Court File and Parties

COURT FILE NO.: FS-20-00016453 DATE: 2021-11-30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kai Liu, Applicant AND: Cong Xie, Respondent

BEFORE: Kimmel J.

COUNSEL: Katherine Long, for the Applicant William Francis, for the Respondent

HEARD: October 26, 2021 – November 22 and 26, 2021 further written submissions and November 29, 2021 case conference

Supplementary Endorsement – Interim Support and Corollary Relief

[1] I released an endorsement dated November 15, 2021 in this matter in which various findings were made and the respondent mother was ordered to pay interim spousal support to the father. See Liu v. Xie, 2021 ONSC 7535. I made the following orders in paragraph 21 of that endorsement:

a. For temporary interim support purposes, the applicant father’s annual income is imputed to be: $50,000

b. For temporary interim support purposes, the respondent mother’s annual income is imputed to be: $350,000

c. The net Table Child Support payable by the mother to the father on an ongoing basis is $3,722 per month, commencing November 1, 2021.

d. Any available grants for funding received for the special educational and other needs of the parties’ eldest child shall first be used to cover the expenses for such. This includes, without limitation, the $20,000 in government funding that has already been received by the mother and is currently being held in a trust account, which shall be used to pay for the cost of the ABA/IBA Behavioural therapy for her until those funds have been exhausted. The obligation of the parents to continue to seek out all available funding for their child, as provided for in the July 22, 2021 consent order, remains in place.

e. The s. 7 expenses shall be comprised of those indicated by the mother in her support calculations. Any remaining unfunded portion of the s. 7 expenses for the parties’ children (after the application of available government funding) shall be paid by the parents in their proportionate shares based on their imputed incomes (above). In terms of the cash flow and as a practical matter, the mother shall continue to pay these expenses directly and deduct the father’s proportionate share of the unfunded s. 7 expenses from the monthly Table Child Support she pays him, subject to further court order or agreement of the parties.

f. The spousal support payable by the mother to the father on an ongoing basis is $1,966 per month, based on 50% NDI, commencing November 1, 2021.

g. On consent, no order is made for retroactive child or spousal support at this time. If the father wishes to renew his request for such before a trial or other final resolution of this matter, he shall first schedule a case conference and seek leave to do so if the presiding judge is satisfied that a further interim motion for such is necessary and appropriate.

h. On consent, effective November 1, 2021 the mother’s chequing account ending in #*3956 is released from the preservation orders made and affirmed in the May 11 and 20, 2020 endorsements of Kraft J. and the case conference endorsement of Diamond J. The orders arising from those endorsements are amended, accordingly, but shall otherwise remain in full force and effect.

i. Effective November 1, 2021 the parties’ joint share of the ongoing carrying costs of the Willowdale property, including any outstanding arrears that they are responsible for, shall be paid for out of the net proceeds from the sale of the Northwood property. There shall be no other distribution of the net sale proceeds from the Northwood property at this time, pending further order of this court or agreement of the parties. The mother’s obligation to pay this family expense arising from the May 11 and 20, 2021 endorsements is relieved to this extent, and those orders are amended accordingly but shall otherwise remain in full force and effect.

[2] After releasing my November 15, 2021 endorsement, an oversight in the spousal support calculation was brought to my attention. Specifically, I had ordered an amount of support and proportionate sharing of s. 7 expenses that was based on a DivorceMate calculation that imputed income over and above the calculated net income of the respondent mother, and imputed income to the father, at levels that I determined to be fair and reasonable but that did not anticipate, and thus did not factor in, one aspect of my decision, which was to require the parties to use the available government funding for the ABI/IBA programming for their eldest child such that they would only be proportionally sharing the unfunded cost of this program. The scenario and DivorceMate calculation upon which I had based my finding for the monthly amount of spousal support had assumed that this was being fully funded by the parties.

[3] After receiving and hearing the further submissions of the parties on this point, I recognized the error in the support calculation, which has led me to issue this supplementary endorsement. Once this outside funding is accounted for to reduce the s. 7 expenses that that the parents are funding, the spousal support payable by the respondent mother to the applicant father is $2,980 per month, based on 50% NDI, as reflected in a further DivorceMate calculation provided by the mother. Paragraphs 21(f), 79 and 83 of my November 15, 2021 endorsement are corrected, accordingly, to provide for the requirement to pay this higher monthly amount of spousal support.

[4] This change does not impact any other aspects of my endorsement or the orders contained therein. It is a discrete point. The result of this change does slightly increase the father’s proportionate share of the s. 7 expenses. Rather than being responsible for less than 15%, he is responsible for 21.4% and the mother is responsible for 78.6%, taking into account their respective imputed incomes (that remain unchanged from my prior endorsement) but also taking into account the higher amount of spousal support being paid/received. The father is still proportionally responsible for a much smaller amount and this slight percentage increase does not change my reasoning in paragraph 62 of my November 15, 2021 endorsement. My finding in paragraph 62 of my previous endorsement stands, that these are extraordinary expenses and should be proportionately contributed to by both spouses.

[5] All other findings and orders from my November 15, 2021 endorsement continue in full force and effect, subject to the one clarification that the monthly spousal support amount payable by the respondent mother to the applicant father commencing November 1, 2021 is $2,980, and not $1,966 as I had previously indicated.

Kimmel J.

Date: November 30, 2021