Court File and Parties
Newmarket Court File No.: FC-20-1629-00 Date: 2022-08-17 Superior Court of Justice – Ontario – Family Court
Re: G. D.S., Applicant And: N. D.S., Respondent
Before: The Honourable Mr. Justice G.A. MacPherson
Counsel: S.M. Bookman / M. Rabinovitch, Counsel for the Applicant E. Birnboim, Counsel for the Respondent
Heard: August 16, 2022
Ruling on Motion
Relief Requested
[1] The Applicant brings a long motion requesting the following relief:
(a) that, commencing January 1, 2021 and on the first of every month thereafter, the Respondent shall pay to the Applicant, child support for the children, G.N. D.S. born in 2000 and S. D.S. born in 2004, in the amount of $6,277 per month based on an imputed income of $500,000;
(b) an interim Order that the Respondent pay 100% of the section 7 expenses;
(c) that, commencing January 1, 2021 and on the first of every month thereafter, the Respondent shall pay to the Applicant, spousal support in the amount of $11,015 per month based on an income of $500,000;
(d) that the matrimonial home, known municipally as 72 Avdell Avenue, Vaughan, be listed for sale;
(e) that, if the Respondent continues to occupy the matrimonial home pending sale, he be required to maintain the property and the interior in a neat and orderly condition and that he be required to fully cooperate with the realtor engaged by the Applicant to sell the house, including making the house available for showings without interference; and
(f) in the alternative to (e) above, if the house is not ordered sold, an Order that the children have exclusive possession of the matrimonial home and contents.
Brief Background
[2] The parties were married May 11, 1996 and separated in August of 2018 or 2019. The evidence was unclear.
[3] There are two children of the marriage namely, G.N. D.S. born in 2000 and S. D.S. born in 2004.
[4] The Applicant states that she was, for the vast majority of the marriage, a stay-at-home mother and she raised the children.
[5] The Applicant states that the Respondent was the primary income producer through the company, 1252663 Ontario Inc., which operated as ‘Premier Concrete.’ On November 17, 2020 the Respondent resigned as a director and officer of Premier Concrete.
[6] On or about November 27, 2020 the Respondent opened a new company, Premconcrete.
[7] The Applicant frames the Respondent’s change of employment thus: the Respondent abandoned Premier Concrete, incorporated a secret company, intentionally incurred significant debt in Premier Concrete to deplete the company, and diverted Premier Concrete’s customers to Premconcrete. As a result, Premier Concrete was left with enormous debt. The following businesses were doing business with Premier Concrete and are now doing business with Premconcrete: Vogue Homes, Tuscan Valley, Caliber Homes Inc., Mosaik Pinewest Inc., and Haddington Developments.
[8] The Respondent states that Premier Concrete was purchased from the Applicant’s parents. The Respondent disputes that the Applicant remained at home looking after the children until the parties’ separation. He states that the Applicant did stay at home for a period of time but, by 1998 she was working full-time in the company.
[9] The Respondent frames his change of employment thus: he was responsible for the ‘front office’ portion of the business and the Applicant was responsible for the ‘back office’ portion of the business. Specifically, the Respondent states that he was responsible for the sales and supervising the crews and the Applicant was responsible for the accounting and compliance matters.
[10] During the marriage the Applicant states that all household expenses were paid through the concrete business.
[11] Following the parties’ separation, the parties remained living separate and apart but under the same roof. From what I can gather from the evidence, in or about February 2020 the Applicant moved out of the home.
[12] The child, S. D.S., finished high school in June 2022 and is now enrolled at the University of San Francisco where she will commence studies in short order.
[13] The child, G.N. D.S., finished his final year of studies at Humber College in the business program in June 2022. In September 2022 G.N. D.S. will attend the culinary school at Humber College.
[14] On April 22, 2022 Justice Bruhn released an Endorsement stating that this matter will be heard during the trial sittings in November 2022.
[15] On June 27, 2022 Justice Jarvis completed a Settlement Conference and scheduled a combined Settlement Conference/completion of a Trial Scheduling Endorsement Form (TSEF) to be completed on October 27, 2022, in preparation for the trial.
[16] Any relief granted today shall be of short duration.
[17] The evidence before the court, while voluminous, is very contradictory on the issues before the court.
Child Support
[18] The Applicant requests a temporary child support Order.
S. D.S.
[19] The Applicant states that following the separation, the parties remained living under the same roof until February 2020. The Applicant states that S. D.S. always lived with her on a full-time basis. She deposes that S. D.S. did not spend overnights with the Respondent.
[20] The Respondent states that the Applicant left the matrimonial home in February 2018 and S. D.S. resided exclusively with him. The Respondent states that between August 2018 and August 2020 S. D.S. resided with him 4/7 days.
[21] These facts are not reconcilable.
G.N. D.S.
[22] The Applicant states that since September 2020 G.N. D.S. has resided with her from Sunday afternoon until Thursday evening. The Applicant states that the balance of the time is with the Respondent.
[23] The Respondent states in his affidavit sworn April 14, 2022 that G.N. D.S. resides with him.
[24] In terms of G.N. D.S., again, the facts are not reconcilable.
[25] S. D.S. will commence her studies in the United States in September 2022. Accordingly, at least until trial, S. D.S. will not be living with either party. I decline to make an Order for child support for S. D.S. retroactively. The evidence of S. D.S’s residence is contradictory and that determination is better left to the trial judge who can determine credibility.
[26] Similarly, the residence of G.N. D.S. will need to be determined in order to establish entitlement to child support. It is unfortunate that the evidence of G.N. D.S.’s residency needs to be determined at trial.
[27] In view of the contradictory evidence, on issues where there should not be a contradiction, and the closeness of the trial, I decline to make a child support Order.
Section 7 Expenses
[28] The Respondent states that he has paid for all section 7 expenses since separation. That includes S. D.S’s tuition and therapy; the children’s cell phones; and G.N. D.S.’s car.
[29] The Applicant states that she paid for almost all of the children’s section 7 expenses. She concedes that S. D.S’s grade 12 tuition was paid for by the Respondent but states that she paid for the tuition for grades 10 and 11. The Applicant states that she has paid for G.N. D.S.’s tuition since 2019 including the University of Toronto and Humber College.
[30] Again, in view of the contradictory evidence, on issues where there should not be a contradiction, I cannot determine who is being truthful on this motion. With the benefit of invoices and financial transactions a trial judge will be able to determine which litigant is being truthful. As there are issues of credibility and a trial looming, I decline to determine the apportionment of section 7 expenses.
Matrimonial Home
[31] The Applicant requests an Order for the sale of the matrimonial home or, in the alternative, an Order that the children have exclusive possession of the matrimonial home.
[32] Pursuant to Section 24(1)(b) of the Family Law Act, R.S.O. 1990, c.F.3, (hereinafter the Family Law Act) the court may direct that one spouse be given exclusive possession of the matrimonial home and its contents. There is no legislative authority for me to make an Order that the children have exclusive possession of the matrimonial home.
[33] In terms of the request for an Order for the sale of the matrimonial home, it is noteworthy that almost all of the marital assets were registered in the name of the Applicant. In particular, it appears, the following assets are in the Applicant’s name or in a corporation that she controls:
a) 1262663 Ontario Inc., operating as Premier Concrete;
b) the matrimonial home, 72 Avdell Avenue, Vaughan;
c) 60 Bathurst Street, Unit 605 (50% interest);
d) 60 Bathurst Street, Unit 1007; and
e) 75 Portland Street.
[34] It is noteworthy that, post separation, the Applicant purchased 710 Shaw Street for 1.5 million.
[35] It is curious why the Applicant requests only the sale of the matrimonial home when there are other properties. The Respondent (and perhaps G.N. D.S.) currently reside in the matrimonial home. It is noteworthy that the Respondent has resided there since separation. It is curious why, after years of separation, and three months before trial, the Applicant requests the sale of the matrimonial home.
[36] The Applicant states that while the Respondent resides in the matrimonial home, he is not making mortgage payments or interest payments.
[37] The Respondent’s evidence, again, is contradictory. He states that he pays for the principal balance and interest on the line of credit along with all costs associated with the matrimonial home.
[38] I am not prepared to make an Order for the sale of the matrimonial home three months before trial, where both parties have claimed, in their pleadings, exclusive possession and where one or both parties would like to, ultimately, live in the home and it appears there are sufficient assets to achieve that objective for someone.
Spousal Support
[39] The Applicant states that during the marriage all family expenses were paid through the concrete business, Premier Concrete, that was operated by the Respondent. The Applicant states that she had no day-to-day involvement with the operations of Premier Concrete until separation.
[40] The Respondent states that he ran the ‘front office’ arrangements for Premier Concrete including sales and supervising the non-site concrete work and the Applicant ran the ‘back office’, including all accounting and compliance matters. As the evidence was unclear, the Respondent was asked to provide clarity on the record and during submissions. The Respondent stated that the Applicant has worked in the business full-time since 1998.
[41] The evidence is contradictory. Has the Applicant recently returned to the workforce as she claims or has she been operating a successful concrete company for over 20 years?
[42] The Applicant states that the Respondent collected on the receivables of Premier Concrete and diverted business away from Premier Concrete to Premconcrete. The Respondent denies this and states that he confirmed that the Applicant collected on the receivables after he spoke with several customers.
[43] The Respondent states that the Applicant fired all of the employees of Premier Concrete. The Applicant states that the employees left after being induced by the Respondent to leave.
[44] In terms of needs and means, again, the evidence is contradictory. The Applicant states that she is destitute. The Respondent states that at separation the Applicant has increased debt and depleted assets of over $2 million. The Applicant states that this is a continuation of a false narrative and the assets, aforementioned, were used for business debts. It is noteworthy that the Financial Statements for Premier Concrete are still incomplete. In August 2021, the Applicant did purchase 75 Portland Street, post separation, for $1.55 million. The charge reveals a series of charges at various amounts with a total principal amount owing of $1,162,500, a 7% interest rate and monthly payments of $6,781. The Applicant is currently renovating the property. It is unknown to me where the money comes from to pay for the renovations and the monthly charge on this property.
Conclusion
[45] The contradictions in this file are concerning.
[46] The totality of the contradictions extends to and includes basic information like where the children primarily reside.
[47] There is no doubt in my mind that at least one of the litigants is misleading the court. A determination of the parties’ credibility and reliability as witnesses is essential in the fact-finding process of this case. Trial is three months hence. Misleading the court will be impactful at trial as issues of credibility are examined.
[48] Following the trial, credibility findings may be very persuasive when questioning the reasonableness of the parties’ litigation behaviour.
Order
The Applicant’s motions are dismissed.
Costs of today’s long motion shall be reserved to the trial judge.
Justice G.A. MacPherson
Date: August 17, 2022