COURT FILE NO.: FS-19-13273-000 1 DATE: 202505 15 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Robert Moggach Applicant – and – Samantha Slattery Respondent Self-Represented Self-Represented HEARD: September 9, 10, 11, 12, 13, 17, and October 1, 2024 REASONS FOR DECISION rHINELANDER, J.
1The Applicant father brought an application to determine his income for purposes of calculating support at the conclusion of a review period after the parties were unable to agree.
2The parties have been engaged in high conflict litigation since their separation in 2016. The father attributes it to the Respondent mother’s aggressive and relentless legal tactics. The mother attributes it to the father’s refusal to pay child support and avoid his financial responsibilities by not providing fulsome disclosure and underreporting his income for support purposes.
3The issues to be determined are: (i) The father’s income for purposes of calculating child support retroactively for October 1, 2021 to July 31, 2022 (Period 1), and August 1, 2022 to July 31, 2023 (Period 2). This is referred to globally as Period A for income determination. (ii) The father’s income for the calendar year 2022 (Period B) for purposes of calculating child support for the period August 1, 2023 to July 31, 2024 (Period 3).
4In determining the father’s income, the Court must consider whether the father failed to report income from all sources and whether there were unreasonable deductions attributed as personal expenses from corporate revenue.
[5] For the reasons that follow, I find the father has reported income from all sources for the periods subject to review but that he deducted unreasonable personal expenses from corporate revenue. Background
Background
6The parties were divorced January 1, 2021. There are two children of the marriage, namely J, born December 13, 2006, and C, born May 5, 2009 (collectively “the children”).
7The children’s primary residence is with the mother. Since September 2021, the children have resided exclusively with the mother after the father moved to California.
8In July 2020, the parties entered into partial minutes of settlement that were made an Order by Czutrin, J. on July 14, 2020 (“Final Order #1”). The Final Order #1 addressed equalization of net family property, the matrimonial home, assets and debts, including all of the IRS debt owed at that time, a debt owed to the mother’s mother, insurance, child and spousal support, review periods for adjustment of support, and a term to resolve disputes arising from terms of the order .
9Per Final Order #1, the father was required to make the following monthly payments to the mother with terms: a. Sixty (60) equal monthly installments of $500 commencing October 1, 2020, and on the first of each month thereafter until October 1, 2025. b. Table child support of $1,875 monthly commencing June 1, 2020, based on an imputed annual income of $133,000, for the children. c. To contribute 70% of the agreed upon special and extraordinary expenses. d. For purposes of special expenses, the father shall pay $672 per month on the first of each month until further agreement or order. This amount was to be reviewed at the annual review, and mediation was to be attempted if parties did not agree. The mother was required to provide backup documentation and receipts regarding the s.7 expenses. Clause 7 of the order set out agreed upon expenses which included after school care; summer camp; medical treatment, medications, or other services deemed necessary by any treating physician; orthodontic or dental expenses; tutoring; two extra-curricular activities per child per season; after school activities; and therapy costs. e. Spousal support of $531 per month commencing June 1, 2020, based on an imputed annual income of $133,000 to the father and an imputed annual income of $45,000 to the mother. For the first year, the spousal support was reduced to $453 per month to account for monies contributed to a life insurance policy.
10Child support, section 7 expenses, and spousal support were ordered reviewable and subject to adjustment in 2021. If the father’s income remained at or was less than $133,000, there would be no retroactive adjustment and prospective support was to be paid based on the imputed income specified in Final Order #1 of $133,000. If, however, the father’s income exceeded the imputed amount, the father was required to pay any top up for the retroactive period and the prospective child support and contribution to special expenses adjusted. Spousal support was reviewable prospectively only and would increase to the mid-range recommended by the Spousal Support Advisory Guidelines if the father’s income exceeded $133,000.
11Based on Final Order #1, the father was required to pay a total of $3,500 per month for the period of June 1, 2020, to June 30, 2021.
12At the first review period, the parties were unable to agree upon the father’s income and participated in mediation as required by Final Order #1. Ultimately, the parties entered into Minutes of Settlement signed November 3, 2021, which addressed support including a retroactive and prospective annual review. On consent, the Minutes of Settlement were made a Final Order by Nakonechny, J. dated May 13, 2022 (“Final Order #2”).
13Final Order #2 addressed retroactive child support, section 7 expenses, and arrears from Final Order #1 up to and including September 30, 2021. Similarly, it addressed retroactive spousal support arrears for the same period. The total amount agreed to was $27,000 on a without prejudice basis to either party’s claims regarding the father’s income for support purposes on any future adjustment to support. Final Order #2 specifically set out that this amount was not to be attributed to the father as income for support purposes.
14Per Final Order #2, the father was required to make the following monthly payments to the mother: a. Nine (9) monthly payments of $3,000 per month commencing November 15, 2021, to July 15, 2022, for a total of $27,000. b. Table child support of $2,500 monthly on the first day of each month commencing October 1, 2021, until July 31, 2022. c. To contribute 67% of the agreed upon section 7 expenses. d. For purposes of section 7 expenses, the father shall pay $623 per month on the first of each month. The order set out agreed upon expenses which included summer camp; medical treatment, medications, or other services deemed necessary by any treating physician; orthodontic or dental expenses; tutoring; two extra-curricular activities per child per season; therapy costs; and any other expenses agreed upon, in advance, in writing. e. Spousal support of $1,500 per month commencing October 1, 2021, which sum is fixed and non-variable until the spousal support review in July 2026, unless the father’s 2024 or 2025 income for support purposes is $300,000 Canadian or greater. For clarity, the father’s spousal support obligation is fixed and non-variable for 2021, 2022, and 2023, regardless of his income.
15Based on Final Order #2, the father was required to pay a total of $4,623 on the first day of each month commencing October 1, 2021, and a further $3,000 per month for nine months commencing November 15, 2021. Between November 2021 to July 2022, the father was required to pay a total of $7,623 per month in support and arrears.
16Final Order #2 provided for a review of table child support in July 2022 and to retroactively adjust support for the period of October 1, 2021, to July 31, 2022, only. After that timeframe, the annual support reviews would be prospective only.
17The father is required to pay the above child and spousal support until the support is adjusted by an amending agreement or a Court Order.
18The basis for the retroactive review for October 1, 2021, to July 31, 2022, was because the father relocated to the U.S. and there was uncertainty regarding his income.
19Final Order #2 also imposed terms regarding the outstanding IRS debt that was outstanding and not paid by the father contrary to Final Order #1.
20In the spring of 2022, in anticipation of the support review, the parties exchanged financial disclosure. Ultimately, the parties participated in mediation to try and resolve the adjustment of retroactive and prospective child support for 2022 but were unable to come to an agreement. Communication continued through the fall of 2022 without success.
21In early 2023, the mother, as is her right, commenced enforcement and garnishment proceedings in Ontario and in the U.S., to obtain the support owed and arrears.
22In response, the father commenced this application seeking a determination of his income and an adjustment to child support owed retroactively and prospectively.
[23] There is no dispute, regarding the amount of child support and section 7 expenses paid by the father to the mother for the respective timeframes: (i) Period 1: Child Support = $17,500; Section 7 Expenses = $6,230. (ii) Period 2: Child Support = $4,691; Section 7 Expenses = $6,230. (iii) Period 3: Child Support = $19,885; Section 7 Expenses = $Nil. Position of the Parties
Position of the Parties
24The father asserts his income between October 1, 2021 to July 31, 2022, (Period A) inclusive was $103,000 and for the 2022 calendar year (Period B) it was $174,000. Based on his income, and less child support and section expenses paid, the total retroactive child support owing from the father to the mother is $7,020.
25To streamline the trial, the mother opted not to pursue a change to Final Order #2 regarding spousal support. While, not seeking arrears for the fixed section 7 expense payments, she is pursuing reimbursement of 67% for section 7 expenses incurred pursuant to clause 6 of that Order.
26The mother disputes the father’s income on the basis there are additional funds that should be included in the calculations and there are unreasonable deductions attributed to personal expenses, primarily his residence and vehicle, from corporate revenue.
[27] The mother claims the father’s income between October 1, 2021 to July 31, 2022, was $234,325 and for the 2022 calendar year his income was $369,115. On the mother’s calculations, the father owes over $100,000 in child support and section 7 arrears. Analysis
Analysis
28What is the father’s income for purposes of child support?
29The father is a self-employed artist who specializes in visual effects for advertising and television. He registered and operated a business in Canada as Dashing Collective Inc (DCI). While in the U.S., his business operated as Dashing LLC (Dashing). He was the sole owner of DCI and a 50% owner of Dashing. The U.S. company was registered in Delaware for tax purposes with a branch in California.
30To assist in the determination of the father’s income, the father retained Trevor Hood of SB Partners Valuations to prepare an income for support report.
31Trevor Hood received a Bachelor of Mathematics and Master of Accounting from the University of Waterloo. He has been a chartered account since 1998, and a business valuator since 2003. He is currently a partner at SB Partners LLP and president of SB Partner Valuations Limited. He has been qualified as an expert several times and there is no dispute regarding his qualifications.
32Mr. Hood was asked to prepare an income report for support purposes for the following timeframes: October 1, 2021- July 31, 2022 (Period A); and January 1, 2022 - December 31, 2022 (Period B). The report was prepared based on SB Partners understanding of the Federal Child Support Guidelines and Family Law Act Ontario Regulation 391/97 Child Support Guidelines .
33The father had three corporations in which he had an interest: DCI, a Canadian corporation; Dashing LLC, a U.S. registered company; and Alteration Services. The Applicant owned 100% of DCI, and 50% of Dashing. The latter company was inactive during the timeframe reviewed based on information provided to Mr. Hood.
34The business valuation is based largely on information provided by the father. The father agreed that he is solely responsible for inputting information into the general ledger software. This includes the names, amounts, classifications, and dates.
35Based on the information provided, Mr. Hood determined the father’s income for support purposes for Period A was $103,000 and Period B was $174,000. All funds are in Canadian. All U.S. income was converted to Canadian dollars based on the average exchange rate during the timeframe.
36Mr. Hood began with a review of the father’s 2021 and 2022 Canadian personal tax returns. Mr. Hood was informed all the income on the father’s 2021 personal tax return was earned prior to the start date for the period of review. Therefore, the father’s earnings for purposes of his Canadian personal tax return were reported as zero for that timeframe.
37The father’s U.S. personal tax returns were also examined. Based on an analysis of the general ledgers and financial records for Dashing, the source of income for the period between October 1, 2021 – July 31, 2022, was $41,667 USD from the U.S. company, and converted was $52,933 CDN.
38For Period B, Mr. Hood had an income tax return for the full calendar year of 2022. Two separate sources of income were received, the first from Dashing and the second from a company called IPSONG LLC. The father was retained as an employee with IPSONG LLC. The father’s income for 2022 was $81,333USD, the equivalent of $105,822 CDN.
[39] Once income was determined, the valuator explored whether additional funds should be considered as income for support purposes. This included any attribution of corporate income, discretionary and/or personal expenses paid by the corporation, and tax gross-up on discretionary and personal expenses. Attribution of Corporate Income
Attribution of Corporate Income
40The attribution of corporate income is income retained in the corporation that is available to the individual and is required to be included in income for support purposes.
41At issue is (a) how income and shareholder loans are used by the father and whether he had and/or has access to additional funds for purposes of calculating child support, and (b) whether expenses he put through his corporate account were ones for which he derived personal benefit.
42A significant amount of time was spent on the transfer and movement of funds by the father between accounts from July 1, 2021, onwards. The father argued the period between July 1, 2021 to September 30, 2021 was outside the scope of review and covered under the Final Order #2, and therefore. this evidence was not admissible.
43The mother, having received disclosure of the father’s general ledgers and bank accounts, readily identified funds moved from Canadian banking institutions to the U.S. Based on discussions in mediation and ultimately the resolution obtained in Final Order #2, the mother argued she was misled by the father. At the outset of the trial, the mother argued this was a crucial issue that went directly to and affected the father’s credibility. The mother advised she would seek to rely on these funds to impute income to the father.
44The father agreed during the trial the correspondence between counsel and the parties from July 1, 2021 to the signing of the minutes of settlement could be introduced to assess credibility.
45What occurred during this timeframe and the parties’ interpretation and understanding of the respective positions is what has led and contributed to further mistrust between the parties and their inability to resolve this matter without judicial assistance.
46Mr. Hood was provided with general ledgers and financial information for DCI in 2021 but did not perform a valuation or report for that period.
47Mr. Hood explained the shareholder loans, dividends, the distribution of dividends, the repayment of shareholder loans and whether it impacted the father’s income for purposes of calculating child support. Shareholder loans would be considered income attributed to the father if he owed the company money.
48Mr. Hood determined Dashing received $28,918 between October 1, 2021 to July 31, 2022. As the father held a 50% ownership interest of Dashing, his 50% was attributed to his income. This added a further $14,459 USD ($18,359 CDN) to the father’s income for support calculations.
49Although, Mr. Hood did not identify any dividends paid to the father for the period of review, there was dividend income reported on the father’s income tax returns for 2021. This amount did not impact the calculations as it predated the period of the report. The income was generated by the company before year end of June 30, 2021. He concluded a shareholder loan was owed to the father, i.e., the company owed monies to the father not the converse.
50The father withdrew these funds post-July 2021. For purposes of the valuation, Mr. Hood explained when the money is paid or received by the father is not important, the focus is when the income is generated. The basis for this is to avoid an individual making money but not paying themselves. For clarity, when a company or individual makes money is when it gets included into their income for support calculations. Therefore, these funds should have been included as income for the previous period.
51The mother argued the funds transferred had not been included in the father’s income for the year ending June 30, 2021 and were additional sources of funds that needed to be added to his income for support calculations.
52When the parties entered into the November 2021 Minutes of Settlement, it was on the basis that those funds would remain in the company. However, unbeknownst to the mother, the father immediately commenced withdrawing the funds. Hence the mistrust and the need for this trial.
53The mother maintained the father made misrepresentations regarding corporate funds between July 1, 2021 to September 30, 2021. At the outset of the trial and at the Trial Management Conference, it was confirmed she was not seeking specific relief flowing from this misuse or misrepresentation of monies but will argue it goes to the father’s credibility and it was critical to understand his deception.
54The father was adamant the period of review commenced October 1, 2021, and nothing before that date was relevant. The father resisted efforts to be questioned or to examine his finances or income prior to that date and argued it was irrelevant.
55Credibility and reliability of witnesses is a factor courts consider when assessing the evidence and what to accept or not accept.
[56] Based on the evidence before me, it appears the father may not have been fully transparent and candid during the negotiations for the earlier period of review. I reach this conclusion based on the following:
- On August 6, 2021, the father sent an email setting out reasons why DCI’s pretax income should not be used for purposes of determining support. He claimed DCI was carrying a substantial CRA corporate and HST debt because the father was overpaying himself to fund the divorce and legal proceedings. The father went on to explain how this left the company vulnerable and required a large tax payment to bring its account into good standing.
- The father’s position on this issue runs directly contrary to his valuator’s opinion where it was stated, “For DCI, we concluded that 100% of the pre-tax income should be attributed to [the father].” This was based on the fact the father has full control over the distribution of income from DCI and there were no compelling business reasons or requirements to retain income.
- The Metanauts Inc. agreement was signed November 9, 2021 which was after the father signed the minutes of settlement of November 3, 2021 where he acknowledged he had no professional engagements for which he has been hired, and no income information available for his current income in the U.S. I appreciate there was no guarantee the father would be awarded the Metanauts contract, but this was still information that should have been shared as possible income information.
- The father also received payment in the summer months of 2021 for work previously performed for Lullaby company.
[57] There were other areas of concern regarding the father’s evidence. Namely:
- The father often deflected answers and would respond, “you will have to ask my accountant”, “you will have to ask my lawyer”, “you will have to ask Mr. Hood”. The difficulty is the father is the basis for the information that others rely upon. Asking these persons is not of assistance if the information he provided was inaccurate.
- When the father attempted to answer questions himself, they were often prefaced with the phrase “I would probably” which is not of assistance when asked what did he do.
- It was difficult to obtain a straight answer as the father would provide an excuse for why he could not remember, such as “things were so busy”, “I just moved back”, “so much disclosure was requested”, or “I’m under duress”.
- There were several instances of agreements or contracts being backdated, including the partnership agreement for Dashing, which was signed August 8, 2023, and backdated to September 7, 2021.
- The father explained that the Metanauts agreement was backdated to October 18, 2021, so he could receive payment within net thirty days. He further explained, if the contract was backdated to October, he would receive payment from the company by November 18. However, the contract clearly sets out the payment terms as follows: “40% due upon award, 30% on Dec 20, 2021, 30% due Net 30 from completion date (Jan 7, 2022).” By this wording, funds were due to the father immediately, not “net 30.”
58The mother sought independent and corroborative evidence from the father for monies transferred during this period. She sought to review or obtain a remedy pursuant to Rule 1(8) of the Family Law Rules for the father’s misrepresentation to readjust the support for this period.
59Despite the mother’s claim that the father’s income should be imputed or that he has breached court orders and should be subject to a penalty pursuant to Rule 1(8), the mother failed to seek this remedy in her amended pleadings dated January 14, 2024. Even if she had, I would not grant a remedy based on the evidence before this court.
60Notwithstanding the concerns I have expressed above, I am satisfied with the explanation and testimony of Mr. Hood and in the absence of evidence to the contrary, find that these funds were from income earned prior to June 30, 2021.
[61] At the conclusion of the trial, there were only a small number of transactions that did not have a corresponding banking document to satisfy the mother. That is not the test. Mr. Hood explained the funds were accounted for and would have been included in the father’s income at year end of June 30, 2021. To add the funds in as new or additional income, would be to double dip or double account for the monies based on Mr. Hood’s evidence. Personal Expenses paid by the company
Personal Expenses paid by the company
62To determine what, if any, personal expenses should be added to the father’s income, the company’s general ledgers were reviewed. Additional information was sought for specific expenses identified regarding the nature or purpose of the expense. Anything identified as personal was adjusted. For example, one expense allocated as project costs of $147 was an Air Canada expense identified as personal. Another example was professional fees of $731 plus HST paid to Bold Consulting that was identified after the scope of review. These were fees paid by the father to the mediator. The net impact of this amount would have increased the father’s income by $1,000.
63Once the personal expenses were identified and converted to Canadian dollars, the valuator added them to the father’s income and conducted an income tax gross up. When a spouse personally benefits from expenses paid through a spouse’s business corporation, it is appropriate to impute these amounts as income and to gross them up: Riel v. Holland , [2003] D.L.R. (4 th ) 264, 2003 3433 (ON CA) at para. 36 .Mr. Hood also considered personal expenses that were not deducted on the corporate tax return.
64In reviewing the larger expenses, the valuator identified several that had personal components which included health insurance, rent, utilities, repairs and maintenance, and travel.
65After this review, adding in the personal expenses, attribution of corporate income, and the tax gross-up, it was determined the father’s income for support purposes was $103,000 for Period A, and $174,000 for Period B. All figures are in Canadian funds.
66Lastly, because the father was earning income and lived in California, Mr. Hood was required to look at tax rates between Ontario and California. After considering the federal tax, state tax, and the mandatory health insurance, Mr. Hood concluded the father was paying a very similar rate to what he would pay in Ontario. Therefore, no adjustments were made for any tax benefits.
[67] After hearing the evidence, I share the concerns expressed by the mother regarding the apportionment of the percentage of personal use for the home and vehicle. Rent
Rent
[68] The father provided the following information to the valuator regarding rent:
- Due to cashflow issues, Dashing operated from the house the father rented in Hermosa Beach, California. The father resided in the home.
- 50% of the house was used for business.
- The remaining 50% of the house was split between the father and his business partner, for personal use, i.e., 25% each.
- The business partner retained a bedroom for use as a den for business purposes. The business partner also retained a bedroom for his use when he came to California.
- The business partner was based in Egypt. The decision to rent a larger home and set aside space for him would save on hotels or AirBnb rentals.
- The business partner visited every couple of months.
69Based on the above information, the valuator concluded it was reasonable to allocate a personal use portion to the father of 37.5% of the total rent. This was identified as a personal expense of the father and this amount was considered additional income available for support.
[70] The father testified regarding the home and the rent as follows:
- The home was a 3 bedroom with fast internet and sufficient space.
- The lease was signed only by the father.
- It was primarily occupied by the father and his common-law spouse.
- The father’s common-law spouse lived in the main bedroom and used it for work.
- In the second bedroom there were two desks, filing cabinets, shelves. That is where he worked, but usually his business partner.
- In other evidence, the father stated the father’s business partner had the second bedroom and came and went throughout the years.
- The third bedroom was too small, and his business partner used it as an office.
- The main floor living room was used as workspace. The home had a dedicated space to host client meetings including a space for screening of their work and to store electronic equipment.
- He had only hosted clients maybe five to ten times.
- The dining room had a giant table where he also worked.
- The kitchen and bathroom were public areas.
- The house was 50/50 personal/business space.
- The father should be attributed 25% of the home as personal use.
71The valuator was not informed that the father’s common-law spouse also resided in the home. That, in my view has a significant impact on the calculations of the home’s usage.
72Mr. Hood agreed that his calculations for personal versus business use of the home would likely be different if he had been advised that the father also shared the home with his common‑law partner as their primary residence. While there is no definitive answer, one might consider the square footage of the residence, the number of occupants who resided there who did not work for the company, and the use of shared spaces when determining what amounts to apportion.
[73] I have concluded it is necessary and reasonable to allocate a personal use portion to both, the father and his then common-law spouse. The information provided to the valuator was silent regarding her living at the home and there is no evidence she contributed to the rent. Therefore, I have allocated 75% of the total rent to the father as a personal expense. This amount, with the tax gross up, should be considered additional income available for support. I have determined this percentage, as I am satisfied and accept that a portion of the home was used for business based on the father’s evidence. Vehicle Lease
Vehicle Lease
[74] The father provided the following information regarding the vehicle lease and usage:
- The vehicle was leased primarily for business purposes.
- It was used to commute from the father’s home in Hermosa Beach to visit clients in other parts of Los Angelos.
- The father resided about an hour’s drive from clients.
- The father had one project that lasted approximately 15 to 20 days.
- The father acknowledged he went to assist a director once or twice only.
- The father claimed there was limited personal use of the vehicle.
- The father failed to keep mileage or logs regarding the vehicle use.
75The valuator accepted the information provided by the father and determined a portion of the vehicle expenses were for the father’s personal benefit. The valuator added 37.5% of these expenses to the father’s income for support purposes.
76As stated above, no information was provided to the valuator regarding the father’s common-law relationship. Nor was there evidence Ms. Levy had her own vehicle. When considering the evidence in its totality, I am satisfied the vehicle was used for some business, however, there was also personal use. I find the quantum attributed by the valuator as too low. I also find the amount the mother seeks to have apportioned to personal use of the vehicle of 75% to be too high.
[77] I have determined based on the evidence before me, that 50% of the vehicle expenses are attributable to personal use, and therefore included as additional income available for support. Section 7 Expenses
Section 7 Expenses
78The father has paid $12,460 towards section 7 expenses. He asks that this amount be credited against any child support owed. He argued the mother has failed to produce any receipts and therefore the funds were inappropriately collected. At the time Final Order #2 was made, the parties had agreed on specific section 7 expenses, calculated the quantum, and set a fixed monthly amount the father was required to pay.
79The mother, aware of the father’s pleadings, failed to file or produce any evidence to support the section 7 expenses.
[80] The monies paid were part of Final Order #2. I will not go behind the basis for that Order. Further, the mother has continually had to pursue payment from the father for previous court orders. The monies shall not be credited towards any support owed. Conclusion
Conclusion
81The father’s income for Periods A and B must be recalculated based on my decision. This will affect the Table Child Support owed for Periods 1, 2, and 3. Child support payments previously paid in the amount of $42,076 shall be deducted from any arrears owed.
82Both parties seek costs. The mother seeks costs for these proceedings and the legal proceedings in the U.S. The mother provided written submissions for costs at the conclusion of this hearing. However, no decision had been rendered nor was I privy to any offers to settle that may have been exchanged.
[83] The parties are directed to contact the Family Trial Office to schedule an appearance before me before June 6, 2025, for submissions on costs and to confirm terms of a Draft Order based on my decision. _____________________________________
C. RHINELANDER J. RELEASED: MAY 15, 2025 COURT FILE NO.: FS-19-00013273-0001 DATE: 20250515 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Robert Moggach Applicant - and - Samantha Slattery Respondent REASONS FOR DECISION C. RHINELANDER J. RELEASED: MAY 15, 2025