Court File and Parties

COURT FILE NO.: 727-21 DATE: 2022-06-30 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Violetta Sypniewski, Applicant AND: Donovan Locke, Respondent

BEFORE: The Honourable Madam Justice L. Bale

COUNSEL: B. Barnett, Counsel, for the Applicant O. Vinton, Counsel, for the Respondent

HEARD: June 17, 2022

ENDORSEMENT

Overview

[1] The Applicant and Respondent have each brought a motion arising out of the endorsement of the Honourable Mr. Justice A. Pazaratz dated February 17, 2022 (2022 ONSC 1146):

a. The Respondent father seeks to change or to set aside the terms of the Temporary Order of Justice Pazaratz dated February 17, 2022; and

b. The Applicant mother seeks:

a. An order for interim Table child support in the amount of $1,769.00 per month;

b. An order for interim spousal support of $3,986.00 per month; and

c. An order requiring the Respondent to submit, within 14 days, the child’s orthodontic claims to his benefits provider and to pay his proportionate share of the net amount not covered under his health benefits coverage, within 7 days of receiving confirmation of the outstanding amount.

[2] The Applicant mother consented to an additional extension of time for the Respondent father to serve and file his Answer, and that order was made on consent on June 17, 2022.

Background Facts

[3] The following background facts appear to be undisputed.

[4] The parties cohabited for a period of at least 8 years:

a. The Applicant mother asserts that the period of cohabitation was from April 2005 to June 2019 (14 years);

b. The Respondent father asserts that the period of cohabitation was from July 2006 to December 2014 (8 ½ years).

[5] The parties have one child together, namely M.L. M.L. is now 15 years of age.

[6] M.L. has been residing in the primary care of the Applicant mother since separation, in a property held in the joint title of the Applicant and Respondent.

[7] The Applicant mother commenced an Application in this court on June 11, 2021. No first court date was given, as the matter was determined to be on the standard track case management system. The father served an Answer dated August 30, 2021. Mr. Vinton is named as his counsel on that document. For unknown reasons, the Answer was not filed with the court.

[8] On or around October 25, 2021 a Case Conference date was arranged through the Office of the Trial Coordinator by way of Conference Notice and Confirmation. The scheduled date of the Case Conference was February 17, 2022 at 10:00 a.m. The law offices of both Ms. Barnett and Mr. Vinton were included on the communications with the trial coordinator’s office in selecting this Case Conference date.

[9] On February 17, 2022 the following people attended at the scheduled Case Conference before the Honourable Mr. Justice A. Pazaratz:

a. The Applicant and her counsel, Ms. Barnett;

b. The Respondent’s counsel, Mr. Vinton[^1]; and

c. An added third-party and her legal counsel.

[10] The Respondent father is employed as a police officer with the Toronto Police Service. He did not file a Case Conference Brief, and did not attend the Case Conference scheduled for February 17, 2022. On that date the court was advised that he was called to work as a result of the state of emergency declared in the province. Notwithstanding this information, the court expressed concern that the Respondent had not filed a Brief and had not made the financial disclosure necessary to deal with support issues, as required by the Family Law Rules. To remedy the situation the court ordered that:

1. Timelines for the father to file his Answer were extended to March 18, 2022; and

2. The mother was granted leave to bring motions on the substantive issues. The endorsement contemplates that the support issues were time-sensitive to the mother.

[11] The Respondent father is not currently paying support to the Applicant, including Table child support, contribution to s. 7 expenses, or spousal support. The mother has made written requests for payment of both child and spousal support through counsel without success.

Law and Analysis

A. ISSUE #1: Respondent’s Motion to Set Aside the Temporary Order of Justice Pazaratz dated February 17, 2022

[12] The Respondent father argues that the Order made by Justice Pazaratz on February 17, 2022 was made without proper notice to him and as such, should be set aside. In particular, he seeks to set aside the leave that was granted to the Applicant mother to bring substantive motions on the basis of ‘inadequate notice’ as per Rule 25(19)(e) of the Family Law Rules.

[13] Rule 25(19)(e) of the Family Law Rules provides that the court may, on motion, change an order that:

(e) Was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[14] Caselaw in Ontario confirms that the remedies available to the court under Rule 25(19) are broad, including the jurisdiction to set aside the whole or part of an order, change, vary suspend, discharge, correct, or add to an order: see Gray v. Gray, 2017 ONCA 100 at paras. 26-28, Benarroch v. Abitbol et al, 2018 ONSC 5964 at para. 28-29. In argument the Respondent’s counsel clarified that he was seeking only to set aside the permission granted to the Applicant to bring interim motions for substantive relief.

[15] The primary objective of the Family Law Rules, O. Reg. 114/99, as outlined in Rule 2(2), is to deal with cases justly. Rule 2(3) prescribes that dealing with a case justly includes: ensuring that the procedure is fair to all parties; saving time and expense; dealing with the case in ways that are appropriate to its importance and complexity; and giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[16] The court has a duty to both promote the primary objective and to actively manage cases. This specifically includes a positive obligation to set timetables and control the progress of a case: see Rule 2(5)(d). For the purpose of promoting this obligation, at any time during a case the court may give directions and make procedural orders that are just: see Rules 1(7.1) and 1(7.2). This includes addressing timelines for the bringing of motions: see Rule 1(7.2)(c). Furthermore, Rule 17(8) of the Family Law Rules expressly provides that at a Case Conference the judge may set the times for events in the case or give direction for the next steps: see Rule 18(8)(a).

[17] I am not satisfied that the procedural order made by Justice Pazaratz on February 17, 2022 was made without notice or with inadequate notice to the Respondent. In particular, I find that:

a. The Respondent father had approx. 4 months’ notice of the Case Conference (from October 2021 to February 2022);

b. The procedural Order made by Justice Pazaratz did not require formal notice: the court was empowered to grant leave to the Applicant to bring substantive motions under both Rule 1(7.2)(c) and Rule 17(8)(a) of the Family Law Rules; and

c. Though the Respondent was absent, the Respondent’s agent was present at the Case Conference, and was given opportunity to made submissions on such procedural issues. This procedural order was not akin to a default order.

[18] The Respondent’s motion to change or set aside the Temporary Order of Justice Pazaratz dated February 17, 2022 is dismissed.

B. ISSUE #2: Applicant’s Motion for Table Child Support

[19] The Respondent is M.L.’s father. M.L. resides primarily with the Applicant mother. M.L. is an unmarried minor child. The Respondent has an obligation to provide support to her: Family Law Act, R.S.O. 1990, c. F.3, s. 31. The Child Support Guidelines are applicable. There is no basis upon which to deviate from the Guidelines on the facts of this case: FLA, s. 33(11). It is appropriate at this time to formalize the Respondent’s child support obligation by way of interim order for periodic (monthly) support as per the court’s powers under s. 34(a) of the FLA.

[20] There is a presumption that the Respondent must pay support in the amount set out in the applicable table: Child Support Guidelines, O. Reg. 391/97, s. 3.

[21] The Applicant mother advises that the parties’ respective incomes are as follows:

a. Applicant: $39,554.00 as per her 2021 Notice of Assessment; and

b. Respondent: $215,342.00 as per his Financial Statement, sworn March 18, 2022, as he has not produced his 2021 Income Tax Return or Notice of Assessment.

[22] The Respondent father offers no evidence to the contrary. The amount of support set out in the applicable table for one child is $1,769.00. The Respondent has advanced no argument for any amount other than this presumptive table amount.

[23] Commencing July 1, 2022, the Respondent father shall pay table child support to the Applicant mother on behalf of the subject-child in the amount of $1,769.00 per month in accordance with the Child Support Guidelines, based upon an annual income of $215,342.00.

C. Issue #3: Orthodontic Expenses

[24] Orthodontic treatment is specifically listed as an enumerated special or extraordinary expense under s. 7(1)(c) of the Child Support Guidelines. It is not disputed by the Respondent that M.L. needs orthodontics or that the Respondent father has health care coverage through his employer for her benefit. I accept that M.L.’s orthodontic expenses constitute an expense that the Applicant cannot reasonably cover on her own. It is presumptive that the net cost of the expense should be shared proportionately between the parties after benefits coverage is applied: Child Support Guidelines, s. 7.

[25] Section 34 of the Family Law Act and s. 6 of the Child Support Guidelines empower the court to direct a party to maintain dental insurance coverage for a child where available. The Respondent offers no argument as to why he should not be required to submit, within 14 days, the child’s orthodontic claims to his benefits provider and to pay his proportionate share of the amount not covered under his health benefits coverage, within 7 days of receiving confirmation of the outstanding amount. I find that such an order is just and necessary for the health of the child in the circumstances of this case. There shall be an order to this effect.

[26] As a result of the spousal support award made by the court, as follows below, it appears that the Respondent’s proportionate contribution to M.L.’s s. 7 expenses is approximately 70%.

D. Spousal Support

[27] It is not disputed that the parties had a child together and resided together continuously for a period of at least three years in a relationship of some permanence. The parties are properly classified as ‘spouses’ under s. 29 of the Family Law Act. As per s. 30 of the Family Law Act every spouse has an obligation to provide support for himself or herself and for the other spouse in accordance with need, to the extent that he or she is capable of doing so. In considering requests for spousal support, the court must be cognizant of the purposes of such an order and consider the circumstances of the parties as prescribed by s. 33 of the Family Law Act:

Purposes of order for support of spouse

(8)An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).

Determination of amount for support of spouses, parents

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant’s and respondent’s current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant’s capacity to contribute to his or her own support;

(d) the respondent’s capacity to provide support;

(e) the dependant’s and respondent’s age and physical and mental health;

(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent’s career potential;

(k) Repealed: 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,

(v.1) Repealed: 2005, c. 5, s. 27 (12).

(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 (9); 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).

[28] With respect to interim applications for spousal support, the court is typically unable to engage in a comprehensive review and analysis of the parties’ circumstances – this is better left for trial. Instead, the court must attempt to impose reasonable arrangements (or “rough justice”) to meet the needs and means of the parties until trial: see Albaum v. Albaum, 2021 ONSC 3106, Robles, v. Kuhn, 2009 BCSC 1163.

[29] The Spousal Support Advisory Guidelines are a particularly helpful tool in the determination of requests of interim spousal support. They suggest a range of both amount and duration of support that reflects the current law. While neither legislated nor binding, the use of SSAG calculations in family law proceedings has evolved from a starting point to a range that should not be deviated from lightly: see Fisher v. Fisher, 2008 ONCA 11 at para. 98, Slongo v Slongo, 2017 ONCA 272 at para. 81.

[30] The Applicant has provided SSAG calculations for the court’s consideration which suggest a mid-range level of spousal support of $3,986.00 per month. The Respondent offered no argument as to the appropriateness of this requested amount.

[31] The mother’s Affidavit materials assert that:

a. The parties assumed traditional roles during their cohabitation: the father as primary breadwinner, and herself fulfilling the household responsibilities and caring for M.L. and her other child;

b. The father worked long hours, obtained a Master’s degree, and advanced through the ranks of his police service during the relationship; and

c. There is (and has always been) a significant disparity in the parties’ incomes. The Applicant was financially dependent upon the Respondent during the relationship and continues to require his support today.

[32] Again, the Respondent father offers no evidence to the contrary. On the strength of the materials filed, I am satisfied that the Applicant has established a presumption of entitlement to spousal support on both compensatory and non-compensatory grounds. I am further satisfied that she has need for support and the Respondent has the ability to pay.

[33] In response to questions posed by the court, counsel for the Applicant agreed that the Respondent is currently paying the cost of the mortgage on the jointly-owned property where the Applicant and child are residing, as reflected within her sworn Financial Statement. The court is advised that the mortgage is in the names of both parties, and as such each party would presumptively be responsible for one-half of the monthly obligation. The monthly mortgage payment is $2,900.00. Each party’s respective share should be $1,450.00. There is financial benefit to the Applicant in the arrangement in place, and it is appropriate to adjust the quantum of spousal support payable to reflect this. The quantum of spousal support payable should be reduced to reflect this financial arrangement, with the expectation that the Respondent will continue to maintain the mortgage payments.

[34] After consideration of the after-tax nature of the Respondent’s contributions to the Applicant’s share of the mortgage, I am of the opinion that the Respondent’s monthly spousal support obligation to the Applicant should be $2,500.00 per month. This quantum falls within the prescribed ranges of the Spousal Support Advisory Guidelines after consideration of the mortgage payment adjustment. If there is a change in the Respondent’s payment of the mortgage, the spousal support quantum may be adjusted accordingly.

Order

[35] On the basis of the above, there shall be a Temporary Order to go as follows:

1. The Respondent’s motion to set aside the procedural order of Justice A. Pazaratz dated February 17, 2022 is dismissed.

2. Commencing May 1, 2022, the Respondent father shall pay Table child support to the Applicant mother on behalf of the child M.L., in the amount of $1,769.00 per month in accordance with the Child Support Guidelines, based upon an annual income of $215,342.00.

3. The Respondent father shall within 14 days of receipt, submit the child’s orthodontic claims to his benefits provider and shall pay his proportionate 70% share of the net amount not covered under his health benefits coverage, within 7 days of receiving confirmation of the outstanding amount.

4. Commencing May 1, 2022 the Respondent shall pay periodic spousal support to the Applicant in the amount of $2,500.00 per month.

5. A support deduction order shall issue.

6. In the event that the Applicant seeks costs arising from these motions:

a. She shall serve and file cost submissions not exceeding two pages in length, plus applicable Bill of Costs, by July 22, 2022;

b. Any response by the Respondent to the Applicant’s request for costs shall be served and filed by August 5, 2022 and shall not exceed two pages in length, plus Bill of Costs.

Bale J.

Date: June 30, 2022

[^1]: Mr. Vinton noted at the Case Conference that he was not yet counsel of record and was appearing as agent for the Respondent only on that date.