Court File and Parties

Court File No.: FC-23-00000719-0000 Date: 2025-10-23 Ontario Superior Court of Justice

Between: Sandra Forte Franzese, Applicant And: Glen Franzese, Respondent

Before: D.A. Jarvis, J.

Counsel:

• Gary Joseph and Sandra Durcikova, for the Applicant
• Davi Anthony, for the Respondent

Heard: October 22, 2025

Ruling on Motion

Relevant Facts

[1] The applicant wife ("the wife") has brought a motion for child and spousal support. It is opposed by the respondent ("the husband").

[2] These are the relevant facts:

(a) The parties were married on June 1, 2002, and separated either on May 6, 2022 (the husband's date) or June 3, 2022 (the wife's date). The valuation/separation date is not relevant to the outcome of this motion.

(b) There are two children of the marriage ("the children"), a daughter, DRF (born January 23, 2008) and a son, DMF (born November 20, 2010).

(c) Pursuant to a Consent signed by the parties at a September 15, 2023 case conference, the parties agreed, among other things, that they would share parenting of the children although a term of the consent acknowledged that DMF was not following the shared parenting schedule to which the parties agreed at that time.

(d) The wife worked as a packing and display designer from 2000 to February 2013 when that employment was terminated. She has not worked outside the home for third parties since then.

(e) Throughout the parties' married cohabitation, the husband was the family's primary breadwinner.

(f) In 2014, the parties began to acquire and rent cottage properties. At the time they separated in mid-2022, they owned four cottage properties, one in their joint names and the other three with third parties. The matrimonial home, in which the wife resides with DRF and, periodically with DMF, is jointly owned. The wife values her land interests at $1,548,881 whereas the husband values his interest in the same properties at $1,482,166. The difference in values is not relevant to the outcome of this motion.

(g) At some point before the parties separated, they took out two lines of credit to purchase a $560,000 investment with a private company ("OZ"). The husband pays the monthly interest associated with those lines ranging between $1,540 and $1,740. The wife has drawn down on that investment so that it is now worth about $155,000.

(h) There is little doubt that the husband handled the family finances and managed the cottage property rentals. The wife claims that since their mid-2023 separation the husband has blocked her access to information about the cottage properties and that she has no access to the "Cottage Escape" business bank accounts. The court was informed that "Cottage Escape" is the unincorporated name that the husband uses for the cottage rental business. He receives the cottage rental income.

(i) The wife's September 22, 2025, financial statement discloses a total annual income of $35,450 comprising interest and investment income (about $1,540 a month) and child tax benefits (about $1,412 a month). Although her 2024 Notice of Assessment recorded her assessed income for that year as $22,437, she conceded that for the purpose of this motion the court may rely upon her financial statement. Since separation, her savings have decreased from about $757,736 to $642,730 and her debts have decreased about $21,000 to $293,800. Her draw down of the OZ investment is not reflected in her financial statement regarding the purposes of, or how, the OZ funds have been applied.

(j) The husband is employed in a senior management capacity with a mechanical contracting company. His financial statement discloses an annual income of $342,013 comprising regular pay and bonus income that is paid partly at the end of each calendar year and at the beginning of the next year. This income has varied annually. The husband's assessed incomes for the past three years are $322,911 (2024), $331,340 (2023) and $398,307 (2022). The three-year average is $350,852. This is the income that the wife urges the court to accept for the purpose of this motion. The husband maintains that his income should be $322,914.

(k) By comparison with the wife's savings and debts, the husband's savings have increased $744,630 to $1,336,930 and his debts have increased by $683,626 to $1,060,396 although he records a post-separation loan of $727,893 from his parents.

(l) The husband has paid nothing to the wife for child and spousal support pursuant to any court order or written agreement. Rather, he has paid the expenses for the matrimonial home, the wife's cell phone and vehicle expenses and various expenses for the children (amounting to about $1,487 a month, not including food, clothing and/or school-related expenses) as well as those of the cottage properties. He recently purchased a BMW automobile for DRF and pays those expenses too.

(m) Both parties submit that the other party has failed to make proper disclosure of their sources of income. The husband contends that the wife has misrepresented her financial information while the wife claims that the husband has failed to disclose the cottage rental income he has been receiving. He also claims that she should be working or, at the very least, have some kind of vocational training or retraining plan or plans.

(n) Both parties filed Divorcemate calculations. Apart from the parties' dispute about each other's income, the wife maintains that the analysis should reflect a shared parenting arrangement for the children consistent with their September 2023 consent whereas the husband contends that only DRF's parenting is shared and that DMF lives primarily with him for the purpose of calculating the parties' respective child support obligations.

Analysis/Discussion

[3] At the outset of argument, I indicated to the parties my concerns about the lack of progress in this case. There was a case conference held in September 2023 and another in February 2025. Only today did the parties indicate that they had just secured (today) a February 13, 2026, settlement conference date. More concerning was the absence of any formal accounting of the husband's income for support purposes. In his financial statement he simply recorded his business income loss but nowhere in that statement or in the material before the court did he disclose his cottage rental income. In Sharma v. Sunak, a case that involved income from a sole proprietorship, McGee J. noted that is the uncommon case that will not require some level of expert evidence to assist in determining income where an unincorporated or incorporated business is involved. The husband in this case submitted that he had never been asked by the wife to undertake such a task. He has it backwards. In my view, where questions are raised about the sources of a family law litigant's income and that income, or even some of that income, comes from a business, whether operated as a sole proprietorship or a company in which the party has an interest, it should be obvious from the outset of the case that some form of expert assistance will be needed. Here the husband's financial statement was deficient because it did not record his cottage rental income, only the net loss that he deducts.

[4] Counsel confirmed that they had never discussed the involvement of an expert to assist. The husband said that he had provided voluminous disclosure to the wife, but no formal accounting; she responded that there was missing disclosure. Consequently, the parties were advised that if they did not jointly engage the service of a qualified professional to prepare an analysis of the husband's income, I would exercise my discretion to appoint an expert pursuant to s. 20.3 of the Family Law Rules. After a brief adjournment to discuss this approach with their counsel, the parties agreed on the choice of expert.

[5] They also agreed that the net disposal ratio for the parties' incomes after determination of the husband's child and spousal support obligations would be 55% (wife) and 45% (husband) on a without prejudice basis. They were unable to agree on the husband's income.

[6] Putting the husband's arguments in context, the court's involvement at this stage of a case does not, nor should it, involve a deep dive into the minutiae of the parties' financial affairs, either historic or current, or the overall merits of each party's case. As observed by Penny J. in Knowles v. Lindstrom:

[8] It is well-established that interim support motions are not intended to involve a detailed examination of the merits of the case. Nor is the court required to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. These tasks are for the trial judge. Orders for interim support are based on a triable or prima facie case. An order for interim support is in the nature of a "holding order" for the purpose of maintaining the accustomed lifestyle pending trial, Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (ONSC) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, 2012 CarswellOnt 14841 (ONSC) at para. 24.

[7] The wife contends that her $350,000 position about the husband's income can be grounded two ways; one by averaging his 2022-2024 assessed income and the other by adopting his $342,013 income as set out in his recent financial statement grossed up to $350,000 because his disclosure about the cottage rental income is deficient, and his financial statement deficient in failing to properly reflect that income (and corresponding expenses). Unknowns are what may be described as "soft" expenses meriting scrutiny and warranting addbacks to arrive at a reasonable income amount. The wife pointed to the BMW automobile purchased for DMF for which there is no associated debt, thus implying that the car was purchased for cash.

[8] The husband submitted that the wife's financial situation was not so dire as she represented and that he was shouldering most of the family's personal, realty and investment expenses. It seemed that he was also arguing that the wife could use her capital to supplement her financial needs. There is no obligation on a support recipient to encroach on capital to supplement the other party's support obligation.

[9] In my view, there should be imputed to the husband a $350,000 income and a $35,450 income to the wife on a temporary, without prejudice basis. I am not prepared to accede to the husband's argument that the court should depart from the shared parenting arrangement that the parties negotiated in good faith in September 2023, both acknowledging then that DMF was not following it. Any retroactive adjustment can be made at trial.

[10] Each party submitted Divorcemate calculations different from this court's finding. A calculation prepared by the court accompanies this Ruling separately. Table child support payable by the husband is $4,035. Based on the parties' NDI agreement the husband's spousal support obligation amounts to $6,822 monthly. This is slightly higher than the SSAG mid-range (i.e., $6440 per month). This will be discounted by $1,640 a month being the average of the monthly interest payable and to be paid by the husband on the OZ lines of credit. Spousal support payable will be $5,182, rounded to $5,200.

[11] The parties shall share the children's s. 7 expenses on a 78% (husband)/22% (wife) basis. The husband shall be responsible for all DRF's automobile-related expenses. The wife shall be responsible for the carrying costs of the matrimonial home, her cell phone and car-related insurance, which will be paid from the support paid. As no evidence was otherwise provided about what comprised the children's s 7 expenses, I will leave that to the parties to address, being mindful of the Child Support Guidelines.

Disposition

[12] Accordingly:

(a) The court finds that, on a without prejudice basis, the husband's income is $350,000 and the wife's income is $35,450.

(b) The husband shall pay to the wife $4,035 a month for table child support effective November 1, 2025.

(c) The husband shall pay to the wife $5,182 a month for spousal support effective November 1, 2025.

(d) The parties shall share the children's s. 7 expenses at 78% (husband)/22% (wife) effective November 1, 2025.

(e) The husband shall pay the monthly charges on the OZ lines of credit.

(f) The wife shall be responsible for the carrying costs and related expenses of the matrimonial home, her cell phone and automobile-related expenses effective November 1, 2025.

(g) The parties shall retain (on consent) Peter Weinstein CBV to undertake an income and business-related assessment of the husband's income at the parties' joint expense. The husband shall pay Mr. Weinstein's fees and shall be entitled to reimbursement or credit from the wife for one-half of that expense upon final disposition, subject to any determination of the costs of these proceedings at that time, or earlier if the parties so agree.

(h) The husband shall pay $6,000 costs as set out in paragraph [18] below. The costs shall be enforceable as a support order.

(i) A support Deduction Order shall issue.

Costs

[13] The wife is the successful party and is presumptively entitled to costs pursuant to Family Law Rule ("FLR") 24 (1). As required, both parties submitted Bills of Costs. The wife also submitted an Offer to Settle served the evening before her motion was argued. Pursuant to FLR 24 (12) 1, an Offer relating to a motion must be served "at least one day before the motion date." As the wife's motion does not comply with the rule, she cannot avail herself of it and so her offer will not be considered. The husband made no offer to settle.

[14] Although there is a very limited range of cases where it would be unrealistic to expect offers to settle to be made (such as cases involving Charter arguments or child abduction), it is unreasonable behaviour for a party not to make an offer to settle. In Blanchard v. Walker, Curtis J. commented on the importance of offers to settle:

22. Offers to settle are a significant part of the costs landscape in family law in Ontario. They are important to the possible resolution of cases. In addition, they are important to determining costs.

23. Parties and their lawyers have a positive obligation to behave in ways which enable the court to move cases forward to resolution (Rule 2). Rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (Rule 2(2)). This includes taking appropriate steps to save time and expense (Rule 3(3)). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute: Laing v. Mahmoud, 2011 ONSC 6737, [2011] O.J. No. 5134, 2011 CarswellOnt 12972 (Ont. S.C.J.), para.7.

[15] Similarly in F. (H.) v. H. (M.), 2014 ONCJ 526, Sherr J. observed:

4. …it should be a fundamental step in any family law case to serve at least one offer to settle. Parties and their counsel now have a mandate under subrule 2(4) of the rules, to promote the primary objective of the rules; to deal with cases justly (subrule 2(2)). Dealing with a case justly includes taking steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense in a case. They are an important vehicle in promoting settlements, focus the parties and often narrow the issues in dispute.

5. There are consequences in the rules for not making or accepting reasonable offers to settle. Subrule 18 (14) sets out the costs consequences of not accepting an offer to settle that is as good as or better than the final result. When determining the reasonableness of a party's behaviour in the case, clauses 24 (5) (b) and (c) of the rules direct the court to examine the reasonableness of any offer made, withdrawn or not accepted. This does not preclude the court from examining the failure of a party to make an offer to settle. (bolding added)

[16] In this case the wife's Bill of Costs seeks all-inclusive costs ranging between $5,916.23 (partial indemnity) to $8,726 (full indemnity). The Bill is supported by a detailed breakdown describing the services rendered, the identity of the lawyer or clerk who worked on the file, their hourly rates and a statement of experience. The hourly rates are reasonable, as is the time spent.

[17] The husband's bill disclosed a range for his all-inclusive costs of $3,970 (partial indemnity) to $6,616.71 (full indemnity). It reflected less time spent than the wife's bill. The hourly rates for those who worked on the file other than Mr. Anthony were roughly similar; the principal difference relates to the hourly rates charged by Mr. Joseph and Mr. Anthony.

[18] This is not a case meriting a full indemnity award. Neither party acted reasonably in failing to make an offer to settle. In my view a fair and reasonable award for costs is $6,000, all inclusive. The costs shall be enforceable as a support order.

Settlement Conference Directions

(Not to be included in the issued order)

[19] A Settlement Conference shall proceed on 13 February 2026 at 10:00 a.m.

[20] The parties shall comply with all Settlement Conference Rules. This means that the parties shall file updated Financial Statements and (as may be required) Net Family Property statements, a Comparative Net Family Property statement and, with respect to their expert reports (if applicable), 6 days before the Settlement Conference [see FLR 20.2(2)].

[21] The parties shall ensure that any expert upon whose evidence they will be relying will be available virtually (if required) for the Settlement Conference. The expert's report shall be filed with Case Center 6 days before the settlement conference (i.e., not as part of either party's brief). The wife shall include only the expert's conclusion with her brief. If no report has been concluded, then only a preliminary schedule short of concluding a formal report compliant with BV standards may accompany the wife's brief (in which case the brief may exceed the page limitations for settlement conference briefs as set out below).

[22] Any issue involving disclosure must be concluded before the Settlement Conference, by motion if necessary. No motion for disclosure will be entertained at the Settlement Conference and no Order for disclosure will be made at that event.

[23] The parties should ensure that they exchange as soon as possible a Rule 18 compliant Offer to Settle and consider the merits of severable provisions.

[24] The Settlement Conference Brief shall not exceed 12 pages, and the narrative shall be double spaced, using 12-point font.

[25] Counsel shall upload documents to Case Centre once notified that the conference bundle has been created by Court Administration. Documents for self-represented litigants shall be uploaded to Case Centre by the filing office. All documents shall be hyperlinked.

[26] One last point.

[27] This was a well-argued motion. Counsel were succinct in their submissions and cooperated wherever possible, for which this court is grateful.

Justice D.A. Jarvis

Released: October 23, 2025