NEWMARKET COURT FILE NO.: FC-20-705-00

DATE: 20210128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Guiseppina Lizzi Applicant

– AND –

Guiseppe Lizzi Respondent

Jeffrey Ordon, Counsel for the Applicant

Paul Mazzeo, Counsel for the Respondent

HEARD: January 27, 2021

RULING ON MOTIONS

JARVIS J.

[1] The parties have brought cross-motions dealing with spousal support. The applicant (“the wife”) has brought a motion for support retroactive to September 9, 2019 (being the agreed date when the parties separated) to December 31, 2020. The amount claimed is $45,000. The respondent (“the husband”) opposes the relief sought. He has brought a motion seeking an Order that he pay less than requested by the wife, and for questioning.

Background

[2] This is the relevant evidence and procedural background:

(a) The parties were married on March 15, 1990, and separated on September 9, 2019.

(b) There are two children of the marriage, both adults. Neither is a financially dependent child of the marriage although both are currently unemployed.

(c) The wife resides with her mother, the parties’ children and a brother and, in a basement self-contained part of the house, another brother and his family reside. That brother and his mother own the residence.

(d) The wife had been a homemaker for most, if not all, of the parties’ married cohabitation. She has a Grade 12 education and few marketable skills. She occasionally worked during marriage, the last year being 2005, in low level clerical or service-related jobs earning a minimum income. The husband disputes the degree to which the wife worked.

(e) She claims that she earned no income in 2019 or 2020 and, although she is seeking employment, she has no current employment or prospects. As required by the Family Law Rules (“the Rules”) she filed a January 20, 2021, financial statement.

(f) The husband is a journeyman welder. He also delivered a financial statement for the motions. It was sworn on January 21, 2021, and disclosed a 2020, and current, income of $105,936.80.

(g) After the parties separated the husband refused to financially support the wife. This resulted in her starting these proceedings and bringing an urgent motion. On July 30, 2020, Himel J. directed that an urgent case conference proceed before her on September 2, 2020. On that day, the parties agreed to a without prejudice support Order requiring the husband to pay to the wife $3,100 a month starting September 1, 2020. The parties could not agree on retroactive support to the date of their separation. If the parties could not resolve that issue at a settlement conference scheduled for December 1, 2020, the issue would proceed to today’s motion by the wife. There was no resolution.

[3] There is no issue about the wife’s entitlement to support; this was wisely acknowledged by the husband. The only issue is the quantum of retroactive and spousal support. Critical to this determination is each party’s income.

[4] The wife contends that the husband’s income should be $100,943 for 2019 and $105,937 for 2020 and beyond. These figures could be higher if, according to her, there were added to those amounts certain of the husband’s claimed business expenses and foregone overtime income opportunities.

[5] The husband claims that his income should be $100,938 for 2019, $90,871.38 for 2020 and 2021 and $97,330 for 2022 and beyond. There should be a minimum $29,120 wage imputed to the wife. Based on his figures he should only be required to pay $2,251 monthly for support.

Discussion

[6] Considerable effort was expended by both parties in seeking to have the court impute to the other income greater than they were prepared to acknowledge. This was, in part, the husband’s rationale for seeking questioning. The fact of the matter is that there is a low evidentiary (or investigatory) threshold at an interim stage of a case dealing with spousal support. In Knowles v. Lindstrom[^1] Penny J. pinpointed the governing principles,

[7] There are three issues which underpin the motion for interim spousal support:

(1) Entitlement;

(2) Commencement date; and

(3) Quantum.

[8] It is well-established that interim support motions are not intended to involve a detailed examination of the merits of the case. Nor is the court required to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. These tasks are for the trial judge. Orders for interim support are based on a triable or prima facie case. An order for interim support is in the nature of a “holding order” for the purpose of maintaining the accustomed lifestyle pending trial, Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (ONSC) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, 2012 CarswellOnt 14841 (ONSC) at para.24.

[7] A number of observations are pertinent to the matter before this court:

(a) Until the Order made on September 2, 2020, by Himel J. the husband had paid nothing to the wife for her support. He had a clear obligation in law.

(b) The wife’s financial statement disclosed that her only income in 2020 was the spousal support paid pursuant to the Order made by Himel J. ($12,400). Her savings had modestly decreased by about $1,000 to $7,000 (all figures rounded by the court for convenience of reference) and her debts had increased by almost $32,000 of which $18,000 was for estimated legal fees. Of the balance, the wife had incurred a post-separation line of credit debt of slightly over $9,000 and about $5,500 credit card debt.

(c) The husband’s financial statement disclosed increased savings of about $12,000 and increased debt of $31,245 but of this increase $20,892 was for a post-separation car loan, $3,934 for an RRSP loan, $4,495 for a new furniture loan and repayment of credit card debt of $887.

(d) The husband filed a December 31, 2020, year end remuneration statement. That disclosed total earnings of $100,306.36 which, less what appear to be union dues of $2,251.37, results in a figure of $98,055. His financial statement inconsistently states that his income was $105,936.72. It is unclear whether that amount is net of mandatory union dues. For the purposes of this motion, I shall rely on the year end renumeration statement.

(e) The post separation evolution of the parties’ finances shows sharply different trajectories. The difference of about $24,500[^2] is largely attributable, in my view, to the husband’s refusal to acknowledge his support obligations.

[8] In the circumstances of this case, the issue involving income imputation is best left to be determined at trial where there will be a more robust evidentiary record. While the husband relied upon Drygala v. Pauli[^3] as authority to impute income to the wife in this case, that appellate decision followed a trial. As for the husband’s claim that his 2020 earned income should be reduced because he deferred to 2021 his unpaid vacation entitlement and, consequently, his income should be reduced by that value, the argument is little more than sophistry. He earned what he earned. The wife’s allegation that the husband’s income should be higher due to expenses that he was able to write-off in calculating his total income (in 2019 and possibly for a part of 2020) requires further investigation, analysis and quite likely involves findings of credibility inappropriate for a temporary motion.

[9] For the purpose of temporary support relief pending trial, no income shall be attributed to the wife for 2019 or 2020: the husband’s income for 2019 shall be $98,078.55[^4] and $98,055 for 2020. These figures are subject to revision.

[10] Neither party submitted Divorcemate calculations based on these figures. Attached to this Ruling are calculations prepared by the Court for 2019 (Schedule A) and 2020 (Schedule B). Based on a mid-range amount for spousal support, the husband should have paid $3,576 monthly support for the last four months of 2019 and $3,575 monthly in 2020. The total amount owing then by the husband for 2019 is $14,304 and $42.900 for 2020, subject to a credit to the husband for the $12,400 already paid to December 31, 2020. As there are no tax efficiencies available for 2019 in the sense that, unlike 2020 and going forward, the husband can tax-deduct the support paid (neither party provided any evidence as to an appropriate discount figure) the amount owing by the husband for 2019 shall be reduced by a 25% factor to $10,728.[^5] It shall be paid as a lump sum without tax consequences to either party.

Disposition

[11] The following is Ordered:

(a) The September 2, 2020, Order of Himel J. with respect to spousal support shall be varied as set out below.

(b) The husband shall pay to the wife as and for spousal support for the period September 1, 2019, to December 31, 2019, a lump sum of $10,728. This is an estimated net amount.

(c) The husband shall pay to the wife for spousal support effective January 1, 2020, the monthly sum of $3,575 until varied.

(d) The husband shall be given full credit for all spousal support paid from and after September 1, 2020.

(e) The husband’s incomes on which the support has been calculated are $98,078.55 (2019) and $98,055 (2020 and following).

(f) No income shall be imputed to the wife at this time. She shall take all such steps as may be reasonable to seek out employment commensurate with her education and past employment.

(g) The incomes attributable to the parties are without prejudice to either party moving to vary the amount of support awarded prior to trial without needing to prove a material change of circumstance.

(h) Upon payment by the husband of the lump sum amount set out in (b) above the parties may question the other, such questioning not to exceed three hours for each party.

(i) A Support Deduction Order shall issue.

[12] The reasons for the award being made retroactive to September 1, 2019, are simple. The husband had a clear spousal support obligation. He knew, and chose to ignore, it until he engaged counsel. His financial circumstances improved after the parties separated to the wife’s financial disadvantage because he did not pay appropriate support. That conduct cannot be condoned. His allegations about the wife’s income-earning ability and opportunities are matters that can be addressed at trial where there should be a more robust evidentiary record available: so too with respect to the wife’s allegations that the husband’s actual income should be higher than acknowledged. Nothing, however, relieves the wife from taking appropriate steps to contribute to her own support.

[13] The following directions shall apply with respect to costs:

(a) The wife shall deliver her submissions by February 10, 2021.

(b) The husband shall deliver his submissions by February 19, 2021.

(c) Reply (if any) by the wife by February 24, 2021.

(d) All submissions shall be single page, double-spaced. In the case of (a), (b) and (c) the limit shall be four pages; reply shall be two pages. These submissions shall be filed in the Continuing Record.

(e) Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall be filed by the above deadlines but shall not form part of the Continuing Record.

(f) Counsel are to advise the judicial assistant when they have filed their material.

Justice David A. Jarvis

Date: January 28, 2021

[^1]: 2015 ONSC 1408. [^2]: Calculated as the wife’s decrease in savings and increased debt ($15,500) and the husband’s repayment of debt and increased savings net of the RRSP loan ($9,000). All figures approx. [^3]: (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3rd) 711 (Ont. C.A.). [^4]: Total income of $100,942.43 less $2,863.88 for union dues. [^5]: But see Charron v. Carriere, 2016 ONSC 7523 for an additional method of payment for pre-2020 support arrears. As that method involves the parties refiling their returns when the issue of their qualifying incomes for support are unresolved, I have adopted the approach applied by McDermot J. in Patton-Casse-Casse, 2011 ONSC 6182 and used the same discount factor. That decision was upheld on appeal.