COURT FILE NO.: FS-21-99932
DATE: 20211025
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: N.P. v. M.P.
BEFORE: Mandhane J.
COUNSEL: R. Rossi and H. Rich for the Applicant
Self-Represented Respondent
HEARD: October 22, 2021
ENDORSEMENT
[1] The parties were married on July 16, 2005 and separated on September 17, 2020. The Respondent/Father left the matrimonial home on October 12, 2020.
[2] The parties have three children. M.P. is thirteen years old and has severe autism that requires regular intervention and support. The twins, O.P. and N.P., are eight years old and do not have any identified disabilities or special needs.
[3] The Applicant/Mother and children live in the jointly-owned matrimonial home. The children have parenting time with the Father on alternating weekends, and three weeknight evenings.
[4] In lieu of paying any support, the Father contributes $7354 per month towards household expenses, including the mortgage, groceries, utilities and the like. He also rents a property for approximately $5300 per month.
[5] The main barrier to the resolution of the parents’ issues is the Father’s steadfast refusal to participate in this litigation and comply with related disclosure obligations. Between September 17, 2020 and today, the Mother has written the Father many times to obtain disclosure needed to resolve the parties’ significant financial issues. On March 19, 2021, to move the matter along, the Mother commenced this Application.
[6] On May 13, 2021, the Father wrote the Mother that he would be retaining counsel shortly. As of today, he has neither responded to this Application nor retained counsel. At the hearing before me, when asked by the court for an explanation for the delay, he said that he is not able to afford a lawyer. Given my findings about his income below, the Father’s claim of being impecunious is wholly without merit.
[7] On August 30, 2021, Tzimas J. ordered that the matter could proceed to an uncontested trial, and that the Mother could bring motions without the need for a case conference.
[8] In a Notice of Motion dated October 14, 2021, the Mother asks me to order the Father to pay interim child support and 100% of the eldest child’s autism therapy, as well as interim spousal support in the form of a lump sum monthly payment of $7354.
[9] Despite filing no Response or materials, the Father appeared before me and asked for leave to make submissions. The Mother opposed the Father’s request for leave.
[10] The issues I must decide as follows:
a. Should the Father be granted leave to make submissions on the motion?
b. Should financial disclosure be ordered?
c. What is the Father’s income for the purposes of interim support?
d. Should costs be awarded on a full recovery basis?
e. What are the next steps to move this matter along?
The Father’s request for leave to make submissions
[11] I refused the Father’s request for leave to make submissions on the motion, though he observed the entirety of the proceedings.
[12] It would be unfair to the Mother to allow the Father to participate in this interim motion. There is simply no reasonable explanation for the Father’s failure to engage in the proceedings until the morning of the motion. I am satisfied that the Father is a sophisticated businessperson who had ample notice of the substantive relief being sought by the Mother for many months. Even after she filed an Application and served him with her motion materials, he chose not to file an Answer nor retain counsel. Allowing the Father to make submissions would effectively require the Mother to respond to entirely new information without any notice.
[13] It would be overly prejudicial to the Mother to grant an adjournment of this motion. The Mother says that she is in desperate need of interim relief to resume M.P.’s autism therapy. It would be contrary to the child’s best interests to adjourn the motion to another date.
[14] Finally, the Father’s disregard of the court has already resulted in an unnecessary motion and cannot be condoned.
Financial Disclosure
[15] The Mother seeks wide-ranging financial disclosure to ground her support and equalization claims. I agree with the Mother’s valuation expert that full and complete financial disclosure is relevant to assessing the Father’s income and valuing his assets. I have no doubt that the Father is receiving advice from professionals in terms of how he conducts his personal finances and corporate affairs. I am satisfied that a complete picture of his income and assets is only possible through proactive and timely disclosure and analysis by an appropriate expert.
[16] The Father is involved in the emerging financial information technology and alternative banking sectors. He has at least three corporate entities and is employed by another corporation.
[17] In 2020, the Father’s company, Stack Fintech Inc. (“Stack”) was acquired by Credit Sesame Canada Inc. (“Credit Sesame”). The Mother says that the deal was worth somewhere in the nature of $80 million. The Father’s compensation structure with Credit Sesame includes salary, bonus, stock options and other benefits.
[18] In 2020, Stack Fintech received a $200,000+ payment from Credit Sesame pursuant to a bridge loan agreement dated December 10, 2019; this document was titled “March 31st Payroll.”
[19] The Father owns shares in Credit Sesame, as well as owning at least two other companies (PM Management Consulting Inc. and Cloud Hub Consulting Inc.). His income from these ventures is unknown.
[20] On or before November 30, 2021, the Father shall provide the Mother with the disclosure set out in Schedule A of her Notice of Motion dated October 14, 2021. If he is not able to provide any of the items listed therein, the Father shall personally swear an affidavit outlining his efforts to obtain the disclosure and the expected date for delivery, and/or provide an explanation of why the documents do not exist.
Support
[21] I agree with the Mother that the Father’s employment income from Credit Sesame likely underestimates his income for support purposes. Given the limited financial disclosure available, the Mother asks me to find, on an interim and without prejudice basis, that the Father’s income is at least $559,000.
[22] The Mother says that the Father’s income is likely closer to $800,000 after analyzing his spending patterns and expenses. She proffers evidence from an income valuation expert to support this finding. In my view, estimating the Father’s income based on spending patterns is a complicated factual matter that is best left for a trial on a complete record.
[23] For the purposes of this motion, I am prepared to find that the Father’s income is $559,000. The Mother arrives at this figure by totalling the Father’s employment income ($238,000), annual 15% discretionary bonus ($42,450), along with the loan that his corporation received from Credit Sesame ($201,000). She has not included his stock options, dividends, or any income he might derive from his other corporate entities. In this regard, this is likely a conservative estimate.
[24] I am also prepared to find, on a temporary basis, that the Father would owe the Mother spousal support, at least at the low-end of the SSAGs. The Mother’s uncontradicted evidence is that she sacrificed her career advancement to support the Father’s start-up financial technology business, and to take on primary responsibility for the couple’s growing family and high-needs child.
[25] On a temporary, without prejudice basis, the Father shall pay the Mother $8,669 per month in Table child support for three children, based on an estimated income of $559,000.
[26] On a temporary, without prejudice basis, the Father shall pay the Mother $7,664 per month as a lump sum payment, in lieu of spousal support but which shall be credited against any final order for spousal support.
[27] The Father shall pay any arrears owing at Monarch House.
[28] The Father shall contribute to the costs of M.P.’s therapy at Monarch House on a proportional basis based on his estimated income of $559,000 and the Mother’s actual income of $104,000.
Costs
[29] I agree that the Father’s conduct warrants awarding costs on a full recovery basis. The Father has dragged his feet in terms of providing any financial disclosure, which is a prerequisite to a fair resolution of the outstanding issues. He has forced the Mother to bring this motion to get any amount of child support. Today’s proceedings were overly complicated by the Father’s decision to show up and seek leave to participate without having filed a Response, let alone motion materials.
[30] Given his resources and sophistication, the only explanation for the Father’s conduct is his belief that it would be advantageous to draw out these proceedings and force the Mother to engage in expensive litigation.
[31] The Mother has provided a bill that includes the costs associated with her 14B motion seeking leave to proceed to an uncontested trial ($8825) and on this motion ($37,336). She says the costs are justified because of the extensive correspondence generated to move this matter along, and the time and expertise required to estimate the Father’s income and generate the financial disclosure request. She says that both motions would have been unnecessary had the Father played by the rules. I agree.
[32] The Father shall pay the Mother a total of $45,000, inclusive of all fees and disbursements to the date of this motion.
Next steps
[33] The Father shall serve and file his Response and all financial disclosure required under the Family Law Rules and Federal Child Support Guidelines on or before November 15, 2021.
[34] The Mother shall be granted leave to bring a motion to strike the Father’s pleadings if the Father breaches this order, and I shall be seized of any motion to strike. Any such motion shall be scheduled with the trial office for one hour.
[35] The parties shall not be permitted to bring another motion related to interim support without leave of the court.
[36] This matter is adjourned for a settlement conference on August 2, 2022 at 3:30 p.m.
MANDHANE J
DATE: October 25, 2021
COURT FILE NO.: FS-21-99932
DATE: 20211025
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Pavletic v. Pavletic
COUNSEL: R. Rossi and H. Rich for the Applicant
Self-Represented Respondent
ENDORSEMENT
MANDHANE J
DATE: October 25, 2021