pay child support in respect of the two children and just remember, as we always say in family law, child support is the right of the child even though the request comes from the one of the spouses, so the variation would read, whatever the DivorceMate calculation results in, based on an imputed income of $50,000 per annum, and the other thing I'm going to do is that I'm not prepared to make this a retroactive child support payment because I have, and I will have to explain this further in a written endorsement, but I do have some serious concerns about Ms. Sanvictores' behaviour in terms of compliance with the order so it's going to be a go forward child support order.

We get to Section B. On Section B I think that is going to be proportionate to the income that I've just described and it is also going to be on a go forward basis. With respect to C, which is the proportionate share of the private school expenses, recognizing that this was a big ticket item, on that one, I am prepared to order the applicant to pay the proportionate share of that big ticket item because I just think that that is undoubtedly a significant expense and so counsel can calculate what that should be and how that works and that should be payable within 30 days. And then number D would be, it's not retroactive to January 1, and I'm a little bit in your hands, but I'd say but effective October 1, 2021 should be the go forward amount.

Then we get to the request for disclosure in the respondent's motion, and I'm prepared to simply allow, sort of order that. It is either the case that this material exists or it doesn't exist, unless Ms. Daitchman you tell me that something is completely disproportionate. Sorry, I should clarify, I'm not prepared to order anything to do with clinical notes or medical notes, I should have made that clear, but what I mean is the financial piece, but no, I don't think that there's any obligation on Kyle at this point, based on the evidence that I've seen, to produce anything related to his medical notes or clinical notes, so not 2d) or 2e). And I think the rest will follow.

So that's my decision. I wanted to make that a verbal decision subject to writing it up, because there may be some questions about the effect of my order or anything else.

Let me also say that I do not consider this to be, despite my order, which grants most of the relief that the applicant seeks, and some of the relief that the respondent seeks, I do not consider this to be a case of mixed success. As I said, my order is premised on the idea that I don't think Ms. Sanvictores you've acted reasonably in terms of respecting the underlying ex-parte order. I'm basing that on the totality of the evidence that was before me, I'm basing that on the endorsements that have been previously issued, which we don't have time to go over all of that today, but that is what the court is required to do, which is to use its best judgment in the face of very contradictory evidence. I say that because, when we get to costs, I will not be accepting the proposition that there was mixed success here. I will accept that there was some success on your client's behalf in terms of interim child support but I mean, part of why that's the case is because I think Kyle has not really run this organization and it's clear that, even by your own client's admission, she was the sort of administrative financial piece, he was the designer of this, so if I have to divide the baby in half, I have to allow Kyle to let this operation continue, and I think that's the overall import of my order.

Analysis and Additional Reasons

5To the extent that my verbal ruling may have not referenced certain aspects of the evidence, or more reasons are required, I would add the following.

6At paragraph 11 of the Endorsement of Kraft J. dated February 5, 2021, Her Honour states:

The parties acknowledge that they own AKA Creative Inc. such that the father is a majority shareholder, owning 58% and the mother is a minority shareholder, owning 42% of the business.

7Although at the hearing of the motion, respondent's counsel claimed that there was no evidence of the parties' respective shareholding, I find that the parties acknowledged their shareholding as recognized by Kraft J. and this fact supports the applicant's motion that he, rather than the respondent, should control AKA on an interim basis, as this proceeding moves toward trial.

8I also find that the there is simply no evidence that the applicant made or is presently capable of earning $300,000 annually, the figure that the respondent seeks to impute to his yearly income. The applicant provided a reasonable explanation in his motion record for certain amounts that he has received based on the projects that are underway. I am satisfied that the applicant has made reasonable efforts to date to obtain more income and that he is not intentionally underemployed. I imputed an income of $50,000 annually to him on the basis of $48,000 or so (rounded up) that had come into the AKA account for certain projects.

9Conversely, the respondent provided no evidence that she has made reasonable efforts to obtain alternate income after purportedly being "fired" from AKA by the applicant on October 19, 2020. For now, she is in receipt of CRB income of $18,720 and I have imputed that income to her currently.

10As to the basis for my refusal to order disclosure of the applicant's medical or health records, I find that the applicant has not put his health into play in any material way and, in any event, the Children's Aid Society (CAS) and the Office of the Children's Lawyer (OCL), both independent external agencies, who have been involved with this family, have not raised the applicant's health as an issue.

11I note that, in my Endorsement of January 6, 2021, I found that the respondent did not attend the January 5, 2021 Case Conference even though she was required to do so by the order of Shore J.

12I note that Justice Leiper, in her order of January 14, 2021, ordered the respondent to comply with the terms of Justice Shore's order of December 18, 2020.

13I further note that, as recorded in the Settlement Conference Endorsement of Kraft J. dated June 25, 2021, despite previously agreeing to the involvement of the OCL, the respondent withdrew her consent and withdrew her participation. The OCL filed a partial s.112 report which could not be completed as a result of the mother's withdrawal from the process.

14In that same Settlement Conference Endorsement, Justice Kraft noted, "after the case conference before me on February 5, 2021, the parties were working on a comprehensive consent, through counsel, to sort out the operations of AKA Creative Inc. Regrettably, that consent was not signed and, as a result, AKA Creative Inc. has not been operational".

15I find that the respondent has kept the applicant's old phone and laptop(s) from him. In December 2020, the respondent sent the applicant's sister-in-law a text message acknowledging withholding his belongings from him.

16I also find that when the applicant deposited funds into AKA's account on January 28, 2021, the respondent took the funds out in breach of the ex-parte order. This is evident from an examination of the activity in the TD Bank account of AKA.

17At paragraph 20 of the respondent's affidavit dated September 10, 2021, she admits that she breached the Order of Shore J. dated December 18, 2020:

At paragraph 26, I do not dispute that I accessed funds from AKA after the Order of Justice Shore was made. The amounts withdrawn by me in late December and early January were before I had retained counsel and I was able to understand what my responsibilities were pursuant to the Court Order. With respect to those amounts that were withdrawn by me in February, 2021, after we attended for a Case Conference with Madam Justice Kraft on February 5, 202, I was under the mistaken assumption that things were 'going back to normal' with respect to AKA. At the time, Kyle and I were in the process of working on a comprehensive consent with respect to the operations of the business (which included my reinstatement). Unfortunately, these discussions broke down and a Consent was not achieved.

18The respondent goes on to suggest that it is unfair for the applicant to criticize her for accessing funds when "he has locked me out of AKA, deprived me of an income, and has refused to pay any support for me and the children."

19I am troubled by the position taken by the respondent which, while acknowledging breach of a judicial order, seeks to justify her conduct based on a variety of reasons (misunderstanding of her responsibilities due to lack of counsel, mistaken assumption that things were back to normal, and exigent circumstances). I find this theme runs through much of the respondent's materials such as providing a variety of questionable reasons for why she could not return the applicant's belongings.

Disposition

20In all the circumstances, I find that the appropriate disposition is to grant the applicant's motion and, for the reasons already stated, to partially grant the respondent's motion regarding, inter alia, interim child support.

21I request that the parties send me a draft order approved as to form and content based on the foregoing.

Costs

22On the issue of costs of the within motions, if the parties are unable to agree on costs of the motion before October 8, 2021, the parties shall deliver cost submissions by that date, limited to three pages, double spaced, not including the Bill of Costs, Offers to Settle and Authorities (which should be hyperlinked). The parties can assume that I am familiar with Rule 24 of the Family Law Rules and recent case law on costs.

23The Draft Order and Costs Submissions may be directed to the Family Law Judicial Assistant Patrizia Generali's email at patrizia.generali@ontario.ca.

Pinto J.