NEWMARKET COURT FILE NO.: FC-19-58090-00
DATE: January 4, 2023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alessandra Marie Lamacchia
Applicant
– AND –
Joseph Anthony Carullo
Respondent
Rachel Radley and Gillian Tadman, Co-Counsel for the Applicant
Charles Baker, Counsel for the Respondent
HEARD: In writing
REASONS FOR DECISION #2
JARVIS J.
[1] On November 10, 2020 this court released Reasons for Decision (“the Decision”) dealing with the date when the parties began cohabiting and the disposition of an engagement ring.[^1] The parties were directed to provide to the court their submissions about each party’s distributive share of the net sale proceeds of a residence (“the Aurora property”) that they had owned and spousal support calculations.[^2] Filing directions were given. The parties were also informed that directions with respect to costs would follow.
[2] The parties complied with the court’s directions. They collaborated on, and agreed to, the parties’ distributive allocation of the sale proceeds and spousal support, subject to an adjustment to be made if this court determined that the mother was entitled to spousal support beyond December 31, 2021. As set out below, the court finds that:
(a) The father shall pay to the mother for spousal support $23,009 net of tax for the period from February 1, 2019 to December 31, 2021 after which the mother’s entitlement to spousal support is terminated;
(b) The Aurora property sale proceeds held in trust are to be paid to the mother ($64,584.40) and to the father ($289,775.23).
Spousal support
[3] Paragraphs 51 to 53 of the Decision noted that neither party had submitted at trial calculations that dealt with any other outcome than their trial position, both rejected by this court. The mother’s calculations were based on a longer period of cohabitation than determined by the court whereas the father’s included (in addition to disputing the mother’s support entitlement) certain s. 7 expenses which the parties had settled just before trial. These directions were given to the parties:
(a) To collaborate and submit revised spousal support calculations;
(b) The period of cohabitation would be 20 months;
(c) The mother’s income was $17,870 for 2019 and $50,000 for 2020 and thereafter. The father’s income was $142,173 for 2019, $108,692 for 2020 and $109,796 for 2021[^3];
(d) The calculations were to include the (agreed) allocated payment responsibilities for the child’s schooling for the 2020-2021 and 2021-2022 school years (69% father/31% mother);
(e) To collaborate and produce a range for the net effect of spousal support for the period between February 1, 2019 and December 31, 2021 using the low to mid-range formula (the court was not going to require the parties to file amended income tax returns for 2021);
(f) No other material or submissions than the revised calculations on this support issue were to be made.
[4] The parties agreed that the amount of retroactive spousal support for the period from February 1, 2019 to December 31, 2021 was $23,009 net of tax. The parties could not agree on whether entitlement extended beyond December 31, 2021. It does not. In paragraphs 44 to 46 of the Decision, this court dealt with the issue of the mother’s support entitlement:
[44] Cohabitation and the birth of a child do not relieve a spousal support claimant from proving entitlement. Disparity of income, in and of itself, does not establish entitlement. The key to entitlement is economic interdependency. As this court observed in Hollefriend v. Cole the fact that the parties have a child and child support is payable does not elevate a relationship to one of “some permanence”.
[45] A number of observations are relevant from the evidence:
(a) Both parties were gainfully employed before they began cohabiting. In the father’s case, he continued his post-separation employment. The mother planned to return to her former employment where she had worked for about fifteen years after her maternity leave ended;
(b) Apart from the parties reciprocally insuring the other under their respective workplace benefits there was no evidence that they merged their financial affairs before their child was born and their contemporaneous purchase of the Aurora property;
(c) The father paid the expenses of the Oakville and Aurora properties. Beyond the parties being joint mortgagors and having a line of credit secured against title to the Aurora property, there was otherwise no evidence about any commingling or merger of the parties’ financial lives, although there was a merger of their household lives, in particular after their child was born;
(d) The mother did contribute from her own funds (and those which she either did, or did not, borrow from her mother) to the Aurora property purchase;
(e) The mother relocated to the father’s residence, they cohabited for about twenty months and planned to marry;
(f) The mother took maternity leave, although the father disputed her decision to extend it to eighteen months due to the family’s financial needs;
(g) The mother took $160,000 from the parties’ line of credit and used that to fund the living expenses for herself and the child and pay other exenses until the fund was exhausted.
[46] A contextual and flexible approach should be used to determine whether an unmarried spousal claimant is in a relationship of some permanence as required by s. 29(b) of the Act. In this court’s view, there was a relationship of some intended permanence sufficient to entitle the mother to a modest amount of spousal support, not from a compensatory standpoint but needs based. The court notes, and accepts, the mother’s evidence that she had been paying her parents $1,500 monthly rent for herself and the child.
[5] Spousal support is driven by both compensatory and non-compensatory (or needs-based) considerations. It is notable that in this case the mother returned to her former employment in the same position and earning if not the same income, then certainly an amount slightly more than when she took maternity leave. There was no evidence of a company pension whose benefits would have been lost to the mother, or impaired, and no evidence involving any loss in workplace seniority or prejudice to her future career trajectory relating to the parties’ relationship and their child’s birth.
[6] The mother’s entitlement to spousal support and the father’s support obligation ended on December 31, 2021. She is entiled to an award of $23,009, net of tax.
Distribution of Sale Proceeds
[7] Subject to the mother’s claim of spousal support beyond December 31, 2021, the parties agreed that she was entitled to $64,584.40 from the Aurora property net sale proceeds and the father was entitled to $289,775.23.[^4] So ordered.
Disposition
[8] A final Order shall issue with respect to the parties’ spousal support and property claims as set out in paragraph 2 above.
[9] The parties are encouraged to resolve the costs of this litigation. In the event that they are unable to do so, the following directions shall apply:
(a) The mother shall deliver her submissions by January 18, 2023;
(b) The father shall deliver his submissions by January 25, 2023;
(c) Reply (if any) to be delivered by January 31, 2023;
(d) All submissions shall be single page, double-spaced. In the case of (a) and (b) the limit shall be four pages; reply shall be two pages. These submissions shall be filed in the Continuing Record, and a copy of the filed material forwarded to the judicial assistant (Kelsey.Lowes@ontario.ca);
(e) Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall be filed by the above deadlines (also copied to the judicial assistant) but shall not form part of the Continuing Record;
(f) Counsel are to advise the judicial assistant when they have filed their material.
Justice David A. Jarvis
Date: January 4, 2023
[^1]: Lammachia v. Carullo, 202 ONSC 6366. [^2]: Paragraph 63 of the reported decision incorrectly referenced paragraph 4 instead of paragraph 3 which summarized the court’s findings. [^3]: The reference in subparagraph 53(c) to paragrpagh 41 should have been paragraph 48. [^4]: The mother’s entitlement includes $23,009 for retroactive spousal support and $14,000 for the engagement ring that she returned to the father.