COURT FILE NO.: FC-16-2406-1
DATE: 2022/09/16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Diana Georgieva Yovcheva, Applicant
AND
Bojidar Lliev Hristov, Respondent
COUNSEL: Eric Letts, for the Applicant
Loreen Irvine, for the Respondent
HEARD: March 10, 2022
REasons for decision
ENGELKING. J.
[1] This is a Motion to Change (MTC) brought by the Respondent Father on November 26, 2020, seeking an order varying the parenting and child and spousal support provisions contained in the orders of Justice Doyle dated December 10, 2018, and May 14, 2019.
[2] In his Notice of Motion, Mr. Hristov seeks to vary the December 10, 2018, order as to:
- Primary residence of the parties’ child, Angela, born in 2005 (paragraph 3);
- Mr. Hristov holding her personal documents (paragraph 14); and,
- Minor terms relating to travel with the child (paragraph 16).
[3] Mr. Hristov also seeks to vary the May 14, 2019, Divorce Order in respect of child and spousal support to reflect changes in primary residence of Angela and the income of both parties. He additionally seeks an order for occupation rent from June of 2019 to October of 2020, a period during which he was contributing to the mortgage payments on the matrimonial home but not living there. He requests that any such occupation rent ordered be set off against child support arrears claimed by Ms. Yovcheva.
[4] Mr. Hristov claims that a material change in circumstances has occurred because of Angela going to reside primarily with him as of September of 2019. He seeks the new order regarding primary residence to be effective as of October 1, 2019.
[5] Ms. Yovcheva disputes that Angela has been in the primary care of Mr. Hristov. Her position is that there has been no material change of circumstances since the previous orders and Mr. Hristov’s MTC should be dismissed.
[6] For the following reasons, I find that there has been a material change in circumstances since the orders of Justice Doyle were made in that Angela’s primary residence has been with Mr. Hristov since September of 2019. There are consequential changes to child and spousal support based on the change in primary residence as well as in Mr. Hristov’s income.
Background Facts
[7] The parties were married on February 1, 2003 and separated on September 1, 2015. They were divorced effective June 14, 2019.
[8] Two children were born of the marriage, Angela (2005) and Daniel (2006). Both children were residing primarily with Ms. Yovcheva at the time of the December 2018 court order, living with her during the school week and spending weekends with their father. Paragraph 3 of Justice Doyle’s order states:
- The parties shall share parenting time of the children on a more or less equal basis with the understanding that the children shall reside primarily with the Applicant, Diana Georgieva Yovcheva. In particular, the Respondent, Bojidar Iliev Hristov, shall have parenting time with the children on the following terms:
a. The first, second, and forth weekend of each month commencing on Fridays with pick up at 5 pm from the Applicant’s house until Monday drop off at school or if the Respondent is unable to drop the children off at school on Monday morning, he can drop off the children on Sunday evening at 9 pm at the Applicant’s residence.
b. Every other Wednesday evening pickup from 5 pm from the Applicant’s house until 9 pm.
c. Such further and reasonable access as agreed upon between the parties from time to time and in accordance with the children’s wishes.
[9] Mr. Hristov claims that in September of 2019, Angela came to live primarily with him, while Daniel remained in the primary care of Ms. Yovcheva. According to Mr. Hristov, Angela then barely communicated with Ms. Yovcheva for approximately three months, after which she began seeing her mother sporadically. Mr. Hristov indicates that Angela spent approximately three or four nights a month at her mother’s home in 2020. After Mr. Hristov served his MTC on Ms. Yovcheva, Angela spent more time with her mother, but still remained in his primary care.
[10] Notwithstanding that her December 2018 order provided that the parties would share parenting “on a more or less equal basis”, in her May 2019 Divorce Order, Justice Doyle required Mr. Hristov to pay child support on a table amount for two children based on an income she imputed to him. Paragraph 4 of her order provides: “Commencing June 1, 2019, the Respondent will pay child support to the Applicant in the amount of $1,500.23 for two children based on an imputed income of $102,347 per annum.”
[11] Mr. Hristov seeks an order varying this provision as of October 1, 2019, to one where he would pay table support for one child to Ms. Yovcheva based on his annual income, and Ms. Yovcheva would pay table support for one child to him based on her annual income. Mr. Hristov also seeks to chance his annual income as of January 2020 to his actual income rather than an imputed one.
[12] Ms. Yovcheva’s position is that Mr. Hristov has put undue pressure on Angela to live with him, but that there has been no material change in the residential schedule; in other words, it continues to be on a “more or less equal basis”, and there is no material change which would result in a variation of child support.
Analysis
Primary residence and child support obligation
[13] As a result of Ms. Yovcheva’s position, I requested that the parties provide further submissions with respect to whether Ms. Yovcheva has care of Angela 40% of the time or more. Given that Mr. Hristov was required to pay table support for the children in the primary care of Ms. Yovcheva by virtue of Justice Doyle’s May 2019 order, I made it clear that the only real issue in relation to child support is whether, pursuant to section 9 of the Federal Child Support Guidelines, Angela spends 40% or more of her time with Ms. Yovcheva or not. If she does not, then it follows that Ms. Yovcheva would be required to pay table child support to Mr. Hristov for her. If she does, then it may be appropriate to apply a set off method of child support.
[14] Ms. Irvine prepared a spread sheet setting out both parties’ calculations of their respective parenting time with Angela broken down in the three periods, June 1, 2019, to May 31, 2020, June 1, 2020, to May 31, 2021, and June 1, 2021, to March 10, 2022. During the first period, neither party kept calendars. Mr. Hristov acknowledges that Angela was in the mother’s primary care and with him on weekends for the month of June and up to July 16, 2019, at which time she then went on a six-week holiday with Ms. Yovcheva to Bulgaria. She then came to live with him in September of 2019. Mr. Hristov estimates that Angela spent less than 10% of her time with Ms. Yovcheva during this period. Although she provides no specific evidence to support this, Ms. Yovcheva submits that she should be “credited” with Angela being with her 50% of the time between September of 2019 and June of 2020. This is not supported by the evidence. Mr. Hristov began to request an adjustment to child support from Ms. Yovcheva through his counsel in January of 2020[^1], based on Angela having been primarily with him since September. Ultimately, having not been able to solve it, and as a result of not being able to get appropriate bus transportation for Angela to school from his home due to Ms. Yovcheva’s refusal to confirm the change, Mr. Hristov filed his MTC in November of 2020. Angela has listed Mr. Hristov’s address as her primary address on her driver’s licence, with her employer and with her doctor[^2]. Mr. Hristov’s adult children and his neighbour have all provided affidavits attesting to the fact that Angela is living with him and has done so since September of 2019. Angela also advised her school that she was living with her father[^3].
[15] In the second period, based on calendars maintained by Mr. Hristov and evidence from Ms. Yovcheva’s affidavits, Angela spent 10% of her time, or 39 days out of 365, in Ms. Yovcheva’s care by Mr. Hristov’s estimation or either 15% (55 of 365) or 19% (71 of 365) based on the times provided by Ms. Yovcheva, depending on whether you include half days at the beginning or end of her time.
[16] For the third period, based on calendars maintained by both Mr. Hristov and Ms. Yovcheva and information contained in her affidavits, Angela spent 33% (95 of 283 days) of her time with her mother by Mr. Hristov’s calculation or 39% (111 of 283 days) with her based on Ms. Yovcheva’s information. If partial days are included, it amounts to 44% or 127 of 283 days, over that period. Mr. Hristov indicates that Angela spent more time with Ms. Yovcheva from October to December of 2021, based partially on Ms. Yovcheva insisting that Angela needed to stay with her if she wanted help with her math and partially on Angela having to isolate in Ms. Yovcheva’s home for a period with COVID-19. However, over the course of the June 2021 to March of 2022 period, the total time Angela spent with Ms. Yovcheva amounted to the above noted 33%.
[17] In L.L. v. M.C. 2013 ONSC 1801, at paragraph 37, Justice Czutrin indicated:
[37] The two most common approaches to calculating access and custody time are in days, and in hours. If using days, to reach the 40 percent, the access parent must have the child in his or her care for 146 days per year (Handy v. Handy, [1999] B.C.J. No. 6 (S.C). When calculating in hours, the 40 per cent threshold lies at 3504 hours per year (Claxton v. Jones, [1999] B.C.J. No. 3086 (Prov. Ct.)).
[18] In this case, in counting days[^4], Ms. Yovcheva includes the day on which Angela arrives and the day she leaves as two full days, thus resulting in the 44%, in 2021/22 period. However, when she counts days Angela is with Mr. Hristov, only one of the days is counted as opposed to two. Ms. Yovcheva cannot have it both ways; if she is counting each half day Angela is with her as full days, she must also count Mr. Hristov’s time in the same manner. This would result, however, in them jointly having more days with Angela than there are in a year. Ms. Yovcheva also indicates that Angela often spends time at her home after school having a snack and doing homework. She submits that this is “school time” with which she should be “credited”. Ms. Yovcheva submits that Angela is with her 60% of the time, which is not supported by the evidence, even her own. It is clear from the totality of the evidence that Angela is primarily in Mr. Hristov’s care during the school week.
[19] The more realistic approach, in my view, is to count the full days Angela has stayed in each home. In so doing, Ms. Yovcheva does not meet the threshold, as it is her onus to do, of 40% or 146 days per year required, as noted in L.L., for any of the three time periods provided.
[20] I find that there has been a material change of circumstances since the December 2018 and May 2019 orders of Justice Doyle, in that Angela’s primary residence changed from the home of Ms. Yovcheva to that of Mr. Hristov in September of 2019. I find further that Ms. Yovcheva is obligated to pay table child support to Mr. Hristov for Angela effective October 1, 2019.
[21] Given that I have found that Angela’s primary residence is with Mr. Hristov, I am prepared to make the change requested to paragraph 14 of the December 10, 2018, order of Justice Doyle to permit Mr. Hristov to hold Angela’s important documents, while Ms. Yovcheva will continue to hold Daniel’s.
[22] While there may have been some challenges experienced by both parents in this regard, I see no basis to change paragraph 8 of Justice Doyle’s order of December 10, 2018, regarding travel consents. It is and will remain the responsibility of both parents to discuss travel plans and consent to the other’s travel with the children as per the court order.
Mr. Hristov’s Income
[23] Mr. Hristov’s position is that, notwithstanding Justice Doyle’s Divorce Order of May 2019, his income for 2019 onwards should be as per his CRA Line 150 (or now line 15000) income. Justice Doyle made the following findings about Mr. Hristov and his income:
[272] The husband submits that he now has an annual employment income of approximately $35,000 per year plus CPP of $2,160 and OAS of $5,160 and $6,600 net rental income for a total of $48,920 per year.
[273] Based on the above, a fair and reasonable income is the average of the husband’s first three years of his incorporated business attributing all unreported income to him, i.e. $102,347.37 per annum. Again, as stated above, the husband is the operating mind of the company and the son does not acknowledge receiving any unreported income.
[24] Mr. Hristov is once again submitting that his income for 2019 and thereafter should be as per his Income Tax Return , as follows:
- 2019 – total income of $64,612.43, made up of:
- Income from B.H. Roofing of $34,780
- CPP of $5,090.19
- OAS of $3,433.44
- RRSP income of $15,000
- Rental income of $6,308.80
- 2020 – total income of $44,862.68, consisting of:
- Income from B.H. Roofing of $35,476.74
- CPP of $5,054.93
- OAS of $3,227.88
- Rental income of $913.00
- Capital Gain - $190.13
[25] Although Mr. Hristov does not provide a breakdown for 2021 or into 2022, he indicates at paragraph 79 of his affidavit sworn on February 10, 2022: “My income will remain roughly the same, composed of employment income CPP and OAS. I no longer have rental income and I live within my income and budget.”
[26] At paragraph 87 of his affidavit, Mr. Hristov states: “I don’t believe that any cash income should be imputed to my actual 2019 income as I have demonstrated above.” Whether Mr. Hristov believes it or not is immaterial. What is material is that Justice Doyle ordered Mr. Hristov to pay ongoing support in 2019 based on an annual income for $102,347.37. Mr. Hristov shall, therefore, continue to be required to pay support from June 1, 2019 (the commencement date ordered by Justice Doyle) to May 31, 2020, on that annual income.
[27] In her May 14, 2019, Reasons for Decision, in addition to paragraph 273 as set out above, Justice Doyle indicated at paragraph 285: “Therefore, by June 1st of each year, the parties will exchange tax documents, including their personal income tax returns and notices of assessment. In addition, the husband will provide his most recent corporate financial statement including balance sheet and income statement as well as his most recent corporate tax return and notice of assessment.” It seems to be contemplated that the appropriate date to adjust support based on a change in income, if any, is as of June 1 of every year.
[28] Mr. Hristov submits that after the trial in 2019, he sought advice “on how to prevent allegations of unreported income going forward” and as a result he reduced his financial control of B. H. Roofing, of which Justice Doyle had found he was the “operating mind”. Mr. Hristov swears in his affidavit that cash transactions have ceased and all payments for roofing services for the remainder of the 2019/20 business year were received by cheque or e-transfer[^5]. He submits, moreover, that this is supported by the corporation’s Financial Statements for the years ending March 2019, March 2020 and March 2021 attached as Exhibit “Q” to his affidavit. Indeed, Mr. Hristov has provided calculations based on the same methodology used by Justice Doyle in her 2019 decision which support that potential unreported income for the years 2019 and 2020 (based on the Corporate Financial Statements for the years ending March 31, 2020 and 2021 respectively) equal zero.
[29] In September of 2020, Mr. Hristov resigned as a Director of B.H. Roofing and his son, Ilian, became the sole Director. In return, he received $10,000 of his share of the shareholders loan held by the corporation and one half of the cash in the business account of $7,760 as of September 8, 2020. Mr. Hristov submits that as of the transfer (although it was inadvertently not registered with Corporations Canada until October 21, 2021), Ilian has been solely responsible for the finances of the corporation, has had sole signing authority for it and has all business accounts in his name alone. Mr. Hristov attests further to only being a salaried employee.
[30] While Mr. Hristov’s personal circumstances have not changed, namely his physical ability to work, since the trial decision[^6], the circumstances of the corporation have changed. Mr. Hristov is no longer a director in the corporation, nor does it appear that it is any longer in receipt of cash income not reported to CRA. Mr. Hristov’s divestment of the corporation, however, was not an arms length transaction, and a question remains as to whether there is more income available to him for support purposes than he receives as an employee of B.H. Roofing. While it may have always been Mr. Hristov’s plan that Ilian would take over the business, the divestment of the corporation to him has been to the detriment of Angela and Daniel.
[31] This has resulted in not only a reduction of income to Mr. Hristov from that of $102,000 imputed to him by Justice Doyle in 2019, to his “Total Income” in his 2019 T1 General of $64,000[^7], but a drastic reduction to his total income for 2020 and beyond of approximately $45,000. This cannot have been truly intended by Mr. Hristov, the “operating mind” of B.H. Roofing, in divesting the corporation to Ilian. I find, based on the non-arms length relationship between Mr. Hristov and Ilian, and the divestiture of the corporation to the latter by the former for very little consideration, that there is indeed more income available to Mr. Hristov from the corporation for support purposes.
[32] Section 17 of the FCSG’s provides that where the application of section 16 of the Guidelines would not provide the fairest determination of a spouse’s income, a court may have regard to the spouse’s income over the last three years to come to an amount that is “fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.”
[33] I find that, commencing in 2021, Mr. Hristov’s annual income for support purposes is $51,000, that being the average of 2019, 2020 and 2021 ($64,000 + $45,000+ $45,000/3 = $51,000).
[34] Mr. Hristov is to pay child support for two children as per the 2019 order of Justice Doyle to September 30, 2019. Thereafter, Mr. Hristov shall pay support to Ms. Yovcheva for Daniel, and she shall pay support to him for Angela.
[35] Commencing June 1, 2020, Mr. Hristov shall pay support based on his 2019 income of $64,612.43. As of June 1, 2021, he shall do so on an imputed income of $51,000.
[36] Spousal support shall also be varied to reflect the changes in income as well as the changes in child support.
Occupation Rent
[37] The December 10, 2018, order of Justice Doyle included a provision that the matrimonial home located on Mattawa Street in Ottawa was to be listed and sold by the earliest date of May 31, 2019, or the release of her May 2019 reasons for decision. In that decision, Justice Doyle indicated that Mr. Hristov moved out of the MH in “late December 2015 following the purchase of his own home.”
[38] The MH was in fact not listed for sale until the fall of 2019, after Ms. Yovcheva’s return from a summer vacation to Bulgaria and it did not sell until September of 2020. During this period (commencing June 1, 2020), Mr. Hristov continued to make monthly payments for the mortgage of $1,379.64, the property tax of $482.56 and home insurance of $171.68, for a total of $1766.26 per month. The total amount paid by him over this period was $32,542, one half of which, or $16,271.04 was the Applicant’s responsibility.
[39] Mr. Hristov now seeks an order for occupation rent for the period June 1, 2019, to September 30, 2020. However, the evidence in support of same is not strong. Firstly, Mr. Hristov voluntarily left the MH in 2015, as was pointed out by Justice Doyle. Second, he appears to have been equally responsible for the delay in listing the property, in that he wanted some improvements made before doing so to enhance its’ value. Third, Ms. Yovcheva indicates that Mr. Hristov’s refusal to agree upon a reasonable listing price delayed the sale of the home. Finally, Mr. Hristov seems to have attended the home at his will, including to do work on it during Ms. Yovcheva’s absence in Bulgaria, suggesting that she did not, in fact, have exclusive possession of it to his detriment.
[40] The onus for an order for occupation rent is high and it is not met in this case. However, Mr. Hristov should receive credit in the support calculations for his payment of one half of the expenses of the MH pending its’ sale. One reason for this is, although in her order of May 14, 2019, Justice Doyle stated at paragraph 5: “Commencing June 1, 2019, the Respondent will pay child support to the Applicant in the amount of $1,500.23 for two children based on an imputed income of $102,347 per annum”, in her Reasons for Decision at paragraph 275 she stated:
[275] Therefore, commencing the first day of the month following the sale of the matrimonial home, he will pay the amount of $1,500.23 per month as child support.
[41] Earlier in her Reasons for Decision, Justice Doyle acknowledged Mr. Hristov’ contributions and credited him for them in her calculation of retroactive support payable. She indicated at paragraph 251: “He should benefit from half of the mortgage, realty taxes and insurance payments made since separation.”
With this, I agree. Given that the home did not sell for another approximately 14 months after the date by which Justice Doyle indicated it was to be listed, Mr. Hristov should equally benefit from one half of his contributions to the mortgage, property taxes and home insurance. He shall, therefore, receive a credit of $16,271.04 towards child support payable over this period.
Order
[42] Based on the above reasons, there shall be a final order as follows:
Parenting
Paragraph 3 of the final order of Justice Doyle dated December 10, 2018, shall be replaced with: “Effective October 1, 2019, the primary residence of the child, Angela Bojidarova Hristov, born March 1, 20005, shall be with the Respondent Father and the primary residence of the child Daniel Bojidarov, born August 1, 2006, shall continue to be with the Applicant Mother. Both children shall have parenting time with the other parent in accordance with their wishes and the holiday schedule.”
Paragraph 14 of the final order of Justice Doyle dated December 10, 2018, shall be replaced with: “The Respondent Father shall hold the passport, birth certificate health card and SIN card for the child Angela until she reaches the age of 18. The Applicant Mother shall hold the passport, birth certificate, health card and SIN card for the child Daniel until he reaches the age of 18. Where a parent requires a child’s passport for travel, it shall be provided to him/her at least 2 weeks before the departure date and returned to the lending parent within 5 days of their return form their travels.
Child Support
Paragraph 4 of the Divorce Order of Justice Doyle dated May 14, 2019, shall remain in full force and affect for the period June 2019 to September 30, 2019.
Commencing October 1, 2019, the Respondent Father shall pay to the Applicant mother child support of $928 per month, being the table amount for one child on his annual imputed income of $102,347.
Commencing October 1, 2019, the Applicant Mother shall pay to the Respondent Father child support of $195 per month, being the table amount for one child on her annual income of $24,458.
Commencing June 1, 2020, the Respondent Father shall pay to the Applicant mother child support of $601 per month, being the table amount for one child on his annual income of $64,612.43.
Commencing June 1, 2020, the parties shall pay their proportionate share of the children’s section 7 expenses on the Respondent Father’s income of $64,612.43 and the Applicant Mother’s income of $24,458.
Commencing June 1, 2021, the Respondent Father shall pay to the Applicant mother child support of $470 per month, being the table amount for one child on his annual imputed income of $51,000.
Commencing June 1, 2021, the Applicant Mother shall pay to the Respondent Father child support of $218 per month, being the table amount for one child on her annual income of $26,647.
Commencing June 1, 2021, the parties shall pay their proportionate share of the children’s section 7 expenses on the Respondent Father’s imputed income of $51,000 and the Applicant Mother’s income of $26,647.
The Respondent Father shall receive a credit of $16,271.04 for child support payable by him between June 1, 2019, and September 30, 2020.
Spousal Support
Paragraph 5 of the Divorce Order of Justice Doyle dated May 14, 2019, shall remain in full force and affect for the period of June 1, 2019, to September 30, 2019.
Commencing October 1, 2019, the Respondent Father shall pay to the Applicant Mother the mid-range of spousal support of $344 per month.
Commencing June 1, 2020, the Respondent Father shall pay to the Applicant Mother the mid-range of spousal support of $288 per month.
Commencing June 1, 2021, the Respondent Father shall pay to the Applicant Mother the mid range of spousal support of $0 per month.
The Family Responsibility Office shall make all necessary adjustments to child and spousal support as per this Order.
Costs
[43] If the parties are unable to reach an agreement as to the liability or quantum for cost of the MTC by October 15, 2022, they may make written submissions of no more than three pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.
Engelking J.
Date: September 16, 2022
COURT FILE NO.: FC-16-2406-1
DATE: 2022/09/16
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Diana Georgieva Yovcheva, Applicant
AND
Bojidar Lliev Hristov, Respondent
COUNSEL: Eric Letts, for the Applicant
Loreen Irvine, for the Respondent
reasons for decision
Engelking J.
Released: September 16, 2022
[^1]: Affidavit of Bojidar Hristov sworn February 10, 2022, Exhibit “D” [^2]: Affidavit of Bojidar Hristov sworn February 10, 2022, Exhibit “E” [^3]: Affidavit of Bojidar Hristov sworn February 10, 2022, Exhibit “G”. This is confirmed by the Vice-Principal, Mr. Mullally’s reference to “my interview with Angela.” [^4]: Neither party has provided an accounting in hours. [^5]: Affidavit of B. Hristov sworn February 10, 2022, paragraph 64 [^6]: He had already ceased doing the physical labour of roofing at that time, and was responsible for seeking out customers and completing estimates for possible jobs. [^7]: As set out in section 16 of the FCSG’s