Bekeschus v. Doherty, 2011 ONCJ 232

Toronto Registry No. D48600/09 DATE: 2011·IV·07 CITATION: Bekeschus v. Doherty, 2011 ONCJ 232 ONTARIO COURT OF JUSTICE BETWEEN: JENNY M. BEKESCHUS, Applicant (Responding Party), — AND — MARTIN DOHERTY, Respondent (Moving Party). Before Justice Carole Curtis Heard on 16 November and 31 December 2010 Reasons for Judgment released on 7 April 2011 STATUTES AND REGULATIONS CITED Child Support Guidelines, O. Reg. 391/97 [as amended], subsection 19(1). Children’s Law Reform Act, R.S.O. 1990, c. C-12 [as amended],

section 30. Family Law Act, R.S.O. 1990, c. F-3 [as amended],

section 29,

section 30, subsection 33(1), subsection 33(2), subsection 33(8),subsection 33(9). CASES CITED Drygala v. Pauli, , 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No.3731, 2002 Cars​well​Ont 3228 (Ont. C.A.). Duffy v. Duffy, 2009 NLCA 48, 289 Nfld. & P.E.I.R. 132, 890 A.P.R. 132, 73 R.F.L. (6th) 233, [2009] N.J. No. 245, 2009 Cars​well​Nfld211 (N&L C.A.). Evans v. Gravely, , 14 R.F.L. (5th) 74, [2000] O.J. No. 4748, 2000 Cars​well​Ont 4781 (Ont. S.C.). Filippetto v. Timpano, , (2008), 164 A.C.W.S. (3d) 303, [2008] O.J. No. 417, 2008 Cars​well​Ont 544 (Ont. S.C.). Rilli v.

Rilli, , 151 A.C.W.S. (3d) 1130, [2006] O.J. No. 4142, 2006 Cars​well​Ont 6335 (Ont. Fam. Ct.). Weir v. Therrien, , 20 R.F.L. (5th) 199, [2001] O.J. No. 2612, 2001 Cars​well​Ont 2327 (Ont. Fam. Ct.). Phyllis R. Brodkin ............................................ counsel for the applicant mother (responding party) Adrian D. Baker .................................................. counsel for the respondent father (moving party) TABLE OF CONTENTS 1: OVERVIEW para. [1] 2: BACKGROUND FACTS para. [3]

3: ACCESS para. [11] 3.1: The Issue of Supervised Access at the Supervised Access Centre para. [19] 3.2: Films of the Children Posted on the Internet by the Father para. [22] 3.3: A Movie the Father Showed the Children para. [26] 3.4: Access — Conclusion para. [28] 4: CHILD AND SPOUSAL SUPPORT para. [33] 4.1: Father’s Income para. [33] 4.2: Spousal Support — The Question of Entitlement para. [69] 4.3: Child Support para. [82] 5: ISSUES OF CREDIBILITY para. [84] 6: ORDERS para. [86] 7. COSTS para. [87] JUSTICE C.

CURTIS:— 1: OVERVIEW [ 1 ] This is the decision in a motion brought by the father for temporary orders regarding access, child support and spousal support. [ 2 ] The father sought liberal, unsupervised overnight access to the children, suspension of child support as of 1 December 2009, with no income imputed to him, temporary spousal support of $1,200 per month from 1 June 2009 and costs. 2: BACKGROUND FACTS [ 3 ] The applicant is the mother, Jenny Bekeschus, 54 years old (born on 25 July 1956). She is a chiropractor and physiotherapist and owns a rehabilitation centre, Toronto Health Centre.

In 2010, she earned about $125,000. [ 4 ] The respondent is the father, Martin Doherty, 42 years old (born on 10 October 1968). He was not working when the motion was argued. [ 5 ] Although there is some dispute as to the dates, the parents lived together from 1994 (or 1999) to 2008 (or 29 May 2009) (this dispute does not matter for the purposes of this motion). Whatever dates are used, it was a long-term relationship.

The parents were not married to each other. [ 6 ] There are two children: Stephanie Ciara, now 11, and, Andrea Sophia, now 9. [ 7 ] The application was started by the mother on 13 August 2009 claiming sole custody, child support, a restraining order and costs.

The mother came to court without notice and obtained an order on 13 August 2009, without prejudice, for temporary sole custody, and temporary access to the father to be reasonable access on reasonable notice, and an order that the father shall not remove the children from school, day care or Toronto without the mother’s prior written consent or court order. [ 8 ] The father’s answer was filed on 24 August 2009 and claimed sole or joint custody, access, child support, spousal support, a non-removal order and costs. [ 9 ] Both parents have been represented by lawyers throughout.

There have been several case conferences. [ 10 ] On 28 August 2009, the father’s access was changed to specified access and the court made a temporary “without prejudice” order for the father to pay child support of $335 per month from 1 June 2009, based on annual imputed income of $22,000. 3: ACCESS [ 11 ] The father’s motion asks for liberal, unsupervised overnight access to the children. [ 12 ] The existing access order from 28 August 2009 provides two different kinds of access to the father, that is, unsupervised (one weekend visit for four hours and one weekday evening visit for two hours), and supervised (two hours every other weekend at the Supervised Access Centre). [ 13 ] On 9 February 2010, an order was made changing access to provide that the father’s access shall not take place at his home.

An order was made on consent for an assessment under

section 30 of the Children’s Law Reform Act , R.S.O. 1990, c. C-12, as amended. [ 14 ] There has been a great deal of litigation since this case started. The level of conflict in this case is very high. The parents’ lawyers are acrimonious. Despite several court orders, the issues around access and the assessment became sources of ongoing

unresolved conflict between the parents. [ 15 ] The issue of the assessment became a source of conflict for the parents, notwithstanding the consent order. The advisability of an assessment was first raised by the court on 9 September 2009. The assessment was ordered on consent on 9 February 2010, and additional orders were made about the assessment on 31 March 2010 and 29 June 2010. Despite the fact that the order for the assessment was made on consent and was made in February 2010, the assessment still had not begun when this motion was completed on 31 December 2010.

The court learned on 15 March 2011 that the assessment had begun and had not yet been completed. [ 16 ] The father has claimed custody in this case. He says he is very upset with the access status quo and that he wants to “normalize” access to overnight, weekend access. The father believes that the mother is intentionally interfering with and limiting access. As well, he feels that it is prejudicial for his position to go to trial with the existing access order. [ 17 ] The mother says that the children are not doing well.

She says that the children (11 and 9 years old) are suffering emotionally from the separation, need help and have begun counselling. The mother says that Andrea is gaining weight and is showing signs of stress and that it is hard to get her to talk about her feelings. The mother says that Stephanie claims that overt threats from the father to remove her from school have left her frightened and anxious. [ 18 ] The mother says that no changes should be made regarding access pending completion of the assessment.

The mother says that the father’s behaviour causes her concern for the children’s well-being and makes her unwilling to agree to greater access.

Her position is that the court should not change access without input from a mental health professional and without additional information. 3.1: The Issue of Supervised Access at the Supervised Access Centre [ 19 ] Although the order for supervised access at the Supervised Access Centre was made on 28 August 2009, access at the Supervised Access Centre did not begin until 20 February 2010 (six months later), mostly due to the father’s delaying in getting this organized and getting it started. [ 20 ] The reasons for the unusual access order (some access unsupervised and some supervised at the Supervised Access Centre) and the expectations of the court in making this order were set out by the court when the order was made on 28 August 2009.

There was a very clear indication from the court on the day that the order was made why there was a supervised component to the access. Despite the father knowing exactly why supervised access at the Supervised Access Centre was ordered, there were real problems with supervised access: (

a) it took far too long to get started, taking many months to be set up and to start; (

b) the father cancelled several of the supervised visits and chose to exercise only the unsupervised access. It was not up to the father to refuse supervised access; (

c) the father may have cancelled as many as half the supervised visits (the evidence on this was not clear); and, (

d) the father allowed the mother and the children to travel to the access centre several times and did not show up, and did not cancel in advance. [ 21 ] This behaviour by the father is significant because it demonstrates the following: (

a) the father does not understand the children’s need for continuity, predictability, and stability; (

b) the father puts his own pride ahead of the interests of the children to see him and puts his own needs ahead of those of the children; and, (

c) the father does not respect court orders and will do what he wants when he wants. 3.2: Films of the Children Posted on the Internet by the Father [ 22 ] The father put a film of Stephanie (then 11 years old), doing a funny impression of a camp counsellor, on Facebook. Stephanie had made it clear to the father that family films were not to be put on the computer. The father admits that Stephanie was upset about the clip and he says that he took it down as soon as Stephanie requested it.

The mother says that Stephanie continues to be furious with the father about this and feels that the father betrayed her. [ 23 ] The father took films of Andrea (then 8½ years old) dancing and posted the film in his newsletter, and on YouTube, Twitter and Facebook. On YouTube, the film of Andrea was positioned next to a film of a man having oral sex with another man. The father says that this juxtaposition was due to the particular configuration of the mother’s own computer. The father knew that the mother did not want the children on the Internet.

When asked to remove it, the father refused to take the film off the Internet. [ 24 ] The father says that this was not intentional, that there was no ill will behind this and that he took the films down immediately when asked to do so by the children. [ 25 ] These are the issues about this behaviour by the father that are concerning: (

a) the lack of respect the father shows for the children’s feelings; (

b) the juxtaposition of film clips of the child Andrea with something unsavoury; (

c) the girls did not want this; and, (

d) the lack of judgment shown by the father in doing this during high-conflict custody litigation. 3.3: A Movie the Father showed the Children [ 26 ] The father showed the children (11 and 9 years old) a movie with inappropriate sexual content. The father’s lawyer

described the movie as “slightly raunchy” but “not pornographic” and said that there were “a few inappropriate scenes”. The fatheradmitted that he allowed the children to watch the entire movie and that, when an inappropriate scene came on, he told the children tolook away, but continued to show the rest of the movie to the children and did not turn the movie off. The father did not say afterwardsthat it was a mistake to show the children this movie. [27] The mother says that the children were visibly upset and knew that it was wrong for them to see this movie.

The childrenhave been allowed to discuss this privately with their counsellor. 3.4: Access — Conclusion [28] All this behaviour by the father (the failure to exercise access at the Supervised Access Centre, the failure to cancelsupervised access when not coming, the unsuitable movie, and the films of the children) occurred after the access order of 28 August2009. The father is seeking more access when he is not even exercising all the access that has been ordered and offered.

The father seesaccess as his “right as a father”, not as the children’s right or something that should be in the children’s best interests. [29] All of this took place while the father’s contact with the children was under the scrutiny of the court. In fact, some of ittook place while the case was actually on its way back to court. This is unusual behaviour, even surprising behaviour, for a parent whois under the intense spotlight that custody and access litigation brings. [30] The real issue regarding these choices made by the father is his judgment: these events raise questions about the father’sjudgment.

They also show that the father is unable to put his children’s needs ahead of his own. [31] It is important that the father exercise supervised access at the Supervised Access Centre as ordered, and as the courtdescribed in August 2009 when the order was made. In these particular circumstances and given the details of the order for access, it isnot up to the father to choose what portion of court-ordered access he is going to exercise.

If the father continues unilaterally to walkaway from supervised access at the Supervised Access Centre, the mother may move to change access so that all access is supervised atthe Supervised Access Centre. [32] The evidence presented does not support expanding access at present, particularly when there is now an assessmentongoing regarding custody and access and the results of the assessment should be available soon. 4: CHILD AND SPOUSAL SUPPORT 4.1: Father’s Income [33] The primary issue regarding both child support and spousal support is the father’s income, that is, not what he is earning,but rather, whether there should be income imputed to him for the purposes of child support and spousal support. [34] The father claims a suspension of child support as of 1 December 2009, with no income imputed to him, and an order thatthe mother pay him temporary spousal support of $1,200 per month from 1 June 2009. [35] Subsection 19(1) of the Child Support Guidelines, O.

Reg. 391/97, as amended, addresses imputing income: 19. Imputing income.—

(1) The court may impute such amount of income to a parent or spouse as itconsiders appropriate in the circumstances, which circumstances include, (

a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonableeducational or health needs of the parent or spouse; . . . [36] There is a duty to seek employment in a case where a parent is healthy: Drygala v. Pauli, , 61 O.R.(3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No. 3731, 2002 Cars​well​Ont 3228 (Ont. C.A.), atparagraph [38]. [37] The need to ensure appropriate financial support for the children is dealt with by imputing income.

Imputing income isone method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet thislegal obligation, a parent must earn what he is capable of earning: Drygala v. Pauli, supra, at paragraphs [32], [35]. [38] The payor is intentionally under-employed if that parent chooses to earn less than he is capable of earning. That parent isintentionally unemployed when he chooses not to work when capable of earning an income: Drygala v.

Pauli, supra, at paragraph [28]. [39] A parent cannot pursue an improvident career path at the expense of the child: Evans v. Gravely, , 14R.F.L. (5th) 74, [2000] O.J. No. 4748, 2000 Cars​well​Ont 4781 (Ont. S.C.), at paragraph [10]. [40] A parent cannot avoid child support obligations by a self-induced reduction of income: Weir v. Therrien, , 20 R.F.L. (5th) 199, [2001] O.J. No. 2612, 2001 Cars​well​Ont 2327 (Ont. Fam. Ct.), at paragraph [25]. [41] The court has a broad discretion to impute income where the father is not working to his potential. [42] In Duffy v.

Duffy, 2009 NLCA 48, 289 Nfld. & P.E.I.R. 132, 890 A.P.R. 132, 73 R.F.L. (6th) 233, [2009] N.J. No. 245,2009 Cars​well​Nfld 211 (N&L C.A.), at paragraph [35], the Newfoundland and Labrador Court of Appeal set out a list of general

principles to be considered regarding child support and when determining whether to impute income: 1. The fundamental obligation of a parent to support his or her children takes precedence over theparent’s own interests and choices. 2. A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore,his or her obligation to support his or her children. 3. A parent is required to act responsibly when making financial decisions that may affect thelevel of child support available from that parent. 4.

Imputing income to a parent on the basis that the parent is “intentionally under-employed orunemployed” does not incorporate a requirement for proof of bad faith. “Intentionally” in thiscontext clarifies that the provision does not apply to situations beyond the parent’s control. 5. The determination to impute income is discretionary, as the court considers appropriate in thecircumstances. 6. Where a parent is intentionally under-employed or unemployed, the court may exercise itsdiscretion not to impute income where that parent establishes the reasonableness of his or herdecision. 7.

A parent will not be excused from his or her child support obligations in furtherance ofunrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parentto choose to work for future rewards to the detriment of the present needs of his or her children,unless the parent establishes the reasonableness of his or her course of action. 8. A parent must provide proper and full disclosure of financial information. Failure to do so mayresult in the court’s drawing an adverse inference and imputing income. [43] The court can rely on the imputing income provisions of

section 19 of the Child Support Guidelines in determiningincome for spousal support purposes: Rilli v. Rilli, , 151 A.C.W.S. (3d) 1130, [2006] O.J. No. 4142, 2006 Cars​well​-Ont 6335 (Ont. Fam. Ct.). [44] The father is young (42 years old), educated, in good health and has an impressive work history. His curriculum vitae isfive pages long, single-spaced and identified his job search objective as “Senior or Consulting Project Mgr/Bus Practice Mgr in ITenvironment”.

His job history was with large, international, well-known, reputable companies: Telus Mobility, Sprint PCS, USA,Minacs Worldwide, Bell Mobility, IBM Global Services, People’s Network Television, Canada Life. His work history shows he has hadleadership roles. In the past, he has worked under these job titles: Program/Project Manager; Director, Custom engineering; P.M. & BPRAnalyst; Sales Executive; Consultant. When the father was working in the technology industry in 2002, he says that he was earningabout $100,000 per year.

When he was self-employed as a business consultant in 2005, the father was earning $800 per day. The fatherleft the technology industry in 2002 to teach martial arts and earn $30,000 per year as a business owner. [45] The father was a martial arts instructor and, as recently as October 2009, owned two businesses that he had started. Hehad consolidated two locations to one new location on 1 August 2009 and he became his own business entity rather than operating as atenant renting space in a sports club.

He took on rental obligations and he hired more staff. [46] At the time of the motion, the father was bankrupt and receiving social assistance. He began receiving social assistance inMarch 2010. After the separation, the father’s brother loaned him $10,000, which loan was supported by a promissory note. [47] The mother says that the father told her when they lived together that there were two sets of books prepared by hisaccountant and his bookkeeper, one set for Revenue Canada to minimize his personal earnings, and one set for the bank for the purposeof borrowing funds.

The father did not deny this. [48] The father sold both businesses on 1 November 2009. [49] Although the father produced documents to show the businesses had been sold in November 2009, there was other laterdocumentation that showed that the father still had connections to these businesses. In June 2010, he was listed as program director andowner-lead instructor on the Kicksmart web-site and he was shown as the founder and head instructor of Kicksmart. In June 2010, hisvoice-mail said that he was the director of Kicksmart. The father distributes a newsletter that confirms this.

As of 9 August 2010, hewas shown as Director of two companies, Kicksmart and 1667898 Ontario Inc. in the corporate registration documents with thegovernment. [50] The father sold Kicksmart to his girlfriend for $3,000. The father’s girlfriend was a waitress who never had any directinvolvement with this business. The business is now closed and has not operated since 9 November 2010. [51] The other business, Kidzsmart (the martial arts school), was sold to his friend Glen Davies for no consideration and nomoney. The mother says that Mr. Davies is a friend who has no training or knowledge in martial arts.

This business is still operational. [52] The financial statements for September 2009 showed that one month’s revenue for one of the businesses was $20,000only two months before he sold it. The mother pointed out that it was possible this number was low, as there would likely have beenother cash sales not recorded. [53] The financial statements of the business produced showed gross sales of $115,590 for 2007, and $162,149 for 2008. On31 December 2008 (a few months before the separation) there were retained earnings of $46,800.

In August 2009 the business hadretained earnings of $44,897. [54] The father says that he is not employed at those businesses, nor does he earn income through them. He says that hevolunteers at the studio he used to own, but that he does not get paid for services. When the motion was completed on 31 December2010, the father’s lawyer disclosed that the father had been working part-time for pay since 12 September 2010 at the martial arts school

that he previously owned. That work, he says, even if full time, would only result in income of minimum wage (currently $21,600), ormaybe up to $30,000 per year. The father’s income was a moving target. [55] The mother says that the father has not changed his role with the business in any way, that he is at the studio daily and isadvertised in many ways as the owner-director. The father is described as a Director, called himself the founder and one of the mainteachers of workshops. [56] The father’s position is that the transfer of the businesses was legitimate and necessary.

He says he was told by thetrustee in bankruptcy that he had to get rid of the businesses. [57] The mother is concerned that the father has the ability to manipulate his financial affairs in such a way as to presenthimself as being almost destitute, in spite of the fact that there is information that this is not the case at all. In support of this, the motherproduced the report of a private investigator who reported that the father was working at and was still an owner of Kidzsmart. [58] The father’s assignment in bankruptcy was on 1 December 2009.

He was a self-employed business owner who chose todeclare bankruptcy over a modest amount of debt. The total debt shown on the bankruptcy documents is $47,817, of which $31,715(66.3%) is owed to one creditor (TD Canada Trust). [59] The father says that his plan is to get the bankruptcy behind him, to get off social assistance and to teach more classes atthe martial arts school that he used to own and to move towards full-time work (a plan that would only earn minimum wage or at bestperhaps $30,000). [60] There was no evidence of any efforts by the father to retrain.

There was no evidence of job searches by the father. [61] The absence of evidence of a diligent job search leaves the court with no choice but to find that the payor wasintentionally unemployed: Filippetto v. Timpano, , (2008), 164 A.C.W.S. (3d) 303, [2008] O.J. No. 417, 2008 Cars​-well​Ont 544 (Ont. S.C.), at paragraph [12]. [62] The mother says that the father’s desperate financial circumstances arose only after the temporary child support order wasmade 28 August 2009. This appears to be the case.

On 1 July 2009, the father had a new vehicle (a 2009 sport utility vehicle that cost$500 per month, plus insurance costing $200 per month). He rented a two-bedroom apartment for $1,350 per month.

The mother saysthat, during every visit, he takes the children to restaurants, movies and buys them things. [63] The father maintains, with no real explanation, that he is living on $575 per month, despite his rent expense of $1,350 permonth and his car expenses of about $700 per month. [64] The parents agreed to questioning on the affidavits and transcripts were produced. [65] On the evidence provided and without the benefit of in-person cross-examination on these financial issues, the court isunwilling to find that no income should be attributed to the father.

The father’s financial circumstances are far from clear. He divestedhimself of businesses with healthy financial statements for sums that are hard to accept as reasonable. In fact, those sale prices areentirely unacceptable. [66] The court finds that the father has manipulated his financial affairs to reduce his income for support purposes. The fathermade choices that contributed to his current financial situation. It is open to the court to find that he is intentionally under-employedand, on the basis of the evidence available on the motion, the court finds that he is. [67]

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. Theremust be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must begrounded in the evidence: Drygala v. Pauli, supra, at paragraph [44]. [68] Determining what income should be imputed to the father is likely to be complicated and will require in-person cross-examinations.

That is a job best left to the trial judge. 4.2: Spousal Support — The Question of Entitlement [69] Determining the father’s income is a separate analysis from determining whether the father is currently eligible forspousal support. The father’s entitlement to spousal support is hotly contested. The father must establish that he is entitled to spousalsupport. [70] These are the provisions of the Family Law Act, R.S.O. 1990, c. F-3, as amended, that relate to the father’s claim forspousal support: 29.

Definitions.— In this Part, . . . “spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who arenot married to each other and have cohabited, (

a) continuously for a period of not less than three years, or (

b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. 30. Obligation of spouses for support.— Every spouse has an obligation to provide support for himself or herselfand for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. . . .

33. Order for support.—

(1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.

(2) Applicants.— An application for an order for the support of a dependant may be made by the dependant or the dependant’s parent. . . .

(8) Purposes of order for support of spouse.— An order for the support of a spouse should, (

a) recognize the souse’s contribution to the relationship and the economic consequences of the relationship for the spouse; (

b) share the economic burden of child support equitably; (

c) make fair provision to assist the spouse to become able to contribute to his or her own support; and (

d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

(9) Determination of amount for support of spouses, parents.— In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including, (

a) the dependant’s and respondent’s current assets and means; (

b) the assets and means that the dependant and respondent are likely to have in the future; (

c) the dependant’s capacity to contribute to his or her own support; (

d) the respondent’s capacity to provide support; (

e) the dependant’s and respondent’s age and physical and mental health; (

f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together; (

g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures; (

h) any legal obligation of the respondent or dependant to provide support for another person; (

i) the desirability of the dependant or respondent remaining at home to care for a child; (

j) a contribution by the dependant to the realization of the respondent’s career potential; ( k ) [ Repealed : S.O. 1997, c. 20, s. 3(3).] (

l) if the dependant is a spouse, (

i) the length of time the dependant and respondent cohabited, (ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation, (iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents, (iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(

v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support, (v.1) [ Repealed : S.O. 2005, c. 5, s. 27(12) .] (vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and (

m) any other legal right of the dependant to support, other than out of public money. [ 71 ] The father is clearly a “spouse” under

section 29 of the Family Law Act . The issue regarding the father’s entitlement to spousal support is the father’s obligation to be self-sufficient under

section 30 of the Family Law Act . The mother says the father is not entitled to spousal support under

section 30 or

section 33 of the Family Law Act . [ 72 ] The father claims that he is entitled to non-compensatory and compensatory spousal support. The father is making a compensatory claim for spousal support under subsection 33(8) of the Family Law Act on the basis that he sacrificed and stopped working in the technology industry to allow the mother to pursue her career and that he cared for the children. This is hotly disputed by the mother, who flat out denies this version of their life together.

The mother says that the father has not suffered a loss as a result of the relationship, as the father was earning $100,000 during the relationship and that, in allowing the father to quit his job and to open the martial arts school, the mother has contributed to his ability to have his own business and to follow his passion. The mother says that, if there is financial hardship, it is not connected to the relationship. This issue cannot be resolved on the basis of affidavit evidence.

This issue requires oral evidence, cross-examinations and a trial. [ 73 ] The mother wants the spousal support motion dismissed on the basis that the father is not entitled to spousal support, as he is fully capable of being self-supporting. The mother’s position is that the court ought not to award spousal support for the father for these reasons: (

a) the father is very well educated at the college level and beyond; (

b) he has had employment which involves skills in sales and marketing; (

c) he has had employment, which indicates that he has leadership skills and has managed other employees in various companies; (

d) he has owned his own businesses; (

e) he claims that he is working on a voluntary basis at the martial arts school that he started and owned until after the separation, which is inconsistent with his financial obligations to be self-sufficient and his financial obligations to support his children; (

f) his lifestyle and expenses indicate that he has other income, other than that which was disclosed, as his debt load has not increased as it would have if he was living only on his welfare cheque; (

g) his bankruptcy is a clear effort to divest himself of any financial responsibilities and it would seem that he may have thought it would also exempt him from his child support obligations and accrued arrears; and, (

h) the sale of his businesses seem to be obvious shams, as the entities were sold to his girlfriend who has no knowledge of the business for $3,000 and to a friend who has no knowledge of the business for zero. [ 74 ] There is significant merit to the mother’s arguments. [ 75 ] The father came to court with no plan to become self-sufficient. He has no plans to retrain. No program was suggested. No graduation date was offered. No future income was projected. The father says that he prefers to remain in martial arts. [ 76 ] The court may order spousal support on a temporary basis where the issue of eligibility is clear on the evidence. That is

not the case here. Entitlement is the real issue regarding spousal support in this case. The parents are quite far apart about what took place during the relationship and the father’s role. [ 77 ] As well, the mother says that income should be imputed to the father. As noted above, the father should be earning more income than he is at present. At this stage, the father is likely to be able to be self-supporting.

Income will need to be imputed to the father, perhaps even to the extent that no spousal support would be payable. [ 78 ] The father has not, at this point, provided an adequate explanation showing the need to sell his businesses, the need for the bankruptcy and why he is not earning more income given his age, employment history, health, education and job skills. If he is claiming spousal support, the onus is on him to satisfy the court. He has fallen far short of this onus at this stage. [ 79 ] In addition, the equities of this situation are different from other spousal support claims.

The mother is at present the larger wage earner. However, unlike in some spousal support claims, the mother has custody of the children and is supporting the children entirely on her own. The father is not paying any child support although there is an order for child support. As well, the mother points out that she is required to fund the litigation out of her own earnings (which the father is not). And the mother is paying entirely for the custody assessment at this time. [ 80 ] The father’s entitlement to spousal support is a hotly contested issue.

These matters (the father’s duty to be self- sufficient, his eligibility for spousal support and the father’s income) cannot be resolved on the basis of the affidavit evidence available here, even where, as in this case, questioning was held on the affidavits. These issues require oral evidence, cross-examinations in person, the ability to determine credibility and a trial. [ 81 ] There will be no order made for temporary spousal support for the father. 4.3: Child Support [ 82 ] The father also wants the court to suspend child support as of 1 December 2009 on the basis that no income should be imputed to him.

For all the reasons set out above regarding the father’s income, the court is not prepared to do that. The evidence presented does not support changing the father’s imputed income to zero. [ 83 ] The temporary child support order will not be changed at this time. 5: ISSUES OF CREDIBILITY [ 84 ] To make the support orders for which the father now asks (to stop the child support, with no income imputed to the father, and to order spousal support), the court would have to believe the father’s evidence about his current income and his inability to earn additional income.

The court is far from that position right now, in part due to the conflict in the positions of the parents on this issue, and in part due to the unresolved credibility issues. [ 85 ] Where there is this level of dispute about the evidence and what it means, on the very issues that go to the core of the motion, credibility cannot be determined on a motion with affidavit evidence, even a motion where questioning has been held, as it was here. The court is in no position to evaluate and to assess the credibility of affidavit evidence when the circumstances are this complicated.

The court has set out preliminary concerns regarding the father’s evidence and his credibility. These issues require a trial to determine. It would be inappropriate to make the temporary orders sought unless the evidence is clear. The issues surrounding the father’s ability to earn income require a trial. 6: ORDERS [ 86 ] The father’s motion is dismissed entirely. 7: COSTS [ 87 ] If either parent seeks costs of the motion, a date to argue costs may be arranged with the scheduling office. This request should be made to the scheduling office before 31 May 2011.