COURT FILE NO.: FC-23-308 DATE: 2023-07-07

SUPERIOR COURT OF JUSTICE - ONTARIO FAMILY COURT

RE: Jessica Margaret Birrell, Applicant AND: Luigi Coppola, Respondent

BEFORE: The Honourable Justice M. Bordin

COUNSEL: R. Corbett, for the Applicant V. Workman, for the Respondent

HEARD: June 26, 2023

REASONS ON MOTION

Overview

Overview

1This matter came before me having previously been triaged and designated as an urgent motion.

2In her notice of motion, the applicant seeks an order:

a. for child support for the children based on an imputed income for the respondent; b. that the respondent pay 100 percent of the special or extraordinary expenses; c. a determination of which expenses are extraordinary expenses; d. that the applicant have decision-making responsibility for the children; e. that the children shall reside primarily with her; f. that the family residence, municipally known as 5 Angels Drive, Niagara-On-The-Lake, Ontario be listed for sale and sold; g. that the respondent continue to pay and keep current the family residence household expenses including but not limited to the mortgage, utilities, insurance and taxes; h. restraining the respondent from attending at the family residence; and i. restraining the respondent from harassing, annoying, assaulting, or molesting the applicant.

3At the hearing of the motion, the applicant pursued only the following orders:

a. child support based on an imputed income for the respondent; b. a restraining order; and c. that the respondent continue to pay and keep current the family residence household expenses including but not limited to the mortgage, utilities, insurance and taxes.

4The respondent sought, without a notice of motion, an interim parenting schedule that varied the current parenting arrangement.

5Each party filed one affidavit.

6The parties acknowledged that the family residence is currently listed for sale and that they want it to be sold.

7A determination of which expenses are section 7 expenses is not urgent. In any event, there was insufficient evidence led to make that determination, even on an interim basis, and the issue was not argued on the motion. The same can be said for decision-making responsibility.

The Parties and Their Children

The Parties and Their Children

8The parties separated on October 1, 2021. They have three children: Stella Coppola ("Stella"), born on July 23, 2011, Vincenzo Coppola ("Vincenzo"), born on August 26, 2013, and Victoria Coppola ("Victoria"), born on April 15, 2016 (collectively, the "children").

9There is no dispute that Victoria has significant health issues and requires special care. Her needs require more attention and doctor visits. The applicant says that anyone who cares for Victoria requires specific training and that she has undergone this training. She does not say that the respondent is not capable of providing the care Victoria needs.

10Victoria attends school and has a nurse at the school who assists her.

The Parties’ Incomes

The Parties’ Incomes

11The applicant says that the parties agreed after Victoria’s birth that she would not work outside the home so she could care for the children and manage the household.

12The respondent says that the applicant is a hairdresser and the parties constructed a hair salon in the residence so that the applicant could work from home. He says the respondent can work while the children are at school during the day. The applicant responds that she must be available “on a moment’s notice” for Victoria, but provides no specifics or examples. While the need to be available on short notice may not preclude the applicant from working as a hairdresser for some of the time that Victoria is in school, the reality is that the home is soon to be sold and with it the home salon.

13The applicant receives Canada Child Benefit payments from the federal government and Assistance for Children with Severe Disabilities Program payments from the provincial government. Her parents and friends provide additional assistance to meet the children’s needs. She does not disclose these amounts.

14The applicant filed a financial statement dated May 19, 2023, with her application. The applicant’s notices of assessment disclose line 150 income of $0 in 2019 and $875 in 2020.

15For the purposes of this motion, I find that the applicant’s income is $0. In doing so, I have not conclusively determined whether income may be imputed to the applicant on the basis of a full record.

16The respondent says he has struggled financially since the separation. His notices of assessment filed with his June 25, 2023, financial statement filed on this motion indicate his line 150 income is $65,195 in 2020, $45,604 for 2021, and $45,607 for 2022. I note that the respondent’s income was significantly higher before the parties separated, even during a COVID year.

17I am told that the family residence is listed for sale at $1.8 million. The respondent’s financial statement discloses that the mortgage on the property is only $89,000. The evidence is that the respondent was the main income earner in the household. The current mortgage expense for the home is $1,106.27 per month, the property tax payment is $558.33, and the property insurance is $153.66. The mortgage is coming up for renewal. If the house is not sold, given the substantial equity in the property, the parties can no doubt negotiate a mortgage with a longer amortization period and significantly lower monthly payments.

18The respondent is a 33 percent owner in Coppola Ristorante and Banquet Facility, operated through 1314408 Ontario Ltd. He also owns a 33 percent interest in 1346697 Ontario Inc., a holding company which owns the restaurant property. He says he has no control over the issuing of dividends, that the dividends paid in 2019 and 2020 were donated to charity, and no dividends were issued for 2021 or 2022. He acknowledges receiving a travel allowance and food for his personal use.

19The respondent has filed the income for support report of Taylor Leibow Accountants dated May 25, 2022. The report concludes that the respondent’s income is as follows:

Year	With pre-tax corporate earnings	Without pre-tax corporate earnings
2019	$147,697	$79,227
2020	$83,104	$69,712
2021	$86,268	$52,171
Simple Average	$105,689	$67,037
Weighted Average	$95,451	$62,527

20The adjustments made to the respondent’s income by Taylor Leibow take into account the adjustments required by Schedule III of the Child Support Guidelines, O. Reg 391/97 (the “Guidelines”).

21The applicant has filed the May 4, 2023 income report prepared by DJB Chartered Professional Accountants as to the respondent's pre-tax corporate income in 2019, 2020 and 2021, which DJB found was $175,900, $114,300, and $147,800, respectively. DJB did not include an average as DJB’s opinion is that because of the non-recurring impact of COVID, it would not reflect ongoing income for support purposes.

22DJB notes that the other shareholders of the corporations are the respondent’s family members.

23As noted, DJB’s calculations include pre-tax corporate income. Based on information from the applicant, DJB included cash receipts in its calculation. The respondent says that there are no cash receipts and there have not been for many years. He says that the applicant would not know this as she has not worked for the restaurant and banquet center.

24The adjustments made to the respondent’s income by DJB take into account the adjustments required by Schedule III of the Guidelines and adjustments required to the respondent’s line 150 income.

25The respondent asserts I should find that his income is $52,000 for 2023.

26The objectives of the Guidelines are set out in section 1 of the Guidelines:

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation; (b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective; (c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and (d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances.

27I am of the view that it is appropriate to make an interim child support order in order to give effect to the objectives of the Guidelines.

28On a motion for interim support, I do not have the benefit of a full record and cross-examinations. At best, a court in such circumstances can attempt to achieve “rough justice”. I am not to engage in a comprehensive review and analysis of the parties’ circumstances, nor is one realistically possible. Instead, I must seek to impose reasonable arrangements, bearing in mind the objectives of the Guidelines and the limitations in the evidence before me at this stage.

29All of this calls for caution in in determining the respondent’s income on a motion for interim child support.

30For these reasons, I do not accept either DJB’s or Taylor Leibow’s analysis, although I am influenced by them. Solely for the purposes of this motion, I lean toward the pre-tax corporate income calculation in the respondent’s expert, Taylor Leibow’s analysis over that of DJB. In my view, there is no persuasive evidentiary or legal basis before me to completely exclude pre-tax corporate income from the respondent’s income. The evidence is that the corporations have declared dividends in recent years but that the dividends have been donated to charity. The reports show that there are retained earnings in the corporations.

31For the purposes of this motion, I impute income to the respondent in the amount of $100,000. In doing so, I have had regard to sections 16 through 19 of the Guidelines. In particular, the pattern of income of the respondent over the last three years, the fact that the respondent is a 33 percent owner of two corporations, and the income that can, and should, be derived therefrom for the maintenance of the children.

Parenting Time

Parenting Time

32The applicant and respondent agree that the current parenting time arrangement is that the children are to spend time with the respondent from Monday at 9:00 a.m. to Wednesday at 7:30 p.m. in week one, and from Sunday at 9:00 a.m. to Wednesday at 9:00 a.m. in week two. The appellant says this schedule was imposed on him by the applicant. This would provide the respondent with five overnights but effectively six days of parenting time every two weeks.

33For approximately 30 days during COVID, Stella and Vincenzo stayed with the respondent.

34Stella now refuses to stay overnight at the respondent’s home, as does Victoria. The respondent says that Victoria has stayed with him overnight on only two occasions with no issues. Vincenzo regularly stays with the respondent overnight. The respondent says the reason Victoria and Stella will not stay with him overnight is because of the applicant’s influence. Perhaps. Or perhaps it is his denial of summer camp and contribution to dance costs for his 12-year-old daughter. I cannot make a determination of the cause on this motion.

35The appellant asserts that the respondent does not utilize all his parenting time and demonstrates a preference for Vincenzo over the other children. The respondent denies this.

36The applicant says that the respondent takes away the children’s phone or iPad when they are at his house. The respondent generally denies this, but says he requires the children to unplug at bedtime and that the children spend too much time with their devices. The respondent also says the applicant repeatedly calls the children during his time with them demanding information from them.

37The respondent says that the children were late and absent from school an inordinate number of times this school year:

a. Vincenzo – late 49 times; absent 44 days; b. Stella – late 63 times; absent 29 days; and c. Victoria late 63 times; absent 55 days.

38The parenting time issues result in the parties having a lot of interactions which result in arguments, often in the presence of the children.

39The applicant did not seek to alter the parenting time schedule. The respondent proposes a week-about schedule.

40On account of Victoria’s special needs and because not everyone is able to properly care for Victoria, the applicant seeks to care for the children when the respondent cannot care for the children.

41In my view, it is in the best interest of the children for there to be a formal parenting time arrangement that minimizes the contact between the parties.

42The parenting time schedule for the children is to be as follows:

a. In week one, the respondent shall have parenting time from Friday after school or 3:00 p.m. if there is no school until Tuesday at school drop off or 9:00 a.m. if there is no school; b. In week two, the respondent shall have parenting time from Monday after school or 9:00 a.m. if there is no school until Wednesday morning at school drop off or 9:00 a.m. if there is no school; c. The children shall have a daily phone call or video call with the non-residential parent each day from 6:00 p.m. to 6:45 p.m.; and d. When the respondent cannot care for Victoria during his parenting time, he shall offer the first opportunity for parenting time with Victoria to the applicant before having a third party provide care.

43This will provide the respondent with six overnights and five and a half days of parenting time every two weeks.

44Parenting exchanges shall take place outside the family residence when they do not occur at school. After the family residence is sold, the applicant shall pick up the children for her parenting time outside the respondent’s residence and the respondent shall pick up the children for his parenting time outside the applicant’s residence unless the parties agree to alternate arrangements in writing in advance. The respondent shall not enter the family residence or the applicant’s residence without the express consent of the applicant.

45The parties are ordered to communicate through a third-party parenting app.

Child Support

Child Support

46For some months, the respondent has “voluntarily” paid $1,200 per month to the respondent as child support. In some months, he deducts sums paid for the children’s expenses.

47The applicant says that the respondent refuses to pay for certain of the children’s activities. For example, he has refused to contribute to the costs of Stella’s dance costumes and has refused to permit her to go to a summer camp on Mondays as it is her time with him.

48The applicant says her circumstances are desperate – she has exhausted her savings, has no personal resources, and she has incurred debt on a credit card and line of credit.

49In his affidavit, the respondent says that he is prepared to continue to pay half of the mortgage, property taxes and house insurance. I order that the respondent continue to pay the full mortgage, property taxes, utilities, and house insurance, without prejudice to account for said payments.

50Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried minor child: Family Law Act, R.S.O. 1990, c. F.3, s. 31(1)(a). The Guidelines apply. There is a presumption that child support is the amount set out in the applicable table: Guidelines, s. 3.

51The parenting order I have made will result in the respondent having more than 40 percent of the parenting time. Section 9 of the Guidelines provides:

9. Where each parent or spouse exercises parenting time with respect to a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account, (a) the amounts set out in the applicable tables for each of the parents or spouses; (b) the increased costs of shared parenting time arrangements; and (c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

52The table amount for three children based on the respondent’s imputed income of $100,000 is $1,920. There is insufficient evidence before me to adjust the guideline amount. Taking into consideration the factors in section 9, Victoria’s needs and the funding available to the applicant for those needs, I find that in these circumstances, the table amount of support is appropriate.

53In my view, there is insufficient evidence to determine the specifics with respect to the section 7 expenses. Therefore, on an interim basis, the allocation of section 7 expenses is 75 percent to the respondent and 25 percent to the applicant.

54Retroactive child support is left for determination on a full hearing.

Restraining Order

Restraining Order

55Without providing any specifics, the applicant says that respondent continues to attend the family residence at inopportune times to harass her.

56Without providing any details of the reasons for the call, the applicant says she has called the police to protect herself and the children. The respondent says he called the police on one occasion over a dispute over the handicap pass for the car. He says the police were called by the applicant on a second occasion over a dispute regarding the respondent threatening to move back into the family residence if the children could not sleep over at his residence.

57The applicant says the respondent has attended the family residence without her knowledge or approval to remove property from the home. The respondent says he was removing chattels that belong to him in preparation for the sale of the property.

58The applicant deposed that she does not “feel safe at times with the unpredictable, aggressive and volatile behaviour of the respondent”. However, she only gives one example of behaviour of the respondent which could fit that description.

59The applicant says that the respondent pushed her against her vehicle while trying to kiss her and asked her if she would like to join him at his "fuck palace". She says that Vincenzo intervened by pushing the respondent away from her and telling the respondent to get away from his mother. The respondent tells a different version of this event.

60The respondent says that the applicant began to berate him for having a girlfriend and that he did blow a kiss at her and said in a low tone, "Do you want to come to the fuck palace?" He says the applicant then repeated it out loud so the children could hear it. He says the applicant regularly defames him in front of the children.

61I cannot determine from the paper record which of these versions is accurate.

62At paragraph 44 of Children’s Aid Society of Toronto v. L.S., 2017 ONCJ 506, Justice Paulseth reviews the key principles pertaining to restraining Orders in family court proceedings:

• Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.
• A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work. It may affect a person’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181.
• It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring 2004 ONCJ 195.
• Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child”. See: McCall v. Res, 2013 ONCJ 254.
• The person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra.
• A person’s subjective fear can extend to both the person’s physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).
• It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, 2011 ONSC 1452.
• A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195.
• A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears. See: Fuda v. Fuda, supra.
• Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242.
• In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C.
• It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. See: D.C. v. M.T.C.
• A no-contact or communication order made pursuant to section 28 of the Children’s Law Reform Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties. See: F.K. v. M.C.
• A court is not precluded from making a final restraining order if a party has complied with a temporary order under section 28 of the Children’s Law Reform Act. On a temporary motion the court does not have the benefit of the fulsome record it has at trial. Cross-examination at trial can provide valuable information in the court’s risk assessment. Further, the court should be alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends. See: F.K. v. M.C.
• In Catholic Children’s Aid Society v R.M. (2015) O.J. No 4305 (SCO), Justice Chappel considered the long history of domestic violence, the history of failing to comply, current threats at the time of access visits, and the fact that the protection of the Society would no longer be a “safety buffer” in granting a restraining order in a matter under the same Act.

63Additional principles are found in the following cases:

a. Noriega v. Litke, 2020 ONSC 2970, at paras. 37-39: There appear to be both subjective and objective elements to the concept of “reasonable grounds to fear”. Bare assertions of fear are not sufficient. More is required to establish reasonable grounds to fear. b. Ciffolillo v. Nieweglowski, 2007 ONCJ 469, at paras. 23-24: The conduct must be of a sort that a reasonable person would regard as disturbing, or as a source of anxiety or irritation to a substantial agree – not trivial or a casual annoyance. It is a question of degree.

64The incident that occurred at the applicant’s vehicle is both highly inappropriate and distasteful, especially in the presence of the children. On its own, however, and in the absence of particulars of any other conduct which might support a restraining order, together with the absence of any threat or repetitive and persistent behaviour, the requirements in the above cases are not made out on the evidence.

65The applicant says she “does not feel safe at times.” She has not provided evidence of fear for her physical safety and psychological safety. The applicant has not established that there are reasonable and probable grounds for her to fear for her own safety or for the safety of the children. A clear case for a restraining order has not been made out. No restraining order will issue.

Order

Order

66The following orders are made on an interim, without prejudice basis:

a. The respondent is to continue to pay the full mortgage, property taxes, utilities, and house insurance, without prejudice to account for said payments. b. Commencing July 1, 2023, and on the first day of each month thereafter, the respondent is to pay child support to the applicant in the amount of $1,920 based on an imputed income to the respondent of $100,000 and income of the applicant of $0 for Stella Coppola ("Stella"), born on July 23, 2011, Vincenzo Coppola ("Vincenzo"), born on August 26, 2013, and Victoria Coppola ("Victoria"), born on April 15, 2016. c. The parenting time schedule for the children is to be as follows: 1. In week one, the respondent shall have parenting time from Friday after school or 3:00 p.m. if there is no school until Tuesday at school drop off or 9:00 a.m. if there is no school; 2. In week two, the respondent shall have parenting time from Monday after school or 9:00 a.m. if there is no school until Wednesday morning at school drop off or 9:00 a.m. if there is no school; 3. The children shall have a daily phone call or video call with the non-residential parent each day from 6:00 p.m. to 6:45 p.m.; and 4. When the respondent cannot care for Victoria during his parenting time, he shall offer the first opportunity for parenting time with Victoria to the applicant before having a third party provide care. d. Parenting exchanges shall take place outside the family residence when they do not occur at school. After the family residence is sold, the applicant shall pick up the children for her parenting time outside the respondent’s residence and the respondent shall pick up the children for his parenting time outside the applicant’s residence unless the parties agree to alternate arrangements in writing in advance. The applicant shall not enter the family residence or the applicant’s residence without the express consent of the applicant. e. When the respondent cannot care for Victoria during his parenting time, he shall offer the first opportunity for parenting time with Victoria to the applicant before having a third party provide care. f. The section 7 expenses shall be allocated and payable 75 percent to the respondent and 25 percent to the applicant. g. The parties are ordered to communicate through a third-party parenting app.

67Success on the motion has been divided. The applicant has been successful on the child support issue but not on other relief sought on the motion. The respondent has been successful to some degree on the parenting time issue.

68The parties are encouraged to resolve the issue of costs of the motion themselves. If they are unable to do so, they may submit a bill of costs and make written submissions consisting of not more than two double-spaced pages in length, together with excerpts of any legal authorities referenced, according to the following timetable:

a. By the applicant on or before July 21, 2023; b. By the respondent on or before July 31, 2023; c. If no submissions or request for an extension are received by the court by July 31, 2023, end of day, the matter of costs will be deemed to have been settled.

69All submissions are to be filed with the court, with a copy to the judicial assistants at St.Catharines.SCJJA@ontario.ca, by July 31, 2022, end of day.

M. Bordin, J.