Court File and Parties
COURT FILE NO.: FS-16-184-00 DATE: 2022 09 20 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Fiona Docherty, Applicant AND: Joseph Melo, Respondent
BEFORE: André J.
COUNSEL: M. Osadet, for the Applicant R. Kirszbaum, for the Respondent
HEARD: May 9, 2022
ENDORSEMENT
André J.
[1] The Applicant, Fiona Docherty, brings a motion for an order for retroactive spousal support for the period of February 15, 2020 to April 15, 2022; ongoing spousal support from May 15, 2022; and for interim disbursement to pay legal fees and to conduct questioning of the Respondent, Joseph Melo. Mr. Melo, in turn, is seeking an order dismissing Ms. Docherty’s motion and releasing $100,000 to him from the net proceeds of sale of his Caledon property, as well as for costs payable by Ms. Docherty’s solicitor in the amount of $4,082.13 for Ms. Docherty’s aborted motion in November 2021.
BACKGROUND INFORMATION
[2] The parties never married but were living together, despite having separated from each other several times between 1997 and August 2015. Their two children are both adults and are not the subject of a request for child support.
[3] Mr. Melo owned two properties municipally known as Main Street in Caledon and 1588 Dupont Street (“Dupont”) in Toronto.
[4] In 2019, Ms. Docherty sought and obtained Certificates of Pending Litigation (“CPL”) on both properties. On December 12, 2019, Shaw J. vacated the CPL on the Main Street property and permitted Mr. Melo to sell it. The proceeds of sale are held in trust pending a further order by the court or agreement by the parties.
[5] In February 2021, Ms. Docherty brought a motion to set aside Shaw J.’s order. Chown J. dismissed the motion with costs on February 9, 2021. The parties obtained a long motion date for August 16, 2021, scheduled for three hours. However, Ms. Docherty did not serve or file any motion materials and the long motion date was cancelled.
[6] Ms. Docherty obtained another long motion date of November 17, 2021, seeking to claim a joint family venture with respect to Mr. Melo’s properties, to reinstate the CPL vacated by Shaw J., and to secure an order for spousal support. The motion was vacated because Ms. Docherty improperly filed her motion materials. Mr. Melo claims that he incurred costs of $4,082.13 to prepare for the long motion.
[7] Mr. Melo’s Main Street property was sold on January 10, 2022, with the net proceeds of sale being $757,032.26. Of this amount, $350,000 have been released to him. Mr. Melo seeks a further $100,000 from what remains of the Main Street property’s net proceeds of sale.
[8] Ms. Docherty initially brought a motion for child support on August 8, 2017. Mr. Melo was ordered to pay monthly child support in the amount of $1,200. On November 16, 2018, McSweeney J. terminated the order for child support effective February 28, 2018. In the same order, McSweeney J. ordered Mr. Melo to pay spousal support in the amount of $1,300 a month “on a temporary without prejudice basis.” On February 4, 2020, Barnes J. suspended this order given Ms. Docherty’s failure to provide financial disclosure.
[9] The trial in this matter is set to proceed in January 2024.
ANALYSIS
[10] The two motions under consideration in this hearing raise the following issues:
a) Is Ms. Docherty entitled to retroactive and ongoing spousal support from February 15, 2020?
b) Should the court make an order for interim disbursements to enable Ms. Docherty to pay legal fees and to question Mr. Melo?
c) Should the court make an order releasing $100,000 to Mr. Melo from the net proceeds of sale of the Main Street property?
d) Should the court order that Ms. Docherty’s counsel pay costs of $4,082.13 because of the aborted long motion in November 2021?
e) Should there be an order for costs in this matter?
ANALYSIS
a) Is Ms. Docherty entitled to retroactive and ongoing spousal support from February 2020?
[11] Ms. Docherty deposes in her April 12, 2022 affidavit that she is financially in need and that Mr. Melo has the ability to pay spousal support. During the parties’ eighteen-year relationship, she raised the couple’s two children. Mr. Melo essentially evicted her and the two children from the property where they had been living.
[12] The two children, aged 23 and 25, live with Ms. Docherty but do not contribute to her expenses. Ms. Docherty claims that she owes rent of $25,000 and is currently receiving state assistance in the amount of $1,500 monthly.
[13] Ms. Docherty’s counsel submits that Mr. Melo has the ability to pay spousal support. He has, at a minimum, a monthly rental income of $7,000 from his Dupont property. Second, he submits that Mr. Melo’s bank accounts are replete with ATM cash withdrawal transactions despite his assertion that he has no income and, hence, no ability to pay spousal support.
[14] Mr. Melo’s counsel submits that there are no spousal support arrears because the suspension order of Barnes J. remains in effect. He contends that McSweeney J.’s order can only be reinstated going forward. To that extent, there are no spousal support arrears owing to Ms. Docherty.
[15] I disagree with this submission. Barnes J. suspended McSweeney J.’s order “pending further order by the court.” In other words, it can be reinstated effective the date when Mr. Melo’s obligation to pay spousal support was suspended.
[16] Mr. Melo’s position that he lacks the means to pay child support is undermined by the information he has provided in this motion. He claims that he has no income but seems to have a constant source of funds in his bank account. He claims that his mother pays all his expenses, earns no money from his Dupont property, and only spends on necessities rather than on luxuries. However, he deposes in his January 18, 2022 affidavit that the Dupont property has a net equity of at least $400,000.
[17] While I am not persuaded that Mr. Melo has zero income, I am concerned that Ms. Docherty has not been forthright in providing full financial disclosure. She claims she obtained a student loan in February 2018 but failed to provide an application confirming that she did. She has not indicated why her Workplace Safety and Insurance Board benefits were terminated. Third, she maintains that she receives no financial assistance from her two adult children. I find it strange that she financially supports them despite her claim that she has significant debt. Finally, she did not provide evidence regarding her savings account which she alludes to her April 2022 affidavit. In her affidavit, Ms. Docherty claims expenses of $74,035 and an income of $19,000 but provided no details concerning how she pays down this debt.
[18] For these reasons, I refrain from making an order regarding retroactive spousal payments. Ms. Docherty can renew her claim for such payments after she has provided the outstanding disclosure I referred to in the previous paragraph. I am prepared to order that, effective May 1, 2022, Mr. Melo will be required to pay spousal support in the amount of $1,300 in accordance with McSweeney J.’s order. These funds can be paid out of the net proceeds of sale of the Main Street property held by the real estate lawyer.
b) Should the court make an order for interim disbursement to enable Ms. Docherty to pay legal fees to question Mr. Melo?
[19] Mr. Melo’s counsel submits that this request should be denied given that a) the expenses haven’t been provided and b) Ms. Docherty has complied with disclosure requests and the amounts sought have been arbitrary given that Ms. Docherty initially requested $5,000.
[20] Rule 24(18) of the Family Law Rules, O. Reg. 114/99 under the Courts of Justice Act, R.S.O. 1990, c. C.43, indicates that the awarding of interim payments is discretionary. Several decisions have indicated that the following conditions must be met for such an award to be made:
a) The disbursements must be detailed and shown to be critical to a successful claim,
b) The claimant must demonstrate that she is incapable of funding the amount sought,
c) The claim must be meritorious,
d) The claimant must have the ability to repay the amounts ordered in the event she is unsuccessful at trial: See Stuart v. Stuart, 2001 CanLII 28261 (ON SC), para. 8; Goetz v. McConnell, 2013 ONSC 5971, paras. 10-13; Rosenberg v. Rosenberg, 2003 CanLII 2228 (ON SC), paras. 13, 18, and 19.
[21] Regarding the first requirement, no details have been provided. However, questioning Mr. Melo on a) his income, b) his claim regarding his mother’s payment of his expenses, and c) his alleged impecuniosity is critical to Ms. Docherty’s claim. Ms. Docherty, while failing to provide complete financial disclosure, has shown that she lacks the funds sought. The claim to cross-examine Mr. Melo has merit and the claimant would have the ability to pay an amount less than what she seeks if she is unsuccessful at trial.
[22] For these reasons, Ms. Docherty will be awarded disbursements in the amount of $5,000 to question Mr. Melo.
c) Should the court make an order releasing $100,000 to Mr. Melo from the net proceeds of sale of the Main Street property?
[23] Mr. Melo has already received $350,000, which he deposes he used to pay outstanding debts. He deposes that his mother pays his expenses. There are no pressing reasons why he should receive such a large sum from the net proceeds of sale of the home. In my view, an appropriate sum would be $50,000.
d) Should the court order that Ms. Docherty’s counsel pay costs of $4,082.14 because of the aborted long motion brought by her in November 2021?
[24] Rule 24(9) of Family Law Rules provides that costs are recoverable against a lawyer personally if he or she has run up costs without reasonable cause or has wasted costs, after giving the lawyer an opportunity to be heard.
[25] There is no evidence before me that Ms. Osadet has done either of these things. She cannot be held financially responsible for instructions received from her client if her conduct is not unethical. For this reason, I am not prepared to make this order sought by Mr. Melo.
e) Should there be an order for costs in this matter?
[26] Ms. Docherty seeks costs of $3,500 and $2,000 on a substantial and impartial basis respectively, while Mr. Melo seeks costs in the amount of $6,000 and $3,000 on a similar basis respectively.
[27] Success in the matter is mixed. Neither party obtained the full relief they sought. Ms. Docherty received the ongoing spousal support she sought but not the retroactive support. Mr. Melo failed to persuade the court that Ms. Docherty’s motion should be dismissed and did not acquire the amount he sought to be deducted from the Main Street property’s net proceeds of sale. Nor was he successful in obtaining an order requiring Ms. Docherty’s counsel to pay costs in the amount of $4,082.13.
[28] Based on the above, there shall be no order regarding costs.
CONCLUSION
[29] Order to go that:
a) Commencing May 1, 2022, Mr. Joseph Adelino Melo, will pay spousal support to Ms. Fiona Docherty, fixed in the amount of $1,300 monthly, on an interim temporary basis without prejudice and on the first day of every successive month;
b) Ms. Docherty shall be paid $5,000 from the net proceeds of sale, being held in trust by the real estate lawyer, for the purpose of questioning Mr. Melo;
c) Mr. Melo shall be paid $50,000 from the net proceeds of sale of the property municipally known as Main Street, Caledon, being held in trust by the real estate lawyer;
d) There shall be no order regarding costs.
André J.
Date: September 20, 2022
COURT FILE NO.: FS-16-184-00
DATE: 2022 09 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FIONA DOCHERTY
Applicant
- and –
JOSEPH MELO
Respondent
ENDORSEMENT
André J.
Released: September 20, 2022