COURT FILE NO.: 54/22
DATE: 2022-02-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kristina Teresa Jela Karabegovic
Applicant
– and –
Elvir Karabegovic
Respondent
Carina Chan/Bard Suen, Counsel, for the Applicant
Self-Represented
HEARD: February 23, 2022
JUDGMENT
MOTION OF THE APPLICANT DATED FEBRUARY 10, 2022
the honourable madam justice d. chappel
INTRODUCTION AND POSITIONS OF THE PARTIES
[1] This was the hearing of an urgent motion brought by the Applicant in this matter, prior to a case conference. She seeks a temporary order for child support for the child of the parties’ relationship, Adela Donata Karabegovic, born August 21, 2019 (“Adela”), and for exclusive possession of the matrimonial home located at 402-4 Lisa Street in Brampton, Ontario (“the home”), commencing March 1, 2022. In the event that an order for exclusive possession of the home is granted, she requests an order requiring the Respondent to take all necessary steps forthwith to make the home clean and child-proof, including decluttering, addressing any issues regarding bug or rodent infestation, and sanitizing the premises. She also seeks an interim order directing that the Respondent shall be solely responsible for all carrying costs maintenance costs associated with the home.
[2] In the event that an order for exclusive possession is denied, the Applicant requests a temporary order for spousal support commencing March 1, 2022. The Applicant’s position is that the Respondent’ income for the purposes of the child and spousal support analyses is at least $106,080.00. per annum. Based on this income, she requests the Table amount of child support in the amount of $1,006.00 per month, and spousal support in the mid range under the Spousal Support Advisory Guidelines (the “SSAG”) of $1,828.00 if spousal support is awarded.
[3] The motion is dated February 10, 2022, and it was served on the Respondent on that day by email to three different email accounts known by the Applicant to be used by the Respondent. The motion has been brought in the context of an Application brought by the Applicant dated January 13, 2022, which was served on the Respondent on January 24, 2022. The Respondent has not served and filed an Answer and Claim in relation to the Application and he is therefore in default at this time. He has not to this point brought a motion seeking an extension of the time for him to serve and file an Answer.
[4] The first appearance on the Applicant’s motion was before Madsen J. on February 16, 2022. On that date, the Respondent acknowledged that he had received the motion materials sent to his three email accounts, but that he had chosen not to open the materials and review them. He requested an adjournment of the motion to allow him to retain counsel and respond to the motion. Madsen J. adjourned to motion to today and directed that the Respondent was to serve and file responding materials by no later than February 21, 2022. He did not retain counsel and did not file any responding materials. He did not make any offers to resolve the motion until early this morning, when he sent a written proposal to the Applicant’s counsel. Although he is in default of the Application and did not file materials on the motion, I allowed him to make submissions based on the evidence before the court.
[5] The Respondent advised in court today that he agrees to an order granting the Applicant exclusive possession of the matrimonial home, and that he is willing to reside with his parents, who also live in Brampton. He also agreed to pay all carrying costs relating to the home. However, his position on these issues is conditional on him not being required to pay the Applicant child support or spousal support. He is also willing to take all necessary steps to clean, declutter and safety-proof the home for the Applicant and Adela, on the condition that he be reimbursed 50% of the cost of doing so, including the cost of his labour.
[6] For the reasons that follow, I am making an interim order granting the Applicant exclusive possession of the home and requiring the Respondent to pay all carrying and maintenance costs relating to the home in lieu of spousal support at this time, effective March 1, 2022. I am ordering that the Respondent forthwith take all necessary steps to clean, de-clutter, and safety-proof the home for the Applicant and Adela, and to ensure that the home is free of bug or rodent infestation. I am requiring the Applicant to reimburse the Respondent for half of the expenses required to prepare the home for her and Adela, not including any amount for the Respondent’s labour. The Respondent will be responsible for covering all carrying and maintenance costs relating to the home on an interim basis.
ANALYSIS
A. Motion Prior to a Case Conference
[7] As a preliminary issue, it is necessary to determine whether this matter should proceed prior to case conference. Pursuant to Rule 14(4.2) of the Family Law Rules, I am granting the Applicant leave to proceed based on urgency and hardship, and in the interests of justice. The evidence indicates that the Applicant and the child must vacate the home where they are residing with the Applicant’s mother within the next five days, since the landlord has sold the home. The Applicant has made numerous efforts to extend the date when she is required to vacate, and to locate another suitable and affordable residence, to no avail. She has been engaged in these efforts since late December 2021. The Applicant made diligent efforts to try to resolve the issues raised in the motion with the Respondent and to obtain an urgent case conference date, without success. The Applicant is in school, only working part time, and is the primary caregiver for Adela. She estimates that her 2022 income will be at most in the range of $9,600.00. The Respondent has been paying the Applicant some support voluntarily since October 2021, but the amounts change from month to month, there is no court order and the sums that he has paid would be insufficient to allow the Applicant to secure a residence and support herself and Adela. The issues of housing and support for the Applicant and Adela are therefore very pressing and urgent.
B. Exclusive Possession of the Matrimonial Home and Spousal Support
[8] On the question of exclusive possession of the matrimonial home, as I have stated, the Respondent is willing to vacate the home and allow the Applicant exclusive possession, but conditional on not paying child or spousal support. Given that I am ordering him to pay child support, he is not consenting to the requested exclusive possession order. I have considered the criteria set out in section 24(3) of the Family Law Act for making an order for exclusive possession of a matrimonial home in favour of one party. The criteria are easily met in this case.
[9] As I discuss below, the Respondent’s income effective next week through his new job will be in the range of at least $106,080.00. By contrast, the Applicant is the primary caregiver for Adela, is in the process of completing her post-graduate program in Public Relations and Corporate Communications at Centennial College, and is only working part-time with an anticipated annual income for 2022 of $9,600.00. The Respondent has confirmed today that he is able and willing to reside with his parents, who live close to the matrimonial home. The evidence indicates that his parents agree that he can reside there. I am satisfied that the Applicant and Adela will need to go to a shelter next week if they cannot reside in the home. The evidence before me indicates that they have no other family members or friends who are able to take them in.
[10] I am also satisfied that it would not be in the child’s best interests for both parties to reside in the home. The Applicant has adduced evidence indicating that there is a history of serious concerns respecting emotional, financial and verbal abuse by the Respondent towards her, to which the child has been exposed. In addition, the evidence indicates that the Respondent has a history of mental health difficulties, that he has been prescribed medication to address these problems, and that there have been episodes during which he has engaged in very erratic and dangerous behaviour. These episodes include incidents of road rage with the Applicant in the vehicle while pregnant, which caused her to have grave fear for the safety of herself and the unborn child. The Respondent did not adduce any evidence in response to contradict all of this evidence of the Applicant. Having regard for the evidence before me, the presence of both parties in the home with the child would in my view cause the Applicant considerable stress and concern for the safety and wellbeing of herself and Adela. This would impair the Applicant’s ability to focus on and meet Adela’s needs as the child’s primary caregiver and would also place Adela at significant risk of exposure to family violence and conflict at a time when she requires stability and security.
[11] The Respondent states that he is willing to pay the carrying costs relating to the home, including utilities and internet expenses, and that this agreement coupled with his consent to the Applicant having exclusive possession of the home fully meets his child support obligations. He contests the Applicant’s claim for spousal support, stating that she is fully able to work and earn a significant income at this time. Based on the facts before me, I disagree with the Respondent’s position respecting the Applicant’s entitlement to temporary spousal support. I have considered the objectives and factors relevant to spousal support set out in section 15.1of the Divorce Act, which is the applicable legislation in this case, and I am satisfied that Applicant has made out a prima facie case for spousal support in the mid-range under the SSAG on an interim basis. Although I am not granting her interim spousal support per se, the order for exclusive possession of the home and requiring the Respondent to cover the carrying and maintenance costs of the home is in lieu of spousal support.
[12] The following principles apply with respect to a claim for interim spousal support:
a) The party claiming interim spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum of support. The merits of the case in its entirety are to be dealt with at trial.
b) In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay.
c) The primary goal of interim spousal support is to provide income for dependent spouses from the time the proceedings are commenced until the trial. Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial.
d) The court achieves rough justice at best on a motion for temporary spousal support and does not embark on an in-depth analysis of the parties' circumstances. The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. That task is for the trial judge.
e) Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs.
(Kalkanis v. Domingues, 2022 O.J No. 751 (S.C.J.), at para. 17).
[13] On the facts before me, the Applicant has established a prima facie case for interim spousal support. I find that her entitlement is both compensatory and needs-based. Although she has worked for brief periods of time since the birth of Adela and appears to have a potentially promising career ahead of her in the area of Public Relations and Corporate Communications, she has made many personal and professional sacrifices for the benefit of the family since the parties’ relationship began. She began her post-graduate studies at Centennial College during the parties’ relationship, but she had to withdraw from the program during her pregnancy with Adela due to serious pregnancy-related health issues. Her evidence is that her mobility was severely limited for approximately one year after Adela’s birth due to those health challenges. Notwithstanding these difficulties, she has been Adela’s primary caregiver since birth. During the relationship, the Respondent was away for significant periods of time due to his work commitments. The Applicant’s efforts and sacrifices on the home-front allowed him to pursue his career with MULTIVAC, earning a six digit figure salary until performance issues resulted in him being reassigned to a different position. The Applicant attempted to return to work as an Operations Manager with the provincial government and then with the former leader of the Canada Conservative Party. However, she states that she did not pass her probation period with the latter position due to her child-care responsibilities and the stress associated with the parties’ separation and the financial challenges that she has faced. These difficulties included significant stress arising from the Respondent’s failure to deal with a car loan in both parties’ names for a vehicle used solely by the Respondent.
[14] The Applicant continues to be Adela’s primary caregiver, and it is clear that she is in dire need of support. To her great credit, she resumed her studies in 2021, which demonstrates that she is committed to working towards self- sufficiency. I find that this is a reasonable and responsible path for her to follow based on her history of employment and the prospects that the program will allow for future gainful work. The Applicant has already secured a part-time position in her field of study with the Public Services Health and Safety Association.
[15] In the absence of an order for exclusive possession and requiring the Respondent to cover the carrying costs of the home, I would have ordered interim spousal support in the mid-range under the SSAG. As I have stated, the Applicant expects to earn an annual income in the range of $9,600.00 in 2022. The Respondent will be commencing new employment as an electro-magnetic engineer with ABI Auto-Bake Industries Ltd. next week. The evidence before me indicates that he will earn an income in the range of at least $106,080.00, not including a car allowance and overtime pay. The mid range under the SSAG based on these incomes is $1,828.00 per month. The mid-range would have in my view been appropriate in terms of quantum for interim support based on the Applicant’s high need at this particular stage of the separation, the fact that she will have moving expenses and her strong compensatory claim based on the roles that she has adopted in the family. The Respondent did not adduce any evidence respecting the monthly amount of the carrying costs for the home. In fact, he has not served and filed a Financial Statement to date despite numerous requests by the Applicant for financial disclosure. Based on the record before me, I am satisfied that the Applicant’s occupation of the home and the Respondent’s payment of the carrying and maintenance costs represent a fair satisfaction of the Respondent’s spousal support obligation to the Applicant at the interim stage.
[16] The Respondent has agreed to ensure that the home is in a fit state for the Applicant and the child prior to March 1, 2022, but argues that the Applicant should share in all costs associated with the cleanup including a fair amount for his labour. I am ordering the Applicant to pay half of all reasonable costs required to put the home in good order, excluding any labour costs for the Respondent. The Respondent has been the sole occupant of the home since April 2021, and the images of the home adduced as evidence paint a grim picture of the state of the home as of mid to late January 2022. It is not appropriate to reward the Respondent for allowing the home to get into this condition over the past ten months by burdening the Applicant with the cost of his labour to clean it up.
C. Child Support
[17] With respect to child support, the Applicant requests an order commencing March 1, 2022. The Table amount under the Federal Child Support Guidelines based on the Respondent’s estimated annual income of $106,080.00 is $1,006.00 per month. I am also requiring the Respondent to contribute to any section 7 expenses for the child on a proportionate-to-income basis. Using the mid-range for the SSAG, the Respondent’s proportionate share is 74.1% and the Applicant’s share is 25.9%.
TERMS OF ORDER TO ISSUE
[18] Based on the foregoing, a temporary order shall issue as follows:
The Applicant is granted leave to proceed with this motion on an urgent basis prior to a case conference.
Commencing March 1, 2022, the Applicant shall have exclusive possession of the matrimonial home located at 402-4 Lisa Street, Brampton, Ontario, L6T 4B6.
The Respondent shall forthwith take all necessary steps to declutter, clean and safety-proof the matrimonial home for the Applicant and the child Adela Donata Karabegovic, born August 21, 2019, and shall fully address any issues respecting insect or rodent infestation in the home. The parties shall share the cost of these expenses equally, not including any cost of the Respondent’s labour. The Respondent shall provide the Applicant with a complete list of the expenses incurred, with proof of payment, and the Applicant shall reimburse the Respondent for her 50% share within 30 days of receiving the list and receipts.
The Respondent shall be solely responsible for paying all carrying costs and maintenance costs relating to the matrimonial home on time, which shall include but not be limited to the mortgage payments, condominium/maintenance fees, property taxes, utilities, internet and any necessary repairs.
The Respondent shall pay the Applicant child support for the child Adela Donata Karabegovic, born August 21, 2019 (“the child”), in the amount of $1,006.00 per month commencing March 1, 2022 and continuing on the first day of each month that follows pursuant to the Tables under the Federal Child Support Guidelines, based on his estimated annual income of 106,080.00.
Commencing March 1, 2022, the Respondent shall contribute to the child’s s. 7 expenses on a proportionate-to-income basis, with his proportionate share being 74.1%. The Applicant shall provide the Respondent with proof of any section 7 expenses that she has incurred or that she intends to incur, and the Respondent shall pay her his proportionate share within 7 days of receiving this proof.
This order is without prejudice to the Applicant’s right to pursue child support, including contribution to s. 7 expenses, for the period prior to March 1, 2022 and to seek adjustments to child support at a later date after receiving full financial disclosure from the Respondent.
SDO to issue.
Usual order to go respecting post-judgment interest.
For additional oral reasons given today, the Respondent shall pay the Applicant costs in the amount of $6,500.00, inclusive of disbursements and HST, payable directly to the Applicant by no later than March 31, 2022. Of this amount, the sum of $4,500.00 is a support order within the meaning of s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c. 31, and as such, it is enforceable by the Director of the Family Responsibility Office.
The Respondent shall by no later than February 25, 2022, at 4:30 p.m. deliver to the offices of counsel for the Applicant any mail directed to the Applicant that has been sent to the matrimonial home since April 2021 and that he has not yet delivered to the Applicant.
Approval of the draft of this order as to form and content by the Respondent is dispensed with.
Released: February 23, 2022
COURT FILE NO.: 54/22
DATE: 2022-02-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kristina Teresa Jela Karabegovic
Applicant
- and -
Elvir Karabegovic
Respondent
REASONS FOR JUDGMENT
Chappel J.
Released: February 23, 2022