ENDORSEMENT

[1] The Applicant mother, V.K. (“mother”), moves for a temporary order for spousal support. The Respondent father, Dr. R.K. (“father”), opposes the motion.

[2] The parties live separate and apart but under the same roof. They married in August 2002. They separated in either July 2023 (the mother’s position) or late 2020 (the father’s position), although the father also states at paragraph 10 of his February 2, 2024 affidavit that he does not dispute the mother’s date of separation. The parties have four teenage children, including twins, ranging from 14 to 17 years old. All of the children live in the family home. The father is a medical doctor who operates a medical corporation and has a practice in both Brampton and Oakville, Ontario. The mother does not work outside of the home and has not done so since 2008; she used to be a teacher in British Columbia.

[3] The motion that was heard today was scheduled long ago, during an early case conference presided over by Justice Chang on October 23, 2023. As of that date, if not before, it was clearly known by both parties that the father’s income was a major issue in the litigation. From the Endorsement of Justice Chang, we know that (i) the early case conference was at the behest of the mother and was initiated in order to deal with support specifically, including spousal support, and (ii) Justice Chang actually scheduled the motion for “spousal support and child support” for a specific date, February 8, 2024, and (iii) Justice Chang ordered that the parties shall answer each other’s request for information, which on behalf of the mother was certain to focus on the father’s income and did, in fact, focus on the father’s income by, for example, requesting a professional business and income valuation report be commissioned on behalf of and disclosed by the father.

[4] It is undisputed in the evidence that the father has not complied with Justice Chang’s order. The extent of the non-compliance is disputed, and whether the non-compliance is excusable because of, among other things, health setbacks for the father’s counsel, are issues, but two things are not issues. First, the father had more than three months to do whatever he could to marshal the evidence to support his position that he cannot afford to pay any amount of spousal support based on his purported imputed income of $190,000.00, gross, per annum. Second, without proper financial disclosure from the father, including the said business and income valuation report, it was the father, not the mother, who was best positioned to evidence his litigation stance today. He has not succeeded.

[5] The temporary order being made today is a stopgap measure. Once the business and income valuation is known to both sides, which will likely be sometime in March or April, I suspect that the matter will be back in court not long afterwards. This Court has to dispense some rough justice, craft a makeshift solution, do its best with grey evidence until the record is on a better footing.

[6] The mother’s entitlement to spousal support is not disputed by the father. It could not reasonably be disputed. The mother has zero actual income. She has not been employed for more than fifteen years. She gave up her teaching job not long before the family relocated to Ontario.

[7] The father currently pays for all of the household expenses and for all of the children’s section 7 expenses, all of which total more than $8000.00 per month. He claims that he cannot afford to pay any amount of spousal support on top of those expenditures. He claims that his income should be imputed at $190,000.00, which he appears to calculate by simply adding his Line 15000 income to the mother’s line 15000 income (to account for the fact that they income-split) – see paragraph 35 of the father’s affidavit dated February 2, 2024.

[8] There are several problems with that approach, however. First, at the said paragraph of his affidavit, the father has provided no figures at all since 2022. Second, for none of the three years provided in the chart at the said paragraph 35 does the total of the two Line 15000 figures equal approximately $190,000.00. For example, for 2020-2021, the father’s own figures total $220,000.00, approximately. Third, the father’s chart fails to account for any personal expenses that he writes-off through his medical corporation, and we know that the corporation’s income statements (CaseLines, page Master A129 and following) reveal substantial items that are wholly or at least partially unrelated to the medical practice: more than $10,000.00 for meals and entertainment, and more than $26,000.00 for vehicle expenses, as just two examples.

[9] The mother asks that the Court attribute the father’s gross annual income for support purposes at $300,000.00. In the absence of the business and income valuation report which the father has been delinquent in providing, and in the absence of any evidence from the father as to how much he thinks ought to be added to the figures at paragraph 35 of his affidavit referred to above in order to account for write-offs through the medical corporation for personal expenses (the father says nothing about that in his evidence except to acknowledge that there are such write-offs – paragraph 40 of his February 2, 2024 affidavit), the mother has done her best to ballpark what she thinks the father’s income figure ought to be. She and her counsel cannot be criticized for suggesting what they have.

[10] Counsel for the father is correct, however, that the Court should be cautious. There is some conflicting evidence in the record, and this is an interim motion that depends on imputed income. Lowe v. Lowe, 2020 ONSC 5224, at paragraph 40, citing Rushton v. Cuff, 2020 ONSC 490, at paragraph 24, and Steinberg v. Steinberg, 2019 ONSC 3870, at paragraph 17.

[11] In Lowe, supra, Justice Charney elected not to decide the matter of temporary support. In that case, like ours, the professional income report was expected to be in hand in a few weeks. But, in that case, the anticipated payor of support came to court with relatively clean hands. The father in our case, with respect, is not in that same position, for the reasons outlined above regarding the failure to comply with the order of Justice Chang and the fact that the father has chosen to do very little to bring more clarity to the issue of his income despite knowing, for months now, that this day would come.

[12] Rather than decline to make any order today, as Justice Charney decided, I will make an order based on a more conservative income figure for the father, $250,000.00. It is an imperfect solution but meets the interests of justice, in my view.

[13] On a temporary, without prejudice basis, this Court orders as follows:

the father shall, commencing on March 1, 2024 and on the 1st day of each consecutive month thereafter, pay spousal support to the mother in an amount to be calculated by counsel using incomes of $250,000.00 for the father and $36,000.00 for the mother*; and
the father shall continue to pay for all of the household expenses and all of the children’s section 7 expenses.

*To make the calculation, counsel shall use the SSAG and take the high range figure, due to the lengthy marriage and the gross disparity in the parties’ current incomes.

[14] The mother agreed to be imputed with an income figure of $36,000.00. The father’s suggestion that she be imputed with an income figure of $55,230.00, based on some alleged average salary of a teacher, has no merit to it. He is fortunate that the mother agreed to be attributed with any income at all. It could have been zero.

[15] The father’s reliance on decisions like Saperia v. Vlasiu, 2020 ONSC 2301 and Montoya v. Arroyo, 2019 ONSC 5335 is, with respect, misplaced. In the latter case, the person in the shoes of our father was paying for all of the household expenses for 6.5 years, during which time the other party was living exclusively in the home. And the other party also wanted to be paid spousal support. Those are not at all our facts. In the former case, the issue was the payment of home carrying costs as a form of child support. That is not our case. The mother in our case is not pursuing her request for the father to pay any table child support.

[16] The result is that the mother’s motion is allowed in part.

[17] On costs, if not settled between the parties, written submissions may be filed. Each submission shall not exceed two pages in length, excluding attachments. The mother shall file within thirty (30) calendar days after today. The father shall file within fifteen (15) calendar days after his counsel’s receipt of the mother’s submissions. No reply is permitted by the mother.

Conlan J.

Released: February 8, 2024

V.K. v. R.K., 2024, ONSC 1255

Case Summary

ENDORSEMENT

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues