COURT FILE NO.: FS-22-33384 DATE: 20240312 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SABRINA SIGALAS Applicant – and – APOSTOLOS SIGALAS SELAS Respondent
Counsel: Meghann P. Melito, for the Applicant Not Participating
HEARD IN WRITING: February 26, 2024
LEIPER, J.
REASONS FOR JUDGMENT ON AN UNCONTESTED TRIAL
INTRODUCTION
[1] This is a decision following an uncontested trial sought by the Applicant, Sabrina Sigalas (the “Applicant” or “Sabrina”), on parenting issues, support, section 7 expenses, division of property and whether to grant a divorce.
[2] The Respondent father, Apostolos Sigalas Selas (the “Respondent” or “Apostolos”) did not serve and file an Answer within the time allotted by Rule 10(1) of the Family Law Rules, O. Reg. 114/99 or in response to an order from Shore J. made on July 4, 2023 that he do so within ten days, failing which the matter could be set down for an uncontested trial without further notice to him.
[3] Rule 2(1) provides for an “Uncontested trial” and defines that to mean “a trial at which only the party making the claim provides evidence and submissions.” Rule 23(22) provides that affidavit evidence may be used at an uncontested trial unless the court directs that oral evidence must be given. Here, Sabrina chose to proceed to an uncontested trial on Form 23C affidavit evidence. Although the trial was originally scheduled to be heard in October of 2023, it came before me on February 26, 2024.
[4] Sabrina Sigalas seeks an order for the following:
a. The Respondent pay child support retroactive from the date of separation and prospectively for the two children of the marriage, A.S., born October 2019 and A.C., born April 2016 based on an imputed income of $300,000;
b. The Respondent will contribute toward the children’s special and extraordinary expenses in proportion to his income for support purposes;
c. Equalization of the parties’ net family properties with the Respondent to pay $59,515.05 and an order for prejudgment interest on this amount;
d. The Applicant will have primary residence of the children;
e. The Applicant will have sole decision-making authority for the children;
f. The Respondent will pay spousal support based on the Spousal Support Advisory Guidelines for his income;
g. The Respondent will refrain from drug use 12 hours prior to having parenting time with the children and during parenting time with the children;
h. The Respondent will not remove the children from Ontario without the express written consent of the Applicant or by court order;
i. Neither party shall discuss any legal issues with the children or denigrate the other parent, or other members of the parent’s family, in front of the children;
j. Dispensing with the Respondent’s consent and signature to renew the children’s passports;
k. The Respondent will cooperate with providing necessary information, including medical tests if required and sign the necessary documentation to obtain a life insurance policy on himself of no less than $1,100,000 to secure future child support obligations and the Respondent shall pay the monthly premiums;
l. The Respondent will maintain dental, medical and extended health coverage for the Applicant and the children so long as they are entitled to support pursuant to the Family Law Act;
m. The Respondent shall be 100% responsible for repayment of the balance owing on the Joint Line of Credit at TD Canada Trust for the account ending in *9739;
n. The Applicant shall transfer ownership of the Mercedes C300, and the Respondent shall cooperate with the transfer;
o. An order for the division of household contents;
p. A divorce; and
q. Costs and disbursements in favour of the Applicant.
BACKGROUND
[5] The parties were married in 2010 and separated in August of 2022. They have two children, A.S. aged 8, and A.C. aged 7 years.
[6] At the time of separation, Sabrina stayed in the home with the two children. The parties began sharing parenting on a rotating week schedule. On February 7, 2023, they signed a separation agreement which outlined a nesting arrangement in the family home.
[7] On March 1, 2023, Faieta J. made an order which added terms to the shared parenting arrangement, as a result of conflict over the nesting arrangement. That order required Apostolos to use the basement during Sabrina’s parenting time. Sabrina’s evidence is that this did not go well, with Apostolos not staying in the basement, smoking and eating food that she had prepared for the children.
[8] On March 9, 2023, Sabrina brought an emergency motion when Apostolos refused to consent to her travelling with the children for March break to Florida. Sharma J. made the order permitting travel and ordered full indemnity costs against Apostolos. This was due to the lack of merit in his position and apparently arbitrary decision to deny his children the trip because of his fears about disparagement by Sabrina’s family.
[9] Both parties have called the police at different stages post-separation. The police charged Apostolos with assault and threatening Sabrina in January of 2023 after an incident in the home. In June of 2023, Apostolos complained to the police, and Sabrina appears to have been charged with assault, although her affidavit does not attach any information about that charge or her release pending trial. Given that the affidavit in support of this trial was sworn on October 3, 2023, I have no updated information on the status of the criminal charges against either party, or how they have managed parenting time in the interim months.
[10] Sabrina described Apostolos using substances and drinking during the nesting arrangement and attached photographs to substantiate this claim. She attached texts from the children in which they told her that “Daddy is sleeping and we are hungry” on mornings when he was responsible for their care. Apostolos also was not able to get the children to school on time on more than one occasion. She attached a photo placing their daughter in the front seat of the car, when safety would suggest the better place for driving a small 8-year-old child is in the rear seat.
[11] Sabrina describes incidents of Apostolos swearing and threatening her, as well as violence and drug use. At least one such instance was put before the court by way of an email from Apostolos to Sabrina.
[12] After Shore J.’s order requiring Apostolos to file his Answer, he sent email messages to Sabrina’s counsel which can fairly be described as attempts to bully counsel into doing what he wanted, such as writing: “I promise you that you will be making the biggest mistake of your professional career, and I will make it my business and spare no expense to make sure you never practice law again.”
[13] The Applicant offers these examples and history, including conflict, violence, drug use, and issues with reliability, in support of her request to have the children maintain their primary residence with her and to have sole decision making authority.
[14] Sabrina states that she supports parenting time for Apostolos with the children. Since Apostolos did not file a Form 35.1 parenting affidavit, the Applicant states she did not seek any orders pertaining to his parenting time. She states that she would facilitate parenting time in the children’s best interests and proposes that he have time with the children on holidays and every other weekend, with terms that he abstains from the use of substances prior to, and during parenting time.
Analysis: Decision making Authority, Primary Residence and Parenting Time
[15] As Kristjanson J. wrote in the context of an uncontested trial in Cedeno v. Cedeno, 2023 ONSC 6686, at para. 18:
In determining the children’s best interests, I must consider all factors relating to the circumstances of the children, including those set out in ss. 16(3)-(5) of the Divorce Act. As set out by Chappel J. in J.T. v. E.J., 2022 ONSC 4596, at para. 93, a case under the provincial statute but equally applicable to the Divorce Act:
The list of considerations relevant to the best interests analysis… is not exhaustive. For instance, a parent’s history of conduct in relation to the child’s financial needs is not specifically enumerated, but the courts have held that a party’s failure to financially support their children regularly in a responsible manner is a relevant consideration in assessing where the child’s best interests lie (Jama v. Mohamed, 2015 ONCJ 619 (O.C.J.); L.B. v. P.E., 2021 ONCJ 114 (O.C.J.)). The court is not required to specifically enumerate and analyze the criteria set out in section 24 of the Family Law Act, but rather must consider all of the relevant information in the particular case that it is called upon to decide (Walsh v. Walsh, [1998] O.J. No. 2969, 39 R.F.L. (4th) 416 (C.A.); Phillips v. Phillips, 2021 ONSC 2480 (S.C.J.), at para. 47 M.A. v. M.E., 2021 ONCJ 555 (O.C.J.), at para. 31; A.E. v. A.E., at para. 89).
[16] Sabrina has been the primary caregiver for the children since their births, and they have a warm and loving relationship. Apostolos worked full-time outside the home to build his mortgage brokerage business. Sabrina took the children to their medical appointments, enrolled them in activities and ensured their needs were met. Sabrina describes the children as active, engaged in school and close to one another. This evidence supports the parenting orders sought by Sabrina.
[17] The post-separation facts do not support a finding that it would be in the children’s best interests for the parents to share decision-making authority. This arises from the allegations of violence and assault made against Apostolos, the abusive content of his text messages to Sabrina and the evidence that his use of substances, which he appears to deny is a problem, affects his ability to be a cooperative parent. More recently, Apostolos laid charges against Sabrina, attempted to bully her lawyer into advising Sabrina in a way that would accommodate his preferences and refused to consent to a March break trip for the children, requiring judicial intervention. He has now “checked out” of the legal proceedings, signalling that he is neither able nor willing to participate in a process which exists to provide stability and functionality to parenting post relationship breakdown.
[18] Post-separation, Apostolos periodically stopped providing necessary financial support to the family, whether by cutting off Sabrina’s access to credit cards, failing to pay the rent or water bill on time or failing to pay for cable or internet, which were disconnected as a result. At other times, he would disappear without advising Sabrina where he was going or when he would return.
[19] I find that it is not in the best interests of the children for there to be joint decision making. They require stability, security and attention to their needs. Joint decision making requires functional, cooperative communication between parents. This is notably absent in the post-separation period and there is no plan before me that suggests this is likely to change. I conclude that Sabrina should have sole decision making authority for the children, and that their primary residence should be with her.
[20] Apostolos has not filed a Form 35.1 parenting affidavit to set out his plans for parenting. I make the order as requested that he shall have parenting time as agreed to between the parties.
[21] Sabrina filed evidence of drug and alcohol use in the home by Apostolos and has expressed concern about the impact of substances on his ability to meet the children’s needs during his parenting time. She has requested that he abstain from the use of substances prior to his parenting time. This is a reasonable request and I would include in such an order a requirement that he refrain from use of substances and alcohol during his parenting time.
Travel Consent, Document Renewal, Non-Removal of the Children from Ontario
[22] The evidence shows that Apostolos refused a travel consent in 2023, which required Sabrina to bring a motion for a one-week trip during March break. Apostolos was ordered to pay substantial indemnity costs, but as of the swearing of the affidavit in support of this trial, he has not done so. His actions in arbitrarily refusing consent to the trip and forcing Sabrina to take legal action, supports a finding that it is not in the children’s best interest to require Sabrina to seek and obtain his advance consent for travel. I dispense with his advance consent to travel within Canada or internationally. For the same reasons, Sabrina may renew passport and government identification for the children without Apostolos’ consent.
[23] Sabrina has also requested an order that Apostolos shall not remove the children from the Province of Ontario without her prior written consent or pursuant to court order. There is no history of Apostolos taking the children anywhere, post-separation, nor threats of abduction. He has been a resident of Ontario for his entire life. His family is in Toronto. He works in Toronto. I decline to order that Apostolos is not able to remove the children from the Province of Ontario. I will order that Apostolos may only travel internationally with the children with Sabrina’s advance written consent of Sabrina or by court order.
Income for Child, Section 7 Expenses and Spousal Support Purposes
Child Support
[24] During the marriage, Apostolos was employed as a mortgage broker, through “Safebridge Financial” and through his own numbered company which carried on business as “West Liberty Financial”.
[25] Sabrina’s evidence on child support post-separation is that by order of Justice Faieta dated March 1, 2023, Apostolos was to pay $2,977 per month in table child support, on an ongoing basis, based on income of $225,000.00. Sabrina states that Apostolos is in breach of this order and has not paid any of the child support owing for July 2023 and August 2023. She affirms that he has paid a total of $17,862 in child support since separation.
[26] Given the delay in hearing this uncontested trial, I do not have any updated information on the status of payments between September 2023 and February of 2024. In order to address the issue of arrears, this additional information is required, as set out below.
[27] Although Apostolos did not complete his disclosure obligations, I received T4 slips which provide income information from his numbered company. In 2022, his annual income from self-employment via his numbered company was $340,029.53. In 2021, his T4 stated his annual income from his company was $362,428.40.
[28] At an urgent case conference before Justice Faieta on December 20, 2022, Apostolos stated that his income was approximately $300,000 per year, but that he had not filed income tax returns since 2020. Faieta J. urged the parties to work out interim support pending a further case conference, and ordered Apostolos to:
a. File his personal income tax returns and corporate income tax returns for West Liberty Financial, Sigalas Investments Inc., 2117808 Ontario Inc. and 1000181276 Ontario Inc. and deliver them to Sabrina by February 27, 2023, and
b. By April 15, 2023, to deliver to Sabrina:
- The 2020, 2021 and 2022 Commission Statements from Safebridge Financial and any other entity that pays commission income to the Respondent or any of his corporations.
- Copies of his personal and corporate bank and credit card statements for the period from January 1, 2020 to December 31, 2022.
- Copies of any corporate general ledgers for the years 2020, 2021 and 2022.
[29] As of October 3, 2023, Apostolos has not complied with the required disclosure made in the December 20, 2022 order. His financial statement, sworn July 18, 2023 and attached to Sabrina’s affidavit on this trial, shows an annual income of $228,000 and annual expenses of $255,300. In an email to Sabrina, Apostolos said that he has the means to afford luxury vacations (“a month in a villa”) and to fly first class. He disparaged Sabrina for having to ask him for money for his son’s birthday and other activities.
[30] Sabrina attached her annual notices of assessment to her affidavit which show that her income in 2022 was $80.40, in 2021 it was $0 and in 2022, her income was $12,000.
[31] Sabrina seeks an order for support based on imputed income of $300,000 for Apostolos. She relies on the financial disclosure from his T4 slips for his numbered company through which he provides mortgage broker services. The evidence filed includes the DivorceMate calculations for child support. The table amount of child support for two children based on an imputed income of $300,000.00 is calculated at $3,877 per month.
[32] Sabrina also seeks an order for child support, retroactive to the date of separation, with credit for amounts already paid. Her affidavit of October 3, 2023 sets out that the amounts paid as of that date were $2,977 x 6 months = $17,862.
[33] I am satisfied that on a balance of probabilities, that employment income should be imputed to the Applicant in the amount of $300,000 based on his statement to Justice Faieta and his T4 slips for 2021 and 2022. This income finding supports an order for retroactive child support since the date of separation as well as child support on a monthly go-forward basis.
[34] Given the delay in consideration of this trial, and in order to calculate retroactive child support payable, the Applicant shall update the status of disclosure from Apostolos on his finances and support payments made between September 2023 and February 2024 on account of child support, in accordance with the order of Justice Faieta.
[35] Sabrina seeks insurance securing support. There is no information as to whether Apostolos is currently the holder of a life insurance policy. I will require this information before considering whether to make an order to insure future child support obligations.
Section 7 Expenses
[36] Sabrina has paid the cost of summer camps for the children in 2023 but did not have sufficient funds to pay for fall programming. Her affidavit states that in March of 2023 when she sought his contribution for a program for A.S., he initially said there was “no budget” for that activity, then later suggested that Sabrina enrol A.S. in the activity and he would reimburse her for that expense. Sabrina has a concern, which I find is supported by the evidence, that Apostolos will not reliably contribute to activities for the children in the absence of an order.
[37] Sabrina seeks contribution to s. 7 expenses on a retroactive basis to date of separation, which will require receipts and prospective s. 7 expenses apportioned according to the income of the parties.
[38] Extraordinary expenses under the Child Support Guidelines (“CSGs”) must be necessary and reasonable according to the family finances. Prior enrolment and consultation between the parents with a view to what the family is able to afford and wishes to provide to the children, are factors that often assist in making decisions for future funding of such expenses.
[39] As noted by Kristjanson J. in Cedeno at para. 35:
The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under s. 7 of the Child Support Guidelines and that the expenses are necessary and reasonable, having regard to the parents' respective financial circumstances. Section 7 requires the court to consider whether the spouse against whom the claim is made had been consulted about the expenses before they were made, and whether the spouse has the means to make the contribution to the expenses. Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount: See Park v. Thompson; (2005), 77 O.R. (3d) 601 (Ont. C.A.), at paras. 20 - 26.
[40] The affidavit filed for this trial does not describe the type of activities for which Sabrina seeks to include as s. 7 expenses, which ones are recurring activities, or an approximate annual budget for those costs. Her affidavit refers to $800 for camp in the summer of 2023, and to other unspecified activities in the fall of 2023 that she was not able to afford. As set out below in the section on further information to be provided, the Applicant may provide further information on the anticipated cost of those activities on an annual basis for the purposes of an order for future s. 7 expenses.
[41] Further, as detailed below, the Applicant has been making efforts to become financially self sufficient in the aftermath of the separation. Those updates will be relevant to the allocation of s. 7 responsibility. This is necessary before making any orders under s. 7 of the CSGs.
Spousal Support
[42] Sabrina provided evidence on the course of her relationship with Apostolos and their relative financial and professional contributions to the family.
[43] The parties began dating in 2005. They moved in together in 2006 and were married on July 3, 2010. On August 14, 2022, they separated after 16 years of cohabitation. As of 2023, Sabrina was 43 years old and Apostolos was 50 years old.
[44] Apostolos worked as a mortgage broker and Sabrina worked for his businesses while caring for the home and raising the children. Sabrina initially had worked in advertising after she completed her university studies. After they married, she started an event planning company and Apostolos started his mortgage broker company.
[45] Apostolos and Sabrina also started an online fundraising company in 2012, which was active for four years. Sabrina assisted with marketing, sales, public relations and building the website. In order to support this venture, and at Apostolos’ request, Sabrina gave up her event planning business. By 2017, the fundraising company had failed. During the period from 2012-2017, Sabrina earned no employment income.
[46] In 2014, their daughter was born. In 2016, their son was born. After the children were born, Sabrina assisted Apostolos with marketing and business strategy for his mortgage company, while managing the home and young children. In 2018, a shift in strategy for the mortgage business suggested by Sabrina meant that his company became more successful.
[47] The couple also pursued some real estate development, including building a new home in Scarborough and purchasing and re-selling a property for profit in Ingersoll. As with the mortgage business work which Sabrina contributed, she received no income for her work in the real estate development venture.
[48] During the marriage, the Respondent paid for the household expenses, vacations, the children’s expenses and the Applicant’s personal care expenses. Sabrina had full access to Apostolos’ credit cards, and he would pay the charges on those cards for the family’s expenses.
[49] The couple argued about money which would lead to threats from Apostolos that he would “cut her off” financially. Sabrina decided she needed to become financially independent. During the marriage, she states that she put his professional interests ahead of her own vocational pursuits, and by carrying out the role of primary caregiver, she freed up his time to grow his business which she has not been able to value given the lack of disclosure from the Respondent.
[50] On or about October 14, 2022, Apostolos stopped paying for the family expenses on the credit cards. On October 31, 2022, Apostolos threatened to confiscate the family vehicle which Sabrina used. It was during this dispute that Sabrina says he threatened violence and yelled profanities at her, which led to her making a complaint to the police.
[51] During the period from October 31, 2022 until January of 2023 when payments resumed, Sabrina paid for groceries and other expenses for the children. This followed the emergency case conference with Faieta J. on December 28, 2023.
[52] On November 8, 2022, the landlord reached out and informed Sabrina that Apostolos had not paid the November rent, and that the water bill had not yet been paid. He stated that he had reached out to the Respondent who informed the landlord that he was away and that she was responsible for the payments. The Respondent was also behind on the cable payments, which resulted in her cable and internet being disconnected. He was also behind on payment for cleaning services. The Respondent notified the landlord that he had secured alternate accommodations.
[53] In November 2022, the Applicant was in a car accident. The Respondent claimed the insurance money and did not re-purchase a car for the Applicant to use as a family car. On March 1, 2023, Justice Faieta ordered the Respondent to provide her with a replacement vehicle and to either purchase or lease a vehicle for her by March 31, 2023. As of October 3, 2023, the Respondent had not followed the court order. As an interim measure, the Applicant borrowed a car from her family as a family car for the children. If the Respondent has since complied with this order, the Applicant shall provide that information to the court by way of follow-up.
[54] The Applicant’s affidavit describes her efforts to start a new career over the past four years. She began working in television production, however filming on her first project was cancelled with the onset of the pandemic. She shifted into casting and fundraising for a television series which was filmed across the United States. In 2022, the contract position she accepted for three months earned income after expenses of $8,500.
[55] In January 2023, the Applicant found a showrunner for her series. In May she was able to retain an agent in Hollywood. Her affidavit describes an upcoming meeting on September 11, 2023. If that project has since been successful, and the Applicant has projected earnings, that is information that should be provided along with the rest of the follow up information. This should include updated DivorceMate calculations for spousal and child support.
[56] The Applicant has also been pursuing other lines of career development, including product placement sales, and taking a real estate licensing course at Humber College. I find that she is making efforts to become financially self-sufficient.
[57] Post-separation, the Respondent has communicated his expectation that the Applicant should meet her household expenses by borrowing from her family. The Applicant has stated in her affidavit that she has little money left from her savings and contract position. She submits that Apostolos has historically supported the family and should continue to do so. In the interim order of March 1, 2023 made by Faieta J., the Respondent was ordered to pay family household expenses including:
a. Monthly rent of $6,200.00
b. Daycare expenses of approx. $425 a month per child
c. Utilities and household expense of approx. $1,000.00
d. TV Subscriptions/Internet of approx. $200,00
e. Car expenses (insurance and repairs)
f. Cleaning services of $120 every other week
[58] The Applicant seeks an order for spousal support based on the Respondent’s imputed income of $300,000, and that the order be made retroactive to the date that she left the matrimonial home in June of 2023. This is based on his role as the primary breadwinner during the marriage, the family’s lifestyle and his successful career.
[59] The Applicant seeks spousal support on both a compensatory and non-compensatory basis. She seeks needs-based support as a result of the disparity in incomes. She seeks compensatory support based on her support of the Respondent’s businesses and his reassurances during the marriage that he would take care of the finances, but that she needed to be “all in.”
[60] The purposes of spousal support, from s. 15.2(6) of the Divorce Act, are to:
a. recognize any economic advantages or disadvantages to the spouse arising from the marriage or its breakdown;
b. apportion between the spouses any financial consequences arising from the care of any child beyond any obligation for the support of any child;
c. relieve economic hardship of the spouses arising from the breakdown of the marriage; and
d. promote economic self-sufficiency of each spouse within a reasonable period of time.
[61] I am satisfied by the evidence that given the division of labour during marriage, the demonstrable economic disadvantage to the Applicant based on that division of labour and the desirability of promoting economic self-sufficiency of each spouse, that time limited spousal support is desirable. The Applicant earned no income for years but has education and skills that she put to use during the marriage in the Respondent’s various business ventures and on behalf of the family. She has already begun the process of becoming self-sufficient.
[62] Based on the imputed income of $300,000, the Applicant’s DivorceMate calculation shows mid-range monthly spousal support to be $5,776. The Applicant seeks an order for this amount retroactive to June of 2023 and on a going forward basis.
[63] While I would make the order for spousal support from June of 2023 to October of 2023, I require updated income information from Sabrina for October 2023 – February 2024, given her evidence about a possible signing of her television production in 2023. I will also require updated income projections for February of 2024 and going forward for the Applicant. The current DivorceMate calculations are based on Sabrina’s income as of June 2023 of only $8,500.
[64] Once that information is provided, a further order will follow.
Equalization
[65] The Applicant seeks an order for an equalization payment from the Respondent of “at least $59,515.05.” This is based on her net family property statement, and her inability to value any of the Respondent’s accounts or his corporations due to non-disclosure. She states, “I have done my best to value these assets.”
[66] The Applicant’s statement of net family property uses approximate estimated values for the Respondent’s business enterprises, but the financial health of those businesses is unknown, including unspecified tax liabilities flagged in the statement. The Respondent has not provided his income tax filings for three years, as ordered by Faieta J. He advised the court of this at the emergency case conference of December 28, 2023. There is every possibility that the liabilities are greater than the assets for his businesses.
[67] While this is a direct result of the lack of financial disclosure, the evidentiary record is too sparse to enable a finding on a balance of probabilities as to the appropriate amount of equalization as between the spouses. I decline to make any finding as to an equalization payment, because too much speculation is involved.
[68] The Applicant also requests an order that the Respondent be 100% responsible for the joint line of credit held by TD Bank. Her evidence is that although this is a joint account, the Respondent told her not to draw on those funds and he has not explained his use of those funds. I accept this evidence. Based on the other evidence of how the family finances were arranged, and how the parties divided professional and personal commitments, it is more likely than not that the Respondent would be in control of how funds from the line of credit would be used and withdrawn. He has chosen not to participate in these proceedings or to explain the use of those funds. He shall take full responsibility for the repayment of those funds.
[69] Finally, the Applicant requests an order dividing the household contents in line with a list of her personal items and a share of the family contents. I would make the order in line with Exhibit “HH” to the Applicant’s affidavit. 1
Divorce
[70] The parties married on July 3, 2010. On August 14, 2022, they separated with no reasonable prospect of reconciliation and have lived separate and apart since then.
[71] The Application was served in December of 2022.
[72] I find that as required by section 8(2)(a) of the Divorce Act, the spouses have lived separate and apart since August 14, 2022 and were living separate and apart when the divorce Application began. As required by section 10(1) of the Divorce Act, I am satisfied that the parties have been separated for more than 12 months, with no reasonable prospect of reconciliation. I am also satisfied that reasonable arrangements have been made for the support of the children by way of this order.
[73] The parties shall be granted a divorce.
Costs
[74] The Applicant seeks costs on a full indemnity basis in the amount of $23,083.60 and disbursements in the amount of $399.45 (inclusive of HST) within 30 days. The bill of costs attached to her affidavit is detailed and covers the services from 2022 to 2023 that were required for various case conferences, appearances and motions, as well as the affidavit material for this trial. These amounts are reasonable and proportional to the many issues involved in this proceeding.
[75] The Applicant seeks a finding of bad faith on the part of the Respondent for his failure to abide by prior court orders, including failing to make disclosure as ordered by Justice Faieta, failing to pay the costs ordered by Justice Sharma on March 9, 2023 and failing to file an Answer as ordered by Justice Shore.
[76] Costs orders are discretionary pursuant to section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Family Law Rules aim to partly indemnify successful litigants, encourage settlement, sanction and discourage inappropriate behaviour and ensure that cases are dealt with justly: see Mattina v. Mattina, 2018 ONCA 867, at para. 10.
[77] Where a party has acted in bad faith, such as attempting to deceive the court or engaging in conduct which increases the costs to the other party, then Rule 24(8) of the Family Law Rules authorizes the court to decide costs on a full recovery basis: see Scalia v. Scalia, 2015 ONCA 492, at para. 68; Benzeroual v. Issa and Farag, 2017 ONSC 6225, at para. 20.
[1] The Appendix is attached to this Order.
[78] I find that the Respondent acted in bad faith during these proceedings and added to the Applicant’s costs. He failed to abide by court orders, forced the Applicant to bring an emergency case conference by ceasing to fund the family’s necessities, unreasonably withheld consent to a trip and failed to make necessary disclosure to assist this process in being conducted expeditiously. He did not file material for parenting plan purposes or to assist with the calculations of support. This is the type of conduct which selfishly and unnecessarily uses scarce court resources.
[79] I make the costs order sought by the Applicant. Given that child support has been a significant part of these proceedings, I order that 50% of the costs, as well as all of the costs assessed by Justice Sharma on March 9, 2023, be enforceable via the Family Responsibility Office.
Further Information to be Supplied
[80] I make the Order set out below. After I have signed the Order, I will issue a further Order once the Applicant provides the following information, which should be sent to my attention through the Family Portal within 45 days, together with a draft Order incorporating the amounts:
a. A document setting out the child support arrears calculations based on the Respondent’s income and including updated credit for amounts paid prior to February 26, 2024.
b. A document setting out the updated income projections for the Applicant as of February 2024, with DivorceMate spousal support calculations based on that projected income and the Respondent’s imputed income.
c. Information as to the proposed monthly budget and nature of activities that would qualify as s. 7 extraordinary expenses.
d. Updated calculations based on the parties’ respective incomes as to their proportionate share of the s. 7 extraordinary expenses.
e. A document setting out the income ratios, taking into account any updated income for the Applicant which may alter those ratios for section 7 allocation for the requested retroactive section 7 expenses, including any credits to be applied.
f. A document setting out the calculations for pre-judgment interest on the equalization payment of $59,515.05.
g. Further information on any life insurance currently in place for the Respondent.
h. Information as to whether the Respondent has complied with the order of Faieta J. to provide a family car to the Applicant.
Order
[81] I have edited this Order for publication by omitting the full names and dates of birth of the children. That information shall be included in the final Order as issued and entered:
a. The children of the marriage namely A.S. and A.C., and collectively referred to as “the children” shall reside primarily with the Applicant.
b. The Applicant shall have sole decision-making responsibility for the children, and she shall make all important decisions about the children’s welfare, including, but not limited to the children’s:
i. Health, including major non-emergency healthcare, as well as emergency health care;
ii. Education;
iii. Culture, language, religion, and spirituality; and
iv. Significant extracurricular activities for which reimbursement is sought. The Applicant must advise the Respondent of the proposed extracurricular activities at least 10 days in advance.
c. The Applicant may apply for passports, and other government documents, and the renewal of these documents on behalf of the children without the Respondent’s agreement, consent, or signature. The Applicant’s sole signature is sufficient to apply for and renew these documents.
d. The Respondent’s consent in respect of the children’s travel within Canada or outside of Canada is dispensed with. The Applicant’s consent and signature shall be sufficient consent for the children to travel within Canada or internationally.
e. The Respondent may only travel internationally with the children with the written consent of the Applicant or court order.
f. The Applicant shall facilitate parenting time in accordance with the children’s best interests on the dates and at the locations and times agreed to between the parties in advance, in writing. If the children request a phone, video call or parenting time with the Respondent, the Applicant shall facilitate the request.
g. The Respondent is to refrain from using substances (drugs and alcohol) within 24 hours of exercising parenting time and during parenting time.
h. The Respondent shall pay child support to the Applicant for the children in the amount of $3,877 each month commencing March 15th, 2024, and on the 15th day of every month after that in accordance with his estimated income of $300,000 and the Federal Child Support Guidelines. A support deduction order shall issue.
i. On or before March 15th of each year, commencing on March 15th, 2025, the Applicant and the Respondent shall exchange income information for the prior calendar year, including their income tax returns and Notices of Assessment. The Respondent’s table child support obligation and the party’s proportionate contributions toward the children’s section 7 special and extraordinary expenses shall be adjusted as of September 1st of that year.
j. The Respondent shall name and maintain the children as the beneficiaries on any benefits (extended health and dental coverage) which he has through his employment and shall maintain such coverage until further agreement or court order, and shall name and maintain the Applicant so long as the coverage is available through his employment. The Applicant shall be authorized to obtain information about herself or the children from the Respondent’s insurer(s), without the Respondent’s prior consent or authorization.
k. The Applicant may submit all claims to the Respondent’s benefits insurance (extended health and dental) providers and obtain reimbursement directly. If the provider cannot make direct payments to the Applicant, then if the Respondent receives reimbursement funds from the benefits provider for any expenses incurred by the Applicant, he shall immediately provide those funds to the Respondent by way of e-transfer. The Respondent shall authorize the benefits insurance provider to provide all pertinent information pertaining to the status of the policy/coverage directly to the Applicant.
l. the Respondent shall be 100% responsible for re-payment of the balance owing on the Joint Line of Credit at TD Canada Trust ending in *9739.
m. The Respondent shall provide to the Applicant the household items listed for her possession in Exhibit “HH” to her affidavit, which are attached to this order.
n. The Respondent shall pay the Applicant costs in the fixed amount of $23,083.60 inclusive of HST and disbursements in the amount of $399.45, within 30 days, of which $11,541.80 is to be enforced by the Family Responsibility Office as the payment of legal fees or other expenses arising in relation to support pursuant to s. 1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, and a support deduction order shall issue in respect of that amount.
o. The costs assessed by Sharma, J. on the motion shall be enforced by the Family Responsibility Office as the payment of legal fees or other expenses arising in relation to support pursuant to s. 1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, and a support deduction order shall issue in respect of that amount.
p. Unless the Support Deduction Order is withdrawn from the Office of the Director, Family Responsibility Office, all amounts owing thereunder shall be paid to the Director who shall in turn pay them to the party to whom they are owed.
q. The parties are divorced.
r. This Order bears interest at the post-judgment interest rate set out in the Courts of Justice Act of 7% per year effective from the date of this Order. A payment in default bears interest only from the date of default.
s. The Respondent’s approval of this Order as to form and content is dispensed with.
t. The Applicant shall serve a copy of the issued and entered Order on the Respondent.
J.
Released: March 12, 2024
APPENDIX: EXHIBIT “HH”
Page: 18
DIVISION OF HOUSEHOLD ITEMS
Room: Foyer
Sabrina: Bench Large black frames in hallway x4 Silver deer head on the wall Large white floor urn with faux flowers x2
Apostolos: Long wood entryway hutch Large black mirror Foyer Rug
Room: Living Room
Sabrina: Grey armchairs x2 Rug Plants x2 Mirrors on Wall 3 ft flower artwork Loveseat (now in basement) Throw cushions x4 Lamps x2
Apostolos: Full sized couch Two end tables Mirrored coffee table 7ft painting flanking fireplace x2 All curtains with rods Big Screen TV Glass vase with sticks Throw cushions x4
Room: Dining Room
Sabrina: Hutch Mirrors Faux flower table arrangement Floor vase with sticks
Apostolos: Solid Wood dining table 6 dining room chairs Rug
Room: Kitchen
Sabrina: Entertaining Items – platters, ice bucket, serving utensils, cake trays Outdoor plastic stemware Cookie sheets x2, muffin tin, ½ baking dishes Nespresso machine Round kitchenette table and 4 chairs Kitchen-aid Stand Mixer Juicer Long live edge cheese board All placements and trivets All tupperware Air Fryer Blender
Apostolos: All dishes All glassware + mugs All stemware All cutlery All pots All pans All cooking utensils All tea towels ½ baking dishes All mixing bowls & containers Toaster, hand mixer and small appliances
Room: Master Bedroom
Sabrina: King Bed (headboard/frame/mattress) Rug Low wood bookcase Floor lamp Large mirror
Apostolos: Night stand x2 Table lamps x2 Jewelry chest TV All frames and art work
Room: Upstairs Hallway
Sabrina: White bookcase with glass doors Blue art x3
Apostolos: Frame collage – 8/9 pieces
Room: Kids Rooms
Sabrina: Not to disrupt their rooms Some Toys / Books Beds x2 Bookshelves x3 [A’]s Vanity
Apostolos: Toys / Books Toy Shelving x4 Rugs x2
Room: Apostolo’s Office
Sabrina: Nothing
Apostolos: Big screen TV Desk Office chair Arm chairs x2 Desk Lamp Floor Lamp Low shelving under TV
Room: Guest Room / Sabrina’s Office
Sabrina: Sabrina’s desk (which was moved somewhere) Desk chair Desk lamp All frames and wall decor Low wood bookcase
Apostolos: Queen bed (headboard/frame/mattress) Rug Round End table
Room: Garage / Outdoors
Sabrina: Tall Blowup matress Planters flanking back steps x2 Leaf blower Armchair with cushions Outdoor glass top dining tables / chairs BBQ Sun loungers x 4 White Plexiglas bar Power washer Edge trimmer Rakes / shoves Gardening tools
Apostolos: All gym equipment Treadmill Outdoor L sectional/cushions/pillows Cantilever umbrella Dining table umbrella Rolling outside bar Standing cooler Large rectangular planter Electric chain saw Dining table umbrella
Room: Basement
Sabrina: One set of dumbbells – standing rack 2 desks with office chairs Tall Shelving Unit Pulley gym system Gym bench Gym floor mats All other Weights and rack Stainless steel fridge
Apostolos: L-section couch with pillows Big screen TV Long TV stand with drawers Barstools Rug TV in gym Coffee table
Room: 4 Bathrooms
Sabrina: Nothing
Apostolos: Bathmats Wall Art All Towels
Room: Miscellaneous
Sabrina: ½ Christmas decorations Faux Christmas tree with family ornaments Christmas wreath
Apostolos: Halloween decorations ½ Christmas decorations