COURT FILE NO.: FS-22-27482

DATE: 20220204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DANIEL RAFAL DWORAKOWSKI

Applicant

– and –

WENDY TASINE DWORAKOWSKI

Respondent

C. Leung, for the Applicant

J. Marks, for the Respondent

HEARD: January 17, 2022

PAPAGEORGIOU J.

Overview

Nature and Urgency of Motions Before Me

[1] The Applicant Daniel Dworakowski (the “Father”) sought leave to bring an urgent ex parte for a non-removal order of the child of the marriage (the “Child”), as against the Respondent Wendy Tasine Dworakowski (the “Mother”).

2The motion initially came to me for triage as to whether it was urgent.

3Given the Father’s allegations that the Mother had forged his signature on a passport application, was not a Canadian citizen, and had threatened to remove the Child to Jamaica, I advised that the motion could proceed urgently after providing the Mother with three days-notice.

4The Mother provided responding materials including her own urgent cross-motion for support and ancillary matters.

5The Father’s counsel initially objected to the Mother’s cross -motion being heard urgently through an email to the Family Court office. I determined that the Mother’s motion was and should be heard urgently for the following reasons.

6The Mother’s evidence set out that she does not have sufficient income to support herself and the Child, has been living at a women’s shelter and then with various friends for the past seven months, has gone into debt, and is facing a deportation order because the Father withdrew his support of her immigration application on July 12, 2021.

7While the Mother has obtained an extension to apply for permanent residency on compassionate grounds until August 2022, any such extension could be revoked at any time by an immigration officer under section 24(1) of the Immigration and Refugee Protection Act. In making a decision as to whether residency should be granted on a compassionate grounds, immigration officers take into account the best interests of the child and the economic sufficiency of the applicant: Simranjit Singh Bhatia v. The Minister of Citizenship and Immigration, [2017] F.C. 1000 at para 7.

8I was also concerned that the Mother’s financial circumstances and unstable living situation could potentially prejudice her ability to effectively pursue her application for permanent residency. The deportation of the Mother, who the evidence before me demonstrated had been, and was still, the primary caregiver for the Child, would not be in the Child’s best interests.

9In my view, many of the issues presented to me were urgent and had to be regularized immediately in the Child’s best interests pursuant to rr. 14(4.2), 2(3), and 2(4) of the Family Law Rules, O. Reg. 114/99.

Procedure

10To ensure fairness, I permitted the Father to file an additional affidavit on the day of the hearing which was 149 pages long including exhibits. Neither party indicated that there was any additional affidavit evidence which they wished to file.

11Pursuant to r. 14(17) of the Family Law Rules, evidence on a motion may be given by oral evidence with the court’s permission. I gave the parties leave to conduct in court cross-examinations and re-examinations, received further written submissions and gave the parties the opportunity to make further oral submissions which they declined.

12I employed the above process in a flexible manner to ensure that I could fairly, efficiently and expeditiously resolve the urgent issues before me in the Child’s best interests.¹

Decision

13For the reasons that follow I am making a non-removal order from Ontario, as well a parenting order in favour of the Father in accordance with the parties’ prior agreement that he have parenting time every other weekend, as well as a child and spousal support order. All other issues raised are adjourned and to be case conferenced.

Background

14The Mother and Father were married on August 4, 2019. The Child was born on December 29, 2019 and is currently two years old.

15It is uncontradicted that after the Child’s birth, the Mother stayed home with him and was the primary caregiver.

16The parties separated on or about July 5, 2021.

The Father’s Motion for a Non-Removal Order

17Counsel for the Father had brought this motion returnable January 17, 2021 after the Mother removed the Child from daycare and stopped facilitating his parenting time after December 20, 2021.

18He alleged that the Mother had forged his signature on a passport application and was a flight risk.

19At the conclusion of the motion, both parties ultimately agreed to a reciprocal order of non-removal from Ontario (although the Father was seeking one from Toronto). I will be making a non-removal order on consent.

20Nevertheless, it is important to consider the Father’s evidence that the Mother had initially absconded from the Matrimonial Home and taken the Child without his consent, and was thereafter intending to abscond with the Child to Jamaica, as it provides the context within which this dispute began and has continued.

21The Mother’s evidence is that the Father signed a passport application for the Child on July 5, 2021 after they allegedly reached an agreement that the Mother could relocate if the Father could keep the proceeds of sale of a property which she had previously owned in Anguilla (the “Anguilla Property”). He wished to use such proceeds to close a purchase of a property in Niagara (the “Niagara Property”) in his sole name.

20The Niagara Property purchase was scheduled to close on July 12, 2021. The Mother also alleges that she drafted a specific agreement whereby she could relocate with the Child but the Father told her he would not sign the agreement until after the purchase of the Niagara Property closed.

21The Mother alleges that thereafter the Father began making threats against her, forced her out of the Matrimonial Home on July 6, 2021 and as a result she made a criminal complaint.

22Thereafter, the Father made a criminal complaint alleging past abuse he allegedly suffered at the Mother’s hands. The Father was not charged. The Mother was charged initially but those charges were dropped and there is insufficient evidence before me to determine what occurred on this occasion with respect to their alleged altercation and past abuse.

23However, I find on the evidence that the Anguilla Property proceeds were wired to the parties’ joint account, in the amount of $55,894, and were subsequently used by the Father to purchase the Niagara Property in his sole name. It is supported by the documentary evidence. The Father does not dispute this, although he claims that he contributed $25,000 to the development of the Anguilla Property. The Mother submits that she has proof she paid any contribution he made back. I cannot resolve this issue on this record.

24The Mother produced a passport application purportedly signed by the Father dated July 5, 2021 and a baptismal certificate so that the signatures could be compared. While there is no expert evidence as to the signatures, they appear to be the same.

25The Mother produced a screenshot of white hands signing a child passport application beside another document which is unsigned and which shows part of the agreement she alleges the Father made at that time, although the wording is not entirely clear. The Father is white and the Mother is black.

26The Mother also produced a video recording which she indicated was the Father signing the passport application (without sound).²

27The Mother says that the Father did not know she was video-taping him and she did so because he has in the past resiled from agreements he has made claiming he never made them; she was concerned that he would do so again.

28While the video-taped image of the document being signed is clear enough to see that it is a child passport application, the child’s name on the application is unclear. As well, the Mother appears to have quickly moved the camera she was using from the hands signing the document to the person. This quick movement appears to have caused the image of the person signing the application to be blurry.

29First, the document being signed in the video is very clearly a child passport application and the proposition that whoever signed this did so without knowing what it was is not believable. (The Father’s counsel initially made the argument that if the Father signed it, he did not know what he was signing.)

30Second, while the video-taped image of whoever is signing is blurry, the image is consistent with the Father’s image on zoom, particularly his beard. It is also clearly a white male with a similar coloring to the Father.

31Furthermore, the Father admitted that the coffee table pictured in the video was the coffee table in the Matrimonial Home. There is no evidence the Mother returned to the Matrimonial Home after July 6, 2021.

32For anyone else to be pictured in this video signing a child’s passport application, the Mother would have had to have premeditatively arranged for someone else, with a general appearance similar to the Father including his beard, to sit at their coffee table prior to July 6 to sign this application, when there was not yet any litigation between them.

33She would have also had to orchestrated video-taping this imposter in such a way that when she moved the camera, the image of the imposter signing the document would still look similar enough to the Father, but would be somewhat blurry to obfuscate the fact that it was not in fact the Father.

34I find on the balance of probabilities that the Father signed the Child’s passport application.

35After the Father watched the video at the motion, he gave evidence that it is possible that it is him, but he simply has no recollection of signing the passport application. This is not believable for a number of reasons. First, in his January 7, 2021 affidavit, before he was aware that the Mother had photographed and videotaped him allegedly signing the passport application, he stated that he “did not sign a passport application for the child due to the [Mother’s] previous threats” that she would take the Child and leave for Jamaica.

36As well, the signature is dated July 5, 2021, less than seven months ago during the competing criminal complaints. I find it extremely improbable that given these circumstances, in particular his alleged concerns about the Mother’s past alleged threats to depart with the Child, that he would not recall signing the Child’s passport application, if in fact he did.

37I found the Mother’s evidence on this issue believable and consistent with the documentary evidence, the photo and video evidence while the Father was evasive. He would not even admit that he is white and kept saying he is “peachy” or tanned colored. While I have considered the video-taped evidence for the purposes of this urgent interim motion, there may be admissibility issues at trial: See for e.g. Iannarella v. Corbett, 2015 ONCA 110 at para 94. As well, it is possible that the Father could provide other evidence to dispute his signature at a later date.

38With respect to his alleged agreement to allow the Mother to relocate, the draft written agreement in the photograph is not fully legible nor is it before me and I also make no findings on this issue at this time.

39It is uncontradicted that on July 12, 2021 the sale of the Niagara Property closed.

40On the very same day, July 12, 2021, the Father withdrew his undertaking of assistance in support of the Mother’s application for permanent residence which she says was his attempt to have her deported.

41The Father says this was because the Mother had unilaterally left the Matrimonial Home on July 6, 2021 with the Child without his consent, and made an allegedly false criminal complaint on that day. However, he did not withdraw his immigration support on July 6, 2021. The timing of the withdrawal of the immigration support on July 12, 2021, the exact date of the closing of the Niagara Property, is very concerning and consistent with the Mother’s narrative.

42On July 15, 2021 (attached as an Exhibit) the Mother received a letter from Immigration Canada referencing the Father’s July 12, 2021 correspondence removing his support, that she must depart immediately, and if she failed there would be action against her.

43As a result of her efforts and advocacy, Immigration Canada then granted her temporary residence on August 18, 2022 for one year to permit her to apply for permanent residence on humanitarian grounds.

44Then, on September 22, 2021 the Mother obtained a job as a dental assistant in Toronto and has been working there ever since. She provided proof including pay stubs as late as December 31, 2021.

45In his motion materials, the Father relied upon a text message between the Father and Mother dated December 25, 2021 as follows:

M: With all being said, can I now take [the Child] home with me now? You took everything I had and that’s okay.

M: You gave me the ultimatum that day I want my son.

F: You are NOT leaving with my son.

M: You gave me the ultimatum

M: Didn’t you

F: You’re leaving. Logan is staying.

M: I’m leaving.

M: You’re immigration now?

46Notably, the Father does not deny in this text exchange that he gave the Mother an ultimatum although her text is not clear as to what that ultimatum was.

47As well, the Mother explained that there is a question mark missing from the second last text from her which should have stated “I’m leaving?” followed by her statement “You’re immigration now?” She indicated that she meant to question the Father’s remark where he stated “You’re leaving” immediately above in the sense that he was not in the position to direct her to leave as he is not an immigration officer. Her evidence in this regard makes logical sense given the context of this communication.³

48I add that the Mother is still working as a dental assistant in Toronto (supported by pay stubs as late as December 31, 2021) which would not be the case if she had been planning to abscond with the Child without the Father’s or the court’s consent.

49Indeed, I agree with the Mother’s counsel that the Mother’s actions (obtaining a job, putting the Child in daycare, and obtaining an extension for her immigration status) support that she does not have and did not have any intention to abscond with the Child. While the Mother has been actively taking steps to stay in Canada, the Father has taken active steps that may lead to her deportation.

50For the purposes of this interim motion, in my view, the Mother’s position that the Father agreed to allow her to relocate with the Child on July 5, 2021 in exchange for the Anguilla Proceeds, but subsequently forced her to leave the Matrimonial Home on July 6, 2021, is supported by independent evidence as well as the context. As well, on this motion the record does not support the Mother having forged the Child’s passport or that she has had any intention to abscond with the Child. As will be seen below, the Mother requested through counsel that she be permitted to return to the Matrimonial Home on December 15, 2021 but the Father refused. This is also inconsistent with any intention to abscond with the Child.

Parenting Time

51There was no formal written motion before me regarding the Father’s parenting time, but the Father’s counsel asked if I would consider it at the hearing and allow him to ask questions in pursuance of such claim. The Mother’s counsel made no objection.

52Rules 2(2) and 2(3) of the Family Law Rules directs the court to determine matters in a just manner which saves time and expense for the parties. In my view, this was an appropriate case for me to exercise my discretion to hear the Father’s oral motion. I saw no reason why he should be compelled to bring another motion, to essentially enforce a without prejudice agreement the parties reached in October, entailing more cost and expense for both parties.

53In order to address the Father’s oral motion, I must consider the best interests of the child pursuant to section 16(1) of the Divorce Act.

54The Divorce Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the interests of the child: s. 16(6). It is in the best interests of a child to have a meaningful relationship with both parents and not to be exposed to conflict: Pereira, at para. 26.

55Above all else, the primary consideration that the court must consider is a child’s “physical, emotional, and psychological safety, security and well-being”: Pereira, at para. 13; CLRA, s. 24(2); see also Divorce Act, ss. 16, 7.1, and 22.1.

56The best interests analysis is holistic, taking into account a child’s well-being in a broad sense, including their “basic material, physical, educational, and emotional needs, as well as needs for affection and safety,” S.S. v. R.S., 2021 ONSC 2137, citing the UN Convention on the Rights of the Child. The court is to engage in a rigorous assessment of the specific child’s circumstances: S.S. v. R.S., at para. 37.

57Relevant considerations are set out in section 16.

Family Violence

58There are competing allegations of family violence by each against the other, which I cannot resolve despite cross examinations and considerable evidence given by each on this issue. There may be police reports, CAS reports and other evidence that could assist a court at a future date with this issue. I would, however, consider the Father’s admitted withdrawal of immigration support a form of domestic violence which is adequately proven on this record. The Father argued that the Mother’s request to live in the basement apartment of the Matrimonial Home in this motion demonstrates that she has no fear of him. I make no findings on this; nor do I find it to be a persuasive argument. It is well known that many people in abusive relationships return to them, particularly when they are economically unstable.

59The uncontradicted evidence is that after the Child was born the Mother was the primary caregiver and she stayed home to care for him. The Mother was the one who fed the Child and attended to his needs including diaper changing. The Father’s evidence was that he had a loving and involved relationship with the Child, but he did not attempt to lead any evidence that disputed the Mother having been the primary caregiver.

60The Child is currently two years old and the uncontradicted evidence is that he has resided primarily with the Mother since separation.

Ability and Willingness of the Mother and Father to Support the Relationship with the Other Spouse

61I have significant concern that the Father does not support the Child’s relationship with the Mother given his withdrawal of immigration support. Indeed, he is prepared to see her deported without any consideration to the impact this would have on the Child. His text to her of December 25, 2021 (which he placed in his own affidavit) states “You’re leaving” “[The Child] is staying”

62Although the Mother gave evidence that she recognizes the importance of the Child’s relationship with the Father, there is also some evidence that the Mother is unwilling to support the Child’s relationship with the Father. There is the contested record before me regarding the circumstances of the Mother’s departure on July 6, 2021. If the Father is ultimately found to be telling the truth, then the Mother deliberately left without the Father’s consent and withheld the Child. However, as noted above, the Mother has provided evidence which is supported and believable as to the circumstances of her departure for the purposes of this interim motion, although it is unclear as to why she withheld the Child for several months following her departure.

63On October 26, 2021 the Mother and Father agreed through counsel that the Father could have weekend parenting time every other weekend with drop offs and pick-ups at the Child’s daycare. The Father then had parenting time every other weekend for three weekends.

64The Father’s affidavit indicates that on or about December 15, 2021, the Mother advised him through her counsel that she wished to move back into the Matrimonial Home effective December 17, 2021. He refused citing safety concerns. The Mother then stopped facilitating the Father’s parenting time after December 20, 2021 because of her view that the Child was sick when she picked him up and she had to miss work. She blamed the Father.

65She indicated that she does not know how the Father is dressing or caring for the Child who cannot speak, and she could not afford for the Father to drop the Child off sick whereupon she loses her income, particularly when the Father was not paying any child support or daycare costs. While her concerns regarding the Father’s failure to provide support are valid, the Child’s relationship with the Father is important. There were other methods to address support without withholding the Child, for example bringing a motion.

Ability of the Father to Meet the Needs of the Child

66Apart from holding the Father responsible for the Child’s illness, the Mother also gave evidence that after visits with the Father the Child is tired and she believes he is not providing suitable sleep time.

67There is insufficient evidence to support the Mother’s beliefs that the Father has been the cause of the Child’s illness or that he has not been providing suitable sleep time or care for the Child. As well, the Mother readily acknowledged that she is not a perfect mother but then when cross examined said that she expected the Father to be perfect. This is an unreasonable and unfair double standard.

Supervision

68There is no evidence in support of the Mother’s request that the Father’s parenting time be supervised.

Quantum of Parenting Time for the Father

69The Father initially requested to recommence every other weekend parenting time in accordance with their October agreement. In his supplementary factum, which I received after the argument, the Father indicated that he immediately seeks primary residence of the Child or in the alternative a shared parenting arrangement. On this urgent motion, where no notice was given, it would be inappropriate to establish a new parenting time schedule outside of what the parties had previously agreed.

70Rather, in these circumstances, the record supports the Child continuing to reside primarily with the Mother on an interim basis with the Father having parenting time every other weekend in accordance with their prior without prejudice October 26, 2021 agreement, with a move the to the regular family list where any changes can be addressed through a motion on notice.

Child Support

71Child support is governed by the Federal Child Support Guidelines, SOR/97-175 (“CSG”).

72Section 3 of the CSG reads as follows:

1Presumptive rule

23(1) Unless otherwise provided under these Guidelines, the amount of child support order for children under the age of majority is

(a) The amount set out in the applicable Table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) The amount, if any, determined under section 7.

73The Mother claims that the Father’s income is over $200,000 while the Father claims his income is significantly lower.

74The Father claims that he earned only $24,000 in employment income, as well as rental income from the Matrimonial Home in the amount of $1,800, and $1,300 per month from the Niagara Property basement apartment.

75He has listed the upper unit of the Niagara Property for $2,000 but is prepared to accept $1,500 per month. In total, he claims his current employment and rental income is $61,800. He alleges that there are mortgages on the properties in the amount of $3,100 on the Matrimonial Home and $1,950 in respect of the Niagara Property, and the rent he receives does not cover these mortgages.

76At the motion, he advised that he was prepared to pay monthly child support in the amount of $574.16 per month based upon his income of $61,800 and the Mother’s of $45,700. Income at this level results in no spousal support pursuant to the Guidelines.

77There are significant concerns with the income which the Father says he earns, even without taking into account the Mother’s evidence as to what she understood he earned while they were together. The Mother seeks to impute income to the Father based upon the sworn evidence that he has filed.

Imputation of Income

78Section 19(1) of the CSG empowers the court to impute income to a spouse as it considers appropriate in the circumstances and sets out applicable circumstances which includes the failure to report income for the purposes of child support and/or the diversion of income.

79The Father is the sole shareholder of D & W Painting Ltd, out of which he operates a painting business. He regularly employs subcontractors.

80First, his sworn Financial Statement dated January 17, 2022 lists the amount owing on the mortgage on the Matrimonial Home at the date of separation to be $600,000 but only $493,000 as of January 17, 2022. There is no explanation as to how the Father could have so significantly paid down the mortgage in six months given what he says his income is.

81The Father provided his tax returns and Notices of Assessment for 2018, 2019 and 2020 as part of his January 17, 2022 affidavit. They do show his line 150 income to be $24,000 which presumably is from his painting business. I note that these tax returns do not show any income from any rental property which he apparently collected in cash. In his affidavit material he alleged that this rental income was the Mother’s income, but this makes little sense as she is not a registered owner. His underreporting of his income to Revenue Canada with respect to rental income raises credibility issues on its own.

82Given that the Father did not own the Niagara Property prior to July 2021, the total rental income he earned would only have been from the Matrimonial Home in the amount of $21,600 (1,800 x 12). Therefore, his total income prior to 2021 would have been $24,000 + $21,600 = $45,600.

83Prior to separation, the mortgage on the Matrimonial Home was $600,000 as per the Father’s Financial Statement. Even with the reduced mortgage of $493,000 the Father states that the current monthly mortgage payment is $3,100. Although there is no evidence before me on this issue, it is a reasonable assumption that the monthly mortgage payment would have been greater when the outstanding principle was greater. There is no explanation as to how the Father could have afforded even the reduced monthly mortgage payment of $3,100 which annually would amount to $37,200 plus all living expenses (utilities, food, clothes) with income of $45,600.

84The Income Statement Information he produced for his painting business (also as part of his January 17, 2022 affidavit) reports the current year trade sales of goods and services to be $191,313 in 2020 with total expenses in the amount of $176,347, and only net income of $14,966. There was some suggestion that the federal government COVID business loan in the amount of $60,000 is part of this reported sales of goods and services but this makes no sense given a loan is not a sale of goods and services. Further, a $40,000 loan is reported on the company’s balance sheet.

85The Father has not provided any proof of the significant expenses claimed, although to be fair this motion did proceed urgently and there has not yet been disclosure.

86He has a number of general categories listed in his Statement of Income Information which arguably duplicate expenses (e.g., purchases/costs of materials: $19,335, cost of sales: $84,382, supplies: $6,651). It does not seem reasonable that a business which essentially involves paint, paint brushes and the like could possibly incur costs as high as these for materials and supplies.

87Prior years report current trade sales of goods and services to be $139,531 in 2019 and $202,866 in 2018 with losses of $12,410 and $8,373 respectively during these years. Again, the expenses are out of proportion to what one would expect of a business like this.

88The idea that the Father would run a business which has such significant gross sales but actually earns so little, and indeed has lost money in past years is not believable.

89Furthermore, bank statements from the Father’s business account from February 1, 2021 to June 21, 2021 show deposits of $95,218 over that period or $19,043 per month on average. Therefore, his business is continuing to earn significant sums.

90In my view, the evidence sufficiently establishes that the Father in fact must earn significantly more than he reports on his taxes or that he admits in his sworn materials.

91The Mother seeks to impute income to the Father based upon reasonable expenses for his business being no more than 1/3 of this businesses’ gross income. With his rental income this would result in imputed income of $173,940.

92However, as this is an interim motion brought urgently, and the Father has not yet had an opportunity to provide evidence of his expenses, I am not prepared to assume that his legitimate expenses could be no greater than 1/3 of his business’ gross income at this time.

93In my view, pending the Father’s ability to prove his expenses at a later date, the most that such expenses could legitimately be is 50 % of gross receipts or $95,656.50, leaving $95,656.50 as profits which the Father could pay himself as income. The rental income for the two properties in the amount of $37,500 should be added to this for a total income of $132,856.50 which I am imputing to the Father for the purposes of this interim motion.

94This results in a monthly child support obligation of $1,169 based on his imputed income of $132,856.50.

Section 7 Expenses

95The only section 7 expenses raised by the Mother are daycare expenses which are $1,040 per month. The Father must also pay his share of section 7 expenses proportionate to his income, which on the basis of this record is approximately 2/3. Therefore, I will be ordering that the Father pay $693.33 per month and that he pay this retroactive to September 2021. I have fixed the amount based upon four months of daycare given the Mother withdrew the Child at the end of December 2021.

Spousal Support

96In making a spousal support order, the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including: a) The length of time the spouses cohabited; b) The functions performed by each spouse during cohabitation; and c) Any order, agreement or arrangement relating to support of either spouse: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15.2(4)

97An order for spousal support should: a) Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; b) Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; c) Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and d) In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time: Divorce Act, s. 15.2(6)

98On a motion for interim spousal support, the following governing principles are applicable:

a. The Applicant’s needs and the Respondent’s ability to pay assume greater importance;

b. An interim order should be sufficient to allow the Applicant to continue living at the same standard of living enjoyed prior to the separation, if the payor’s ability to pay warrants it;

c. The court achieves rough justice at best—and does not embark on an in-depth analysis of the parties’ circumstances;

d. The court should not unduly emphasize one of the Divorce Act statutory considerations above the others;

e. The need to achieve self-sufficiency is often of less importance;

f. Interim support should be ordered within the range suggested by the SSAGs 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; and

h. Where there is a threshold issue, it becomes less advisable to order interim support.

McConnell v. McConnell, 2015 ONSC 2243, [2015] O.J. No. 1710, at para. 47; Faccio v. Faccio, 2018 ONSC 1225, at paras. 31-32, 37.

99The Mother’s entitlement to spousal support is based primarily on need as this is a two year marriage only.

100She stayed home with the Child after birth, but then was able to obtain employment as noted above shortly after the separation. Her take-home pay per week is $736.95 or approximately $2,948 per month. After payment of the daycare expenses in the amount of $1,040, this has left her with $1,908 for rent, food and other necessities. She and the Child cannot live at their prior standard on this. The Matrimonial Home is a three bedroom house.

101Although she has not yet filed a Financial Statement, given that these motions have proceeded on an urgent basis, her evidence is that she has no other assets or income with which to support herself. The Father’s claim that the Mother owns other property in Jamaica is not supported by other evidence.

102As noted above, the Mother initially resided at Herizon House Women’s Shelter until September 2021 and since then with friends and has gone $14,000 into debt.

103Since she left the Matrimonial Home, the Father has not provided support to enable her to provide a stable residence (apart from a one-time payment of $1,000) even though he acknowledges in his affidavit that the Mother’s current “residential arrangement is transient.”

104I am satisfied that the Mother has established entitlement on a needs basis.

Quantum of Spousal Support

105The Divorcemate calculation based upon the Father’s imputed income of $132,856.50 and the Mother’s income of $45,700 ranges from a low of $854 to a high of $1,849. At the highest end, even taking into account the child support payment of $1,169, the Father still has 53.4 percent of the Net Disposable Income.

106As noted above, after paying daycare, the Mother will have $1,908 for rent, food and other necessities. The Father argues that this is enough for her to rent a residence in Toronto as she should be prepared to live in a bachelor apartment. I disagree. The standard to which the Mother and Child were living is relevant; the Child should have his own bedroom. While there is no evidence before me on the cost of rent in Toronto, the Father rents out his basement apartment for $1,800 per month. Therefore, in my view, awarding the Mother spousal support at the high end of $1,849 would not be unreasonable if she had provided all the necessary financial disclosure. However, since she has not provided sufficient income disclosure as yet, I am awarding her $1,000 per month, subject to either party being able to bring a motion to vary afterwards.

107With respect to the Mother’s request for retroactive child and spousal support, exclusive possession of the Matrimonial Home or other rental properties owned by the Father, and her request for interim disbursements, I am adjourning these issues and sending them to be case conferenced prior to a motion, if one is required.

108I add that I have particular concern that the Father will not pay these support orders given my findings on this record that the Father gave false evidence as to whether he had signed the passport application, as well as his misleading evidence regarding his current income. Given that the Father is self-employed, it may be very difficult for the Family Responsibility Office to enforce support orders. As such, if the Father fails to comply with the below support Orders so that the Mother and Child can promptly find suitable accommodation, the Mother is given leave to bring her motion for exclusive possession of the Matrimonial Home urgently.

Order

109Therefore, this court orders, on an interim, interim and without prejudice basis, as follows:

a. Pursuant to s. 16.1(4)(d) of the Divorce Act, on consent, neither party shall remove the Child from Ontario.

b. Pursuant to s. 16.1 the primary residence of the Child shall be with the Mother.

c. Pursuant to s. 16.1 of the Divorce Act, the Father shall have parenting time every other weekend commencing February 11, 2022 from Friday at 5:00 pm until Monday morning at 8:00 am.

d. Pursuant to s. 16.1(4)(d) of the Divorce Act the Father shall pick up the Child from daycare on Fridays at 5:00 pm when he has parenting time and return the Child to daycare Monday mornings at 8:00 am.

e. Pursuant to s. 15.2 of the Divorce Act, the Father shall pay the Mother interim spousal support commencing February 1, 2022, in the amount of $1,000 per month based upon imputed income of $132,856.50 pursuant to s. 19 of the CSG.

f. Pursuant to s. 15.1 of the Divorce Act, the Father shall pay Table child support to the Mother commencing February 1, 2022, in the amount of $1,169, based upon imputed income of $132,856.50 pursuant to s. 19 of the CSG.

g. Pursuant to s. 7 of the CSG, the Father shall contribute $693.33 towards daycare expenses commencing February 1, 2022.

h. Pursuant to s. 7 of the CSG, the Father shall pay $2,773.32 in retroactive section 7 expenses within 15 days of this Order.

i. A support deduction order shall issue. Unless the support deduction order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

j. Pursuant to s. 25 of the CSG, for so long as support is payable, the Father and Mother shall provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order.

k. The parties shall attend an urgent case conference on February 11, 2022 at 2:00 pm to address the Father’s wish to increase his parenting time, the Mother’s request for interim disbursements, exclusive possession of the Matrimonial Home, retroactive child and spousal support and disclosure issues.

l. If the parties do not agree on costs, they may make submissions, no longer than 6 pages each as follows: a) the Mother within 7 days; and b) the Father within 7 days thereafter.

m. Given the Mother’s immigration status, this matter shall be expedited.

n. All ongoing payments awarded hereunder are subject to adjustment at a later date.

Papageorgiou J.

Footnotes

1. 1See A.A. v. Z.G., 2020 ONCA 192, at para. 24 where the Court of Appeal discussed the procedural discretion motion judges have pursuant to r. 2.
2. 2The video was an exhibit to the Mother’s affidavit but could not be played from the caselines tab. Therefore counsel emailed a copy to the court which was used at the hearing. It was inadvertently not marked as an additional Exhibit but I have directed that the exact video which was sent to me be placed on caselines as a separate tab to cure this defect in the record.
3. 3I note that there is an additional undated text message which the Father states was from the Mother prior to July 5, 2021 which seems to suggest that the Mother was agreeable to leaving the Child and the proceeds of the Niagara Property with the Father. This makes no sense given the July 5 signature on the passport application and I make no findings on this undated text message, particularly because the photograph of the other text message appended to the Father’s affidavit specifically shows the date while this text message does not.