COURT FILE NO.: FS-22-28540
DATE: 20220830
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Robyn Amy Louise Hohmeier
Applicant
– and –
Martino Caputo
Respondent
Lorna M. Yates, for the Applicant
Ruth Kalnitsky Roth and Laura Brown, for the Respondent
HEARD: June 28, 2022
PINTO J.
REASONS FOR DECISION
[1] On June 28, 2022, I heard this motion dealing with the applicant mother's request for temporary child support and spousal support. While my decision on the support motion was under reserve, I heard a contested costs motion on July 28, 2022 and released my costs decision on August 2, 2022: Hohmeier v. Caputo, 2022 ONSC 4504.
[2] The context of the costs decision was as follows. The applicant had filed a Notice of Motion dated July 7, 2022 seeking to strike the respondent's pleadings and proceed to an Uncontested Trial on the basis that the respondent had failed to comply with (a) the Order of Diamond J. dated April 21, 2022; (b) the Automatic Order dated March 14, 2022; and (c) the Order of the Divisional Court dated June 27, 2022. Just before the strike-out motion was heard, the respondent paid $15,000 in compliance with the Order of Diamond J., but the parties could not agree on costs, therefore the motion proceeded as a contested costs motion. As of July 28, the $1,500 costs order from Divisional Court remained unpaid.
[3] The respondent father is from Toronto but since 2012, he has been incarcerated. Initially, he was serving a 12-year sentence. In 2015, he was moved to Collins Bay Institution in Kingston, Ontario where he continues to be held. In 2017, he was convicted of planning a murder that occurred in 2012 and sentenced to life imprisonment with no eligibility for parole for 25 years.
[4] The applicant claims that the parties dated from 2009-2012 and that she grew closer to the respondent despite his incarceration. She claims that between 2016 and early 2022, when the parties separated, she travelled regularly to Kingston to visit the respondent, spoke to him on the phone three times a day for extended periods, and had weekly video visits with him.
[5] The respondent acknowledges three or four casual sexual encounters with the applicant prior to his incarceration in 2012. Thereafter, he states that the applicant came to visit him in 2014 when he was at the East Detention Center in Toronto. Following that, he claims he received periodic letters and only heard again from the applicant in 2016.
[6] The applicant claims that the parties were engaged in November 2016, whereas the respondent claims that he asked the applicant to marry him on November 9, 2017 and that they were not engaged until January 2018. In any event, the parties were married on August 28, 2018.[^1]
[7] The applicant gave birth to a child born December 14, 2021.
[8] The applicant claims that:
(a) The respondent began to speak seriously about having a baby in 2018.
(b) The parties began to work with a fertility doctor in October 2018.
(c) On September 3, 2019, she attended at Collins Bay and the respondent provided his sperm through a process facilitated by the Chief of Health Services at Collins Bay. The applicant then drove to Toronto to deliver the sperm to a fertility clinic.
(d) The parties' child was conceived by IVF on April 7, 2021 and was born on December 14, 2021.
[9] The applicant included in her motion materials a letter dated "April 2021" purportedly from the respondent expressing that "all my thoughts are filled with you and our future as parents"; and a video for the attendees at the parties' baby shower on December 5, 2021.
[10] The respondent's affidavit is silent on the process leading up to the child's birth.
[11] The respondent wrote to the applicant through counsel in February 2022 advising that he wanted to separate.
[12] The application was commenced on March 8, 2022.
[13] While there remains a possibility that the respondent will contest the paternity of the child, the motion proceeded on the basis that the respondent is agreeable to paying child support. However, he disputes the applicant's claims that his annual income for support purposes is $243,531 and suggests that the correct figure is $50,000.
Respondent's request to strike out portions of the applicant's evidence
[14] At the hearing of the support motion, I made certain rulings concerning the respondent's request to strike out sections of the applicant's evidence as described below in italics:
The reference to the amount of legal fees spent on a motion for leave to appeal an order made during a without prejudice attendance without an opportunity to be heard by the respondent at paragraph 2 of the applicant's initiating affidavit.
[15] I ruled that this reference could stay in the applicant's affidavit as it was relevant to how the respondent had supposedly chosen to spend his money.
CTV article of May 11, 2017 attached at paragraph 8(a) of the Applicant's initiating Affidavit;
Toronto Sun article of August 20, 2019 attached at paragraph 8(j) of the Applicant's initiating affidavit;
Toronto Star articles dated August 20, 2019, March 20, 2020 and October 24, 2021 attached at paragraph 19 of the Applicant's reply affidavit.
Paragraph 19 of the Applicant's reply Affidavit.
[16] The respondent objected to the inclusion of these materials on the basis that they were irrelevant to the respondent's post-incarceration status or his income. The applicant sought inclusion on the basis that the materials were relevant to the respondent's alleged financial savviness. I agreed with the applicant and ruled that the evidence should be included.
Footnote 1 to paragraph 7 of the applicant's reply affidavit.
[17] The footnote referred to an alleged conversation that the respondent had with the applicant where he bad-mouthed a third party. I ruled this was irrelevant and excluded this reference.
Paragraph 8 to the Applicant's reply affidavit and all subsequent reference to "Big Ange".
[18] The applicant sought to include this evidence on the basis that this was the name that the respondent used in respect of a third party. The respondent objected on the basis that the evidence was irrelevant and prejudicial since it suggested that the respondent was associated with unsavoury characters. I agreed with the respondent and ruled that this evidence should be struck.
The applicant's position on the support motion
[19] The applicant submits that:
(a) She is owed child support and spousal support.
(b) The respondent's annual income for support purposes is $243,531, notwithstanding that he is incarcerated.
(c) The applicant's annual income for support purposes is $6,803, based on her receipt of the child tax benefit.
(d) The respondent's monthly support obligations based on the above income is $1,972 in child support, and $5,091 in spousal support.
(e) The respondent’s proportional share of the section 7 expenses is 45% limited to health and child care (when she returns to school in September 2022).
(f) As early as 2016, the respondent provided her with significant financial support.
(g) The applicant was an Account Director at a marketing company earning $110,000 annually until December 2018 when she was terminated.
(h) After her termination, the respondent assured her that she would not have to worry about money.
(i) She enrolled in a Bachelor of Interior Design program at Yorkville University in Toronto (not York University). She intends to return to the program in September 2022 and anticipates being able to secure work as an interior designer in Winter 2025 when she graduates.
(j) The applicant is a "bookie". He runs a sports betting business from prison with the support of family and colleagues on the outside. Most of his income is in cash.
(k) In addition to his sports betting business, the respondent is a real estate investor and has an interest in two multi-unit rental properties on Markdale Avenue in Toronto.
(l) From 2016 until the separation in February 2022, the respondent gifted her multiple pieces of Cartier jewelry, two SUVs, a custom wedding band appraised at $88,000, a Versace scarf among other gifts and money, and ordered a Rolex watch for her worth $20,000.
(m) The applicant has no savings other than a modest RRSP and no family in Toronto.
(n) The applicant kept track of money that the respondent provided to her for an approximate one year period, from February 2021 to January 2022. The amount was $151,800 or $12,650 per month on average which, when grossed up, results in an income for support purposes of $243,531.
(o) Income may be imputed to a payor who is incarcerated as a result of their own unlawful conduct: Khentov v. Bieler, 2007 CarswellOnt 1832, Cran v. Huynh 2008 NWTSC 69, Billingsley v. Billingsley, 2010 ONSC 3381, Zapreff v. Zegarac, 2015 ONCJ 243, S.H. v. R.A.A., 2016 ONCJ 255.
(p) In the circumstances of this case, it would be appropriate for support to be fixed at or near the high end of the SSAGs range.
The respondent's position
[20] The respondent submits that:
(a) He led a luxurious lifestyle prior to his incarceration in 2012, but his circumstances have fundamentally changed.
(b) He currently has the following income streams:
(i) Nominal income from his work within the prison.
(ii) Rental income from his 50% ownership of 15 Markdale Avenue and 16 Markdale Avenue in Toronto.
(iii) Income from recreational betting on sports events.
(c) His total annual income for support purposes is $50,000 per year.
(d) He is not a "bookie". There is no "vig" (short for "vigorish" - the fee a bookmaker or sportsbook charges a bettor for placing a wager) involved in his activities. He participates in legal betting with other inmates at Collins Bay. The inmates use the odds from the TV station and have friends or family on the outside transfer money into and out of their bank accounts.
(e) The parties became officially engaged in January 2018 and the applicant commenced major renovations to the parties' apartment which is one of the residential units at 15 Markdale Avenue.
(f) The applicant had a high-earning job and was completely financially self-sufficient at the start of their relationship: she owned her own condominium, had a car, and worked full time as a Group Account Director at a marketing company earning over $100,000 annually.
(g) Following the termination of her job, the applicant commenced extensive renovations of the apartment where she intended to reside. The respondent did not approve of the massive renovations and the applicant's spendthrift ways led to the demise of the parties' marital relationship.
(h) What the applicant characterizes as the respondent's income was, in fact, his use of pre-marriage capital and/or loans from others that he will need to repay.
(i) The applicant has paid $15,000 in uncharacterized support on consent, a $50,000 advance on equalization and, as of July 22, 2022, a further $15,000 in uncharacterized support.
(j) The applicant's expenditures on such items as a live-in nanny and a night nurse, clothing, a dog walker and "hair care and beauty" are excessive.
(k) The length of the parties' relationship was only about 4.5 years and the applicant was employed until December 2018.
(l) That the applicant is living rent-free in the property co-owned by the respondent should be considered in any support order.
(m) The respondent acknowledges that the applicant is caring for the parties' young child and is prepared to concede entitlement to spousal support on a without prejudice, time-limited and needs based basis.
(n) The court is required to act with caution when asked to impute income on the basis of conflicting affidavits on an interim motion: Lowe v. Lowe, 2020 ONSC 5224, at para. 40.
(o) The respondent has provided bank statements, financial reports and affidavits from third parties that control his bank accounts whereas the applicant's position is based on bald allegations about the respondent's income.
(p) The market rent of the unit where the applicant and child reside would be $3,000 to $3,500 per month.
(q) The respondent's spousal support payment should be offset against the contributions he makes toward the rental payment for the unit.
Discussion
[21] The parties propose different paradigms concerning how to determine the respondent's income.
[22] The applicant submits that the court should focus on a lifestyle analysis and the actual funds that the respondent contributed via e-transfers and cash towards the applicant in the one year period February 2021 to January 2022 which total $151,800. When grossed up, this results in the respondent's annual income for support purposes as $243,531. The applicant submits that the Court of Appeal confirmed in Bak v. Dobell, 2007 ONCA 304 at para. 41, that "a payor's lifestyle often will be relevant to whether a court may impute income under s.19(1) of the Guidelines." The applicant further submits that a careful analysis of the respondent's motion materials and financial statements do not support the respondent's position that the money he provided to the applicant was from the depletion of his capital or as a result of loans. For instance, in his financial statement, the respondent has not listed any loans to family members.
[23] The respondent disagrees with the applicant's approach and suggests that the court should instead focus on his three sources of income that yield an annual income of $50,000.
[24] I find that there is not much debate between the parties as to the first category of income for the respondent, namely the "Nominal income from his work within the prison as the secretary of the Inmate Committee and as a grocery rep." The respondent earns $6.90 a day, amounting to about $165 per month (according to the respondent's financial statement). Altogether this would amount to $1,980 a year, an amount that is not material to the issues on the motion.
[25] The second category of income claimed by the respondent is his rental income from his 50% ownership of 15 Markdale Avenue and 16 Markdale Avenue in Toronto. The respondent purchased the properties in 2001 and 2003 respectively from an inheritance from his father. The properties are buildings containing multiple residential units. The buildings are occupied by tenants paying market rent with the exception of the unit in 15 Markdale Avenue occupied by the applicant and the parties' child. The other 50% owner of 15 Markdale is the respondent's brother. The other 50% owner of 16 Markdale Avenue is a corporation.
[26] The respondent provided a collection of bank statements from 15 Markdale from January 2021 to January 2022. For 16 Markdale, the respondent provided a financial statement based on a KPMG engagement report for the year ending December 31, 2021. The report was produced on the basis of information provided by the management of the building which I understand to mean the respondent's family members.
[27] The applicant points out, based on the respondent's 2020 income tax filing, that while the gross rental income for the two Markdale properties was approximately $192,000, the owners were reporting zero net income on the two properties. The respondent's tax return for 2020 shows that while 15 Markdale Avenue generated a net loss of $22,263, 16 Markdale generated a net profit of exactly the same amount resulting in zero rental income. Moreover, the applicant notes that the respondent has not filed his 2021 income tax return. The applicant also points out that she has been provided with no backup documentation for any of the rental expenses associated with the Markdale properties. In sum, the applicant submits that the court should be very reluctant to accept that that the true rental income of the respondent's two properties is zero which would make no commercial sense. The applicant did not offer an alternative rental income number but suggested that the court was better off determining the respondent's income based on a lifestyle analysis.
[28] The respondent disagrees and argues that since the bank statements for 15 Markdale were produced, the various property related expenses such as mortgage and hydro payments have been disclosed.
[29] On balance, I agree with the applicant that it is highly unlikely that the respondent's net income from the two rental properties is zero. I find that rather than provide a straightforward explanation of what his true rental income is, or has been for several years, the respondent has provided a selective portrait of his rental income. I do not accept the respondent's disclosure of his rental income as reliable or accurate. I am therefore prepared to look more closely at the applicant's approach of analyzing the respondent's income based on the amounts received by the applicant.
[30] The applicant deposed that she kept track of e-transfer and cash payments coming from the respondent or his associates for the one year period February 2021 to January 2022. The payments total $151,800. The applicant does not include in this amount rental income from the two Markdale properties. The applicant urges the court to use this figure as a proxy for the respondent's income and then gross it up to determine the respondent's income for support purposes.
[31] The respondent disagrees and argues that, other than the applicant's say-so in her affidavit, there is no actual evidence that the applicant received cash and/or e-transfers from the respondent. In the alternative, even if the applicant did receive such funds, the respondent submits that this money was not wholly from his income but also from loans or depletion of his capital.
[32] I agree with the applicant that, if the respondent had loans, he should have listed them on his financial statement. However, in a situation where the respondent's finances are very murky, I am also reluctant to embrace the applicant's proposition that all the money she received in the one year period represents the respondent's annual income. Moreover, I agree with the respondent that, beyond providing a spreadsheet of funds that she allegedly received from the applicant or his associates, there is no real evidence of what the applicant received or whether it represents the respondent's income.
[33] I am also hesitant to adopt the applicant's position because I find some evidence in the record to support the respondent's contention that he simply does not make as much income as the applicant claims, and that his true annual income is something less than $151,800 grossed up.
[34] There is strong evidence to suggest that the respondent's finances are handled by his family members. Vito Caputo, the respondent's older brother, deposed that he is the property manager for several properties owned by his extended family and the respondent's Power of Attorney. Vito Caputo also produced statements from a CIBC bank account owned by him and his other brother Anthony "Tony" Caputo. This bank account is supposedly used for the respondent's winnings and losses for sports betting. I am unable to tell by reviewing these statements whether Vito's claim is accurate that "these statements demonstrate Martino does not have any other source of income". However, Vito also deposes that "my family and I have all contributed to paying for the Applicant's expenses at Martino's request." While the applicant criticizes this as a throwaway line that should be given little weight, I am prepared to accept, for the purposes of this motion, that at least some of the $151,800 that was provided to the applicant came not from the respondent's income, but from his family members.
[35] I note that Tony Caputo deposed that the respondent would call him after an argument with the applicant and ask him to send cash to Vito to give to the applicant. Tony Caputo also deposed that he got into an argument with the applicant and yelled "You hang up on my brother constantly and he cannot then call his family. You are spending all of his money. You have thousands of dollars on your credit card, and you have my brother borrowing money to pay for your habit! Why did you marry him?". I take from this that, contrary to the applicant's assertion, there is some evidence to suggest that not all of the money that the applicant received represented the respondent's income.
[36] I further note that Natalina Sgro, the respondent's niece, deposed that she became very concerned that upon marriage to the respondent, the applicant was living an extravagant lifestyle beyond the parties' means and that "any resources came from my Uncle Martino, or my other family members who were helping Martino pay for Robyn's expenses."
[37] I therefore accept as true that, notwithstanding that the respondent did not list loans in his sworn financial statement, it is the case that the money he gave directly or indirectly to the applicant is not the same as his income. The question then remains, what is the respondent's income?
[38] The respondent claims his annual income is $50,000. I am not prepared to accept this as accurate. It is premised on no rental income whatsoever. I will return to this below.
[39] Given that the applicant is also claiming temporary spousal support, an alternate approach of reaching a fair and just determination of quantum of spousal support (since entitlement is conceded) is looking at the parties’ "mean and needs".
[40] In Vermeire v. Bates, 2022 ONSC 1278 at para. 8 and 9, Fowler Byrne J. summarized the law in respect of interim spousal support as follows:
[8] My authority to award interim spousal support order is found at s. 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). The factors and objectives that I must consider under ss. 15.2(4) and 15.2(6) do not differentiate between interim and permanent spousal support orders. That being said, in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, at para. 24, Justice Chappel sets out the general principles that apply when dealing with motions for temporary spousal support (citations omitted):
The party claiming temporary spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum. The merits of the case in its entirety are to be dealt with at trial.
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.
The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case, or 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.
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.
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. The objective of encouraging self sufficiency is of less importance.
[9] In Driscoll v. Driscoll, 2009 CanLII 66373 (Ont. S.C.), Justice Lemon adopted the principles for temporary spousal support as set out in the British Columbia case of Robles v. Kohn, 2009 BCSC 1163:
a) On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;
b) An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;
c) On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;
d) The courts should not unduly emphasize any one of the statutory considerations above others;
e) On interim applications the need to achieve economic self-sufficiency is often of less significance;
f) Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines 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;
h) Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.
[41] A review of the applicant's financial statement indicates that her "total amount of monthly expenses" is $15,626.76. I note that her monthly expenses include such items as:
Clothing $ 1,000
Flowers $ 200
Hair care and beauty $ 666.66
Pet Care $ 200
Education $ 833.3
Gifts $ 1,000
Clothing for Children $ 400
Laundry and Dry Cleaning $ 400
Live-In Nanny $ 1,640
Night Nanny $ 1,542.85
Dog Walker $ 600
Debt Payments $ 2,300
Total $10,182.74
[42] Many of these expenses seem excessive for an individual who is not working. However, as applicant's counsel correctly points out, the applicant was obliged to identify her actual monthly expenses in her financial statement. She is not requesting that the respondent fund all of these expenses via a support payment. From a means and needs analysis, I find that the applicant doesn't "need" to have her expenses fully funded.
[43] The respondent submits that the applicant needs food, shelter, utilities and a degree of respite care because the parties chose to have a child in circumstances where the respondent cannot assist.
Decision
[44] The court is left with very polarized positions on this motion. I am not prepared to order the respondent to pay support on whatever funds that the applicant says were given to her. Moreover, even on a means and need analysis, the alleged needs of the applicant - the applicant says her non-discretionary expenses are $10,468.97 per month - are well beyond what the respondent appears to be able to support. At the same time, I find that the respondent's declaration of $50,000 not representative of this true income.
[45] Looking again at the respondent's rental income and, in particular at the KPMG engagement report for 16 Markdale, I note that for 2021, the building's net income for tax purposes was about $18,000 ($17,943 exactly). Since the respondent was a 50% owner, his share was around $9,000. In the respondent's affidavit he claims, with respect to 15 Markdale, that the net income of the building equals roughly $30,000 per year, of which $15,000 accrues to him. If I add the respondent's net rental income from these two properties, I arrive at $24,000. Further, I note that, in his motion materials, the respondent provided a support calculation showing his income for support purposes at $75,000, notwithstanding that his position in this litigation is that his annual income is $50,000. I take from the inclusion of this calculation in his materials an acknowledgment that due to the variable nature of his sports betting activities, his income could be as much as $75,000, yet this still does not include any rental income. I would add the $24,000 from the respondent's rental income to his $75,000 to arrive at $99,000 and round that up to $100,000. I find that this amount is more representative of the respondent's income for support purposes.
[46] I note that this motion was not argued on the basis of imputing income to the applicant. The evidence indicates that as recently as December 2018 the applicant was earning a 6-figure salary. I agree that, on an interim support motion, the focus on self-sufficiency is diminished. Yet, this was also a short term marriage and the applicant's claim that she should continue to be supported in a luxurious lifestyle by the gambling winnings of an incarcerated individual is strongly disputed.
[47] I request that the parties provide me with a child support and spousal support calculation based on the respondent's income for support purposes at $100,000 and the applicant’s income reflective of her receipt of the child tax benefit. I direct that spousal support be fixed at the mid-range point as I find that the applicant is living rent-free free in the residence co-owned by the respondent.
[48] If the parties are unable to reach an agreement on the apportionment of section 7 expenses, costs, or the form of the proposed order, they may contact my judicial assistant at Patricia.Lyon-McIndoo@ontario.ca by September 9, 2022 to set up a further attendance via Zoom.
Pinto J.
Released: August 30, 2022
COURT FILE NO.: FS-22-28540
DATE: 20220830
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Robyn Amy Louise Hohmeier
Applicant
– and –
Martino Caputo
Respondent
REASONS FOR DECISION
Pinto J.
Released: August 30, 2022
[^1] The correct date of marriage is August 28, 2018. There is a typographical error in paragraph 2 of my costs decision which incorrectly states that the marriage date is August 8, 2018.