Court File and Parties

COURT FILE NO.: FS-23-38739-0000 DATE: 20241010 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Elizabeth Gomes Cas Imiro, Applicant AND: Michael Reis Gomes, Respondent

BEFORE: Mathen J.

COUNSEL: Alan Honner, for the Applicant Eva Janta, for the Respondent

HEARD: October 10, 2024

Endorsement

[1] The Applicant mother brought this motion for support on October 8. The Respondent father brought an earlier motion on August 8 to force the sale of the matrimonial home. In an endorsement dated August 10, Justice Rhinelander said: “During the motion, the outstanding issue of retroactive spousal support was raised and the impact it may have on the Applicant’s ability to possibly buy-out the Respondent”. She noted that “the parties have agreed to schedule a motion for retroactive spousal support for October 8, 2024[.]”

[2] The mother then filed this motion not only for retroactive spousal support, but retroactive child support, ongoing spousal support and ongoing child support.

[3] Before me, the mother sought to adjourn today’s motion due to what she alleges is misleading financial disclosure. She points out that the father has not filed an updated Financial Statement since December 2023. She also stated that the father did not provide a 2023 Notice of Assessment until the last few days.

[4] The father opposes an adjournment. Further, he objects to this motion dealing with anything other than retroactive spousal support. He disagrees that he has not made full disclosure, noting that he served and filed a sworn affidavit for this motion attesting to his current financial circumstances. Although it is not within his view of the motion’s proper scope, he is agreeable to paying retroactive child support to July 1, 2024, and to increasing his table amount.

Background

[5] The parties began cohabiting on January 1, 2005, and married on September 6, 2009. They separated on March 19, 2022. There are two children of the marriage who are 15 and 12 years old.

[6] The Respondent is employed in the construction industry. His T4 income was $84,696 in 2021, $77,732 in 2022 and $84,390.67 in 2023.

[7] Before the parties separated, the Applicant was last employed full-time in August 2009. She currently works as a house cleaner for two days a week earning $300 cash. According to her financial statement she receives $1,679.88 in monthly government benefits.

[8] The Respondent deposes that he has consistently paid child support: first, as part of larger transfers to the Applicant from the date of separation until April 2023; and, second, as specific table child support following a DRO conference of February 6, 2024. Based on his increase in pay, he is willing to pay retroactive child support from July 1, 2024 to October 1, 2024 in the amount of $411.12. He states that ongoing table child support based on his 2023 income is $1,280.78. The Applicant does not object to these figures for arrears beginning July 1, and for the ongoing table amount. An order shall issue.

Issues and Analysis

[9] The issues for me to decide on this motion are:

a. What is this motion about? b. Should this motion be adjourned? c. What if any relief is owing to the Applicant? d. Is a costs award warranted and, if so, to whom?

What is this motion about?

Parties’ Positions

[10] The Applicant points out that Justice Rhinelander did not use the word “leave” in her August 10 endorsement but merely indicated what the parties had agreed. The Applicant says that she did not receive that endorsement until September, at which point she discovered its inaccuracy.

[11] In the Applicant’s view, this motion necessarily engages more than retroactive spousal support. All aspects of support are intertwined and should not be artificially separated. The Applicant’s choices regarding the matrimonial home reflect her entire financial position. Questions of retroactive and ongoing child and spousal support are thus relevant.

[12] The Respondent argues that the issues of ongoing spousal support, and retroactive and ongoing child support are not properly before me. He states that the question for this motion has always been whether retroactive spousal support is owed, for the purpose of setting conditions for the sale of the matrimonial home. Contrary to the Applicant, he does think Justice Rhinelander granted leave for a motion limited to retroactive spousal support. The Respondent adds that ongoing spousal and child support are, at most, tangentially related to the Applicant’s quest to buy out the father’s interest in the matrimonial home.

Analysis

[13] While Justice Rhinelander does not explicitly state that the parties were granted “leave” for today’s motion, that is a reasonable reading of her endorsement. However, for the purpose of my analysis I will accept the Applicant’s argument that it is not.

[14] Nevertheless, Justice Rhinelander’s order refers only to “retroactive spousal support”. The Applicant essentially says this is an error. Given the broader context, I am not persuaded that this is the case. I find more plausible the Respondent’s argument that the Applicant has framed this motion too broadly.

[15] First, it makes sense that the parties would agree to a narrower motion directed at retroactive spousal support that could be resolved quickly, so that the pending motion for sale could be resolved.

[16] Second, I agree with the father that with respect to the matrimonial home, ongoing support is not as relevant to the mother’s ability to, for example, secure financing.

[17] Third, the four issues raised by the mother – retroactive spousal support, ongoing spousal support, retroactive child support and ongoing child support – are not suitable to be decided via a one-hour motion. I therefore am not persuaded that the parties agreed that today’s motion would have such a broad scope.

[18] Accordingly, I find that the issues of ongoing spousal support, and retroactive and ongoing child support, are not properly before me. My remaining analysis will focus on retroactive spousal support.

Should this motion be adjourned?

Position of the Parties

[19] The Applicant says that this case should be adjourned, with conditions that the Respondent make specific financial disclosure so that the Applicant can incorporate the implications of that disclosure in her arguments.

[20] The Applicant states that the Respondent’s sworn financial statement in 2023 is “not to be trusted” because, inter alia and most significantly, it leaves out the Respondent’s pension. She also faults the Respondent for deposing in his most recent affidavit that his financial position has not changed when his employment income increased from approximately $77,000 in 2022 to $84,000 in 2023. She claims that the Respondent failed to mention a property he owns in Portugal and made confusing statements about his ownership of a trailer.

[21] The Applicant asks me to draw adverse inferences from these omissions and/or misstatements to the Respondent’s honesty about his financial circumstances. She says that such honesty is crucial, because one of the factors in determining retroactive spousal support is the payor’s ability to pay. As a result, she seeks an order compelling additional disclosure and an adjournment of this motion to a later date.

[22] The Respondent says that he has made financial disclosure as information became available. He swore an affidavit outlining his finances, in which he disclosed the increase in his income. The property in Portugal is a relatively recent issue, is currently in probate and its implications for net family property are unclear. The Respondent agreed to file an updated sworn Financial Statement in short order. During the oral submissions the Respondent also acknowledged that he is not disputing his ability to pay retroactive support.

Analysis

[23] I am mindful that this is a motion with sworn statements untested by cross-examination.

[24] I am also mindful that the primary question on a request for adjournment is what is in the interests of justice. I note factors outlined in Toronto-Dominion Bank v. Hylton, 2010 ONCA 752:

a. the evidence and strength of the reason for the adjournment request; b. the history of the matter including deliberate delay or misuse of the court process; and c. the prejudice to the party resisting the adjournment and the consequences to the requesting party.

[25] I am not persuaded on a balance of probabilities that any of the above factors applies in this case.

[26] The strength of the Applicant’s case for adjournment rests on whether the Respondent was dishonest about his financial circumstances and any effect on his ability to pay retroactive support. I am not persuaded, on a balance of probabilities, that the Respondent has been dishonest. While the Respondent did not file an updated financial statement, he did swear an affidavit stating that his financial position was largely unchanged with supporting documentation. His claim that his financial situation was significantly unchanged is not, in my view, undermined by a $7,000 increase in pay.

[27] The Respondent’s pension is not yet being paid and has little to no bearing on the question of retroactive spousal support. Issues regarding other alleged property are more reasonably connected to equalization.

[28] In her oral submissions the Applicant’s agent stated that the Respondent has provided a “wildly inaccurate picture of assets and income”. I find this to be overstated.

[29] My finding with respect to the Respondent’s alleged dishonesty necessarily affects my analysis of the other factors. The evidence before me does not indicate deliberate delay or misuse of the court process on the Respondent’s part. And, given the weakness of the Applicant’s case for an adjournment, she will suffer no prejudice from considering the case as she initially framed it.

[30] I am therefore not persuaded on a balance of probabilities that an adjournment is in the interests of justice. The Applicant’s request is dismissed.

What if any relief is owing to the Applicant?

[31] Given that I have dismissed the Applicant’s request for an adjournment, the next issue is what retroactive spousal support she might be owed. For this part of my reasons, I rely on the Supreme Court of Canada’s framework in DBS et al, [2006] 2 S.C.R. 231, 2006 SCC 37. While that case specifically dealt with retroactive child support, its analysis has been found to be adaptable and applicable to retroactive spousal support. The analysis requires examining the following:

a. The reason why support was not sought earlier b. Any blameworthy conduct of the payor c. Past and present circumstances of the recipient d. Potential hardship on the payor flowing from a retroactive award

The reason why support was not sought earlier

Positions of the parties

[32] The Applicant did not raise the question of retroactive spousal support until the motion for sale of the matrimonial home. She says that her delay in applying for spousal support is due to the sudden issue of forced sale. A sale makes her situation far more “dire” because of her expected difficulty in finding alternate accommodation. The Applicant estimates she requires approximately $385,000 to buy out the Respondent’s share.

[33] The Respondent argues that the Applicant’s litigation choices are not a reasonable explanation for failing to raise the issue of spousal support earlier. The Respondent also sees a contradiction in the Applicant’s position: if she did not consider herself in need of spousal support until he sought the sale of the matrimonial home, that suggests that her need at the relevant time was not significant.

Analysis

[34] I accept that the sale of the matrimonial home will be difficult for the Applicant. However, I do not find her realization of this fact to be a persuasive explanation for her delay in seeking support, especially in relation to compensatory spousal support. The Respondent makes a reasonable argument that the Applicant’s position belies her claim that she suffered hardship from the moment of separation. Thus, this factor does not favour the Applicant.

Blameworthy conduct of the payor

[35] While the Applicant did not specifically speak to blameworthiness, she does say that the Respondent has been dishonest.

[36] I have already stated that I do not find the Respondent to have been dishonest. The Respondent admits that he did not complete an update financial statement and has since promised to do so. The Respondent has also offered to pay some child support arrears and is not disputing the increased table amount of child support.

[37] On the record before me, I am not persuaded on a balance of probabilities that the father’s behaviour is blameworthy. The mother does not dispute that the father gave her 100% of his pay cheque for fourteen months, although she says that this was not regular, biweekly pay. Nor does she dispute that he paid 100% of the mortgage on the matrimonial home from May 2023 until February 2024. I am not persuaded that the father’s failure to file an updated financial statement, or to previously mention his pension or alleged property in Portugal, constitutes wrongful behaviour that is relevant to the question of retroactive support.

[38] Therefore, this factor does not assist the Applicant.

Past and present circumstances of the Applicant

[39] In determining past and present circumstances of the Applicant, I must consider the objectives of spousal support set out in section 15.2(6) of the Divorce Act:

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Positions of the Parties

[40] The Applicant deposes that she is experiencing economic hardship. She claims an annual income of $35,072.16 per year and actual expenses of approximately $60,000. With the child support she currently receives from the Respondent, she receives approximately $49,200 per year.

[41] The mother states that the parties made an agreement that she would care for the children, leading her to leave the workforce in 2009. She claims that her prior legal secretarial skills have atrophied and she is forced to take menial jobs. She argues that the father lives with his current partner who earns a similar income to him. He is thus enjoying a comparatively lavish lifestyle with frequent vacations and a robust clothing and amenities budget.

[42] The Applicant states that she tried to secure employment in 2024, applying unsuccessfully for a custodial position with the Toronto District School Board.

[43] The Respondent deposes that the mother has lived in the matrimonial home since separation. For 14 months following separation he gave the mother 100% of his pay cheque. He paid 100% of the mortgage from May 2023 to February 2024. He deposes that he paid half of the mortgage, home insurance and property taxes, plus child support as described above.

[44] The Respondent objects to paying any retroactive spousal support. He leans heavily on the mother’s duty to become self-sufficient. He asks that a minimum wage income be imputed to her as of January 1, 2023 – eight and a half months from when the parties separated. When a minimum wage is imputed, he argues, he does not owe any spousal support given the parties’ respective incomes.

[45] If retroactive spousal support is owed from the date of separation until January 1, 2023, and the mother’s income is set at zero, the Respondent argues that any amount owing is more than offset by what he was paying to the mother during this time by giving her his entire paycheque. He provided a Divorce Mate Calculation based on an income of zero for the Applicant. On the low to mid-range, the amount owing is less than the amount he claims to have paid while he provided 100% of his paycheque to the Applicant for the fourteen months following separation. Again, the Applicant does not contest the fact of these payments.

[46] The father says that he is not required to bring the mother up to his current standard of living without also considering the mother’s obligation to contribute to her own financial needs.

Analysis

[47] I find that the Applicant may be entitled to ongoing compensatory support given her responsibilities for the children of and during a long marriage. I accept that the Applicant’s current circumstances are difficult. However, I am not satisfied that the Applicant has satisfied her duty to take reasonable steps to become self-sufficient. The parties separated two and a half years ago. The children of the marriage have been in school full-time since separation. The Applicant worked full-time before 2009. The Applicant deposed to diminished computer skills but gave no evidence that she has sought to update them. Nor, in my view, has she made reasonable efforts to securing some level of consistent employment. Her efforts in 2024 have been minimal – essentially sending one application and making a few other inquiries. If the Applicant has determined that her best employment prospect is as a cleaner, she has not explained why she only does this two times per week for a total of $300.

[48] I find on a balance of probabilities that, viewed in their entire context, the circumstances of the Applicant do not weigh in her favour on the question of retroactive support.

Potential hardship on the payor flowing from a retroactive award

[49] The Respondent concedes that his ability to pay is not in issue. Therefore, this factor weighs in favour of the Applicant.

Conclusion on retroactive support

[50] Three of four relevant factors for determining retroactive support do not favour the Applicant.

[51] I accept that the Applicant’s financial situation is difficult. Equalization, however, has yet to be completed. The Applicant is receiving table child support. The Applicant’s current straightened circumstances do not in and of themselves justify an award for retroactive spousal support.

[52] Even if I found that retroactive spousal support was appropriate, I agree with the Respondent that it would be inappropriate to impute zero income to the Applicant after January 1, 2023. I am persuaded by the father’s materials filed for this motion which show that, given his income in the relevant years, imputing even minimum wage to the Applicant makes any spousal support negligible. The Applicant alluded to but did not explain the extent to which any spousal support owing in 2022 is offset significantly by the payments the Respondent was making to her.

[53] Therefore, in considering the objectives of spousal support and the factors for determining retroactive support, I am not persuaded on a balance of probabilities that the Applicant has made out her case for retroactive spousal support. The Applicant’s claim is therefore dismissed.

Are costs warranted and, if so, to whom?

[54] The Respondent has prevailed on this motion and is entitled to costs. However, in view of the Applicant’s apparent financial difficulties and the fact that the Respondent’s financials did omit some information, I will order partial indemnity costs of $2,806.92.

Order

[55] In conclusion, I make the following order:

a. Commencing July 1, 2024, the Respondent shall pay monthly table child support of $1,278. b. The Respondent shall pay retroactive child support for the period July 1, 2024 to October 1, 2024 in the amount of $411.12. c. A support deduction order shall issue. d. The Applicant’s claim for ongoing spousal support is dismissed without prejudice. e. The Applicant’s claim for retroactive child support is dismissed without prejudice. f. The Applicant’s claim for retroactive spousal support is dismissed. g. Within fourteen days the Respondent shall serve and file an updated Financial Statement. h. The Applicant shall pay costs in the amount of $2,806.92 inclusive of disbursements and HST.

Mathen J. Date: October 10, 2024