Reasons for Decision

Court File No: FS-23-00038228-0000
Date: 2025-01-13
Ontario Superior Court of Justice
Between:
Ashina Manji, Applicant
and
Jameel Manji, Respondent

Applicant Counsel: Sarah Young
Respondent Counsel: Shwetha Pai (as agent)
Heard: September 19, 2024
Judge: Rhinelander

Introduction

[1] The Respondent brought a motion seeking:
i) retroactive and prospective interim spousal support;
ii) an advance on the net family property equalization;
iii) an interim and permanent preservation order that the Applicant not deplete any property within her possession, power and/or control; and
iv) costs.

[2] The Applicant is opposed to the relief sought and brought a cross-motion seeking:
i) to impute income to the Respondent;
ii) child support and arrears;
iii) spousal support;
iv) costs; and
v) a requirement for the Respondent to obtain leave of the court to bring any further motions if he is in default of any cost orders in this matter.

[3] For reasons set out below, the Respondent’s motion is dismissed, and the Applicant’s cross-motion is granted in part.

Procedural History

[4] The Respondent prepared materials and filed a notice of motion for the matter to be heard June 18, 2024. On June 4, 2024, an affidavit of a law clerk for counsel to the Respondent, Karen Langston, was filed. It stated counsel was unable to comply with the agreed upon filing timelines due to recent health issues of the Respondent which resulted in an unexpected delay. On consent, the motion was scheduled for July 4, 2024.

[5] On July 4, 2024, counsel for the Respondent was ill and the motion was adjourned. The parties attended on July 16, 2024, to set a mutually agreeable date.

[6] The motion was next set to proceed on August 20, 2024. The Respondent sought a further adjournment. Between July 4 and August 20, 2024, there had been a change in representation and the Respondent was self-represented. The Respondent advised the court he had recently received a legal aid certificate and wished to retain counsel. The adjournment was granted, and the motion was marked peremptory on the Respondent to proceed September 19, 2024.

[7] The materials before this court on the motions were:

• Form 14: Notice of Motion: Respondent – June 1, 2024
• Form 14A: Affidavit: Respondent – sworn June 1, 2024
• Form 14A: Affidavit: Karen Langston – sworn June 1, 2024
• Form 13.1: Financial Statement Respondent - sworn June 3, 2024
• Form 14: Notice of Motion: Applicant – June 27, 2024
• Form 14A: Affidavit – Applicant – sworn June 27, 2024
• Form 14A: Affidavit – Al-Riaz Adatia – sworn April 22, 2024
• Form 14A: Affidavit – Al-Riaz Adatia – sworn June 27, 2024
• Form 13.1: Financial Statement Applicant – sworn June 12, 2024
• Applicant’s Statement of Law – July 2, 2024 (13pp)
• Form 14A: Affidavit – Respondent – sworn July 12, 2024
• Form 14A: Affidavit – Applicant – sworn August 15, 2024
• Applicant’s Statement of Law – August 15, 2024 – (15pp)
• Form 14C: Confirmation of Motions – June 13, 2024 (Respondent only); June 28, 2024; July 11, 2024; and September 16, 2024.

Background and Evidence

Relationship and Family

[8] The parties met in 2011 and began dating. The Applicant moved from Vancouver to Toronto to live with the Respondent in 2012. The parties married January 25, 2014, and separated April 24, 2023. There are two children of the marriage, Ayana (born December 21, 2016) and Luca (born January 26, 2019).

[9] The Respondent has been the primary financial provider for the family from the outset of their relationship. He was solely responsible for the family’s daily living needs including rent, utilities, vehicles, insurance, meals, vacations, hotels, and travels. This is not disputed.

[10] There is also no dispute the Applicant was the primary caretaker to the children since birth.

Respondent’s Evidence

[11] The Respondent claimed he financially supported the Applicant since the beginning of their relationship. He was fully established in his career and was able to contribute to her rent and provided funds to pay off outstanding debt and lower her student loan.

[12] In addition to financial support, the Respondent claimed he assisted the Applicant early on in her career. He took on a greater share of the parenting and household duties, to permit the Applicant an opportunity to accept a career position that required travel and additional hours.

[13] The Respondent noted when the Applicant first moved to Toronto, she was only able to secure employment with an annual salary of approximately $40,000. Since taking her current position, with his encouragement in 2019, she now makes more than $140,000.

[14] Without the Respondent’s contributions and sacrifices he made during the marriage, the Applicant would not have been able to elevate her career, income, and lifestyle.

[15] The Respondent stated in early June of 2023, he began exhibiting symptoms of psychosis. He moved in with his parents as his mental health made it impossible for him to work. This was after his career unravelled. Since leaving the matrimonial home, he has been unable to be financially self-sufficient and the Applicant has failed to provide him with any financial support.

[16] The Respondent stated he is being monitored by medical professionals and his doctor recommended that he refrain from working until his mental health improves. He has been prescribed medication and therapy to reduce his psychotic symptoms but is unable to pay for the prescriptions or treatment because the Applicant removed him from her medical benefits.

[17] The Respondent obtained a three-month employment contract in the fall of 2023. After which, he travelled to Mexico in December 2023. He returned to Canada for three months before returning to Mexico from early April to July 2024. He advised it was necessary to go to Mexico to obtain the treatment and therapy he needed as it was less expensive, and he was unable to afford the costs in Canada.

[18] To support his medical diagnosis, the Respondent attached a note to his affidavit from Dr. Noah Vale dated March 22, 2024. The entirety of the note states:

This patient has a medical condition that prevents him from pursuing any form of employment at this time. He will be regularly re-evaluated but at this time, an expected return to work date is unknown. Prognosis at this time is unknown.

[19] The Respondent argued the post-separation lifestyles of the parties are not equitable. He has become destitute while the Applicant has continued to enjoy an upgraded lifestyle that he helped her to achieve. He relied upon a photograph of the Applicant and suggested the handbag she had was recently purchased after separation and valued at $15,000.

[20] The Respondent argued the Applicant continues to spend monies including a vacation at a luxury private ski club, dining out, and airline tickets, while he has been forced to rely upon government assistance and loans from others to assist with this litigation and his daily expenses.

[21] The Respondent seeks spousal support on a compensatory and needs-basis. He also requests an interim disbursement for legal fees and argued the Applicant can pay. He asks the court to impute her income as $183,000 and suggested the Applicant failed to include additional income in her financial statement for sales of luxury items advertised online.

[22] The Respondent asks the court to consider financial gifts the Applicant has received and that these gifts should also be included as income. The Applicant should be ordered to provide him with spousal support, and an interim disbursement. She has the means to obtain a financial loan from the bank to fund her litigation where he has poor credit and is unable to do so.

[23] The Respondent’s financial statement sworn June 3, 2024, stated he has been unemployed since December 31, 2023. He indicated his gross income for 2023 from all sources was “TBD”. Attached to his affidavit were Notices of Assessment issued March 11, 2024, for the past three years showed annual personal income of: 2022 - $82,280; 2021 - $74,500, and 2020 - $116,133.

[24] According to the Respondent’s financial statement, he currently resides alone, and his monthly rent is $3,300. His current income is $733 per month for an annual income of $8,796. The Respondent relied upon a Toronto Employment and Social Services stub for the benefit period of April 1 to April 30, 2024. The cheque was issued March 28, 2024.

[25] The Respondent claimed he has amassed significant debt as he has no income and is living on borrowed money from others.

[26] At the time of filing this motion, the Respondent was in Mexico. He determined that his mental health treatment and living expenses would be much cheaper if he temporarily located to Mexico. Pursuant to his affidavit, he borrowed funds to go there, and intends to remain there until his doctor advises he is stable enough to maintain employment and he has unsupervised parenting time with his children.

[27] In a reply Affidavit, the Respondent confirmed he went to Mexico on April 9, 2024, and returned July 5, 2024. He restated the purpose of the trip was to tend to his mental health and his ability to obtain various treatments at significantly reduced rates.

[28] The Respondent confirmed in his July 12, 2024, affidavit that he is reliant on ODSP for his $733 a month income and the Applicant is aware of this as it was documented in his sworn Financial Statement.

Applicant’s Evidence

[29] The Applicant claims she is entitled to child and spousal support. She has always been the children’s primary caregiver throughout the marriage and since separation. During the marriage, the Respondent was the primary earner, and the parties lived a very comfortable life.

[30] The Respondent has failed to contribute to the children’s expenses or paid child support since separation. The Applicant has been forced to reduce expenses, sell belongings, and borrow funds to make ends meet.

[31] The Respondent has initiated a campaign to intimidate, bully, and threaten the Applicant. He has been charged with uttering threats against the Applicant and her family and is alleged to have breached terms of his release by contacting the Applicant contrary to court orders. The Respondent is currently before the criminal courts on six separate sets of charges.

[32] The Respondent is a business owner/entrepreneur who primarily worked in commercial real estate during the marriage. He was also the vice-president of a company, Impact Equity, owns and operates a café, Ditta Artiginale, and had begun working with Freed Developments after the parties separated.

[33] The Respondent controlled the finances during the marriage. The Applicant did not have information regarding his income or how bills were paid. She described their lifestyle as upper-class including luxury housing, cars, clothing, travel, and dining.

[34] The Applicant disputes the Respondent’s claims that he took on greater parental responsibilities and the suggestion that he may have sacrificed his earning potential to support her career. In fact, throughout the marriage, it was the Applicant who supported the Respondent’s demanding career. She took on the parenting responsibilities. She created the children’s schedules, appointments, and playdates. The Applicant acknowledged the Respondent assisted with cooking and driving her and the children to medical appointments and grocery shopping.

[35] When the Applicant returned to work after maternity leave and was required to travel for work, her mother would reside in the home to care for the children and attend to household duties including maintaining the home as the Respondent was unable to do so.

[36] The Respondent has not paid child support or contributed to the children’s expenses since the parties separated. From 2018, the Respondent’s parents contributed $750 month to contribute towards the children to compensate for not being able to provide hands-on childcare support and assistance. These contributions continued until February 2024 when the Respondent requested his parents stop.

[37] The Applicant resides in a three-bedroom apartment. The Respondent’s parents co-signed the lease. The Respondent assured the Applicant he would contribute $1,500 per month to offset its monthly cost of $4,500 but has failed to do so. The Applicant has been solely responsible to maintain the home for the children. The Respondent’s parents have made efforts to withdraw from the lease, thereby, jeopardizing the housing of the Applicant and the children.

[38] The Applicant acknowledged the Respondent has had mental health and anger management issues throughout the marriage. He had previously attended therapy sessions inconsistently over the years. Despite these challenges, the Respondent continued to work and support the family. His claims that he was unable to earn an income only arose after the parties separated.

[39] The Respondent has not been forthcoming with his purported diagnosis and has only provided a three-month-old doctor’s note that was vague and failed to provide a prognosis.

[40] In response to a Request for Information regarding his treatments, the Respondent advised he has been doing yoga, weight training, meditating, massages for pain relief, and walking. He has also volunteered at a local community and children in Mexico.

[41] It is the Applicant’s information that the Respondent had relocated to Mexico since at least April 10, 2024, where he stayed in luxury accommodations and attended retreats.

[42] The Respondent stated he went to Mexico for less expensive treatment, he has failed to produce or disclose any documentation to substantiate this claim, or that he received therapy and/or treatment.

[43] The Applicant argued the Respondent’s posts on Google Review reveal he has attended beach clubs, luxury coffee shops, and restaurants in Tulum.

[44] The Respondent attended an in-patient program in August 2023 at CAM-H. It was a fourteen-day program which he left after five days. He has failed to provide any details regarding the program or his discharge.

[45] The Applicant alleged the Respondent is seeking spousal support as a form of continued family violence against her. She explained there has been a history of abuse throughout the marriage and separation.

[46] The Applicant recently amended her Application to seek spousal support. She had initially focussed on parenting issues in hopes the issues could be resolved as amicably as possible.

[47] The Respondent has exhibited financial abuse through threats to use litigation and claims in the proceedings to financially ruin the Applicant. The Respondent told a mutual friend that he did not need or want spousal support but has requested it as leverage to have parenting time with the children. The Applicant believes he will not stop until she is bankrupt and financially destroyed.

[48] Mr. Adatia recorded a conversation he had with the Respondent on March 29, 2024. The Respondent discussed his commitment to destroy the Applicant’s career, admitted threatening the Applicant’s life and family members, and that WWIII has been declared and she has no idea what is coming. He has even commenced litigation against the Applicant’s lawyer.

[49] The Applicant argued the income tax returns were only recently completed and do not align with their lifestyle and expenses. The purported income of the Respondent would not have covered their rent during the marriage.

[50] The Applicant argued the Respondent holds interests in several companies and has failed to disclose his full financial holdings in his financial documents. The Applicant’s understanding of the Respondent’s income comes largely from the lifestyle they had throughout the marriage as she was not provided information as to his annual income.

[51] To support the Applicant’s position that the Respondent’s income is much higher than what he claimed on his income tax, she pointed to fixed expenses during the marriage, specifically rent of the matrimonial home between 2019 to 2023 was approximately $8,250/month not including utilities, insurance, and internet; car payments for the lease of a Tesla Model S; childcare expenses ranging from $2,300 to $4,550 per month; groceries; fine dining; sporting events; vacations; and special occasions and celebrations; luxury clothing; gifts; etc. Rent alone was approximately $99,000 annually just prior to separation.

[52] The Applicant estimated the annual expenses as approximately $180,000. Her only contribution was a deposit of $2,500 per month into a joint account. To maintain their lifestyle, the Respondent would have to earn an income of approximately $300,000 before taxes.

[53] The Applicant relied upon Visa statements between September 2022 to April 2023, ranging from approximately $3,000 to over $20,000 per month that the Respondent was responsible for and paid in full monthly to establish the Respondent’s income exceeded what is reported on his personal income tax return.

[54] The Applicant also claimed the Respondent holds interest in several companies and attached a corporate organization chart to her affidavit. The Respondent has provided no details of the structure of the companies in his affidavit or financial statement.

[55] The Respondent had disclosed account statements from January 1, 2023 to the Applicant which reflect little to no activity. The Applicant argued this is inconsistent with his routine visits to restaurants, shopping, and travel, suggestive that there must be other accounts or credit cards.

[56] The Applicant asks the court to examine the Respondent’s post-separation lifestyle. As opposed to being destitute and impoverished, the Respondent is residing at a luxury condo and paying $3,300 per month for a one bedroom. While in Mexico, he maintained his condo.

[57] In July 2023, the Respondent took the children and the Applicant’s mother to Montreal and Prince Edward County for five days.

[58] In November 2023, the Respondent went to London, England to visit a friend.

[59] On December 1, 2023, the Respondent attended a Raptors game with the children and his father.

[60] On December 22, 2023, the Respondent took a trip to Tulum, Mexico and stayed in a luxury hotel. He returned to Tulum on or about April 9, 2024. While in Mexico, the Respondent posted Google reviews of beach clubs, restaurants, and establishments he frequented.

[61] Mr. Adatia provided information that he became friends with the Respondent in 2011 and later became an investor in the Respondent’s business, Impact Equity in 2015. Based on the latter relationship, he has knowledge of some of the financial dealings and internal finances of the company. This included but is not limited to bank records, purchases and sales of commercial assets, and unfiled tax reporting.

[62] Mr. Adatia reviewed statements of company credit cards held exclusively by the Respondent, Jameel Manji, for months in 2021, 2022, and 2023. He also reviewed bank statements of a company for January 2023. Based on his review, taxes have not been filed and the books are not in order.

[63] Mr. Adatia provided a chart setting out a list of companies and the purchase and sale of commercial assets where the Respondent was the director. The chart suggests the Respondent has disposed of two companies since the parties separated, 612 Richmond Street West Inc. and Impact Retail A LP. The former was purchased January 13, 2016, and sold on February 12, 2024, for $6,000,000. The latter was purchased April 15, 2022, and sold January 8, 2024, for $1,604,000. On these two sales, the Respondent would have made approximately $2,700,000 dollars. Other purchases and sales of companies occurred during the marriage, including a company sold in 2020 for a profit of almost $6,000,000 dollars.

[64] The Applicant is employed as a senior buyer at Brunello Cucinelli. She has been employed there since 2019, and currently earns $140,000 per annum. She denied having a luxury resale business and explained she sold some of her possessions to make ends meet.

[65] Based on her Notices of Assessment, her income for 2021 was $120,942; 2022 was $130,045; and 2023 was $148,119. Her monthly expenses are $19,315.70 resulting in a shortfall of $6,044.22.

[66] The Applicant argued her income does not cover the monthly expenses of her and the children. She has borrowed money from her mother to assist. She has had to reduce and remove the children from some extracurricular activities and camps during the summer.

[67] The Applicant does not own a vehicle and walks to work and to school with the children. She has made efforts to reduce unnecessary expenses including personal services, cable, drycleaning, entertainment, and vacation.

[68] The Applicant claims the Respondent owes child support from the date of separation, and she is entitled to spousal support effective July 1, 2024.

[69] The Applicant relied on an email dated August 12, 2024, from the Respondent where he attempted to clarify issues. The Respondent wrote that he “qualified for the Ontario Works Program and currently receive $733 per month. Although my Ontario Works counselor does not believe I qualify for ODSP, the necessary forms have been submitted to Dr. Vale for further assessment.”

[70] In the above email, the Respondent indicated he lived modestly in Tulum, while giving back to the local community by assisting local people and business owners. The Respondent confirmed the Applicant would be receiving reports from the supervision company that has been overseeing his parenting time with the children. A service he is responsible for paying for.

Issues

[71] The issues to be determined are as follows:

a. Whether the Respondent is entitled to spousal support?
b. Whether the Respondent is entitled to interim disbursements?
c. Whether a preservation order should issue against the Applicant?
d. What the Respondent’s income is for purposes of child support and whether it should be imputed?
e. Whether the Applicant is entitled to spousal support?
f. Whether the Respondent should require leave of the court prior to bringing any further motions?
g. Whether either party is entitled to costs, and if so, what quantum?

Analysis

Spousal Support – Whether the Respondent is Entitled to Spousal Support

[72] Section 30 of the Family Law Act (FLA) states that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

[73] Section 33(8) of the FLA sets out the purposes of spousal support and subsection 33(9) sets out how to determine the amount of spousal support.

[74] Section 15.2 of the Divorce Act grants this Court jurisdiction to make an order for interim spousal support, the factors to consider and its objectives. When making an order, the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse.

[75] Any order made for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (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.

[76] In Liddell-MacInnis v. MacInnis, 2021 ONSC 1787, paras 65–68, Kraft, J. summarized the general principles that apply on motions for temporary spousal support as follows:

a) The party claiming temporary spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum. The merits of the case in its entirety are to be dealt with at trial.
b) In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay.
c) The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case, or to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. That task is for the trial judge.
d) The primary goal of interim spousal support is to provide income for a dependent spouse from the time the proceedings are commenced until the trial. Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial.
e) Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs. The objective of encouraging self-sufficiency is of less importance.
f) The Spousal Support Advisory Guidelines is a non-binding guideline that provides a “valuable litmus test” for assessing both the range within which spousal support, or final, should be ordered and the duration of such support.

[77] Entitlement can be based on compensatory, non-compensatory or contractual grounds. (See Bracklow v. Bracklow). Compensatory and non-compensatory considerations should be considered to equitably alleviate the economic consequences of the breakdown of the relationship.

[78] A support obligation may arise from the marriage relationship itself when a spouse is unable to become self-sufficient and can be based on need. Under this model, spousal support will be based on economic hardship resulting from the breakdown of the marriage, but not necessarily the roles assumed during the marriage. Bracklow, supra.

[79] In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, looking at her income and reasonable expenses. See: Gray v. Gray, 2014 ONCA 659.

[80] Compensatory spousal support is awarded to a spouse to compensate for sacrifices and contributions made during marriage, for economic losses a spouse experienced and continues to experience because of the marriage, and for the benefits which the other spouse received by virtue of the sacrifices. Bracklow, supra.

[81] If entitlement to support is established, then the weight of authority indicates that quantum should be determined without reference to the social assistance payments received by the dependent. Moreover, there is a clear legislative direction in s.33(9)(m) of the Family Law Act, that the availability of social assistance is not to be considered in determining the quantum of support.

[82] The court has considered the above provisions in deciding this motion.

[83] The Respondent seeks temporary spousal support from the Applicant on a prospective and retroactive basis from the date of separation. Pursuant to the Guidelines, he argued she should be paying him monthly spousal support of $2,644 based on an imputed income of $185,620 and his annual income of $8,796.

[84] He seeks spousal support on both a compensatory and needs-basis. The Applicant is 42 years old, and the Respondent is 47 years old. The parties cohabited from 2012 to 2023. The parties separated April 7, 2023, and the Respondent moved out in June. The Respondent was the primary earner for the family while the Applicant was the primary caregiver to the children. The Applicant did work prior to having children and returned to work after the second child was born.

[85] The Respondent relied upon a doctor’s note from March of 2024. It is not an affidavit and provides the scantest of detail. It is intentionally vague and fails to provide the court with any assistance regarding the Respondent’s inability to work. The note refers to regular re-evaluations, but no evidence was adduced at this motion heard nine months later.

[86] The Respondent produced a stub from Ontario Works, not for ODSP. In fact, he acknowledged he had not qualified for ODSP but clarified forms had been submitted by Dr. Vale for further assessment. No additional evidence was adduced on this motion what the forms were, when they were submitted, and the further assessment.

[87] The only social assistance stub produced was for the month of April 2024. The payment was issued March 28, 2024. It is not lost on this court that the Respondent left for Mexico on April 9, 2024, less than two weeks later. There is no information whether the Respondent informed the Toronto Employment and Social Services he had left the country during the period the funds were meant to assist with. There is also no evidence before the court whether the Respondent received any other assistance aside from this one payment.

[88] Google reviews and postings made by the Respondent were before the court regarding restaurants and beach clubs he attended while in Mexico. Since returning to Canada, the Respondent has posted about restaurants and the quality of meats sold by a butcher here in Toronto.

[89] The Respondent has told others he is not interested in receiving money from the Applicant but wants to ensure he bankrupts her and has leverage to obtain the children. Examples of his comments are as follows:

• “Just to be clear, just so you know, my family has pledged half a million dollars just to obliterate her.”
• “She has no clue how bad I’ve played her.”
• “I am going after this woman to embarrass the living fuck out of her for the rest of her life until I get my children. She has no clue the war that I’m waging.”
• “You think I want any money from her. It's only leverage so I can get my children.”
• “Starting Monday, my doctor’s notes have already been submitted. She's going to have to pay for all my legal bills and there's a motion filed for it. She has no clue what is coming.”
• “And by the way, I don't want a dollar from her. I want her to go away. I don't want any money from her but we will maximize all leverage until I get what I want.”
• “I will bankrupt her. I’m telling you I won’t stop, half a million is what my family has committed over the next two years.”

[90] The audio is compelling evidence that the Respondent has access to other funds and that he has initiated a scheme to have the Applicant pay all his legal bills and spousal support. He confirmed in the call he does not want any money from the Applicant, he just wants her to go away, but will “maximize all leverage” until he gets what he wants.

[91] The Respondent has failed to establish a prima facie case for spousal support. It is clear his financial statement is not reflective of his current lifestyle, his spending habits, and his monthly expenses.

[92] It is important that parties ensure their written materials are accurate and truthful. If an error or mistake is discovered, it is imperative that it be corrected and explained. Courts rely on these materials to make decisions. There are several inconsistencies and contradictions that have arisen in the Respondent’s materials and other correspondence filed on this motion that causes concern regarding the truthfulness and completeness of the records the Respondent seeks to rely upon.

Interim Fees and Disbursements

[93] Rule 24(18) of the Family Law Rules provides authorization for a court to “make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees”. It seeks to level the playing field between the parties to ensure the just determination of issues between parties and recognizes there may be circumstances where one party cannot afford to pursue justice given the disparity in financial resources available to that party. See: Morton v. Morton, 2015 ONSC 4633.

[94] The power to order interim disbursements is discretionary and a “court’s discretion should be exercised to ensure that all parties can equally provide or test disclosure, make or consider offers, or possibly go to trial…”. See: Fiorellino-Di Poce v. Di Poce, 2019 ONSC 7074, para 14.

[95] The onus is on the person seeking an interim disbursement to demonstrate the following:

a. The interim disbursements for which an advance payment is requested are important to matters in issue in the proceeding as a whole;
b. The disbursements are necessary and reasonable given the needs of the case and the funds available. If the disbursements are for payment of an expert, the moving party must demonstrate a clear need for the services of the expert;
c. The moving party is incapable of funding the requested amounts;
d. The claim or claims being advanced in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the request for disbursements; and
e. The imposition of the payment on the responding party will not cause undue hardship to the payor: Morton, para. 97, citing Stuart v. Stuart.

[96] The Respondent seeks an interim disbursement of $10,000 for legal fees and disbursements.

[97] I am not satisfied the Respondent has met his onus that he is incapable of funding the above amount. For reasons set out above, evidence before the court suggests he has access to funds and may readily spend that amount each month.

[98] Therefore, the request for interim disbursements is dismissed.

Preservation Order

[99] The Respondent requests a preservation order to prevent the Applicant from disposing of joint and personally owned property.

[100] The purpose of a preservation order is to ensure if a court determines that an equalization payment is owing, there are sufficient funds available to satisfy the payment.

[101] Having considered the jurisprudence with respect to this issue, the test to be relied upon is the same as a Mareva injunction. The onus is on the Respondent to:

i) Establish a strong prima facie case;
ii) Make full and fair disclosure of all material matters within his knowledge;
iii) Give particulars of the claim against the Applicant;
iv) Give the basis for believing that the Applicant has assets in the jurisdiction;
v) Establish that there is a serious risk that the Applicant will remove property or dissipate assets before judgement; and
vi) Give an undertaking as to damages.

[102] The Respondent has failed to satisfy the court that a preservation order is necessary, and therefore, his motion is dismissed.

Imputation of Income for Child Support

[103] Section 19 of the Child Support Guidelines states that a court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the parent or spouse being intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the parent or spouse: s.19(1)(a).

[104] In Drygali v. Pauli, 2022 ONCA 41868, the Ontario Court of Appeal held that:
a) there is no need to find a specific intent on the payor’s part to evade child support before income can be imputed (para 36);
b) a payor parent required to pay is intentionally underemployed if that parent chooses to earn less than he or she is capable of earning (para. 28);
c) imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children and to meet this legal obligation, a parent must earn what he or she is capable of earning (para. 32);
d) the factors to be considered include age, education, experience, skills and health, availability of job opportunities, the number of hours that could be worked considering the parents’ overall obligations and the hourly rate that the parent could reasonably be expected to obtain (para. 45).

[105] The court cannot arbitrarily select an amount to impute as income. There must be a rational basis underlying the selection of the quantum and any amount selected in the discretion of the court must be grounded in the evidence: Drygali v. Pauli, at para. 44.

[106] An adverse inference may be drawn by the Court against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the Guidelines and therefore impute income. See Smith v. Pellegrini; Maimone v. Maimone.

[107] The receipt of ODSP or Workplace Safety and Insurance Board benefits is not sufficient proof of one’s inability to work for support purposes. See: Tyrrell v. Tyrrell, 2017 ONSC 6499. The court cannot take judicial notice of any eligibility requirements for ODSP. Nor can it delegate the important and complex determinations of employability and income earning capacity to unknown bureaucrats applying unknown evidence to unknown criteria. See: Abumatar v. Hamda, 2021 ONSC 2165.

[108] The payor must prove that any medical excuse for being underemployed is reasonable. See Rilli v. Rilli. Cogent medical evidence in the form of detailed medical opinion should be provided by the payor to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton and Stoangi v. Petersen.

[109] A party who wishes to have his/her medical condition considered as a basis that they cannot work bears the onus to establish material disability. This onus cannot ordinarily be discharged solely based on the party’s testimony. They would need to produce medical records and expert evidence about their condition, prospects and treatment. See: Geishardt v. Ahmed, 2017 ONSC 5513; Wilkins v. Wilkins, 2018 ONSC 3036.

[110] In Davidson v. Patten, 2021 ONCJ 437, Curtis, J. held that a party resisting a claim for imputation of their income based on medical reasons should provide a medical report with at a minimum, the following information: diagnosis; prognosis; treatment plan; compliance with treatment plan; and specific and detailed information connecting the medical condition to the ability to work (e.g., this person cannot work at the pre-injury job; this person cannot work for three months; this person cannot work at physical labour; this person cannot return to work ever).

[111] Even if the court accepts that the party has health-related challenges that may impact their income earning capacity, it must consider the nature and extent of the impact and whether the party could work on a part-time basis or in a less demanding position. See: Bentley v. Bentley, 2009 CarswellOnt 562 (S.C.J.); Kinsella v. Mills, 2020 ONSC 4785.

[112] The court can also impute income where the evidence respecting income is not credible for any other reason. See: Heard v. Heard, 2014 ONCA 196, paras 33-35; Gostevskikh v. Gostevskikh, 2018 BCSC 1441; M.A.B. v. M.G.C., 2022 ONSC 7207.

[113] When considering the issue of onus in imputation of income claims, the Court must be mindful of the fundamental principle that every party in a support case must disclose and adduce the evidence required to allow the other party and the court to undertake a proper assessment of their income for support purposes. Further to this principle, if a party identifies issues respecting the other party's income that could support an imputation of income argument during the proceeding, the party whose income is in question cannot simply make bald assertions regarding their financial circumstances and hope that the other party will not uncover evidence to support an imputation of income claim. Rather, that party has a positive obligation to proactively disclose information and evidence in support of their position respecting their income, including why income should not be imputed to them. See: M.A.B. v. M.G.C., 2022 ONSC 7207.

[114] Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583.

[115] An adverse inference can also be drawn against a party for failure to provide medical evidence that was ordered. See: Templeton v. Nuttall, 2018 ONSC 815.

[116] A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken, [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373; Prillo v. Homer, 2023 ONCJ 8.

[117] The Applicant asks this Court to impute income to the Respondent based on his failure to provide basic disclosure. She relies upon evidence of the parties’ lifestyle to impute annual income of $300,000 to the Respondent. In the alternative, the Applicant asks the court to rely upon the Respondent’s most recent employment income based on a three-month contract valued at $10,000 per month and impute an annual income to him of $120,000.

[118] The Applicant provided information in her affidavit setting out the family’s monthly expenses prior to separation, however, as with the Respondent, no further documentation was filed with the exception of monthly credit card totals without the statements.

[119] The Respondent has failed to provide fulsome disclosure and information on this motion, and therefore an adverse inference can be drawn. Further, the Respondent has failed to provide a sufficient evidentiary base to discharge his burden that he is incapable of working.

[120] In the circumstances and based on the materials before this court, I have determined it is appropriate to impute an annual income to the Respondent of $120,000 before gross-up considerations.

[121] The Respondent has attached his Notices of Assessment for his personal income tax returns for 2020 to 2022, however, he has failed to disclose if he has business and corporate income tax returns and notices of assessment for that period.

Child Support

[122] The Family Law Act (“FLA”) requires every parent to provide support, to the extent that the parent is capable of doing so, for his or her minor children.

[123] The Divorce Act permits a court to make an order requiring a spouse to pay support of any or all children of the marriage in accordance with the applicable guidelines.

[124] The Applicant seeks Table child support for the children pursuant to the Child Support Guidelines.

[125] I have imputed non-taxable income to the Respondent in the amount of $120,000.

[126] Using this income, Table Child Support for two children is $2,364 per month in Ontario.

[127] The Applicant sought child support commencing September 1, 2023. Child support is the right of the child and I see no reason not to calculate child support from that date. Therefore, commencing September 1, 2023, on an interim without prejudice basis the Respondent shall pay child support on the 1st day of each month to the Applicant in the amount of $2,364, subject to any reviews.

[128] A SDO shall issue.

Whether the Applicant is Entitled to Spousal Support

[129] Having considered the principles regarding spousal support set out above, the Applicant would likely have been entitled to spousal support if it was established that the Respondent’s income was $300,000.

[130] The test for imputing income for child support purposes applies equally for spousal support purposes. See Rilli v. Rilli; Perino v. Perino, [unreported, O.J. No. 4298 (Ont. S.C.)].

[131] Based on an imputed annual non-taxable income of $120,000 to the Respondent, and the Applicant’s current income, the SSAG calculations suggest the Applicant is not entitled to spousal support even at the low range.

[132] The Applicant’s motion for interim spousal support is dismissed on a without prejudice basis and subject to review or adjustment pending proper financial disclosure of the Respondent.

Whether the Respondent Should Require Leave of the Court Prior to Bringing Any Further Motions

[133] Pursuant to Rule 1(8)(e) of the Family Law Rules:
"If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter including, if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise."

[134] The Supreme Court of Canada has affirmed that a court may decline to hear a litigant who is in breach of a court order. This principle has been followed by the Ontario Court of Appeal. In Murphy v. Murphy, 2015 ONCA 69, para 6, the Ontario Court of Appeal declined to hear the submission of an appellant who was in default of a costs order. At paragraph 6, the Court remarked: “to hear the respondent's submissions would be to reward his deliberate and willful misconduct.” [emphasis added].

[135] The Courts have been clear that family law litigants must respect court orders. In Gordon v. Starr, paras 16 and 23, Quinn, J. stated that, “court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that family law proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with…orders” and "An order is an order, not a suggestion. Non-compliance must have consequences."

[136] Motions requesting a party to do what he or she was supposed to have done voluntarily, or what he or she has already been ordered to do, are a waste of judicial resources and for that reason are contrary to the parties' duties to help the court implement the primary objective of the FLR.

[137] The Applicant requests an order that if the Respondent is in default of any costs orders in this matter, he shall need leave to bring any further motions, pursuant to rule 1(8) of the FLR.

[138] I am not prepared to make such an Order, however, as set out above, a Court has the discretion to not hear submissions of a party if they are in default of a costs order. Further, should the Respondent remain in breach of a court order, the Applicant has other remedies including seeking a financial penalty and/or to have the Respondent’s pleadings struck.

Costs

[139] The Respondent’s motion was dismissed in its entirety.

[140] The Applicant’s motion was granted in part. She was the more successful party although did not achieve the full relief sought.

[141] The parties are invited to discuss the issue of costs. If they are unable to come to an agreement, they may contact the Family Trial Office to schedule a brief appearance for oral submissions. The parties have leave to upload bills of costs and any offers to settle in advance of the court attendance.

[142] If the parties would prefer to provide written submissions regarding costs, the Applicant shall file her submissions no later than Wednesday January 22, 2025 before 5:00 p.m. The Respondent shall file his written submissions no later than Friday, January 31, 2025, before 5:00 p.m. Submissions shall be sent to the Family Trial Office and to Jessica.Crispo@ontario.ca. Submissions shall not exceed three pages, double spaced, 12 point font.

___________________________ Rhinelander
Date: January 13, 2025