Court File and Parties
COURT FILE NO.: FS-21-21488
DATE: 20220909
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BRANKA BRKLJAC, Applicant
AND:
MARKO TODOROVIC, Respondent
BEFORE: M.D. Faieta J.
COUNSEL: Meghann Melito, for the Applicant
Jeff Rechtshaffen, for the Respondent
HEARD: September 1, 2022
ENDORSEMENT
[1] The Applicant wife brings this motion for interim spousal support and an order that the Respondent husband be prohibited from obtaining any further order of this court without leave until he satisfies certain undertakings.
[2] Both parties were born and raised in Serbia. The Respondent is a Canadian citizen and has lived in Canada since 2001. He is a general contractor. In 2009, he started his own business, MT Construction. The Applicant holds a Master’s degree in Economics and was employed for ten years as the branch manager of a bank in Serbia. In 2015, the parties met in Serbia. The Applicant emigrated to Canada in May 2016 to marry the Respondent. The Respondent has a son from a prior marriage and told the Applicant that it would be difficult for him to relocate to Serbia. The parties were married on July 24, 2016. The Applicant was 40 years old and the Respondent was 44 years old. This was the Applicant’s first marriage. The Respondent was married once before and is the father of a 9-year-old son. At the Respondent’s request, the parties signed a marriage contract dated September 30. 2016 (“the Marriage Contact”) that provides that neither party is to pay spousal support to the other.
[3] In April 2020 the parties separated when the Applicant left the matrimonial home. On February 3, 2021, this Application was issued. The Applicant claims, amongst other things, a divorce, an order setting aside the Marriage Contract, spousal support, and equalization of net family property. Questioning of the parties was held on April 18, 2022. On June 9, 2022, the Respondent was ordered to comply with his Undertakings given at Questioning on or before June 15, 2022. This motion was filed on July 20, 2022.
[4] On this motion, the following issues arise:
• Should the Respondent be prohibited from seeking any orders without leave?
• Should the Applicant be granted interim spousal support?
What is the appropriate remedy under Rule 1(8)?
[5] After this motion was brought, the Respondent complied with certain outstanding undertakings. There are two classes of undertakings that remain outstanding.
[6] The Respondent undertook to provide the telephone number and email address for his former office cleaner, Asia Williams. The Respondent states that he checked his records and does not have this information. The Respondent’s efforts are insufficient and I find that he has failed to comply with this undertaking.
[7] The Respondent also undertook to provide a copy of his mortgage applications for: 1) a mortgage that he obtained from Scotiabank in September 2021 in the amount of $1,330,000; 2) the Thomas Riley Road property; and 3) the 2 Blaketon Road property. The Respondent acknowledges these undertakings and states that all three mortgages were arranged by the same mortgage broker, Farnaz Sherkat Ghanad, of Mortgage Alliance. The Respondent states that he has asked Ms. Ghanad on two occasions for these applications and that she has refused to provide them to him. The Respondent speculates that Ms. Ghanad may not wish to provide those applications because “… she may have misrepresented some of my information that was submitted to the lender …”. The Respondent has not produced an affidavit that describes the efforts that he has made to retrieve these applications from his own records or from anyone else, other than Ms. Ghanad, who might reasonably be expected to have these applications such as the lenders or his real estate lawyer. Such steps ought to have been taken: See Ahmadi v. Heydari, 2018 ONSC 2682, at para. 54. If the above steps do not result in the production of the mortgage applications, then the Respondent should seek an order of this Court to obtain third party production: See Ahmadi, para. 64. I find that the Respondent has failed to comply with his undertaking to produce the mortgage applications.
[8] Under Rule 1(8) of the Family Law Rules this Court has the authority to make any order that it considers necessary for a just determination of a matter where a party has failed to obey an order. In Mullins v. Sherlock, 2018 ONCA 1063, paras. 44–47, the Ontario Court of Appeal outlined the following three-part test for the application of Rule 1(8). The Applicant did not provide any explanation for the significance of the undertaking to provide the contact information for Asia Williams. On the other hand, given that his income is in dispute, the importance of obtaining the Respondent’s mortgage applications is clear given that the Applicant submits that the Respondent has represented to lenders that his income is much greater than he represents to the Court. I find that it is just to make the orders described below.
Should Interim Spousal Support be granted?
[9] The considerations for an interim spousal support order are described in ss. 15.2(4)-(6) of the Divorce Act and ss. 33(8), (9) of the Family Law Act.
[10] The following principles apply on a motion for interim spousal support:
Interim support should only be ordered when a prima facie case for entitlement has been made out.
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.
Both compensatory and non-compensatory claims should be considered at the interim stage: Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice, 2016), Chapter 5(a). The moving party’s needs and the respondent’s ability to pay often assume greater significance on a motion for interim spousal support whereas the moving party’s need to achieve self-sufficiency often assumes less significance than they do at trial.
The court should not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best.
Rather than undertaking a lengthy and costly needs and means analysis, the quicker and better approach on a motion for interim spousal support is to focus on income differences by applying the formulas in the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) (“SSAGs”). Interim spousal support should be based upon income-sharing not budgets. The fact that a spouse may have adjusted her lifestyle downwards following the date of separation in order to reflect her reduced income should not work to her detriment and to the advantage of the other spouse: See SSAGs Chapter 5.3; Spousal Support Advisory Guidelines: The Revised User’s Guide (April 2016), Chapter 5; Drouillard v Drouillard, 2012 ONSC 4495, para. 13. Interim spousal support should be ordered within the range suggested by the SSAGs unless exceptional circumstances dictate otherwise. The SSAG amount may be too low in shorter marriages under the without child support formula: Spousal Support Advisory Guidelines: The Revised User’s Guide (April 2016), Chapter 5(c); Singh v Singh, 2013 ONSC 6476, para. 79. Generally, see Liddell-MacInnis v. MacInnis, 2021 ONSC 1787, at paras. 65-70.
[11] The calculation of income for spousal support is largely reflected by the definition of income under sections 15-19 of the Federal Child Support Guidelines, SOR/97-175 (“CSG”): See SSAGs, s. 6.1. The purpose of these provisions is to “fairly and fully” reflect the payor’s income:” Mason v Mason, 2016 ONCA 725, at para. 161.
[12] The Applicant has been a self-employed mortgage agent for at least three years. Her income has been modest. I accept the Applicant’s submission that her income for 2022 should be imputed at $31,470.00. The Respondent’s income has dropped from $446,338 in 2019 to $88,992 in 2021 while MT Construction’s retained earning correspondingly increased from $724,666 to $1,471,405. The Respondent, who is the sole owner of MT Construction, appears to have significantly reduced his income drawn from MT Construction after separation. I find it is just to impute an income of $300,000 to the Respondent as requested by the Applicant rather than accept the Respondent’s submission that his current income is $69,992.00.
[13] I find that the Applicant has established a prima facie case for interim spousal support. The Applicant gave up her life and career in Serbia in order to marry the Respondent and move to Canada with him in order to start a family. The Applicant suffered a miscarriage and IVF treatment was unsuccessful and ended at the Respondent’s request. She had difficulty obtaining suitable work due to her limited English language skills. The Applicant suffered an economic disadvantage that arose as a result of the marriage breakdown.
[14] I also find that the Applicant has raised a triable issue regarding the enforceability of Marriage Contract given the circumstances in which it was signed as described by the Applicant. See Gordon v Zuckerman, 2021 ONSC 4576, paras. 19-22.
[15] I find that the compensatory strength of her claim for interim spousal support justifies an award at the high end of the range. However, I find that there are no exceptional circumstances that justify an award beyond the high end of the range.
Conclusions
[16] Order to go as follows:
(1) By September 14, 2022, the Respondent shall deliver an affidavit to the Applicant that describes what efforts he has made to retrieve Asia Williams’ telephone number and email address from his own records. The Respondent’s affidavit shall also identify any person who might reasonably be expected to have this information and the Respondent shall advise what steps he has taken to obtain Asia Williams’ contact information from those persons. The Respondent shall also attempt to obtain Asia Williams’ contact information from social media and his affidavit shall identify what steps that he took to obtain her contact information from social media.
(2) By September 14, 2022, the Respondent shall send a letter to Farnaz Sherkat Ghanad requesting a copy of the mortgage loan applications and, in the event that she does not have a copy of those applications, ask her how the Respondent might obtain a copy of those applications. The Respondent’s letter shall attach a copy of this Endorsement and shall advise Ms. Ghanad that he has told this Court that:
I have spoken to Ms. Ghanad about these applications on two separate occasions and it was made clear to me by Ms. Ghanad that she would not be providing me with a copy of the applications. I no longer use Ms. Ghanad’s services, and it is my belief that she does not wish for me to have these applications because she may have misrepresented some of my information that was submitted to the lender and that is why she does not wish to have these applications circulated. She does not admit that this is the reason, but made it quite clear to me that she would not be providing me with a copy of same.
(3) By September 14, 2022, the Respondent shall send a letter to Scotiabank and the other two lender that provided him with financing in respect of his mortgage loan applications. A copy of that letter shall also be sent to the lenders’ legal department if they have one. Those letters shall include a copy of this Endorsement. Such letter shall request a copy of the mortgage loan applications and, in the event that the lender does not have a copy of those applications, ask the lender how the Respondent might obtain a copy of those applications.
(4) By September 14, 2022, the Respondent shall send a letter to the real estate lawyer that acted for him on each transaction related to the mortgage loan applications and shall request that such lawyer provide him with a copy of the mortgage loan application and, if such application is not available from lawyer, how the Respondent might obtain a copy of those applications. This Endorsement shall be attached to the letter sent to the real estate lawyer(s).
(5) By September 16, 2022, the Respondent shall deliver an affidavit to the Applicant that: (1) attaches a copy of all of the above letters of request that have been sent by the Respondent to Ms. Ghanad, the lenders(s) and the real estate lawyer(s) and any responses received; and, (2) describes what efforts the Respondent has made to find the mortgage loan applications in his own records (both paper and electronic) including in his email accounts.
(6) By October 28, 2022, in the event that the Respondent has not delivered a copy of all three mortgage loan applications to the Applicant, the Respondent shall deliver an affidavit to the Applicant that: (1) attaches a copy of all communications exchanged between the Respondent and the lender(s), real estate lawyer(s) and Ms. Ghanad, in relation to the Respondent’s letter of request for the mortgage loan applications.
(7) Until he delivers a copy of all three mortgage loan applications, the Respondent is not entitled to any further order from the court unless the court orders otherwise.
(8) The Respondent shall pay the Applicant’s costs of this motion, in respect of the enforcement of the undertakings, on a full indemnity basis.
(9) The Respondent shall pay interim spousal support to the Applicant in the amount of $1,790.00 commencing September 1, 2022.
[17] The Applicant shall deliver her costs submissions by September 22, 2022. The Respondent shall deliver his responding submissions by September 29, 2022. The Applicant shall deliver her reply submissions by September 29, 2022. Each submission shall be no more than three pages exclusive of any offers to settle and an outline of costs.
Mr. Justice M.D. Faieta
Date: September 9, 2022