COURT FILE NO.: FC-19-627

DATE: 2022/04/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Wendy Elizabeth Fitzgerald

Applicant

– and –

Richard Patrick Fitzgerald

Respondent

Rodney Cross, for the Applicant

Respondent, Self-Represented

HEARD: February 15, 2022

DECISION ON INTERIM CHILD SUPPORT, SPOUSAL SUPPORT,

AND FINANCIAL DISCLOSURE

Somji j

Introduction

[1] The Applicant mother brings a motion for an interim, without prejudice order, to obtain child and spousal support from the Respondent father retroactive to September 2021. The parties were married in 1999 and separated in 2018. They have three children. The mother claims two of the children live primarily with her and one is shared. The mother argues there is no reason for denying interim child support and mid-range spousal support based on the parties’ 2020 incomes. The mother takes the position that additional issues such as claims for support retroactive to separation, imputation of income, and entitlement to occupation rent should be left for the trial judge based on a more thorough evidentiary record.

[2] The father is self-represented. He argues the mother is not entitled to the quantum of child or spousal support she is seeking for several reasons. First, the mother has deliberately under employed herself and her income should be imputed to a higher amount. Second, only one child lives primarily with the mother and the other two children are shared. Third, the father has been paying $754/month in support since separation and this quantum is appropriate given he has also been paying significant expenses for the children’s post-secondary education including residency costs for the eldest child and for expenses for the matrimonial home where the mother resides. Finally, the father argues that any entitlement to spousal support should be offset by occupation rent for the matrimonial home in the amount of $1200/month retroactive to the date of separation which he claims he has requested from the mother since moving out in 2018.

[3] The father seeks an order for valuation the matrimonial home. He argues that it has been four years since separation, the mother has changed counsel four times, and he is frustrated by the delay in obtaining a separation agreement and the costs of continued legal proceedings.

[4] Both parties seek additional financial disclosure from each other.

[5] The issues to be decided are:

1. Is the mother entitled to interim child support retroactive to September 2021?
2. Is the mother entitled to interim spousal support retroactive to September 2021?
3. What orders should there be for further financial disclosure?
4. Should the father be granted his request for other relief?

Evidence

[6] I have relied on the following evidence filed in support of the motion:

1. Mother’s affidavits dated March 15 and October 18, 2021.
2. Mother’s Financial Statement dated January 28, 2022.
3. Counsel for the mother’s factum, parts 1 and 2..
4. Supplementary submissions from counsel for the mother dated March 7, 2022, as requested by the court.
5. Financial disclosure list dated February 23, 2022, and copies of the financial disclosure in Appendices A, B, and C.
6. Father’s factum dated February 9, 2022.
7. Father’s confirmation of motion form dated February 9, 2022.
8. Father’s financial Statement dated April 30, 2019.
9. Father’s Form 14A Affidavit dated October 12, 2021.

[7] I have not relied on the father’s Offer to Settle dated February 8, 2022, which was appended to his factum as an exhibit because offers to settle are not to be filed in the continuing record nor mentioned to the judge hearing a claim until the judge has dealt with all the issues in dispute except costs: r. 18(8) Family Law Rules, O. Reg. 114/99 as am.

Issue 1: Is the mother entitled to interim child support?

[8] The parties were married on December 11, 1999 and separated on April 4, 2018. They have three children A.F. (17), E.F. (20), and W.F. (21). According to the mother, the youngest child A.F. lives with his mother and sees his father sporadically maybe once a week. The middle child E.F. is attending first year at the University of Ottawa. The mother claims she continues to live primarily with her but sees her father sporadically perhaps one or two nights per week. There was a short period in September 2021 when she stayed overnight with the father for eight nights. The eldest child W.F. is in his fourth year at the University of Ottawa and divides his time equally between both parents.

[9] The mother is 61 years of age and has been a nurse for 39 years. She has been working part-time since 2000 when the parties’ first chid was born and takes additional shifts when time permits. The father has been employed with the same company for the last 24 years.

[10] The mother argues that she has been the primary caregiver for the children since their birth. Since the father left the matrimonial home in 2018, the mother continues to schedule and often attends the medical, dental, and psychological appointments for the children. A.F. and E.F. have struggled emotionally and academically following separation.

[11] A.F. was 14 years of age at the time of separation following which he had challenges at school. He had difficulty with attention and focus. He also became disruptive in class and started to skip classes. A.F. struggles with ADHD. The mother has been trying unsuccessfully to find counselling for all the children, but none of the facilities she contacted were taking new patients.

[12] E.F. has been diagnosed with a learning disability since the age of eight. She experienced depression and anxiety following the parties’ separation giving rise to concerns for her safety. The mother received calls that the child was skipping classes and missing assignments. When her marks plummeted, the mother arranged for tutoring from Oxford Learning to help her through the difficult times

[13] In addition to managing the children’s educational issues and meeting with school professionals, the mother has been managing the children’s multiple medical appointments. She schedules her work shifts around the appointments and claims she has not received any assistance from the father. This is partly why she continues to work part-time. The mother provided a sample of the appointments she has had to attend over the past four years. I find it is apparent from the sampling that A.F. and E.F. have struggled since the parties’ separation and the mother has devoted a significant amount of time to attend to their medical, educational, and psychological needs to assist them through these teen years.

[14] Adding to the stress of the separation was the arrival of COVID-19. The pandemic created stresses for many families as parents and children had to cope with online schooling. The pandemic contributed to delays in being able to access support services for A.F. and E.F. As a front-line health worker during the pandemic, it comes as no surprise that the mother also experienced considerably more stress in her own job over the past two years.

[15] For purposes of calculating chid support, the mother identifies the youngest two children as living primarily with her and the eldest child as being shared. Consequently, the mother argues that if the parties’ 2020 income is relied upon, the Divorcemate calculations indicate the father should be paying child support under the Guidelines, O. Reg. 391/97 as am, of $1824/month plus mid-range spousal support of $612/month retroactive to September 28, 2021. She argues that despite repeated requests, the father has refused to pay more than $754/month since the parties separated in July 2018 and has not specified whether this payment is for child or spousal support.

[16] The following table sets out the entitlements claimed by the mother based on the parties’ line 150 income as well as the shortfall in support since separation.

Year	Mother annual income $	Father annual income $	Child support entitlement	Spousal support entitlement mid-range	Support paid per month by the father	Total shortfall of child and spousal support payable by the father
2017	42,764	129,570.63	N/A	N/A
2018	44,212.57	124,505	1897	996	754	For period of July 1, 2018 to December 31, 2018 total $12,816
2019	47,977	125,973	1883	902	754	For 12 months: $24,372
2020	57,286	128,699.01	1841	692	754	For 12 months: $21, 348
2021	57,286 (based on 2020 income.	128,699.01	1841	796	754	For 12 months: $21,348, For 4 months Sept to Dec 2021: $7,116

[17] While the mother argues there has been a significant shortfall in support provided to her since the time of separation, for the purposes of this motion, she only seeks child support retroactive to September 2021 which is when she filed her application. Any additional support retroactive to the date of separation in 2018 should be dealt with at trial.

[18] The father argued at the hearing that only the youngest child lives at home. The middle child E.F. should also be considered “shared” which would reduce the mother’s support entitlement. The father states in his affidavit that he and his eldest son moved into an apartment close to the University of Ottawa to facilitate the son’s attendance at school. They share the apartment with another student to cut down costs. He states during the school year, E.F. sometimes stays over 3 to 4 days per week but he has not tabulated the days. He also argues the mother obstructs the children’s right to decide their living arrangements by insisting that one child return to the matrimonial home every night without exception.

[19] The father provides no clear explanation for why he has paid $754/month, where that figure was derived from, and what that amount should be allocated for.

[20] The father argues that he has paid for other s. 7 expenses related to the children’s university schooling as well as expenses towards the matrimonial home. In his view, both parents share equally in the overall support of their adult dependents and this support extends to providing health and mental care, nutrition, clothing, academic books, academic electronics, academic supports, sporting equipment, and summer vacation activities.

[21] Finally, the father argues that the mother is intentionally underemployed and wishes to impute additional income to her which would thereby impact her entitlement for child support.

[22] As pointed out by counsel for the mother, this is an interim motion and the court’s focus should be on making orders that carry the parties to trial. In this regard, I find the mother’s request for interim child support retroactive to September 2021 is eminently reasonable.

[23] Section 31 of the Family Law Act R.S.O. 1990, c.F.3, as am, obligates parents to pay for child support for children who are minor or enrolled in a full-time program of education as is the case of the two eldest children. The quantum of child support is to be determined in accordance with the table amounts set out in the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”): s. 33(11). The court may deviate from the Guideline amounts in exceptional circumstances: s. 12 CSG. Where the children live with one parent more than 60% of the time, the quantum of support is determined by applying the other parent’s line 150 income into the Guideline tables. Where there is shared parent, i.e. the children reside with each parent no less than 40% of the time, child support is determined by applying a set off. The calculation requires determining what each parent would pay under the Guidelines, with the parent who would pay the higher amount paying the difference to the parent: s. 8 Guidelines.

[24] In this case, the father does not dispute that the mother is entitled to child support but takes issues with the mother’s characterization of the children’s living circumstances. In particular, he argues that E.F. should be considered “shared” when calculating chid support.

[25] While the father suggests that things changed in 2021 when E.F. started, I find the father has not provided sufficient evidence to demonstrate that E.F. lives with him no less than 40% of the time or that he is as engaged with her as a shared caregiver. He guesses it is 3-4 nights a week but is not sure. The mother’s affidavits clearly specify that E.F. resides primarily with her and she has acknowledged specific dates when she did not stay with her. In determining the amount of time a child is with a parent, it is desirable to be as precise as possible: LL v MC, 2013 ONSC 1801 at para 34-36. I prefer the mother’s evidence and find, for the purposes of this motion, that primary residence of E.F. continues to be with the mother.

[26] Furthermore, shared parenting is not simply about the amount of time the child is physically with the parent, but also the time the child is in the parent’s care and control. Time spent sleeping, at school, doing extra curricular activities should be attributed to the parent who is responsible for the child’s well-being during that time: LL v MC at paras 38-39. Based on the mother’s affidavit, I find E.F. not only continues to reside primarily with her, but that the mother has been providing her with significant support since separation to deal with her educational, medical, and psychological issues.

[27] I find that for the purposes of calculating child support, the two youngest children A.F. and E.F. live with and are in the mother’s care for more than 60% of the time and that the parties share parenting for the eldest child W.F.

[28] On this basis, and in accordance with the Guidelines, the father should have been paying child support in the amount of $1841/month based on his line 150 income for 2020 whereas he has only been paying $754/month resulting in a shortfall of $4,348 ($7,364 minus $3,016) over a period of four months. There will be an order that the father pay retroactive child support for the period of September 1, 2021, to December 2021 in the amount of $4,348 for the period.

[29] The parties do not have final confirmation of their respective 2021 incomes. If the father’s 2020 income is relied upon and if the father has continued to make support payments in the amount of $754/month in 2022, there has been similar shortfall of child support for 2022. Consequently, there will be an order that the father pay retroactive child support for the period of January 1, 2022, up to April 30, 2022, in the amount of $4,348.

[30] There will be an interim order that the father will pay child support in the amount of $1841/month commencing May 1, 2022. Should the father’s 2021 income be higher or lower upon receipt of the 2021 Notices of Assessment and Income Tax Returns, adjustments may be made by the parties accordingly.

[31] The father requests that a higher income of $80,000/year be imputed to the mother because she is deliberately underemployed. I agree with the mother’s counsel that this issue is better left for the trial judge when there is a more thorough evidentiary record before the court and the evidence can be tested. Furthermore, the threshold for imputing income is high, and I find the father’s motion materials do not provide sufficient evidence to warrant such an interim order. The mother works part-time and where time permits, will take on additional shifts. The part-time work is not something which arose just upon separation but has been the arrangement since the parties had their first child. Furthermore, the children have required considerable support in their teenage years, particularly since separation, and the mother has devoted significant amounts of time to meet the children’s educational, medical, and psychological needs. Her part-time work schedule has permitted her to be there for the children and to attend the large number of personal appointments they require. Finally, when one examines the mother’s income since 2017, it has in increased and not decreased over the past five years which is not necessarily consistent with deliberate underemployment.

[32] The father argues makes financial contributions to support of the children (i.e. university tuition, books, etc..) which should be considered in the calculation of child support. For example, he indicates that he has paid all the costs associated with the children’s university.

[33] Expenses for post-secondary education and extracurricular activities are commonly treated as s. 7 expenses to be shared by the parties over and above child support. While the father may have a claim against the mother for retroactive s. 7 expenses, he has not brought a motion in this regard. The father’s Financial Statement dated April 30, 2019, indicates that he is making considerable monthly payments towards the children’s expenses such as tuition, entertainment, schools fees, activities, and contributions to the children’s RESPs, but it is unclear which of these expenses he wishes to claim as s. 7 expenses, whether he has receipts for those expenses, and what discussions he has had with the mother regarding the sharing of these expenses. Without this evidence, the mother is unable to respond, and the court is unable to adjudicate this issue. The mere fact that the father makes these payments does not disentitle the mother to child support. The issue of retroactive and ongoing s. 7 expenses should be properly pled with evidence and decided at trial should the father wish to make such a claim.

[34] Finally, the father argues that consideration should be given to the fact that the mother remains in the matrimonial home and that he is supporting the expenses for that home along with his own. On the other hand, the mother pays for the property taxes, insurance, and utilities for the matrimonial home. While the father states he pays for all “other” expenses for the matrimonial home, it is unclear what those expenses are and what the parties had agreed upon at the time of separation. The issue of the expenses of the matrimonial home and any claims for occupation rent should also be addressed at trial.

Issue 2: Is the mother entitled to interim spousal support?

[35] The mother seeks spousal support in the mid-range in accordance with the Spousal Support Advisory Guidelines[^1] based on the parties’ 2020 income in the amount of $692/month. This figure takes into consideration the father’s child support contribution.

[36] The father argues the mother is not entitled to spousal support and is benefitting by maintaining the status quo of under employment and exclusive use of the matrimonial home. The father insists that the mother had the ability to increase her earnings over the past four years despite the demands of the children.

[37] The mother’s counsel has not provided in its factum or supplementary submissions of March 7, 2022, an analysis of why the mother is entitled to spousal support. The legislation has been cited with no application to the relevant facts. There is also no explanation if the s. 7 expenses that have been paid for by parties have been taken into consideration in the support calculations. Furthermore, the father disputes that the mother is entitled to spousal support based on his characterization of their roles within the marriage, her work choices, and her ability to potentially earn more. The father also argues that any spousal support ordered should be offset by the occupation rent he has been repeatedly requesting since the time of separation. For all these reasons, I find that the court is unable to decide the issue of retroactive or ongoing spousal support, and this issue should be determined by the trial judge.

Issue 3: What if any orders should there be for further financial disclosure?

[38] The mother seeks the following financial disclosure from the father:

1. 2019 and 2020 Notices of Assessment and full Income Tax Returns.
2. All SunLife RRSP statements for the Account ending in # …822 from 2009 to date. The mother alleges that there have been two reductions in the father’s RRSP in the amount of $100,000 both in 2010 and again in 2016.
3. Disclosure of the father’s defined contribution plan with his employer from 2004 to date. The mother claims that she has no knowledge of what the employer or father contributed toward this plan after 2004 and is concerned that the father may have diverted funds elsewhere without telling her.
4. Account statements for the parties GRSP ending in #...018. The mother claims that in 2009, this account had $263,203.02 and by 2018, the year of separation, only $81,773. The mother seeks to understand how this savings plan was funded and how it declined.
5. I-trade RRSP ending in #...KHT. The account contained approximately $145,224 in 2009, but the father has not provided her with any further statements or disclosure since that time regarding this account.
6. Statements for BMO Mutual Funds ending in #...799 from 2009 to date. The mother has no knowledge if this account still exits.
7. Statements regarding the parties’ BMO investment loan ending in #...954. The mother is aware that in 2009, the parties owed $100,000, but has no knowledge of the present debt.
8. Explanation for why the father’s salary deposits into the parties’ joint account were cut in half in the six months prior to the parties’ separation.

[39] The mother requests this disclosure pursuant to Rule 13(3.3)(13) of the Family Law Rules which requires the parties to file additional financial disclosure within 30 days of submitting their financial statements including “Any available documentation showing the value, on the date of marriage, of property that the party owned or in which he or she had an interest on that date, and the amount of any debts owed by the party on that date.”

[40] The mother argues that she does not have care and control of the documents requested, and the father failed to share them with her. She requires the records to understand the state of the parties’ finances since marriage and what has transpired with various property since that date. The information is necessary for the mother to complete a Net Family Property Statement.

[41] Counsel for the mother reports in his supplementary submissions of March 7, 2022, that the father finally provided his 2019 and 2020 tax returns, but without the schedules and attachments. However, the mother has not received the remaining documents requested.

[42] The mother’s affidavit of March 15, 2021 clearly outlines the documents requested, the date range, and the reasons for her request. The father does not address the mother’s request for this additional financial disclosure in his factum. Rather, he indicates his frustration with the length of these family proceedings, the mother’s repeated change in counsel, and the inability to secure a separation agreement. While he did file with the court a list of documents he had previously provided to the mother, that list does not contain the documents requested save for the 2019 and 2020 tax returns and notices of assessment.

[43] I find the documents requested by the mother are sufficiently described and relate to assets and debts shared by the parties within the marriage. The time frame for the documents has been specified and they fall within the permissible scope of financial disclosure which may be ordered under pursuant to r. 13(3.3)13. I find the documents are relevant and necessary to allow the mother to complete her Net Family Property Statement and adjudicate the division of property. The records are also potentially relevant to issues of credibility should the matter proceed to trial.

[44] There will be an order that:

1. The father shall provide the mother the documents listed at paragraph 30 within 30 days.
2. The father shall also provide the mother a written explanation within 15 days whether the documents are presently accessible to him, and if not, what attempts he has made to obtain the records from the relevant financial institutions or his employer, when they can reasonably be expected, and if there are any associated costs for production.

[45] Since the documents are relevant to both parties, there will be an order that the costs for obtaining copies of the documents from the financial institutions or employer, should there be any, will be shared equally by the parties. The father will pay for the cost and the mother will reimburse him her share within 30 days of production.

[46] The father indicates that some of the records the mother seeks remain in the basement of the matrimonial home whereas the mother states she has no access to these records. To put the issue to rest and avoid further delays, there will be an order that the mother shall within 15 days provide confirmation in writing to the father that she has examined the financial records that remain in the house and the documents requested at para 30 above are not contained within them.

[47] Finally, the father also seeks the mother’s Income Tax Returns and Notices of Assessment and for 2019, 2020, and 2021. There will be an order that the mother provide these documents, if she has not already done so, within 30 days.

[48] There will also be an order that both parties provide each other updated Form 13.1 Financial Statements by June 1, 2022.

Issue 4: Other relief

[49] The father argues that the mother has remained in the matrimonial home and has not indicated how she expects to purchase his share of the value of the home. He seeks an appraisal of the home. Given the time that has lapsed since separation, I find that the father’s request for an appraisal is reasonable. There will be an order that the parties will obtain an appraisal of the matrimonial home within 45 days. The mother will provide the father with the names of three appraisers within 15 days and the father shall select one that is mutually agreeable to the parties.

[50] The father also seeks valuation of the mother’s pension. The mother does not object. There will be an order that there be a valuation of the parties’ respective pensions at the time of separation. Counsel for the mother has proposed a pension evaluator.

Order

[51] Counsel for the mother is asked to prepare and share with the father a draft interim Order consistent with this decision and to forward it to my assistant for my review.

Costs

[52] The mother was successful on the issues of child support and disclosure. The court determined the issues of spousal support and occupation rent should be adjudicated at trial. The parties are encouraged to resolve the issue of costs between them. If the parties are not able to settle the issue of costs, submissions can be filed in writing. They shall not exceed two pages, exclusive of the Bills of Costs and Offers to Settle. The father shall file his submissions by May 5, 2022, the father by May 19, 2022, and the mother will have until May 26, 2022 to reply. Please email the submissions to scj.assistants@ontario.ca and to my attention.

Somji J.

Released: April 22, 2022

COURT FILE NO.: FC-19-627

DATE: 2022/04/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Wendy Elizabeth Fitzgerald

Applicant

– and –

Richard Patrick Fitzgerald

Respondent

DECISION ON INTERIM CHILD SUPPORT SPOUSAL SUPPORT AND DISCLOSURE

Somji J.

Released: April 22, 2022

[^1]: prepared for the Department of Justice Canada, July 2008, http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html