Court File and Parties
COURT FILE NO.: FC-23-438 DATE: 20240614 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Barry Smug, Applicant AND: Joanne Moranino, Respondent
BEFORE: The Honourable Mr. Justice J.P.L. McDermot
COUNSEL: Evan Karmazyn, Counsel for the Applicant Jason Murphy, Counsel for the Respondent
HEARD: June 13, 2024
Ruling on Motion
[1] This was a motion brought by the Respondent for child and spousal support payable by the Applicant. The Applicant has also brought a motion for decision-making concerning vaccinating the parties’ child, Spencer (5). Justice McCarthy conferenced this matter and authorized these motions in his order of January 16, 2024.
[2] Spencer lives with both parties on a 3-3-4-4 time sharing arrangement and both parties share temporary decision-making respecting Spencer.
[3] This was a fairly short cohabitation of some six years in duration. These parties separated during the COVID epidemic and lived under the same roof separate and apart from the date of separation (October, 2021) until September, 2022. The Respondent says that she moved out at the request of the Applicant and based upon his promise to pay her adequate support. Mr. Smug’s affidavit does not deny that he promised to pay support when he asked the Respondent to move out.
[4] Ms. Moranino says that the Applicant’s present interim payments of $713 per month in differential child support are not in accordance with the parties’ respective incomes. Mr. Smug refuses to pay spousal support. Ms. Moranino says that the comparative standards of living between her household and that of Mr. Smug are stark and that she has to go to the food bank while Mr. Smug lives very well at her expense. She seeks retroactive and ongoing spousal and differential child support.
[5] There have also been issues concerning vaccinations. Spencer’s vaccination record with the school board is incomplete. Ms. Moranino does not deny that she is adamantly opposed to the COVID vaccine for herself and, presumably, Spencer. Mr. Smug requests an order that he be given decision-making concerning Spencer’s vaccinations.
Child and Spousal Support
[6] The major issue concerning ongoing support payable by the Applicant is the amount of the parties’ respective incomes.
[7] The jurisdiction to make interim support awards lies under ss. 15.1(2) (child support) and 15.2(2) (spousal support) of the Divorce Act [1]. The child support should be according to the Child Support Guidelines [2] and both parties agree that temporary child support should be differential based upon the parties’ respective incomes as suggested in Contino v. Leonelli-Contino, 2005 SCC 63.
[8] Under s. 15.2(2), the criterion for a temporary order under the Divorce Act is that the order should be “reasonable”.
[9] As discussed with the parties, a determination of support and incomes on an interim motion is necessarily “rough justice”: see Joseph v. Shamji, 2021 ONSC 4386. That is because the court is addressing the issues on conflicting affidavits which cannot be tested for veracity. The best the court can do is to address the issues on the basis of the facts that are admitted, obviously uncontradicted or easily determined.
[10] Because of this, an interim motion is not usually the place to impute income, something often hotly contested and based upon issues of whether there is intentional underemployment or based upon improper deductions taken on business income. It is also difficult to address the issues that allow a retroactive award to be made such as blameworthy conduct and when effective notice of the claim was made by the claimant. Those are facts that often require a trial or a hearing to address credibility issues or the veracity of the evidence presented by each of the parties. It is often said that imputation of income has no place in an interim motion for support.
[11] Regarding entitlement, concerning the child support claim, it is clear that the Applicant’s income is greater than the Respondent’s and that differential child support would be payable.
[12] Regarding the claim for spousal support, the court must also find entitlement to spousal support even in the case of a temporary order: see Cassidy v. McNeil, 2010 ONCA 218, [2010] O.J. No. 1158 (Ont. C.A.). However, the claimant does not have to prove entitlement on the balance of probabilities as he or she would have to at trial. He or she need only show a prima facie case for entitlement: see Samis (Guardian of) v. Samis, 2011 ONCJ 273, at para. 44; Carnegie v. Carnegie, 2008 MBQB 249, 60 R.F.L. (6th) 192 (Man. Q.B.).
[13] Entitlement to spousal support was not really argued during this motion. However, it is clear to me that the separation has resulted in a clear inequity in the standards of living of the parties and I can easily find that there has been a disadvantage to the Respondent caused by the separation of the parties: see the Divorce Act, s. 15.2(6)(a) and (c).
[14] The major issue between the parties is their respective incomes. For the past few years, the parties’ incomes are as set out below:
| Year | Applicant | Respondent |
|---|---|---|
| 2020 | $111,781 | $35,409 |
| 2021 | $127,501 | $65,872 |
| 2022 | $266,900 | $35,800 |
| 2023 | $125,000 | $53,194 |
[15] The above chart shows that both parties have had high income years that might be called “outlier” years. For the Applicant, that year is 2022 when he made $266,900. He says that this was because the accountant determined that there was a tax liability that both shareholders in the business required extra funds to pay.
[16] For the Respondent, that year was 2021, when she was teaching at a pre-school. The Respondent lost her job that year because she refused to get vaccinated for COVID.
[17] Both parties seek to attribute income to the other according to these “outliers”. Mr. Murphy for the Respondent points out that in 2022, the corporation had pre-tax and undistributed earnings of $533,927. [3] He says that leaving this type of money on the table allows the Applicant to hide his true income and avoid paying his true support obligation. He says that the Applicant has failed to provide any reasonable explanation for this money not being drawn down from the corporation: see s. 18(1) of the Child Support Guidelines as well as Sloss v. Liscoumb, 2022 ONSC 1396 at para. 88 and Dreesen v. Dreesen, 2021 ONCA 557 at para. 16. This appears to be true; the Applicant has provided no explanatory note or memo from the accountant for the corporation and the Applicant’s financial statement does not disclose that he had a tax debt on the date of separation. Mr. Murphy submits that the Applicant’s income for the 2022 tax year be used as his income for support purposes.
[18] Mr. Karmazyn for the Applicant suggests the same for the Respondent. He says that in 2021, the Respondent had a good income from her job as a pre-school teacher which she lost due to her decision not to be vaccinated for COVID. He says that this is, in effect, intentional underemployment which should warrant imputation of income under s. 19(1)(a) of the Child Support Guidelines.
[19] Both parties have a point about these high income years. However, it would be unfair to just take the high income years alone considering the lack of evidence presently before the court. The issue of imputation of income, as stated above, is not easily proven on an interim motion on contested and conflicting affidavits.
[20] I would prefer to take the approach of placing the parties on an even playing field and average their incomes for 2021, 2022 and 2023. That achieves rough justice because the parties both had their high income years during those three years as well as more average income figures. And it also achieves rough justice because the incomes of the parties are based upon the same criteria and years for each of them which include lower income years. Moreover, the incomes fluctuated significantly throughout those years and the best measure may very well be an average of the three.
[21] The SSAG calculation prepared by the Respondent is attached (Schedule A). The average figures for those three years are $173,133 for the Applicant and $51,622 for the Respondent. The SSAG provided shows this figure to provide for differential child support of $991 per month. As well, for an equal split of Net Disposable Income, spousal support is payable at $3,135 per month. As pointed out by Mr. Murphy, the SSAGs suggest that the NDI to be equalized where children are shared: see the SSAG Revised User Guidelines (SSAG 8.6), s. 8(f). I therefore find that ongoing spousal support should be set at $3,135 per month.
[22] I am going to commence the support on January 1, 2024, to bring this back to the case conference when the parties first attended court to discuss support. I am not going to order retroactive support prior to that. As pointed out in Bracklow v. Bracklow, 1999 SCC 24, 1999 CarswellBC 532 (S.C.C.), different considerations apply for retroactivity for child support than for spousal support and this is normally an issue to be considered at trial.
Vaccinations
[23] I discussed this issue at length with the parties through the argument of this motion.
[24] As has been determined by the Court of Appeal of this province, the vaccination of children is governed by medical science as we best know it: see J.N. v. C.G., 2023 ONCA 77. The court should take judicial notice of government mandates and recommendations, especially those of the applicable health authorities or ministries. The party or parties agreeing to follow these authorities should usually be the person given decision-making concerning vaccinations.
[25] The Applicant says that he is the one who would do this. He notes that the Respondent has a serious opposition to the COVID vaccine and, in fact, lost her job over it.
[26] However, the evidence is that both of these parties have been sadly deficient in arranging for Spencer to be vaccinated. The Applicant provided a letter from the Simcoe Muskoka Public Health Unit which confirmed that Spencer’s immunization record is “missing information”. His vaccines were not kept up to date.
[27] I do not agree that the Respondent is solely responsible for this situation. I am sure that the Applicant has always taken the position that he has fully coparented Spencer with the Respondent. That would be, I assume, the basis for the shared care arrangement that the parties agreed to. That being the case, both parties are responsible for the failure to keep Spencer’s immunizations current.
[28] At this point in time, COVID does not seem to be a live issue. I was not advised of any government mandates or recommendations concerning COVID vaccines. That does not appear to be a pressing issue, but it may be in the future. Ms. Moranino says that she will follow any recommendations from the Governments of Canada or Ontario, or the District Health Unit concerning the administration of the COVID vaccine to Spencer.
[29] I am going to direct that Spencer’s immunizations be brought into good standing.
[30] I am also going to take Ms. Moranino at her word. If there is a recommendation from any governmental health authority or vaccine mandate concerning the COVID vaccine, the parties shall follow that recommendation or mandate. In that event, however, if the mother refuses to do so, the father has decision-making authority concerning the administration of the COVID vaccine to Spencer.
[31] There is no prejudice to involving the child’s naturopath in providing assistance in the vaccination of the child as ordered.
Order
[32] There shall therefore be a temporary order to go as follows:
a. Commencing January 1, 2024, the Applicant shall pay differential child support to the Respondent of $991 per month based upon the following factors: i. The Applicant’s income is found to be $173,133 per annum based on a three year average (2021, 2022 and 2023) which would result in a child support payment for one child of $1,466 per month; ii. The Respondent’s income is found to be $51,622 per annum based on a similar three year average which would result in a child support payment for one child of $475 per month; iii. Differential child support based upon those two incomes is $991 per month. b. Commencing January 1, 2024, the Applicant shall pay spousal support to the Respondent in the amount of $3,135 per month. c. The parties shall forthwith bring the child’s immunizations into good standing as required by the Simcoe Muskoka District Health Unit notification dated May, 2024 (ex. C to the Applicant’s affidavit sworn June 7, 2024); d. If there is a recommendation or vaccine mandate from any governmental health authority (federal or provincial) concerning the administration of the COVID vaccine to the parties’ child or children of that age, the parties shall follow that recommendation or mandate. If the mother refuses to follow that recommendation or mandate, the father shall have decision-making authority concerning the administration of the COVID vaccine to Spencer. e. In any event, the parties shall seek the assistance of the child’s naturopath prior to administration of any required vaccines under this order or any governmental recommendation and mandate.
Costs
[33] Costs may be addressed through written submissions, the Applicant first and then the Respondent on a 10 day turnaround. Costs submissions to be no more than three pages in length (12 point font, double spaced) excluding offers to settle and bills of costs.
McDermot J. Date: June 14, 2024
Schedule A - SSAG Calculation
Tools Cloud 2024 6385-001 Moranino, Joanne: 3 Year average Based on Parties' Declared Incomes Only
Barry 46, Resident of ON Income Employment income 173,133 (3 year avg 2021 to 2023) Child Support (Table) Barry's income over $150,000; CSG Table Amount may be inappropriate
Dependant credit claimed by Joanne. Youngest child attends full time school in 3 years and finishes high school 16 years from the date of separation. Length of marriage/cohabitation: 6 years Recipient's age at separation: 44 years "With Child Support" Formula
Special Expenses No Special Expenses. Relationship Dates Barry paid/claimed Joanne paid/claimed The formula results in a range for spousal support of
Date of marriage/cohabitation Aug 1, 2015 Date of separation Oct 1, 2021 $1,972 to $3,142 per month for an indefinite (unspecified) duration, subject to variation and possibly review, with a minimum duration of 3 years and a maximum duration of 16 years from the date of separation.
| Barry | Joanne | Barry | Joanne | Barry | Joanne | |
|---|---|---|---|---|---|---|
| Gross Income | 14,428 | 4,302 | 14,428 | 4,302 | 14,428 | 4,302 |
| Taxes and Deductions | (3,617) | (1,401) | (3,366) | (1,573) | (3,362) | (1,575) |
| Benefits and Credits | 158 | 258 | 167 | 248 | 167 | 248 |
| Cash Flow Adjustments | 0 | 0 | 0 | 0 | 0 | 0 |
| Spousal Support | (2,557) | 2,557 | (3,135) | 3,135 | (3,142) | 3,142 |
| Child Support (Table) | (991) | 991 | (991) | 991 | (991) | 991 |
| Net Disposable Income (NDI) | 7,421 | 6,707 | 7,103 | 7,103 | 7,100 | 7,108 |
| adult in household | 52.5% | 47.5% | 50% | 50% | 50% | 50% |
| child in household | ||||||
| shared/summer child | ||||||
| Percent of NDI | ||||||
| CSG Special Expenses Apportioning % | 63.4% | 36.6% | 60.3% | 39.7% | 60.3% | 39.7% |
| After-tax Cost/Benefit of Spousal Support | (1,418) | 1,809 | (1,745) | 2,215 | (1,749) | 2,221 |
| SSAG Considerations: The results of the SSAG formula must be interpreted with regard to: Entitlement; Location within the Ranges; Restructuring; Ceilings and Floors; and Exceptio |
Footnotes
[1] R.S.C., 1985, c. 3 (2nd Supp.) [2] O. Reg. 391/97 [3] Only half of this is available to the Applicant since he owns the business with his brother.