Court File and Parties

COURT FILE NO.: FS-21-00027315-0000 DATE: 20230417

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

NICOLE HALL Applicant – and – PAUL GALBRAITH Respondent

Counsel: James David Singer, for the Applicant Christopher A. Mamo, for the Respondent

HEARD: April 4, 2023

AKAZAKI, J.

INTRODUCTION AND SYNOPSIS

[1] The parties once indulged in an upscale lifestyle. The Respondent father was earning good money as a managing director a multinational bank’s Toronto operations. The Applicant mother used to renovate and flip houses with her brother, with whom she was also a local reality TV star in W Network’s Sibling Rivalry. The parties’ Toronto home featured a swimming pool and basketball half-court. They owned a ski chalet, dined at tony eateries and took luxury vacations. They could live this way with their two children, even though the father supported two children from a previous marriage, because they were married.

[2] In addition to love and companionship, the economic benefit of consortium is the ability to get the most out of what life has to offer. After marriage breakup, consortium vanishes together the financial benefits that come with it. The family here has had to learn that the cruelty of this economic principle applies not only to “ordinary” people but also to people like them. The mother is ambivalent about this change of circumstances. She has asked the court to make a set of temporary orders enabling her to have both children in the private school of her childhood and to ease her into suburban life as the owner of an air rifle club in Vaughan, all at a cost to the father just shy of a half-million a year. At issue in this motion is the soundness of her belief that the father could and should be required to pay her such amounts.

[3] After the separation, the bank underwent restructuring and gave the father a choice between a relocation to its New York offices with higher pay and a golden handshake. This proved to be his moment between Scylla and Charybdis. Take a severance package and look for a lower-paying situation elsewhere in Toronto, and the mother could argue he was underemployed and ask the court to impute his income at the level of the New York job that he had turned down. Take the promotion in New York, and the mother could accuse him of family abandonment and cut him out of decision-making while seeking the increase in support. He opted to take the promotion. She served him with motion records, contending that the father:

1. chose not to spend time with the children,
2. put his first two children through private school and contributes to the first set’s university fees, but now refuses to pay for the second pair’s private school fees, in the order of $70,000 per annum,
3. refused to pay for ski club memberships,
4. increased his uncharacterized blended and tax-free monthly support from $10,000 to $15,000, or a meagre $180,000 a year,
5. used to pay for the $712 monthly lease of her Dodge Durango but has declined to pay $2,198 a month after she traded in the Durango for a high-end Tesla, and
6. compelled her to dip into capital to make ends meet, including forcing her to sell her Platinum Toronto Raptors season tickets for $113,000.

[4] In the notice of motion, the mother sought, firstly, a temporary order granting her final say over decision-making over the education of the children, provided she consulted with the father and took advice form an “educational specialist” prior to making any decision. As the argument of the motion unfurled, this pleading turned out to be a bit of Orwellian doublethink for making the father an unperson just long enough for the mother to enrol both children in Holy Trinity School (HTS), the private school she had attended. Thereafter, the choice would be his, either to tell the children they can no longer go to HTS, or to pay for the school fees on tick.

[5] Secondly, the mother sought to formalize monthly child and spousal support and to increase them from the current voluntary amount of $15,000 to the following monthly payments, pursuant to the formulae in ss. 15.1 and 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Suppl.), as well as the Federal Child Support Guidelines, S.O.R./97-175 (CSG):

1. child support in the amount of $14,086
2. current private school expenses and ski club expenses of $2,989
3. starting in September 2023, additional private school expenses equal to a monthly amount of $2,770
4. spousal support of $20,032
5. retroactive child and spousal support for the difference between the above and the support payments already made

[6] The mother therefore sought an increase of support to a monthly tax-free amount of just under $40,000, or about $478,000 per annum.

[7] Thirdly, and perhaps to influence the first part of the motion, she asked the court to order production of text messages between the father and her ex-boyfriend. Her rationale was that she needed to know whether she could still trust her husband to share decision-making responsibilities. She believed that her husband and the ex-boyfriend were colluding to prepare “false evidence” to make her appear to be an unfit mother. Given that the father did not claim sole custody of the children and could not realistically assume that responsibility without relocating the children to New York, this non sequitur simply became part of the motif that the father should pay for both of the children to attend her chosen private school and to multiply the amount of her spousal support.

[8] As my discussion of the procedural history of the motion will show, the premises of the motion consisted of a mishmash of conflicting information about the children’s needs and an argument that his abandonment of the children entitled her to a split of his increased income. The economic part of the motion ignored the totting up of the father’s expenses, including the cost of living in New York, the maintenance of an apartment in Toronto for visiting the children, as well as support payments for four children and the mother. This court frequently orders payor spouses to shoulder an unequal burden of the hardship of the post-separation domestic economy, especially when prioritizing child support. It is another story, however, to require a payor to bear 100% of the hardship so that the receiving spouse can satisfy an unrealistic sense of entitlement and social status.

[9] Like many accustomed to spending what they earn until they find themselves in divorce court, the father has had to learn to live on a budget and manage debt. The only wild card that could allow his net income to nose slightly ahead of his overall expenses was the deferred portion of his discretionary annual bonus. The mother has latched onto a year in which his bonus was higher than usual, in order to graft onto the demand an argument that the father’s income should be imputed based on the bank’s maximal ability to share profits with its trusted employee. In the motion, the father proposed that the court can devise a formula to allow the voluntary support payments to be topped up when the bonuses are fully declared and paid.

[10] The father’s counsel demonstrated that his voluntary uncharacterized support payments are likely excessive. However, they provide the mother and the children with a level of relative affluence that still prioritizes them ahead of the father’s ability to pay out of his regular salary.

[11] Ideally, the only divorce procedure that requires court intervention is the divorce itself, under s. 8 of the Divorce Act. As in any civil relation governed by law, courts encourage support payments that meet or exceed legal expectations without motions or trials. It is a feature of Canadian tax law that requires spousal support to be formalized by agreement or court order, in order to reflect the splitting of income. However, no such tax implications apply in the case of the father’s U.S. income. Therefore, if the father’s interim support payments meet or exceed what the court could order without the forensic exercise of a trial, the absence of tax benefits to the family leave the court with no juristic reason to compel the payments. If he were to stop or curtail his current payments, the father knows, or his lawyers will tell him, what consequence will ensue.

[12] The father’s vague offer of a share of his employment bonuses, if paid to him beyond current estimates, is not binding on the court. The employer’s discretionary bonuses are not like tort damages for uncertain medical sequelae of personal injuries, as described in Archibald v. Nesting, [1953] 2 SCR 423, at 427. While the bonuses may be uncertain now, at trial the figures will be available and the court can establish a mechanism for adjusting the support payments with the aid of a full evidentiary record. The more just and responsive approach would be to allow the father to take stock of his budget at the time he receives any bonus payments and divert what he can afford to pay the mother. The father is subject to the procedures of this court and make timely disclosure of additional income. He will then have to choose to send more money or face the risk that the trial judge might find he had underpaid support. The fairness of this approach is also informed by the unsettled quality of the mother’s financial disclosure related to her income from the gun club.

[13] Finally, I will dismiss the motion for production of text messages. They are not required for any purpose in the proceeding. While there may be some therapeutic value to divulging them, there is a countervailing risk of harm in having them interpreted to confirm the mother’s biased opinion about the father. Opening up that Pandora’s box will not help the parties and the court to focus on the justice of the dispute. The text messages are an irrelevant distraction this proceeding does not need.

PROCEDURAL BACKGROUND

[14] The motion came before me on a meandering record. It was originally returnable in November 2022. It became bifurcated into a motion returnable in January 2023 to address the financial issues and returnable on April 4, 2023, to address the issue of decision-making (i.e., permitting the Applicant to enrol the son in private school). The mother amended the notice of motion to add a request for production of the text messages. The January motion was adjourned to April 4 and the three strands were brought together.

[15] At the outset of the hearing, I expressed my concern regarding my jurisdiction under rule 14 to hear the reconstituted motion because the most recent of the Form 14 notices of motion had been amended to delete all relief save the request for temporary decision-making authority. Counsel for the father assured me of his understanding that the motion could be heard in its recombined entirety. In the interest of avoiding further complication and adjournment to “unamend” the deleted portions of the notice of motion, I allowed the hearing of the mother’s motion to proceed.

FAMILY FACTS

[16] The parties were married in 2008 and separated either in 2018 or 2019. They have two children of the marriage, a 13-year-old son and a 12-year-old daughter. The father supports two university-age children from a previous marriage.

[17] Earlier during the marriage, the mother operated a business with her brother renovating and flipping homes. Some of these renovations became the subject of their reality TV series. She gave that up to be a stay-at-home mother to their children. The father worked in upper management at the Toronto offices of an international bank. He was earning about $300,000 a year when they were married, and about $900,000 when they separated. They lived in and exclusive neighbourhood called Lawrence Park, in a home with a swimming pool and a basketball half-court. They owned a ski chalet and belonged to a ski club in Collingwood. They took luxury holidays, ate at expensive restaurants, hosted elaborate parties, drove Jaguars and shopped at exclusive stores. In reality, they were likely living several paycheques away from starting to lose it all, if anything were to happen to the father or to his job.

[18] And so it did happen, that the bank planned the sale of its Canadian operations to one of the major chartered banks. As often happens, the vendor boosted the asset’s short-term value by shedding highly paid upper managers. In May 2020, the father saw the writing on the wall and accepted a transfer to New York. The mother painted a picture of him galivanting to the Big Apple and leaving his children behind without a parenting schedule or other formal supports. She forgot that this had been the first wave of the Covid-19 Pandemic. At that time, the morgues were already filling up despite the strict lockdown of all New York boroughs. The financial district around Wall St. was a ghost town. The father knew, as most highly paid middle-aged employees do, that stepping off the corporate ladder would require dropping onto a much lower rung at another location. The attempt to cast her husband as the absent and neglectful father underscored the solipsism and circular logic of her positions in the motion.

[19] With greater responsibility and work demands, the New York job provided an increase in potential income. It entailed USD $500,000 (about CAD $650,000, depending on the exchange rate) in regular pay (combined salary and living allowance), with a bonus package that was split into an immediate cash portion and a deferred portion that was discretionary to the bank. The husband’s annual budget deficit based on regular pay and expenses, including support but not including taxes, proved to be about CAD $220,000 in the red. That amount has been offset for the most part by the paid portion an employer discretionary bonus of $216,720. He could be in the black, based on the imputation of the deferred portion of this bonus, in the estimated amount of $138,498.

[20] The mother argued that the imputed differential could have been higher, if one were to use more current exchange rates and used his higher 2021 bonus figures. Discretionary bonuses depend not only on the employee’s performance but also the organization’s performance. I failed to see how 2022 could be an outlier and 2021 the norm, given the paucity of the statistical sample. At the motion, her counsel spent much of his time on hypotheses such as exchange rates, bonuses that the father could earn as imputed earning capacity, and questionable expenses. The more her counsel drilled into the figures, however, the more it became obvious that the father was barely treading water and had prioritized his support obligations ahead of all interests save those of the IRS.

[21] The father has been on the look-out for ways to return to Toronto in order to be with the children. He did explore the possibility of a position in Toronto at a much lower pay scale, with regular pay of CAD $350,000 without any guarantee of bonuses. The father did meet the bank’s Canadian Chief Executive Officer about this position, but he was discouraged from applying because the position was about to be made redundant. The person who was previously offered the job did not accept it, for that reason.

[22] The mother, for her part, started a new business, Longshots, an air gun club, firing range and social club in Vaughan. Her financial disclosures showed that she received no income from the business, although she apparently worked there 50 hours a week. The most that could be assumed about the business was that it had yet to turn a profit. In other words, any profits of the company were retained and reinvested. Since she controls the capital, she has effectively hidden income that the court could attribute to her. Her monthly family expense budget of $23,786 included $5,700 for rent, $2,000 for groceries, $730 for a dog walker and vet bills, $4,000 for babysitting, and $2,195 for upkeep of the Tesla. However, the budget did not count the cost of the daughter’s private schooling, which amounted to about $3,000. Therefore, the mother has budgeted a total of about $27,000 in monthly expenses. She sold her Raptors season tickets for $113,000, in order to help make ends meet.

[23] The mother based her claims for temporary sole decision-making authority and for the cost of private school fees on her assertion that the father had promised to fund the enrolment of the son to HTS, an Anglican private school in Richmond Hill to which the mother has some attachment as one of its early pupils, and where the daughter was already enrolled. The mother’s evidence and argument on the decision-making authority was that the father had sent encouraging emails and texts regarding a tour of the premises. She assumed that he would fund the tuition and cost of the school uniform, because he had sent the children from his previous marriage to private school. (Indeed, his first daughter had attended the Claremont School, an establishment dedicated to teaching pupils to overcome dyslexia and prepare them for high school.) According to her, the father started to renege on the agreement once he realized how much it was going to cost. A major portion of her argument on the motion consisted of the “reneging” argument.

[24] The father took the position that the mother had enrolled the daughter at HTS without his approval and was using that fait accompli to set up the play for enrolment of the son. Although he was not opposed to the idea in principle, his responses were that he was already overpaying support and that his resources simply could not stretch to a further $70,000 annual expense. Since the mother had not properly disclosed her income from the gun club, his counsel submitted that some income should be imputed to her in order to reduce the spousal portion of the $15,000 payments in subordination to the child support. He is content to have any private school fees paid out of the voluntary support, but the fees should not be added to his voluntary payments as court-ordered s. 7 expenses.

[25] I cued the mother’s counsel repeatedly for help in locating the evidence that enrolling the son in the same school as his sister was in the children’s best interests. It is not uncommon for private schools to bend admissions requirements in order to benefit the enrolled pupil emotionally and developmentally. The mother’s counsel had little to say on the subject, and the argument came back to the father’s reneging as a measure of his lack of fitness to make decisions regarding the son’s education. I was unable to construe the father’s original willingness to consider enrolment of the children at HTS as amounting to his consent. Consent requires a meeting of minds, and the evidence fell short of such a meeting. The only direct evidence on the choice of educational institution that had anything to do with the children – as opposed to the mother’s evidence of the father’s unfitness to participate in that choice – was an email to the mother from Richard Vissers, HTS’ admissions officer, stating that the son’s current public school was providing a modified program as well as accommodations for his dyslexia. He added his concern that HTS was unable to modify its academic program and that this could affect the son’s ability to follow the school workload.

[26] The email from Mr. Vissers about accommodations and modifications required decoding to appreciate the nature of his concern. Educational institutions have varying approaches to students with learning difficulties. I read the email from the HTS admissions officer to mean that the school could provide “accommodations” to the son, such as standing instructions to teachers to provide him longer deadlines for the completion of assignments and more time to perform examinations and quizzes. What HTS could not provide was a “modified program,” which entails a change to curriculum and/or teaching methodology to enable the pupil to achieve the provincially-mandated educational targets while tackling neurological conditions such as dyslexia. The condition has nothing to do with mental ability, but accommodations alone may not be sufficient to prevent students from struggling.

[27] The fact that the mother came to court determined to find a way to get her son into a private school that was less appropriate for him than his current public school did not inspire confidence in her decision-making. Later in the hearing, it turned out that the son had not even been accepted at the school. The evidence extolling the benefits of HTS and purporting to demonstrate that the father was an uncaring cheapskate became rather meaningless in the absence of a secured spot at the school. To add an extra layer of absurdity to the mother’s motion, she did not file evidence that she ever investigated the possibility of enrolling the son at a school that actually catered to the needs of dyslexic children, including Claremont.

[28] The father’s evidence and position in the motion was not altogether enlightened, either. To some extent, his passivity on the parenting and educational topics fed the mother’s narrative that he “has had little interest in the children’s academics” and that his conduct amounted to “delinquent parenting.” I accept the mother’s evidence that the father effectively delegated these subjects to her, perhaps in the way he would have managed his staff at the bank. I do not accept her casting of him in the role of Lt. Pinkerton in Madam Butterfly, returning to Toronto only to suit his convenience. His evidence contained a more conventional, less operatic, family law narrative, in which he has done his best to travel back to Toronto and to extend his stays while she attended business meetings, and in which the mother left the children at home while she was out with her boyfriend.

[29] The afterthought in the piece was the daughter. The father stated that the mother enrolled her at HTS behind his back and that the mother wanted the children to go there because she was an alumna. The mother relied on his agreement that the mother and the children tour the school in April 2020, and that this meant he was onboard with sending them there. On August 18, 2022, the mother instructed her lawyer to tell the father’s lawyer that she would be withdrawing the daughter from HTS because of her inability to fund her tuition on her own. The same email stated: “I believe [the daughter] is with her father today so he can let her know.” In the motion, she sought payment of the ongoing annual tuition, including the 2022-23 academic year; so I gather the email was intended to be so much gamesmanship. Apart from the daughter’s role perhaps as a pawn in the matrimonial dispute, there was not much I could glean from the record about her specific needs, peer groups or learning needs. The father took the position that there was no need to withdraw the daughter from HTS because the tuition could come out of his support payments.

[30] The final part of the family law motion concerned the request for an order requiring the father to produce text messages between him and the mother’s abusive ex-boyfriend. Her position is that the communications could contain evidence of collusion against her in the litigation. Her counsel argued that it all boiled down to a question of trust in the decision-making issue, and that there was no privacy interest to protect. She cannot trust a man who could collude with an abuser, and therefore any discussions regarding the children’s schooling would result in inaction or stalemate.

LAW AND ANALYSIS

Decision-Making Authority

[31] Despite the order in which the issues in the motion were argued, I start with the issue of decision-making authority. I do so, not because it was listed first in the notice of motion, but rather the analytical framework of the motion requires that I consider it before deciding whether to impose the cost on the support payor. The topic of private schooling usually melds the legal issues of decision-making and support. As was the case here, the party seeking a decision-making order to permit enrolment tends to introduce the topic by seeking the other party’s contribution to the annual fees, as special or extraordinary expenses under s. 7 of the CSG. There is no fixed set of criteria for dealing with the issue of private schooling, although they have included the children’s educational history, including private schooling, special needs of the children, and the ability of the non-custodial parent to pay: Cochrane v. Zarins, 1998 BCCA 4270, at para. 3, and L. H. M. K. v. B. P.K., 2012 BCSC 435, at paras. 128-33. Money therefore has defined the dispute, because of the preference of one parent for private schooling and the objection of the other based on cost.

[32] From an analytical perspective, it is better to consider the custodial decision-making issue first. If the proposed s. 7 expenditure entails a service such as a private school education that turns out not to be in the child’s best interests, the financial support issue may become moot or at best questionable. The facts of this case illustrated the appropriateness of this reasoning. There was scant evidence of the benefits of private schooling for the children, but the father’s objection was primarily based on the cost of the fees. The father, in having agreed to pay the $150 application fee for the son, had been open to the idea of his son attending HTS. It was not a situation where one of the parents opposed private schooling on political or philosophical grounds. The mother’s motive for her children’s enrolment in HTS consisted of (a) nebulous hope that a better pupil-teacher ratio would aid her son with his dyslexia, (b) convenience of putting the son’s athletic recreations under one organization, and (c) enrolling her children at HTS as a reflection of her status as a legacy parent.

[33] It was in keeping with the quixotic nature of the motion that I had to learn several hours into the hearing that HTS had not accepted the son for enrolment in September 2023. When I cued the mother’s counsel to provide the court with educational and developmental reasons to support the son attending HTS, such as attending the same school as the daughter or the son’s self-esteem, there turned out to be no evidence in the record to support this type of rationale.

[34] The mother’s evidence paid some lip service to the fact that the school would provide a better pupil-teacher ratio for addressing the son’s reading difficulties. While one might take judicial notice of the fact that high-income parents send their children to private schools at a cost of $30,000 to $50,000 per year because they can provide advantages over public schools, one cannot extrapolate from that generality a specific reason to consider HTS or any other school as better for the son than the education he is receiving at his local public school. In fact, HTS’ admissions officer expressed doubts about the son’s ability to keep up with the workload because the school could not modify its programming. The mother did not reply to his question.

[35] Had the true priority been to find a private school that more closely addressed the son’s dyslexia, the mother could have presented the case for such a school. She also failed to address the fact that her plan to enrol him in HTS entailed withdrawing him from his existing sports teams. From this wider perspective, I could see why she instructed her counsel to argue the financial aspects before the decision-making, even though the notice of motion listed them in reverse of that order. By casting the father as a neglectful high-earner who reneged on an ambivalent commitment to fund private education, she hoped to establish that he could afford to fund it and would have funded it, had he only been a better father. While it may have been useful to know about Toronto-area private schools catering to children with neurological learning difficulties, the court can only work with the evidence presented by the parties.

[36] The totality of the evidence, even by focusing on the mother’s own evidence, revealed poor decision-making on her part. She has pursued enrolment of the children at HTS as a means of reflecting prestige on her, without considering the evidence from the school’s admissions officer that her son could struggle there. I can see a risk of harm and no benefit to a child being placed in a school where he could be frustrated in his academic advancement, when his current school provides the appropriate curriculum modification. The court cannot regulate parents’ questionable educational decisions for their children, but it can decline to impress its stamp of approval.

[37] The justice of the case therefore requires that I consider decision-making first, because it more directly addresses the priority of the best interests of the children. If the son’s entry into HTS and the daughter’s continued enrolment were such a priority, there could be a compelling reason to make room for the fees in the support calculus, either by forcing the father to contribute to it or by reducing the spousal support, under s. 15.3 of the Divorce Act. Given that funding the son’s enrolment in that school turned out to be a counterfactual exercise, the next step in the analysis might be to consider whether the current uncharacterized support arrangement should be displaced by a court-ordered regime in which the father must pay a portion of the daughter’s tuition and school uniform.

[38] One of the philosophical vestiges from the original custody case, decided by King Solomon, is the court’s preference to avoid deadlock between parties who cannot agree and do not know how to come to an agreement. If the parties lack ability to co-operate, the court would be wrong to confer joint decision-making authority in the pious hope they can learn to mend their ways and put the interests of the child ahead of their own: Kaplanis v. Kaplanis, 2005 ONCA 1625, at paras. 10-16. Were the court bound by the reasoning in that decision here, the court would have to choose between parties who have cast doubt on each other’s decision-making and who are to some extent both right in doing so.

[39] I have already outlined the mother’s dogged pursuit of authority and funding to enrol her son in a school in which he has not been offered a place and which lacks the capacity to provide the modified educational program that he needs. Since the temporary authority she sought in the motion does not extend beyond this narrow and time-limited relief, I need not delve into the father’s evidence about her general ability to parent. She is already the de facto custodial parent and decision-maker on everyday matters.

[40] The mother’s caricature of the father as the absent corporate executive was somewhat unfair. Perhaps he could have stayed in Toronto to ponder about his professional future while his wife was divorcing him, but he chose to move away from his children in order to support them economically. In principle, his life path is analogous to the untold millions who have to live away from home to send remittances to their families. It would be an exaggeration to put him on some kind of pedestal, but there is a logic of selflessness – at least when compared to his wife – that explains the decision to take the promotion.

[41] It is therefore difficult to fault the father for having moved to New York for the time being. Without his new job, the financial edifice of this family would crumble in no time. While his evidence and approach to the family crisis seemed more measured and stoic, he did not bring his own countermotion for the final say in decision-making. The mother may have been right about one thing: the father’s approach has been passive and he has delegated a lot of parenting responsibility to her. His objections to HTS were mainly about cost. It never occurred to him that the school might not be suitable for his son. The evidence on this point emerged in passing, in the course of the hearing. Given that the mother’s motion and her evidence cast doubt on her ability to make good decisions, it was incumbent on him to put forward an education plan that better advanced his children’s interests. I gather he does not conduct the business affairs of the bank without adequate planning and research. His children deserved at least this level of dedication.

[42] Neither of the parents provided a deeply thought-out plan for the children’s future education. The court really knows nothing about the daughter’s situation apart from the fact that her mother is happy that she goes to school there. I am sure that if the daughter had expressed her objections to being at HTS, the father would have raised in an affidavit. The son has been labelled with dyslexia, but his public school has modified its program to help him overcome his condition. Had the mother come to court with a proposal to enrol him in one of the dozens of Toronto-area private schools that provide support for children suffering from that learning impediment, she could have presented evidence of the advantages to her son over the program he is currently receiving at his public school.

[43] The reasoning in Kaplanis would apply to general custodial authority, if there were a pressing need to confer such authority on one parent in order to override an unreasonable parent. However, where the issue before the court relates to a single question, the court can rule on it without having to upset general or everyday decision-making authority: J.N. v. C.G., 2023 ONCA 77, at para. 48. The motion before the court consisted of a narrow pleading that the court muzzle her husband for long enough to enrol the children and make him the one to ask to pull them out if later he runs out of money. Such a tawdry move has no place in matrimonial litigation, where the interests of children are in play.

[44] If the court were to grant this part of the motion, it would be to give the mother sole authority over the educational placement of the son based on her arguments in favour of a school that has not offered him a spot and which is likely ill-suited to meet his needs. If the court were to dismiss this part of the motion, the son by default stays in the school that seems best to suit his needs, the daughter can continue to attend the mother’s former school. The father has not brought a cross-motion for decision-making authority to pull the daughter out of HTS. The logic is therefore compelling that a simple dismissal of the first element of the mother’s motion serves the children’s best interests.

Support

[45] The daily docket of this court consists of disputes among a wide cross-section of Ontario’s socio-economic strata. Every case must be considered on its own facts. Despite the development of tables and guides for making court orders more consistent and efficient, the fact that the rich can usually afford to spend on commodities and services the poor can only dream about does not allow the court to assume a high-income earner has unlimited means. While the means of a low income family confine the court’s ability to squeeze blood out of the stone in the interests of shielding the children from the economic consequences of marital breakup, the court does not have carte blanche to use the higher earner’s paycheque to shield the other spouse altogether from the consequences of marital breakup. The father has not condemned his Toronto family to life in a slum, even if the mother likes to think so.

[46] In this regard, I am guided by the recent decision in Hopkinson v. Hopkinson, 2023 ONSC 1583, at paras. 44-64, regarding the scope of discretion to award support when the payor’s income exceeds $150,000 for the CSG table and $350,000 for the SSAG. Applying the individualized approach stated in the Court of Appeal’s decision in Plese v. Herjavec, 2020 ONCA 810, 49 R.F.L. (8th) 28, at para. 57, the court in Hopkinson considered the payor spouse’s ability to support the post-separation family’s pre-separation lifestyle by imagining income and expense operating in tandem, i.e. as a budget. Thus, a naïve approach to the father’s million-dollar annual income might lead the mother to consider it fair to seek a support order of $478,000 per annum and unfair that he only sends $180,000. A more responsible approach would be to protect the children’s lifestyle without teaching them the false lesson that marital breakup is a victimless transaction.

[47] Relying on these general principles, the father filed several DivorceMate calculations. One of them used employment income of $650,000 and annual child support obligations to his other children of $101,714, to yield a CSG table amount of child support at $8,077. The corresponding SSAG range for spousal support is defined by the “low” figure of $5,974, the “middle” figure of $6,724, and the “high” figure of $7,482. Based on these figures, the father’s uncharacterized monthly payments of $15,000 equate to an upper-middle level of spousal support. In fact, it would be an overpayment compared to the same situation where the parties both reside and pay taxes in Canada, because it is comparable to over $17,000 per month, conservatively, with about $9,000 of characterized spousal support. As it is, the existing support of $15,000 affords an untaxed income to support the mother with her children, of $180,000 per annum. Provided the father is paying the uncharacterized amount, it is in the interests of the family, and the children foremost. I will therefore decline to order the base amounts of child and spousal support. This can be revisited if and only if the father were to reduce his payments or to stop paying.

[48] The father’s support payments have also preserved an artificial bubble protecting them from the effects of income tax. The father filed an affidavit from an accountant with expertise in family law valuations. The expert’s opinion was that the father could not deduct any Canadian support payments, regardless of whether it was incorporated in a court order or domestic agreement. On the Canadian end, the payments, whether characterized or not, would not be taxable in the hands of the recipient mother. The cross-border nature of the father’s support payments therefore means there is no material advantage whether it is voluntary or judicially compelled.

[49] In order to maintain most of the comforts of life to which the children have become accustomed, they have lost the guidance and companionship of their father. The court cannot order him to return to Toronto. The mother has tried to use his absence against him to score points in her haphazardly conceived motion. The mother failed to see that the legal pressure she has been applying for higher support has made it practically impossible for the father to return in the near future. In this regard, she has alienated her children from their father by making financial demands that even he cannot afford. (If he were to return to Toronto to take a much lower-paying job, it would be a test of the mother’s bona fides if she resisted appealing at trial to the court’s jurisdiction to impute income at the level of his employee compensation in New York.)

[50] If the father had stayed here with an uncertain employment future, he would have been able to deduct any court-ordered support and she would be taxed on it. It is not worthwhile to ponder on the relative impact of such a decision to stay, since the certainty of the New York opening was likely in the family’s best interests. The tax impact of the father’s employment relocation means that his uncharacterized monthly payment of $15,000 has the same effect on the parties as if he were making such a payment from Canada. Although the U.S. tax rate is lower, he must pay tax on an amount greater than $15,000 in order to send that amount to his wife and children in Toronto. In other words, she is receiving from the father amount equivalent to about $20,000 monthly when grossed up for income tax, or about $240,000 per annum.

[51] It of course remains possible and perhaps probable that the father’s bonus income could provide him with a modest surplus, subject to the above discussion about the effect of ceilings for calculating support from high earners. So as not to leave his family back in Toronto without provision from such bonus monies, he has proposed that the court award a kind of profit-sharing formula.

[52] The father’s annual bonuses have been split in two, with one payable in the applicable employment year and the other deferred at the discretion of the employer. This is an element of uncertainty to his income beyond the USD $400,000 and $100,000 salary and living allowance amounts. His expense budget reveals that after paying taxes, necessaries and support, his million-dollar budget allows him virtually no discretionary spending power. He is maintaining three households, including one in Toronto for exercising his parenting schedule. If the court were to accede to the mother’s demands, he could only cut the New York-Toronto travel allowance and sell the Toronto apartment that enable him to exercise family time with his children. Making it more difficult for the father to come to Toronto is not in their best interests.

[53] The figures presented at the hearing by both sides entailed multiple scenarios and a wide variance, between employment income of over CAD $1,400,000 and as low as $1,108,490. The parties disputed the applicable conversion rate between U.S. and Canadian currencies, the value of certain stock options expressed in U.K. pounds, and the effect of various living expenses. It is the role of the trial judge, with the aid of the parties’ accountants and other witnesses, to delve into this level of detail. The determination of income for interim support is, at best, an exercise in “rough justice”: Hopkinson, at para. 14.

[54] The father’s financial statement showed $1,108,490 in income, including the immediate portion of his annual bonuses, against $1,014,011 in expenses. The mother contended that this showed a sizeable surplus. It happens to be much less than the deficit in the budget disclosed in her financial statement. Accounting for the missing entry for the HTS fees and uniform, her operating budget is over $140,000 in the red. If her deficit exceeded his surplus, most people would see this state of affairs as reason for one or both of the parties to curtail spending. Much of the father’s budgeted expenses consist of support payments for the mother and the four children. Shifting part of the HTS bills over to the father would not solve the lack of sustainability of this family.

[55] The father’s budget shows that precarity can visit even a high-earning person, although few in society at large would likely sympathize. The parties can play with various inputs to arrive at different results, but the evidence is clear that satisfaction of the mother’s financial demands would render unsustainable the father’s ability to support the family from New York. The Court of Appeal’s approach in Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, as clarified by Plese v. Herjavec, 2020 ONCA 810, at para 57, are instructive in an interim relief motion where so much depends on the court’s discretion to apply what appears to be fair. It is logically wrong to engage in a forensic ex post examination of income due to the very contingent nature of interim support. If my analysis turns out to be out of line after the trial, I fail to see the hardship in requiring the Toronto spouse to see to the needs of the children and herself on an after-tax monthly budget of $15,000. A court order that pulls the financial rug from under the father in these circumstances risks the relative comfort enjoyed by the three members of the family he left behind. An ex ante or predictive analysis is appropriate, because the court is providing for the family’s financial stability, especially with regard to the children’s needs, for the several months before the matter is ready for trial.

[56] The uncertain part of the equation is the split bonus element of the father’s compensation package. I am not prepared to order a percentage of the father’s bonus as spousal support, because spousal support is intended to be support and not income splitting. I am also not persuaded that an additional interim spousal support amount is warranted under s. 15.2 of the Divorce Act. If a spousal support order is intended to recognize financial consequences of marriage and its breakdown, to apportion financial consequences of child care, relieving hardship from the breakdown and to promote economic self-sufficiency of the supported spouse, it is best for the court not to disturb the $15,000 monthly payments.

[57] If it turns out that the father earns bonuses for the 2022 and 2023 years, however modest or substantial, he will have to disclose it under the Family Law Rules and he can take appropriate legal advice whether he should be contributing more than what he is paying. The judge presiding at trial can hear ex post evidence from the parties and their forensic accountants about what the correct amount should have been, in order to determine a retroactive amount of arrears or overpayment.

Production of Text Messages

[58] The mother found out that the father had been communicating with her ex-boyfriend by text. The boyfriend has been charged with assaulting the mother. Counsel for the mother stated that she sought the texts in order to hand them over to the police. Subrule 20(24) contains a version of the implied undertaking rule prohibiting use of information compelled under rule 19 (document disclosure) for any use outside of the case. Her counsel argued that the texts would not be handed over immediately to the mother. Rather, the texts would be provided to me, and I would then assess the relevance of each one to this proceeding. I still do not see how she could still feed the texts to the police without breaching the rule and risk being in contempt of court under the implied undertaking rule: Orfus Realty v. D.G. Jewellery of Canada Ltd..

[59] The mother’s counsel conceded that the Crown may bring its own O’Connor application for production from the father, for the purpose of the criminal proceeding. He then argued that the texts in the possession of the father are relevant to the issue of trust. That was more in line with the mother’s stated belief that the father was colluding with the boyfriend to create “false evidence” to make her appear unfit to look after the children. By this, I took the submission to mean that it related to the issue of decision-making in the best interests of the children, as set out in subsection 16(3) of the Divorce Act. Her argument is that she cannot trust a man who would ostensibly collude with a person who has engaged in domestic violence against her.

[60] Any form of court production order is a state intrusion on privacy. Discovery rules in criminal, civil, and family litigation regulate this power in the interests of justice. The father’s right to privacy here is weak, since he is a party to the proceeding. The boyfriend’s right may be stronger, because he is a third party. If the mother had sought production from the boyfriend, the standard required for production would be rather stringent: Marcoccia v. Marcoccia, 2009 ONCA 162, at paras. 8-9.

[61] One might infer that in communicating with the father, the boyfriend’s expectation that the texts would remain out of the divorce case would be rather low. Nevertheless, a low expectation is not equivalent to no expectation. The court does not know what his expectation might be. Accordingly, what the father wrote to the boyfriend might conceivably be producible if relevant, but what the boyfriend wrote should not be produced without at least providing him with notice and an opportunity to state his position.

[62] What ultimately undermines the request in the notice of motion is the mother’s stated suspicion that the father and the ex-boyfriend are staging evidence of her unfitness as a parent. The reality is that the father left the children in her care. As in the mother’s request that the father fund her son’s enrolment in HTS, the grounds of her motion is rooted in a non sequitur. I suppose what she or her counsel really meant to say was that the father wanted to undermine her case for temporarily overriding the father’s say in the HTS enrolment issue. As I have already found, the father probably ought to have opposed HTS enrolment for the son because the school lacked the ability to modify its curriculum and methods to address his needs. Instead, the father’s grounds for opposition was based on affordability and not on her fitness to cooperate in the decision-making. I am therefore struggling to see the pertinence of the texts other than the mother’s apparent desire to confirm her low opinion of the father.

[63] In my view, rule 19, governing document disclosure, is subject to the interpretive principles of rule 2. Subrules 2 (2), (3), (4), and (5) combine to require the court to manage cases so that the litigation does not lose its primary focus. Compelling production of the father’s texts to the boyfriend would invite widening discovery into everything the parties might communicate to others. Given the nature of texts and other short forms of communication, they are easily misinterpreted and can fan the flames of the dispute instead of helping to bring justice to the family. Moreover, returning to the Orwellian nomenclature I used at the outset of this decision, there is no place in family law for thoughtcrime. Whatever opinion the father may or may not have harboured or may or may not have shared with the ex-boyfriend, the only thoughts that matter are those the parties have expressed to each other, either by themselves or through their lawyers, and those that have materialized in tangible conduct in the marriage or during the aftermath of separation. Matrimonial litigation can be toxic enough, without the court feeding the parties with more poison darts to shoot at each other.

[64] I exercise my discretion under rule 19 not to order the production of the texts by the father to the boyfriend.

CONCLUSION

[65] The court has authority to make interim orders in matrimonial disputes to require parties to comply with their legal obligations. There is no cogent or compelling reason to give the mother temporary decision-making authority to allow her to enrol her son in a private school as part of a strategy to compel her husband to pay for all of the fees. In isolation, the mother should not be afforded sole or ultimate decision-making authority for this purpose, because her demand itself does not appear to be in the best interests of the child. The mother has also failed to establish that the existing voluntary and uncharacterized monthly support payments of $15,000 are in fact lower than what the court could award, with the benefit of forensic evidence of both of the parties’ financial affairs. The evidence at trial could very well support a determination that $15,000 exceeded the combined child and spousal support that the father has been required to pay. The mother has therefore failed to justify the support orders she sought in the motion.

[66] The demand for production of the text messages between the father and the ex-boyfriend is not justified by any purpose touching upon the issues in the case. Based on the evidence and conduct of the mother, including the positions she has taken in the motion, it is more likely that she will interpret the texts to fan the flames of the litigation and to divert the parties from the real substantive issues.

[67] The motion is therefore dismissed in its entirety.

[68] I would encourage the parties to settle the costs of the motion, since the father has been wholly successful. The parties cannot agree, the father shall have fourteen days to serve and file a bill of costs and costs submissions of no more than two pages, to be forwarded to my attention. The mother will have fourteen days thereafter to submit responding submissions of no more than two pages, plus any bill of costs to be used for comparison purposes.

Akazaki, J. Released: April 17, 2023