Mani v. Tashos, 2011 ONCJ 646

Toronto Registry No. DFO 07 11386 A1 DATE: 10·V·2011 CITATION: Mani v. Tashos , 2011 ONCJ 646 ONTARIO COURT OF JUSTICE BETWEEN: VERA MANI Applicant — AND — PETER TASHOS Respondent Before Justice Brian M. Scully Heard on 1 and 3 June 2010; and 1 and 3 November 2010 Decision released on 10 May 2011 Mr. Jerry Herszkopf........................................................................................... for the applicant Mr. Morris Cooper......................................................................................... for the respondent JUSTICE B.M. SCULLY:— I.

Introduction [ 1 ] On December 13, 2007, Ms. Mani commenced an application seeking: A. An order of custody for the child Adam Jeffrey Mani, born on November 19. 1996. B. An order that any access to be exercised by the respondent be supervised by a third party determined by the applicant. C. An order that the erespondent pay child support of the said child. D. An order that the respondent share the costs of the child’s post-secondary education. E. An order that the respondent not remove the child from the Province of Ontario without the approval of the applicant. F.

An order that the respondent pay the costs of DNA testing should he deny paternity. G. An order that the applicant may obtain and hold any passport for the child. H. An order requiring the respondent to provide ongoing financial disclosure to the applicant. I. Costs on a substantial indemnity basis. [ 2 ] The respondent was served with the application on January 12, 2008. [ 3 ] On February 7, 2008, the respondent filed an answer in which he claimed:

A. That he was not the father of the child. B. That the first notification that he was alleged to be the father of the child was upon receipt of the application. C. That the application be dismissed with costs on a substantiated indemnity basis. [ 4 ] On September 29, 2008, the case management judge, Justice Cohen, set the date of December 8, 2008 for a motion to determine paternity. [ 5 ] On December 2, 2008, the applicant filed an amended application seeking: A. An order for retroactive child support. B.

An order that the respondent pay a retroactive proportionate share of the extraordinary expenses and extra-curricular activities for the child. [ 6 ] On December 8, 2008, Justice Cohen ordered DNA testing to establish paternity and costs payable forthwith to the Applicant in the amount of three hundred dollars. As well, Justice Cohen ordered that the applicant’s retroactive support claim would be limited to three years from the date of the original application in December 2007. [ 7 ] On February 4, 2009, Justice Cohen made an interim order, on consent, in the following terms: A.

Respondent was acknowledged as father to the child pursuant to DNA testing. B. The applicant was awarded sole custody of the child. C. The respondent to pay child support in the amount of $295 per month, effective February 1, 2009, based on respondent’s stated annual income of $32,201.44. [ 8 ] At the commencement of the trial the parties agreed to a final order of granting sole custody of the child to the Applicant. The Respondent stated that he did not wish to exercise any access to his son.

The Applicant was seeking an order for child support retroactive to December 1, 2004 and extraordinary child expenses to be shared proportionately effective December 1, 2010. II. Background Facts [ 9 ] Vera Mani and Peter Tashos met in 1990. She was 25 years old and he was 38. They never lived together. They had a casual relationship, primarily sexual in nature over the course of six years. They did not practice ‘safe sex’ as Ms. Mani believed, on medical advice, that it was unlikely that she could conceive. To her surprise she became pregnant in 1996. Their son, Adam Jeffrey Mani was born November 19, 1996. A.

Ms. Vera Mani [ 10 ] When Ms. Mani met Mr. Tashos she was working as a supply teacher and as a manager of a night club in the evening. [ 11 ] Ms. Mani testified that her six-year relationship with Mr. Tashos was not a committed but a casual one characterized by occasional sexual relations. Initially, they would meet for sex on a sporadic, perhaps monthly basis, after their respective work in the evenings. In the year prior to becoming pregnant, Ms. Mani stated that she and Mr. Tashos had sex perhaps every two weeks. Ms. Mani was not interested in establishing a long term relationship with Mr. Tashos.

She was aware that Mr. Tashos was involved concurrently in sexual relationships with other women, including two of her acquaintances. They never discussed whether she was seeing other men. [ 12 ] Ms. Mani testified that upon learning that she was pregnant she advised Mr. Tashos. She described him as being ambivalent about the pregnancy. [ 13 ] Although she believed Mr. Tashos to be the father, Ms. Mani never requested any support, emotional or financial, from Mr. Tashos during the pregnancy or after the child’s birth until she filed her Application in December 2007. Following Adam’s birth, Ms.

Mani testified that she decided she could manage on her own. [ 14 ] In 1998, Ms. Mani, accompanied by her friend Colleen Bannon, took Adam, then age 2, to lunch at the Wild Goose - a bar where Mr. Tashos was working as a manager. Ms. Bannon, who testified at trial, noted that Mr. Tashos did not recognize Ms. Mani until she spoke to him. As they were leaving, Mr. Tashos commented to Ms. Mani on how well she looked. In response, Ms. Mani made a comment to the effect that Mr. Tashos ought not to be looking at her but at their son. No other conversation took place about Adam. Ms.

Mani made no request for support nor did she make any request to meet Mr. Tashos to discuss their son. Ms. Mani testified that the reason she took Adam to the bar that day was to allow her at some point in the future to tell Adam that he had met his father. [ 15 ] Ms. Mani’s mother became ill in 2003. Over the course of the following four years, until her mother’s death, Ms. Mani was the primary caregiver for her mother. Ms. Mani testified that her mother had often admonished her to seek child support for Adam. To honour that direction, Ms.

Mani determined to seek child support for Adam, following her mother’s death in 2007. [ 16 ] Ms. Mani resides with her son in a residence that was purchased by her father. She provides funds for her father to pay for the maintenance and the property taxes for the residence. [ 17 ] In 2009, Ms. Mani earned an income of $70, 832. On January 26, 2010, Ms. Mani was offered a different job within that same company. When she refused to take the position offered, she was terminated from her employment on January 28, 2010. She was

offered a severance payment of $5,214.77. As she was not satisfied with that severance, Ms. Mani had initiated a claim against her former employer. That claim had not been resolved. [ 18 ] After a short period in which she was in receipt of employment insurance benefits, Ms. Mani secured new employment. The terms of her contract provide her with a base salary of $800 per week plus a commission on sales. Ms.

Mani projects that she will earn approximately $52,000 a year at her new employment. [ 19 ] At the adjournment of the trial on June 3, 2010, the parties were ordered to file updated financial statements by October 15, 2010. The Applicant filed her statement on November 1, 2010 on the resumption of the trial. Ms. Mani noted extraordinary expenses for Adam in the amounts of $1500 per annum for soccer, $1200 per annum for prescription medicine and $1080 for summer camp. [ 20 ] In her financial statement, Ms. Mani claimed expenses of $58,300 on an income of $44,158.

She testified that she was able to fund this deficit on the basis of a line of credit in the amount of $35,000. B. Peter Tashos [ 21 ] Prior to meeting Ms. Mani, Mr. Tashos had been married and divorced. From that relationship he had two sons, aged 30 and 28 at the time of trial. While obliged to, Mr. Tashos had paid child support for these children, without default, based on an annual income of $52,000 as a manager of a pub at the time of the support arrangement. [ 22 ] Mr. Tashos confirmed the casual sexual relationship with Ms. Mani. He denied knowing of Ms.

Mani’s pregnancy or that he was alleged to be the father. He stated that he last saw Ms. Mani about 12 years ago and that following the termination of their relationship he had no further involvement with her. When asked by his counsel as to whether he remembered the meeting at the Wild Goose bar as described by Ms. Mani and her friend, Mr. Tashos replied “not to my knowledge”. During his testimony Mr. Tashos used that phrase repeatedly in answer to questions from his own counsel and Ms. Mani’s counsel. [ 23 ] Mr.

Tashos testified that prior to December 13, 2007 he had never received any request, orally or in writing, to provide child support for Adam. He confirmed that upon receipt of Ms. Mani’s application he denied paternity but that following DNA analysis it was established that he was Adam’s father. [ 24 ] As it was established that he was Adam’s father, Mr. Tashos understood that he was obligated to pay child support. However he stated that he had no interest in establishing a relationship with his son. [ 25 ] Shortly after the conclusion of his relationship with Ms. Mani, Mr. Tashos met his present wife, Sharon.

They subsequently married eight year ago. His wife has two children from a previous marriage, aged 25 and 23 at the time of trial. Those children lived with Mr. Tashos and his wife until they graduated. Mr. Tashos testified that his wife previously earned an income of approximately $100,000 selling electrical components but that she had recently taken new employment earning only $50,000 a year. [ 26 ] Mr. Tashos testified that he has been in the hospitality business since leaving university. Initially he was a 1/3 manager of a restaurant-bar known as Shambles.

His father owned the remaining two-thirds of that business. Mr. Tashos had invested $10,000 for his 1/3 share. Upon subsequent sale of the business he received $110,000. Mr. Tashos had worked as a manager at this facility, earning $52,000 in 1986. It was on the basis of that income that Mr. Tashos paid child support for the children of his original marriage. [ 27 ] Following the sale of Shambles, Mr. Tashos invested the proceeds of that sale to become a one-third share holder in the Union Street Brew Pub. His father took one-third interest in the business as well. When that business was subsequently sold, Mr.

Tashos and his father each received approximately $135,000. They, in turn, invested that money to each purchase a one-third interest in the Wild Goose Pub where Mr. Tashos continued to be employed, as a manger, at the time of trial. [ 28 ] Subsequent to the purchase of the Wild Goose Pub, Mr. Tashos lost all his assets, including his share in the business, as a result of bankruptcy proceedings. His father and the other shareholder purchased Mr. Tashos’s one-third interest in the Wild Goose.

He was discharged from bankruptcy in 2004 having paid $15,000 and $1,500 interest over the course of a four-year period. [ 29 ] Mr. Tashos testified that despite the fact that he no longer has any ownership interest in the Wild Goose Pub and is employed as only as a manager, he has signing authority on the corporation’s bank account. He claims that he works approximately 45 hours a week for which he is paid a net weekly salary of $500. He stated that, as a manager, he does not receive any tips nor does he share in a tip pool with the other servers. Mr.

Tashos claimed to be earning $32,000 a year; $20,000 less than he was earning as a manager 25years ago at Shambles. He has never looked for any other employment. [ 30 ] Justice Cohen ordered temporary child support, on February 4, 2009, in the amount of $295 per month based on Mr. Tashos’ sworn financial statement claiming an income of $32,210.44. To satisfy the support deduction order made by Justice Cohen, Mr. Tashos’ father pays the Family Responsibility Office the monthly amount by cheque. No documentation was provided to establish that this monthly payment was deducted from Mr.

Tashos’ employment income. [ 31 ] At his questioning on April 30, 2009, Mr. Tashos undertook to provide the number of his bank account and twelve months of bank statements. As well, he undertook to provide a copy of the loan application for his car loan and copies of his Visa statements. None of this disclosure was provided to the Applicant. [ 32 ] Mr. Tashos and his wife reside in a 3200 square foot house in Oakville, Ontario. The house is owned by Mr. Tashos’ father and mother. Mr.

Tashos testified that he and his wife pay the taxes on the house, $6,823, and other maintenance expenses, by deposit directly into a bank account in his parents’ name. No documentation was filed to verify this statement. Initially in his evidence, Mr. Tashos stated that he was not sure whether these payments were made in cash or by cheque. When reminded that he testified, under questioning on April 30, 2009, that these payments were made in cash, Mr. Tashos stated that all these bills are in fact paid in cash. Despite claiming to pay the property taxes for the house in which he and his wife reside, Mr.

Tashos testified that he has no idea of the

value of the house. [ 33 ] Following determination of paternity, Justice Cohen ordered Mr. Tashos to pay $300 in costs to Ms. Mani on December 8, 2009. Mr. Tashos had not satisfied that court order at the time of his testimony. C. Adam Jeffrey Mani [ 34 ] Ms. Mani testified that Adam was a grade eight student with a 75% average. Earlier in his education he had been diagnosed as suffering from Attention Deficit Hyper-Active Disorder and provided with an individual education plan. [ 35 ] Ms. Mani described Adam as generally polite to others.

However, he becomes angry easily and at times can be defiant and oppositional. To address those issues, Ms. Mani took Adam to a psychiatrist in 2007. She was told by the psychiatrist that Adam does not suffer from ADHD nor does he have any other learning disability. To assist Adam in socializing with others he was prescribed Concerta, at a cost of $105 per month, and referred to the Kinnark Centre in Newmarket, Ontario. Ms. Mani arranged for Adam’s attendance at Kinnark. [ 36 ] Adam plays competitive soccer at an annual cost of $1500 and attends camp in the summer at a cost of $1080. Ms.

Mani was paying the cost of Adam’s medication, soccer and camp without contribution from Mr. Tashos. III. THE ISSUES [ 37 ] The issues that remain to be determined are : A. Whether a child support order ought to be made effective retroactive to the date of Ms. Mani’s application, B. Whether Mr. Tashos’ child support obligation ought to be based on his gross income as claimed in his financial statements or an imputed income as claimed by Ms. Mani, C. Whether Mr. Tashos ought to contribute to extraordinary or special expenses for their son Adam. IV. ANALYSIS A.

Retroactive Child Support [ 38 ] Child support, generally, takes effect from the date of the application or from the date of the request for support. As noted previously, Justice Cohen, on December 8, 2008, ruled that Ms. Mani’s claim for retroactive child support would be limited to December 2004, three years prior to the date of Ms. Mani’s originating Application in December 2007. [ 39 ] Ms. Mani testified that upon Adam’s birth, she decided that she could raise Adam without the financial or emotional support of Mr. Tashos.

She acknowledged that prior to initiating her Application before the court, she had never sought financial support in any manner for Adam from Mr. Tashos. [ 40 ] When she took Adam at the age of two to the Wild Goose pub, it was not to seek any involvement in the child’s life from Mr. Tashos. It was to allow her to tell Adam, at some point in his future, that he had in fact met his father on one occasion. Adam would, of course, have no memory of any such encounter. Ms. Mani made no request for support of any kind from Mr. Tashos. Nor did she make any request to meet Mr.

Tashos to discuss the welfare of their son. [ 41 ] Ms. Mani’s decision to initiate her claim for child support was occasioned by the death of her mother in 2007. Her mother had admonished Ms. Mani to seek support for Adam and it was to honour that request that Ms. Mani initiated this Application. [ 42 ] Mr. Tashos testified that he had no recollection of meeting Ms. Mani at the Wild Goose twelve years earlier. Given the very brief nature of that encounter, as described by both Ms. Mani and her friend Ms. Bannon, it is understandable that he might not remember that event. [ 43 ] Ms.

Mani acknowledged that there was no financial issue that prevented her from initiating a claim for support prior to 2007. She testified that she was not prevented from initiating such a claim as a result of being fearful or intimidated by Mr. Tashos. Ms. Mani provided no evidence that it was necessary for her to encroach on her capital or incur debt to meet child rearing expenses prior to December 2007. [ 44 ] Given Ms. Mani’s determination to not seek any form of support from Mr.

Tashos and the fact that her first notice to him of her claim for child support occurred only with the initiation of this Application, the law does not support her claim for retroactive child support. [ 45 ] Mr. Tashos shall pay child support for Adam effective as of December 1, 2007, the month in which Ms. Mani’s application was commenced. B. Quantum of Child Support [ 46 ] The Federal Child Support Guidelines stipulate a presumptive monthly support payment to be calculated on the basis of the payor’s gross annual income.

Should the payee wish the Court to impute an annual income greater than that declared by the payor, the onus is on the payee to establish the relevant income figure for the purpose of the table calculations. [ 47 ]

Section 19 of the Guidelines allows the Court to impute such amount of income to a parent as it considers appropriate. A number of circumstances allowing for the imputing of income are itemized in this section. For the purposes of this trial the two relevant provisions of

section 19 are:

(

a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employed or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse; (

e) the parent or spouse has failed to provide income information when under a legal obligation to do so; [ 48 ] The words “intentionally underemployment” in

section 19(

a) has been the subject of review by the Ontario Court of Appeal in the case of Drygala v. Pauli (2002) 219 D.L.R . ( 14 th ) 319 (Ont. C.A.). Gilles, J. A. stated in paragraph 28 of his judgment: “Read in context and given its ordinary meaning, intentionally means a voluntary act. The parent required to pay is intentionally underemployed if that parent chooses to earn less than he or she is capable of earning. The parent is intentionally unemployed when he or she chooses not to work when capable of earning an income .” In Paragraph 29, Justice Gilles notes that there is no requirement of bad faith in

section 19 (a). In Paragraph 32, Justice Gilles States: “Imputing income is one method by which the Court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning .” [ 49 ] Mr. Tashos acknowledged that he agreed to pay child support to his first wife, following their separation, based on the income that he was earning in 1986 of $52,000 per annum as manager of the Shambles bar. On February 4, 2009, Mr.

Tashos consented to an order of temporary child support in the amount of $295 per month based on an annual income of $32,201.44. In his sworn financial statement, dated October 12, 2010, Mr. Tashos claimed an annual income of $32,000. His position at trial was that he was prepared to continue to pay child support in the amount of $295 per month, as ordered on February 4, 2009. As noted previously, those child support payments were in fact being paid by Mr. Tashos’ father by monthly cheque to the Family Responsibility Office.

No documentation was provided to establish that those support payments were being deducted from Mr. Tashos’ employment income. [ 50 ] On April 30, 2009, Mr. Tashos undertook to provide financial disclosure including his bank account, twelve months of bank statements, copies of his Visa statements and a copy of his application for his car loan. None of the disclosure has ever been provided to Ms. Mani nor was it filed with the court at trial. [ 51 ] Mr.

Tashos was evasive in his testimony as it pertained to the manner in which he paid his parents for the taxes and maintenance of the spacious home that he shared rent free with his wife in Oakville, Ontario. Under cross-examination, he was forced to acknowledge that these payments were made in cash to his mother’s account. No documentation was provided to establish the quantum or frequency of these payments. This evidence, viewed in the context that Mr.

Tashos insisted that he did not receive any tips from his employment at the Wild Goose, was simply not credible. [ 52 ] While claiming to earn $20,000 less than he did in 1986, employed in the same position as a manger of a pub, Mr. Tashos acknowledged that he has never sought any other employment. Even if I was to believe that he earns only $32,000 a year, which I do not, Mr. Tashos has no incentive to seek more remunerative employment. He and his wife live rent free in a spacious home, owned by his parents and his father pays his child support obligation. [ 53 ] Mr.

Tashos has failed to make full financial disclosure. His evidence on the issue of his finances lacks credibility. Taken at its best, Mr. Tashos’ evidence would establish that he is deliberately under employed. On that basis I am satisfied that I must impute an income for Mr. Tashos in order to determine an appropriate quantum of child support. [ 54 ] Due to Mr. Tashos’ failure to provide adequate financial disclosure, Mr. Herszkopf found it difficult to advocate an appropriate quantum of income to be imputed to Mr. Tashos. He was left to argue that the court ought to fix an amount reflecting Mr.

Tashos’ experience in the business and the increase in the cost of living using a base of $52,000 earned by Mr. Tashos in 1986. Reference to the Cost of Living Index for Canada for the period 1986 to 2010 reveals that an income of $52,000 in 1986 would be in excess of $90,000 in 2010. While I find it inviting to impute income at that level, particularly given the lifestyle that Mr. Tashos and his wife enjoy, I am mindful that the hospitality industry was affected by the recent economic recession. In the exercise of my discretion, I believe that imputing an income to Mr.

Tashos in the amount of $65,000 per annum would be fair, even generous, to him. Applying the Federal Child Support Guidelines, an income of $65,000 per year requires Mr. Tashos to pay $601 per month base support. C. Special or Extraordinary Expenses [ 55 ]

Section 7 of the Federal Child Support Guidelines provides: 7. (1)In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under

section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation: (

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. O. Reg. 391/97, s. 7 (1) ; O. Reg. 446/01, s.2. Definition, “extraordinary expenses”

(1.1) For the purposes of clauses (1) (

d) and (f),“extraordinary expenses” means (

a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or (

b) where clause (

a) is not applicable, expenses that the court considers are extraordinary taking into account, (

i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child, (iv) the overall cost of the programs and activities, and (

v) any other similar factors that the court considers relevant. O. Reg. 102/06, s. 1. [ 56 ] Ms. Mani seeks a proportionate share of the following expenses for Adam: a) $1200 a year for Adam’s prescribed medication b) $1500 a year for Adam’s soccer fees. c) $1080 a year for Adam’s attendance at summer camp. [ 57 ] Clearly the cost of Adam’s medication is contemplated by

section 7 of the Guidelines. Any such medical expense not covered by a health plan received as a benefit of employment by either parent shall be shared by the parents in proportion to their income. [ 58 ] Given that Adam requires assistance in developing social skills and the parents respective incomes, I find that the expenses for both soccer and summer camp as claimed by Ms. Mani, are reasonable. These expenses shall also be shared by the parents in proportion to their income. [ 59 ] If in fact, Ms. Mani is earning what she expected, $52,000 a year, I calculate Mr. Tashos’ share of the ordered

section 7 expenses would be $55% and Ms. Mani’s share would be 45%. Any variance, based on Ms. Mani’s actual income, may be varied by negotiation through counsel. IV. FINDINGS [ 60 ] Ms. Mani shall have sole custody of the child, Adam Jeffrey Mani, born November 19, 1996. [ 61 ] Given Mr. Tashos’ regrettable decision not to participate in his son’s life, there shall be no order as to access. [ 62 ] Mr. Tashos shall pay child support for his son in the amount of $601 per month, effective December 1, 2007, based on an imputed income of $65,000. [ 63 ] Mr. Tashos and Ms.

Mani shall share the expenses for Adam’s medication, soccer, and summer camp, in proportion to their respective incomes, effective December 1, 2010. [ 64 ] For as long as Mr. Tashos is obliged to pay child support, he and Ms. Mani shall exchange financial disclosure by June 1st of each year, commencing June 1, 2012, to calculate any variation in the quantum of child support and proportionate sharing of

section 7 expenses.

[ 65 ] Should Mr. Tashos wish to initiate a motion to vary the quantum of child support based on a claim that he earns less than $65,000 per year, he must first seek leave of the court and append a copy of this judgment to his motion to seek leave. [ 66 ] The parties may address the issue of costs, in writing, not to exceed five pages, within 60 days of the issue of this judgment. Released on 10 May 2011 ____________________________ Signed: Justice Brian M. Scully