Court File and Parties

COURT FILE NO.: FS-23-34552 DATE: 20231221

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Margaret Chinyere Ojukwu Applicant

– and –

Pius Ojukwu Respondent

COUNSEL: Nwawe, J., for the Applicant Luna, J., for the Respondent

HEARD: December 14, 2023

REASONS FOR DECISION

P.T. Sugunasiri, J.:

[1] CC, T and U are 18, 16 and 14. They live with their mom, the Applicant, who has been their primary caregiver since the parties separated in either June or July of 2021. The parties also dispute the date of marriage. The Applicant believes it to be January 24, 2004, and the Respondent believes it is in accordance with a copy of a marriage certificate that he has located indicating that it is January 19, 2004. The children and the Applicant live in the matrimonial home which until October of this year, was tenanted. The Respondent has not paid child support. The Respondent claims he lives with three roommates with a shared bathroom and kitchen. The Applicant is the higher income earner and has not paid spousal support. Both seek interim relief from hardship. The parties booked an all-day motion to address the following issues:

a) Sale of the matrimonial home or purchase by the Applicant of the Respondent’s half-interest;

b) Compliance with a consent disclosure order made by Justice Vella on August 8, 2023;

c) Interim and retroactive child support from the Respondent;

d) Spousal support from the Applicant;

e) The imputation of income to the Respondent for the purpose of calculating support;

f) Setting a date for questioning as ordered by Justice Vella;

g) Leave to question a non-party – Willis Law;

h) Parenting time for the Respondent with U; and

i) Costs.

[2] CC, T and U deserve a child-focused approach in this case that minimizes conflict between their parents and maximizes the goal of the family law process in Ontario, which is to promote early, proportionate, and cost-effective resolutions (Frick v. Frick, 2016 ONCA 799). I would suggest that arguing about everything is neither serving the children nor meeting the philosophy of family litigation. This motion has raised several issues that the parties could and should have resolved. I have tried to identify those areas for the parties’ benefit moving forward.

Motion dismissed with respect to retroactive child support, imputing income and leave to question a non-party

[3] Both child support and spousal support are predicated on the parties’ incomes. Their incomes are in dispute and are triable issues. The parties are still at the disclosure stage and have not gone to questioning. Their affidavits in this motion have not been tested. It is not appropriate for a motion judge to opine on whether the Respondent is underemployed or whether either party is underreporting income. This task is the domain of a trial judge on a full record. For the same reason, I decline to impute income to either party at this stage of the proceeding or determine retroactive child support.

[4] The Applicant seeks leave to question a representative from Willis Law who made business cards for the Respondent stating that he is a paralegal. The Applicant did not put Willis Law on notice of her motion. They are entitled to have notice (rule 20(9) of the Family Law Rules. Rule 1(7), 7(2), 14(3) of the FLR and rule 37.07 of the Rules of Civil Procedure). I dismiss this part of the motion without prejudice to moving again on notice to Willis Law. Practically speaking, the Applicant may want to consider the value of embarking on another expensive motion in the face of the Respondent’s explanation of why he has a business card. It may be that the issue can be fully canvassed at questioning without the need to trouble anyone at Willis Law.

The matrimonial home shall be sold with the Applicant having a first right of refusal

[5] CC and T live with autism. The Applicant suggests that removing them from the only home they know may have particularly adverse consequences to them. As such, she seeks the opportunity to purchase the Respondent’s interest in the matrimonial home.

[6] This proposal gave the parties a golden opportunity to take a child-focused approach to their litigation. Instead, the court spent time brokering a deal that the parties should have worked out themselves. They agreed all along on price. There is no prejudice whatsoever to the Respondent in giving his kids a chance to stay in the home. By the same token, the Applicant should have prepared a formal proposal of the ilk I now see on caselines, setting out the steps and terms of the proposed buyout. Pointing fingers to identify who should have said or done what during their limited negotiations loses sight of the overarching goal to bring a child-focused, cost-effective end to their dispute. The better approach might have been to find their common ground – namely that the house needed to be sold for financial reasons, and then focus on the practical steps with CC, T and U’s best interests in mind.

[7] That being said, it is never too late to collaborate. The parties now agree on the process for sale. I order the proposal the Applicant sets out at caselines Master A1315 to A1316 with the modification that the Applicant can provide three agent names to the Respondent and the Respondent can choose an agent to list the home with should it come to that.

Full and frank financial disclosure is the foundation of family law

[8] “The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Failure to abide by the fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.” (Roberts v. Roberts, 2015 ONCA 450 at paras. 11, 12)

[9] Justice Vella ordered extensive and detailed financial disclosure on August 8, 2023. The Respondent has not fully complied with Her Honour’s order. The following chart sets out Justice Vella’s order, the Respondent’s response, and my order. The Respondent shall provide the information that I order within 30 days of today’s date:

Justice Vella’s Order of August 8, 2023	Respondent’s response	Justice Sugunasiri’s order of December 21, 2023
3(a) documents reflecting a full accounting of the rental income at 63 Kiskadee Drive from 2007 to July, 2023 3(e) copies of full lease agreements or any other documents evidencing the terms of the tenancies in the MH from 2007 to July 2023.	No records dating back to 2007; Provided handwritten accounting of income received from 2017 to 2019 (not attached to affidavits in response to the Applicant’s motion but attached to the Respondent’s certificate of financial disclosure at Caselines Master B524)	1. To comply with Justice Vella’s order the Respondent shall provide an affidavit explaining his steps to locate records relating to rental income including leases; and provide a proper accounting of rental income that he does have records for which includes identifying and attaching the back up documentation or link the figures in the handwritten accounting to documents already attached to the October 6, 2023 certificate of financial disclosure (Caselines Tab B28).
3(b) documents reflecting the carrying costs of the matrimonial home from 2007 to July 2023	No records dating back to 2007 but provided records from 2017 in the October 6, 2023 certificate of financial disclosure	2. To comply with Justice Vella’s order the Respondent shall provide an affidavit explaining his steps to locate records relating the carrying costs for the matrimonial home.
3(c) documents showing the use of the $123,000 in funds obtained from the parties’ HELOC account	The Respondent denies withdrawing such funds but the Applicant has provided a chart of alleged withdrawals (Caselines A758-A759)	3. The Respondent shall respond to the Applicant’s chart at caselines A758-A759 in an affidavit and agree or disagree with what is represented. In doing so he shall provide all documents showing the use of any funds from the HELOC account as identified by the Applicant in that chart. If there is no back up documentation or the Respondent disagrees that any of those withdrawals were for his benefit alone, he shall explain his position in detail in an affidavit including what his efforts were to locate the documents and why he believes the funds listed were not withdrawn and/or used exclusively by him.
3(f) provision of the Uber logs with respect to his Uber business	The Respondent’s Uber income from June of 2019 to May of 2022 is reflected in the income tax returns filed and produced. He has also now provided an authorization for the Applicant to obtain the Uber logs herself.	4. The Respondent shall comply with Justice Vella’s order and obtain his Uber logs for the duration that he was an Uber driver. If he cannot get them, he shall explain his efforts in an affidavit.

[10] I am satisfied that the Respondent has complied with the balance of paragraph 3 of Justice Vella’s order, largely through his certificates of financial disclosure sworn October 6, 2023, and December 13, 2023. If there are gaps, the Applicant can ask about them at questioning.

[11] Justice Vella also ordered disclosure from the Applicant at paragraph 2 of the August 8, 2023, order. I am satisfied that the Applicant has complied with the order. The items the Respondent claims are missing or deficient are found in Schedule B of his Amended Notice of Motion. There appears to have been no update, discussion, or cross-reference to the Applicant’s materials before spending time and money to insist that disclosure as ordered is incomplete. It is up to the Respondent to review the records filed and identify what is missing. No such guidance was provided. On quick review, it appears that the Applicant has provided the documents ordered by Justice Vella. If something is missing, he can follow up during questioning. At paragraph 5(b) of his Amended Notice of Motion the Respondent asks for additional disclosure that was not conferenced, not ordered by Justice Vella nor discussed meaningfully with the Applicant. The Respondent can seek that disclosure through a request for information or better still, through discussion.

A date for questioning should have been resolved

[12] The parties have agreed to questioning on April 1, 2024, and I so order. Prior to the hearing, they had been unable to agree on a date. This is an example of the parties’ failure to resolve a minor issue that should not have required judicial intervention.

Finding the original marriage certificate or obtaining a notarized copy is in everyone’s best interest

[13] With the Respondent’s consent, Justice Vella ordered him to provide a notarized copy of the marriage certificate so that the Applicant could have her pension valuated. The parties also dispute the date of marriage by five days which may not matter in the grand scheme of things. Nevertheless, the Respondent has failed to comply with the order. He states that he has looked for the original marriage certificate but has not found it. He has not explained, however, what efforts he has made with the Nigerian authorities to obtain a notarized copy. If he cannot provide the original or notarized copy after making best efforts, he shall explain his efforts in an affidavit, including efforts to obtain the document from the Nigerian marriage registry. It benefits both parties to have this document so that the Applicant can have her pension valuated. He shall complete this process within 30 days of today’s date.

The Respondent shall pay interim child support

[14] CC, T and U have a right to be supported by both parents. Currently they live with their mom and receive no financial support from their dad other than a few direct purchases of items and shouldering the carrying costs of their home. A court may order interim support in accordance with the Federal Child Support Guidelines (Divorce Act, ss. 15.1(2), (3)). Three of the stated objectives of the CSG are to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents, to reduce conflict by making the child support calculation more objective, and to ensure consistency of parents and children who are similarly situated. The Respondent agrees that he is obliged to support his children. He also agrees that based on his 2022 income he should pay CSG table support of $1537/month. He disagrees that any such payments should start now because he is unable to pay.

[15] The Respondent has not persuaded me on a balance of probabilities that he is unable to pay child support, at least on an interim basis. The trial judge will determine the children’s entitlement, the Respondent’s income for the purpose of calculating child support and quantum. However as noted by the British Columbia Court of Appeal, “Children cannot be deprived of their entitlement to the Guidelines provisions for child support simply because the judicial officer making the interim order was not in possession of all the relevant facts at the time the interim order for support was made.” (Tedham v. Tedham, 2003 BCCA 600 at paras. 59-60). The Respondent’s affidavit in support of his position and previous affidavits he lists as relevant are broad sweeping statements that lack the detail one would expect to see when a parent is resisting paying interim support to their children. The Respondent points to his most recent sworn financial statement showing a monthly and yearly deficit. However, his debts are not well detailed nor does he explain how he is managing if indeed such a deficit exists. The Respondent claims he has been carrying the costs of the matrimonial home but with no supporting documents attached to his affidavit nor any explanation of how much of the carrying costs the rents have been covering. By order dated May 18, 2023, Justice Kristjanson required the parties to pay for the carrying costs of the home with the rental payments. The Respondent has not reconciled the order with his statement that he has been shouldering the costs.

[16] Overall, I do not find the Respondent’s information sufficiently reliable to deny his children financial support from him at least on an interim basis. What is of assistance is the uncontroverted fact that the matrimonial home is no longer tenanted and the parties will be sharing its cost. Assuming that the Respondent was covering all if not most of the expenses from the rents received as per Justice Kristjanson’s order, he will now have an additional personal cost that he may not have had before. To balance his financial situation with the right of CC, T and U to be supported by him, I order the Respondent to pay interim monthly child support in the amount of 800/month starting January 1, 2024. A support deduction order shall issue.

No interim spousal support

[17] Justice Vella gave the Respondent leave to move for interim spousal support. His materials were due by 4:00 p.m. on November 15, 2023. The Respondent served his materials on December 6, 2023, leaving no time for the Applicant to respond. An adjournment to find another long motion date does not meet the goal of family law to advance cases in a timely and cost-effective way. Instead, the court is equipped with discretion pursuant to rule 1(8) of the FLR to address a party’s failure to comply with a court order. In this case, the failure to deliver timely material deprives the Respondent of his claim for interim spousal support.

[18] Even if I am incorrect in exercising my discretion in this way, the Respondent’s materials do not establish entitlement to interim support on a balance of probabilities. As noted above, I do not find his financial information and claim of financial hardship, reliable or sufficiently detailed to allow me to properly assess his “conditions, means and needs.” I agree with the Respondent that the court does not engage in an in-depth analysis of the parties’ circumstances when determining interim spousal support. Rather, he must only make out a reasonable case for standing and entitlement. Due to what I find to be the unreliability and vagueness of his evidence, I cannot even conduct the more surface analysis required to award him interim spousal support.

Parenting time is resolved

[19] The parties have resolved parenting time with U to be in accordance with paragraph 3 of the Respondent’s Amended Notice of Motion with the additional requirement that the Respondent communicate with the Applicant that he is picking U up, and if not dropping U home afterwards, that U is on his way back from his parenting time with dad. All such communications should be through AppClose.

Costs:

[20] I sought high level costs submissions from the parties to avoid them returning to make submissions and incurring more costs. There is also the danger of the costs decision falling into the queue behind trial and other decisions. Given the Respondent’s insistence that he could not make proper costs submissions until after receiving my decision, I will allow the parties to make brief additional costs submissions. The parties advise they have made offers to settle this motion. Both have also submitted documents titled “Bill of Costs” but are in fact Costs Outlines that address the factors in rule 24(12). The Applicant may make further submissions of no longer than three-pages double-spaced to supplement and/or amend the existing submissions now that she knows the outcome. She should also attach all offers to settle that she would like me to consider. The Applicant shall serve, file and upload her materials to caselines by January 8, 2024. The Respondent may respond in kind and serve, file and upload his materials to caselines by January 22, 2024.

Justice P. Tamara Sugunasiri

Released: December 21, 2023

COURT FILE NO.: FS-23-34552 DATE: 20231221

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Margaret Chinyere Ojukwu Applicant

– and –

Pius Ojukwu Respondent

REASONS FOR JUDGMENT

P.T. Sugunasiri, J.

Released: December 21, 2023