Overview

[1] The Applicant, Mary Kalkanis (the “Mother”), brings a motion for:

(a) an order imputing income to the Respondent, Norberto Domingues (the “Father”), of $75,000 commencing January 1, 2021 and determining the Father’s spousal support entitlement from January 1, 2021 based upon this income and her current income of $252,000;

(b) An order that the Father pay table child support commencing January 1, 2021 for the three children E.M. born XXX, XXX, 2001, N.D. born XXX, XXX, 2003 and A.D. born XXX, XXX, 2005 based upon imputed income of $75,000;

(c) An order that the Father share all section 7 expenses from January 1, 2021 to current based on his imputed income; and

(d) An order that the issue of retroactive child support, spousal support and section 7 expenses from September 1, 2019 to January 1, 2021 remain undetermined until trial.

Background

[2] The Mother and Father were married on June 26, 1999.

[3] They have three children as set out above (the “Children”) who are currently 20, 28 and 16 years old.

[4] The Mother was a T4 employee throughout the marriage and, as will be seen, her income steadily increased.

[5] Prior to the marriage, the Father worked in the recruiting industry. However, he takes the position that after the children were born he became a stay-at-home father. This is disputed by the Mother.

[6] The Mother and Father separated on January 23, 2018.

Decision

[7] For the following reasons, I am awarding the Father interim spousal support in the amount of $3,500 per month commencing January 1, 2021.

[8] With respect to child support, the Father conceded that income of $29,100 should be imputed to him. This is minimum wage. On that basis his table child support obligation is $500 per month.

[9] With respect to section 7 expenses, I will be ordering that the Father pay $3,573 towards section 7 expenses for 2021 with the issue of future section 7 expenses, reserved to the trial judge.

[10] As requested, the issue of retroactive child support, spousal support and section7 expenses from September 1, 2019 to January 1, 2021 as well as his ongoing obligation shall remain undetermined until trial.

The Issues

[11] This is an unusual motion because the Mother has been paying spousal support for the past three years in the amount of $3,500 pursuant to a partial separation agreement dated January 31, 2019 (the “PSA”) which was stated to be temporary. She is bringing a motion to determine her spousal support obligation to be something different than what she agreed to on a temporary basis.

[12] She first takes the position that the Father has no entitlement to spousal support. If he does have entitlement, she then takes the position that income should be imputed to him in the amount of $75,000.

[13] If the Mother’s full argument is accepted as to imputation, then the Father will not receive any spousal support for 2021 or in the future, taking into account section 7 expenses and his child support obligation. Indeed, her position is that he would owe her $562 per month as an offset.

[14] The main issues for this motion are: a) whether the Father has an entitlement to spousal support; b) whether income should be imputed to the Father and if so, how much; and c) the quantum of spousal support to which the Father is entitled; and d) whether the Father should be required to pay section 7 expenses at this time and if so how much.

Entitlement

[15] In making a spousal support order, the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including: a) the length of time the spouses cohabited; b) the functions performed by each spouse during cohabitation; and c) any order, agreement or arrangement relating to support of either spouse.

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15.2(4)

[16] An order for spousal support should: a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Divorce Act, s. 15.2(6)

[17] On a motion for interim spousal support, the following governing principles are applicable:

(a) The Applicant’s needs and the Respondent’s ability to pay assume greater importance;

(b) An interim order should be sufficient to allow the Applicant to continue living at the same standard of living enjoyed prior to the separation, if the payor’s ability to pay warrants it;

(d) The court should not unduly emphasize one of the Divorce Act statutory considerations above the others;

(e) The need to achieve self-sufficiency is often of less importance;

(f) Interim support should be ordered within the range suggested by the SSAGs unless exceptional circumstances indicate otherwise;

(g) Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and

(h) Where there is a threshold issue, it becomes less advisable to order interim support.

McConnel v. McConnel, 2015 ONSC 2243, at para. 47; Faccio v. Faccio, 2018 ONSC 1225, at paras. 31-32, 37.

[18] As stated in Knowles v. Lindstrom, 2015 ONSC 1408, at para. 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.

[19] In Berger v. Berger, 2016 ONCA 884, at para. 95, the Court of Appeal directed that there are three conceptual grounds for support: a) compensatory; b) non-compensatory or “need”; and c) contractual.

[20] Compensatory support can arise from an economic disadvantage as a result of roles the parties took during the marriage or when a spouse provided a career enhancement opportunity to the other spouse: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 and Ludmer v. Ludmer, 2013 ONSC 784, cited in Hourtevenko v. Hourtevenko, 2021 ONSC 7377 at para 62.

[21] Non-compensatory spousal support involves assessing the spouse’s needs and takes into account not only the spouse’s inability to meet their needs, but also any decline in their standard of living: Bracklow v Bracklow, [1995] 1 S.C.R. 420, cited in Hourtevenko at para 63

[22] Income discrepancy is not enough to establish entitlement. There must be evidence of a disadvantage arising from the marriage or its breakdown: Lamb v. Watt, [2017] ONSC 5838 at para 28.

[23] The Mother asserts that throughout the marriage the Father worked as a recruiter and that he did not share any of his income with the family. She does not have any specific evidence regarding his income or employment during the marriage other than her belief, the fact that he had a home office, a fax machine and a Linkedin account, and a few comments which the Father made to others that he worked as a recruiter. She denies that he was a stay-at-home father and that he contributed to the household or to her ability to steadily increase her income by being at home. She asserts that her parents and paid nannies were required because the Father would not spend time caring for the Children. She asserts that she not only worked full-time and supported the Father and the entire family financially, but that she was also primarily responsible for the Children and the household. She asserts that the Father was increasingly abusive and that the marriage failed in part because of his secrecy regarding his work and income and his failure to contribute to the household.

[24] This is contradicted by the Father who asserts that he did not work at all during the marriage and that he was a stay-at-home father performing traditional roles. He asserts that he ran the household, made the children meals, drove them to their extra-curricular activities, did the laundry, made dinners every night which he carefully planned and were often extravagant, helped the children with homework, renovated the backyard deck, installed parking pads, and in general did everything inside of the house that needed to be done while the Mother focused on her career. He denies that they had nannies all the time or that it was the Mother’s parents who provided childcare and not him. He asserts that his contributions allowed the Mother’s career to flourish. I note that two of the children’s comments in the Voice of the Children’s report support that he was a stay-at-home father.

[25] The issue of whether the Father was a stay-at-home father or was secretly working and earning income is a complex issue which involves credibility and which cannot be determined on this interim motion. And I note at this stage there is slim evidence before me that the Father ever actually worked or earned a secret income.

[26] The Mother is asking this court to do exactly what appellate courts have directed courts not to do on an interim motion: conduct an in-depth and merit-based assessment of all of the parties’ circumstances. The Father’s counsel argues that the Mother’s argument amounts to a position that the Father was not a very good stay-at-home spouse and therefore he should not receive support. I leave that argument for another day.

[27] For the purposes of this interim motion, there is sufficient evidence that the Father was a traditional stay-at-home spouse who took care of the home and the children, that this created economic dependency, that this allowed the Mother to focus on her career and steadily increase her income, and that the Father suffered economic disadvantage as a result of the marriage or its breakdown: Berger, at para. 51.

[28] Moreover, the Father has a powerful contractual argument that the Mother conceded entitlement to spousal support as a result of the PSA which was not stated to be without prejudice.

[29] The PSA was negotiated by counsel and both parties had independent legal advice. Pursuant to section 8.11, the parties agreed that they understood their respective rights and obligations and its nature and consequences, that the PSA was fair and reasonable, that they were not under any undue influence or duress, and that they both signed it voluntarily.

[30] Section 5.1 of the PSA provides as follows:

At the present time, [the Father] is not employed, and his income is zero. Mother’s income is $220,000. In the result no child support will be payable.

[31] Section 6.1 of the PSA provides that the Mother would pay the Father temporary spousal support of $3,500. Section 6.2 provides that the temporary spousal support would be reviewed on a de novo basis if the parties had not settled the issue of spousal support on a final basis. This de novo review was to proceed in accordance with section 7.1 which provides as follows:

The support reviews provided in subparagraphs 5.3 and 6.2 shall take place commencing June 14, 2019, to proceed contemporaneously with the Usual Residential Schedule review provided in subparagraph 3.13 above and will proceed whether or not the Usual Residential Schedule is reviewed.

[32] There is no evidence before me that the Usual Residential Schedule was reviewed and counsel advised that it was not. Therefore, subparagraphs (ii) and (iii) are applicable and provide as follows:

(ii) If the Usual Residential Schedule is not reviewed then the review of child support and spousal support shall begin on June 14, 2019 to be concluded no later than August 16, 2019.

(iii) In either scenario provided for in subparagraph 7.1(i) or (ii), the parties agree that they will commence the child and spousal support review process via negotiation with the assistance of counsel. Each party will provide to the other upon request, any financial information or documentation that has not yet been provided. In the event that the negotiation is not successful, each party shall have leave to Question the other and thereafter, may take any other steps available to them in the within proceeding or, engage in any alternative dispute resolution mechanism that they agree upon.

[33] The Mother’s uncontradicted evidence is that the parties commenced the review in accordance with the PSA but could not arrive at an agreement. Thereafter, COVID struck and her lawyer stepped down for medical reasons. As a result, there were delays in her pursuit of changing the agreed upon spousal support.

[34] The Father’s position is that pursuant to the PSA, the Mother may not proceed to a review of the child and spousal support obligations because the Mother has not provided the necessary disclosure and the Father has not had an opportunity to complete questioning which he says are prerequisites to any court motion pursuant to the PSA. I did not find the Father’s evidence in this regard supported on the record. He did not make any significant efforts to complete his questioning of the Mother even though this motion was originally brought in November. As well, the Mother’s provision of her authorization for the Father to seek whatever disclosure was missing directly from third parties was sufficient disclosure.

[35] Therefore, in accordance with the PSA, the Mother may bring this motion to determine her spousal support obligation.

[36] As noted above, I have determined on this record that the Father has a prima facie case of entitlement.

Imputation of Income

[37] In this case, the Mother, who is the payor, seeks to impute income to the Father in the amount of $75,000 as of January 1, 2021 on the basis that he could obtain a job as a recruiter at this time and has failed to do so. She relies in particular on the following provisions of section 19 of the Federal Child Support Guidelines, SOR/97-175:

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[38] The leading case on imputation of income is Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711. The relevant principles from Drygala which are applicable to this case are as follows:

(a) A court cannot arbitrarily impute an amount of income. There must be some factual basis in the evidence: at paras. 44, 46;

(b) Section 1 of the Guidelines stipulates that one of its objectives is to establish a fair standard of support for children to ensure that they benefit from the financial means of both parents after separation. Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning: at paras. 31-32;

(c) There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income: at paras. 38-39; and

(d) When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are: age, education, experience, skills, health, availability of job opportunities, the number of hours that could be worked in light of the parent’s overall obligations, and the hourly rate one could reasonably be expected to obtain: at para. 45.

[39] The Father concedes that he has not made any efforts to seek employment. Therefore, he is intentionally unemployed. He concedes that income should be imputed to him in the amount of $29,100 which is minimum wage.

[40] However, he asserts that no one would hire him for the job postings for recruiters which the Mother has provided because he had been out of the workforce for 18 years at the time of marriage separation and has currently been out of the workforce for another 3 years.

[41] The Father is 52 years old and the record does not support that he ever worked or earned income during the marriage as a recruiter.

[42] During questioning, the Father stated that he currently spends his time with the kids, with family, recuperating his health and preparing for the launch of his recruiting business Mesh21.

[43] The Mother argues that it is not acceptable for the Father to be pursuing a form of income (his business) which does not earn income. She argues that this is an unrealistic career aspiration and instead he should be looking for a job as a recruiter. She references Boyer v. Brown, 2017 ONSC 501, at para. 37.

[44] However, Boyer did not involve a stay-at-home father but a father who was an industrial designer who had been previously employed, who was the payor of spousal and child support, who had previously earned significant income and who had been terminated. He began a new business which did not earn income and failed to comply with disclosure orders related to financial issues. In that context, the court’s view was that the father could not continue indefinitely with his business in the hopes that it would earn income and must look for other ways to support his children. These are not the facts here.[^1]

[45] The Mother has not provided any persuasive evidence as to the Father’s prior experience or his education to support that the Father could immediately obtain a job as a recruiter earning $75,000 per year given the lengthy period of absence from the workforce.

[46] The Mother focusses heavily on the Father’s obligation to become self-sufficient. However, as the court held in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, at para. 55, in long-term marriages where one spouse had the traditional stay-at-home role, “the spousal support analysis typically will not give priority to self-sufficiency because it is an objective that simply cannot be attained.” Whether or not this will be considered one such relationship will be up to the trial judge, but it is premature to begin arguing on an interim basis that the Father should be self-sufficient four years after the separation on this conflicted record.

[47] On this record, given that the Father has no physical impairment which prevents him from doing some kind of work, and given his agreement to imputation of $29,100, I will be ordering that the Father be imputed with an income of $29,100. In my view, there is no basis to impute any greater amount on this interim motion.

Spousal Support Payable

[48] If $29,100 is imputed to the Father and the Mother’s current income of $252,000 is taken into account, the midrange spousal support (not taking into account section 7 expenses for reasons which will be clear below), pursuant to the SSAG’s is $3,698. This is greater than the $3,500 which the PSA requires.

[49] In my view, the Father is entitled to interim spousal support in the amount of $3,500 for the following reasons:

a. The Father’s expenses are well above $3,500 per month and his evidence is that he is using capital to pay the remainder of his expenses. Therefore, he has established need;

b. This amount is required for the Father to maintain the standard of living he had while married;

c. The PSA provided that the Father would be entitled to $3,500 and was not stated to be without prejudice. Section 15.2(4) of the Divorce Act directs the court to take into account any agreement made by the parties regarding support;

d. The Mother has the means to pay this. While her Form 13.1 statement shows a small annual deficit of $1,000, the Mother spends more than $30,000 annually on the Children’s section 7 expenses, many of which the Father believes are excessive. I will leave that for another day, but the Mother could cut down some of these expenses to address any deficit. As well, the Mother’s form 13.1 does not reflect the monthly child support in the amount of $500 which the Father will be paying (and which he says he has been paying for some time). When this $500 is added, the Mother no longer suffers any annual deficit.

Child Support

[50] Table support based upon income of $29,100 is $500 per month and I will be making an Order that the Father continue paying $500 per month as he has been doing. The Father has consented to this.

Section 7 Expenses

[51] There are significant section 7 expenses over $30,000 in 2021, which the Father disputes because he has either not agreed to them, he asserts they are extravagant and unnecessary or there are other sources of income the Mother could use to pay them (e.g. RESP’s, health insurance).

[52] The Father concedes only $3,573 which is approximately his pro rata share if the Mother’s income of $252,000 and his imputed income of $29,100 are considered.

[53] I have considerable concern that the Mother’s argument as to the quantum of the Father’s obligation essentially results in no (or significantly reduced) spousal support for the Father, who may ultimately be found to have been a stay-at-home father entitled to compensatory support and time to either become self-sufficient or engage in some kind of retraining.

[54] As well, the Mother earns a significant income. While it is true she has been carrying the lion’s share of all financial responsibilities related the children, she has the financial means to do so and the Orders she seeks would significantly impact upon the Father on this record.

[55] Furthermore, in my view, this matter is ready for trial but for a few disclosure items and the Father completing his questioning. The details and evidence regarding these section 7 expenses comprise many pages of description and argument regarding whether such expenses were agreed to, whether they were required to be agreed to, whether they are appropriate and needed, and whether they could be paid by something else.

[56] It makes no sense to delve into the detailed evidence and disputes concerning these past section 7 expenses on an interim basis in circumstances where the Mother has already paid them. The matter can be sent directly to a settlement conference and joint trial management conference where the trial can be scheduled imminently. It is a waste of judicial resources to have past section 7 expenses determined on an interim basis, only to have them reconsidered by the trial judge a few months later where findings may be different.

[57] I leave it to the Judge conducting the trial scheduling management conference, but the parties may be able to proceed to a partial summary trial because the materials they have filed on this motion are extremely well developed as to all issues. In my view, the parties are ready to have a trial of all issues in short order and they should be focused on moving this matter to completion rather than bringing interim motions.

[58] Accordingly, I order on an interim and without prejudice basis as follows:

(a) Pursuant to section 15.2(1) of the Divorce Act, commencing January 1, 2021, the Mother shall pay the Father $3,500 per month in spousal support;

(b) Pursuant to section 19 of the Federal Child Support Guidelines, income in the amount of $29,100 shall be imputed to the Father for the purposes of his child support obligation;

(c) Pursuant to section s. 15.1(1) of the Divorce Act, commencing January 1, 2021, the Father shall pay the Mother child support in the amount of $500 per month;

(d) Pursuant to section 7 of the Federal Child Support Guidelines, the Father shall pay section 7 expenses in respect of 2021 in the amount of $3,573. The Father’s obligation to pay section 7 expenses for prior years and going forward shall be determined at trial;

(e) The parties shall complete any outstanding disclosure by February 25, 2022;

(f) The parties shall complete any questioning by March 25, 2022;

(g) The parties shall bring any motions regarding outstanding disclosure, answers to undertakings or refusals by April 29, 2022;

(h) The parties shall attend a joint settlement conference and trial management conference on May 25, 2022 at 10:00 am or such other date that they may arrange with the Family Court Office if they are unavailable at this time;

(i) This matter has been outstanding for four years and shall be expedited; and

(j) If the parties cannot agree on costs, they shall seek costs on the following basis: The Father within 5 days and no longer than 5 pages wherein he may also request his costs thrown away; and the Mother within 5 days thereafter no longer than 5 pages.

Papageorgiou J.

Date: February 16, 2022

[^1]: The Mother has relied upon many cases which are simply inapplicable or have facts which are very different than the facts before me. Some are trial decisions where the court had the benefit of a full record. Other cases similarly involve interim motions where the payor who had been employed throughout the marriage became intentionally unemployed and the court imputed income. E.g. Beer v. Beer, 2010 ONCJ 765;.

Kalkanis v. Domingues, 2022 ONSC 1071

Case Summary

Overview

Background

Decision

The Issues

Entitlement

Imputation of Income

Child Support

Section 7 Expenses

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 4