Court File and Parties
BARRIE COURT FILE NO.: FC-22-821-00 DATE: 20230228 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Gina Roxana Limisca, Applicant -and- Saeed Ahmed, Respondent
BEFORE: The Honourable Madam Justice R.S. Jain
COUNSEL: Katelyn E. Andersen, for the Applicant Stacey Mintsopoulos, for the Respondent
HEARD: February 23, 2023
Endorsement
Introduction
[1] This matter came before the court for two motions. The Applicant’s motion requested temporary orders for spousal support (ongoing and retroactive) and child support (retroactive and ongoing s. 7 expenses). The Respondent’s motion requested orders for equal parenting time of the party’s child Faryal Ahmed born April 6, 2017 (“Faryal” or “the child”).
[2] At the commencement of the motion, I advised the parties that on a regular motions day there wasn’t enough time to hear both motions in their entirety. The issues of retroactive spousal and child support did not proceed. The Applicant’s motion proceeded on the issues of determining the party’s incomes; temporary spousal support; and contribution to temporary s. 7 expenses. The Respondent’s motion proceeded on the issue of parenting time.
Temporary Spousal Support and Imputation of Income to both the Applicant and Respondent
[3] The Applicant seeks an order for temporary spousal support payable by the Respondent in the amount of $668 per month. This is based upon an imputation of income to the Respondent in the amount of $84,000 and $13,000 to the Applicant.
[4] The parties married in 2016 and separated in 2018. Faryal was only one year old at the time of this initial separation. The parties resolved all their issues on consent, which was reduced to a Final Order of Justice Curtis, dated October 11, 2019, and a Final Order of Justice Paulseth, dated January 7, 2020. These orders dealt with parenting for Faryal, as well as child and spousal support. The parties maintained on good terms during the separation and ended up reconciling in March 2021. They separated again, on a final basis, in July 2022.
[5] The Applicant acknowledges that she has an obligation to become self-sufficient; however, self-sufficiency is not something that happens overnight. She needs more time. Her expenses are high because she is 100% responsible for the costs of the home and payment of debts. The Respondent has agreed to pay child support based on an income of $84,000; however, he has not agreed to pay any spousal support. The Applicant says she has had to seek loans from friends and family.
[6] The Applicant submits that she needs spousal support, and the Respondent has the means to pay it. She earned well under $20,000 during their two years of separation (2019 and 2020). She earned more money when working for the Respondent’s liquidation business. The Applicant’s 2021 year of reconciliation income was $62,394 (from the Respondent’s business). Notwithstanding this, because of her status in the business, she is now also responsible to pay the payroll taxes and remittances that were never paid.
[7] Since separation, the Applicant claims she has been paying for all the carrying expenses of the matrimonial home, groceries and vehicle and contributing to the Respondent’s business debt and her own payroll tax debts. She states there is no evidence that she can earn $30,000 per year.
[8] Both counsel have advised that ongoing contribution to s. 7 expenses was not an issue. Both parties agreed to contribute to the s. 7 expenses. However, as they cannot agree on their incomes, they cannot agree on their prorated share for the expenses.
[9] The Respondent opposes the Applicant’s request for spousal support. For the purposes of spousal support and s. 7 expenses, he seeks the income of $24,950 to be imputed to the Applicant and $70,000 to be imputed to himself. Using these numbers, the Spousal Support Advisory Guidelines (SSAGs) indicate $0 spousal support to be paid. He stated that he agreed to pay child support based on an annual income of $84,000 because that included $14,000 in Covid benefits which he is no longer entitled to.
[10] The Respondent states that the Applicant does not need spousal support as she is under-employed and she has already received over $50,000 from refinancing the matrimonial home, which funds were deposited into her account immediately prior to the parties’ separation. Regarding the Applicant’s under-employment, the Applicant says she works 4 hours per day, 6 days per week, for $20 per hour cash. There was no reason given as to why the Applicant is working part-time. The Respondent attached a SSAG calculation to his Affidavit dated February 16, 2023 which showed that if the Applicant worked 8 hours per day, 5 days per week at this same job, she would be earning cash income of approximately $40,000. After grossing up her income for taxes, the SSAGs calculate $0 spousal support payable by the Respondent to the Applicant. In the alternative, the Respondent says that a minimum wage full-time income of $30,000 should be imputed to the Applicant.
[11] Regarding the refinance funds, the Respondent states that for several months leading up to the separation, the parties were working on consolidating their debts by negotiating a refinance on their home. The intention was to consolidate all Canada Revenue Agency (CRA) and other debts to clear them up or reduce them using the funds from the refinance. Unfortunately, the Respondent allegedly did not receive one penny from the refinance because the Applicant decided to separate immediately (within minutes) after she received the refinance funds deposited in her account. He submits that the Applicant was very premeditated in the timing for the separation. He says she is not entitled to any spousal support as she has all the funds from the refinance, and the funds well exceed any temporary spousal support claim.
[12] Both parties allege the other has provided deficient financial information and that their expenses exceed their claimed income. The Applicant acknowledges that she was premeditated in her plan to separate immediately after receiving and keeping all the funds from the refinance. She stated that the reason she did this was because she assumed that the Respondent would not support her. The Applicant has used some of the funds for her support, and some to pay back some joint personal loans to her friends, and she bought a vehicle. She has not provided a full accounting of how these funds were used. In my view, she had no right to use the funds without the Respondent’s consent. These factors will affect the equalization calculation and potentially effect the final spousal support claim. Nevertheless, at this time, these factors do not weigh heavily on the issue of temporary spousal support.
[13] When making a temporary order for spousal support, the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including: the length of time the spouses cohabitated; the functions performed by each spouse during cohabitation; and any order, agreement or arrangement relating to support of either spouse.
[14] Interim spousal support should only be ordered where it can be said that a prima facie case for entitlement has been made out. In the spousal support context, the ability to impute income applies equally to the payor and the recipient spouse. In my view, imputing reasonable and realistic income to support recipients is fair, and it promotes the economic self-sufficiency of each spouse within a reasonable time. At the same time, the amount of income that the court imputes to a parent is a matter of discretion, and there must be some rational basis, grounded in the evidence, for the amount the court imputes [1].
[15] This was a short-term relationship. In my view, the Applicant has the skills to support employment and she is absolutely capable of working full-time and earning, at minimum, $30,000 based on her skills. She is not under-employed by virtue of any reasonable educational needs. The Applicant can work full-time as Faryal is in school full-time and she has before and after school care. At the same time, in my view, it will take the Applicant some time to become self-sufficient. In my view, there is a need to relieve financial hardship arising from the breakdown of the relationship. For these reasons, I shall impute an income of $30,000 to the Applicant.
[16] I find there is an entitlement and need for some temporary spousal support payable by the Respondent to the Applicant. Given the alleged deficiencies in disclosure, I will continue to use the Respondent’s admitted income of $84,000. The reasonable incomes to use for the SSAG calculations is $84,000 for the Respondent and $30,000 for the Applicant. This creates a mid-range of spousal support in the amount of $201 payable by the Respondent to the Applicant.
[17] For the same reasons as set out above, these imputed incomes shall be used to calculate the prorated share of the parties for payment of s. 7 expenses. I will round up the share for the Respondent to 72% and round down the share for the Applicant to 28%.
Regarding Parenting Time
[18] The Respondent seeks an order for equal parenting time of Faryal on a 2-2-3 schedule or any other alternative equal parenting schedule in the best interests of the child.
[19] The Applicant is opposed to an equal parenting schedule as she states that it is not in the best interests of the child to have parenting time as proposed by the Respondent. She suggests that the Respondent should have a graduated parenting time schedule. She says that since separation in July 2022 she provided the Respondent with “ample and generous parenting time.” In August 2022, the Respondent’s parenting time was every Tuesday and Thursday from 5 pm to 7 pm and every Saturday from 10 am until 1 pm. The Applicant required that his parenting time be supervised. She says she is concerned about the Respondent and his family having inappropriate adult conversations with Faryal and also is concerned about their drinking.
[20] The Applicant now suggests that that the Respondent’s parenting time may expand to alternate weekends on Saturday and Sunday and every Wednesday (day visits only, no overnights). After a set period of time, she suggests it could expand further to include alternate weekends for one overnight and then two overnights. All of this is on the condition that the Respondent has moved into accommodations where Faryal can have her own bedroom. The Applicant says that this schedule will support the child’s school, family relationships and need for consistency and stability.
[21] The Applicant says that she has always been the primary caregiver and residential parent. She relies upon the prior Final Orders from the previous separation as evidence of this position. She also states that Faryal has a close and loving relationship with her sister Alexandra (who is the Applicant’s child from a previous relationship). The siblings have always been together. Faryal attends Mapleview Public School and is doing well. The Applicant has been the primary contact at the school. She has also arranged sessions beginning at NewPath. She says the before and after school program is assisting Faryal with her verbal challenges (selected mutism) and has made significant progress.
[22] The Respondent resides with his sister in Bradford in a 3,000 square foot home with five bedrooms. He says that Faryal will have her own bedroom in that home when exercising parenting time with him. This is confirmed by the Respondent’s sister.
[23] The Respondent submits that the Applicant’s suggested parenting time schedule is all about control. When the parties separated in 2019, they were able to cooperate very well. He also relies on the previous parenting order as evidence that there were no concerns about his parenting of the child. The previous Final Orders gave the Respondent overnight parenting time immediately, and Faryal was only one year old at the time. Faryal was in his care every Wednesday, plus Friday to Monday on alternate weekends. In addition, the prior Order contemplated sharing holidays and an increase in parenting time as Faryal got older. He submits that at that time there were no concerns about Faryal’s safety.
[24] The Respondent adamantly denies the negative allegations the Applicant has made against him. He states the Applicant’s allegations are simply efforts to control and impose outrageous restrictions. He suggests that there are no true safety concerns if the Applicant is offering increasing his parenting time in her own materials.
[25] I am not satisfied with the evidence of the Applicant to continue what I view as a very restrictive parenting schedule. The Applicant’s proposed schedule still severely limits the Respondent’s parenting time. The reasons she has provided for such restrictions are not based on any evidence. Even if there is some truth in the Applicant’s allegations, the restrictions she has imposed thus far are disproportionate in addressing the concern. I agree with the Respondent in that is insufficient reason for this kind of control.
[26] At the same time, I agree with the Applicant in that there are many factors and principles as set out in s. 24 of the Children’s Law Reform Act [2] (“CLRA”) and s. 16.1(1) of the Divorce Act [3] that support Faryal remaining in her primary care. It is in the best interests of the child to have a stable, healthy, and meaningful relationship with both of these parents, and supported by both parents. I do not agree with the Applicant’s submission that Faryal is too young to have equal parenting time. However, I do agree that the history of care, Faryal’s needs and her sister are factors that cannot be ignored. In considering the child’s physical, emotional, and psychological safety, security and well-being, a parenting schedule that provides for a stable home base with regular scheduled parenting time will be in Faryal’s best interests. A schedule that is consistent and stable will help in easing the stresses and pressures of the separation on the child.
[27] The Respondent’s relationship and parenting time with Faryal should be supported, encouraged and maximized in the best interests of the child. The Applicant cannot and should not continue to unilaterally dictate the parenting schedule and impose terms restricting the Respondent’s parenting time. In addition, there should not be any limits to the Respondent’s parenting time just because he is living with extended family. The before and after school programs may be positive for Faryal, but so is spending time with her family and people that are comforting for her. The Respondent should be able to pick her up earlier for his parenting time if he is able and his work schedule permits him to do so. Faryal will have her own bedroom when she is with the Respondent. I am satisfied that the Respondent’s accommodations are not inappropriate.
[28] I find the schedule suggested by the Applicant is absolutely too restrictive. The Applicant has not provided satisfactory evidence to prevent or delay the immediate commencement of the Respondent’s overnight parenting time. I find it is in the best interests of the child to primarily reside with the Applicant and have a specified parenting time schedule with the Respondent.
[29] After receiving this decision, the parties should commence negotiating decision making responsibility and a temporary parenting time schedule that includes sharing holidays and special occasions. I didn’t hear any submissions from counsel on this issue, so I will only make an order regarding the upcoming Easter weekend. Pursuant to s.16.1(6) of the Divorce Act, the court will refer the parties to attend a family dispute resolution process to negotiate and/or mediate the balance of the parenting plan.
[30] For the reasons set out above, Temporary Order to go:
(a) For the purposes of spousal support and contribution to s. 7 expenses, the income of $30,000 shall be imputed to the Applicant, and the income of $84,000 shall be imputed to the Respondent.
(b) The parties shall both contribute to the children reasonable s. 7 expenses. The Respondent shall pay 72% and the Applicant shall pay to 28%.
(c) Based upon the imputed incomes to both the parties, commencing March 1, 2023, the Respondent shall pay spousal support to the Applicant in the amount of $201.00 per month and one every first of the month thereafter until further order of the court or consent of the parties.
(d) SDO to issue.
(e) The Applicant shall have primary residence and care of the child, Faryal Ahmed born April 6, 2017.
(f) The Respondent shall have parenting time with the child Faryal Ahmed born April 6, 2017 as follows:
i. Alternate weekends from Friday after school until Monday morning return to school. If school is closed on the Friday or the Monday, the Friday pick up will be at 5:00 p.m. and the Monday drop off will be at 5:00 p.m. at the Applicant’s house.
ii. Every Wednesday overnight from after school until Thursday morning return to school. If school is closed on the Wednesday or the Thursday, the Wednesday pick up time will be at 5:00 p.m. and the Thursday drop off will be 5:00 p.m.
iii. All pick up and drop offs shall occur either at the child’s school or the before and after school daycare or, if the school or daycare is closed, at the Applicant’s residence.
iv. For Easter weekend 2023, the Respondent shall have parenting time from Thursday after school until Saturday at 5:00 p.m., drop off at the Applicant’s residence.
(g) Neither parties shall speak to the child about the adult or legal issues. Both parties shall refrain from speaking negatively about the other parent in front of or within earshot of the child.
(h) Neither party shall consume alcohol to excess while the child is in their care.
(i) The Applicant and Respondent shall be equally entitled to access information and documents from the child’s teachers and doctors and any other professional or institution involved in the child’s life.
(j) The parties shall (with guidance from their lawyers) complete the intake forms and intake meetings at The Mediation Centre in Barrie, or some other mutually agreeable alternative dispute resolution organization to determine their appropriateness to attend mediation and negotiate a comprehensive parenting plan.
[31] Neither party was wholly successful in their motions. Success was mixed, and thus neither party may be entitled to costs. However, it is unknown to the court whether there was an exchange of offers to settle. If counsel cannot agree on costs, I will receive written submissions on a 7-day turnaround, commencing with the Applicant on March 10, 2023 followed by the Respondent’s submissions on or by March 17, 2023, then reply submissions, if any, on or by March 24, 2023. Cost submissions shall be no more than 2 pages in length (12 pt font size, regular 1-inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my judicial assistant at barriejudsec@ontario.ca. If no submissions are received on or by March 24, 2023, the issue of costs will be deemed to have been settled between the parties.
Jain J.
Released: February 28, 2023
[1] Drygala v. Pauli, 61 O.R. (3d) 711 (Ont. C.A.) and Kinsella v. Mills, 2020 ONSC 4785. [2] Children's Law Reform Act, R.S.O. 1990, c. C.12. [3] Divorce Act (R.S.C., 1985, c. 3 (2nd Supp.)).