Aliyeva v. Aliyev


Asiya Aliyeva, Applicant and Seymur Aliyev, Respondent


Ontario Superior Court of Justice


H. McGee J.


Heard: December 15, 2010

Judgment: December 17, 2010

Docket: FC-10-035869



Counsel:


J.P. Schuman, for Applicant


A. Koren, for Respondent



H. McGee J.:


1        Counsel for each of the Applicant Mother and the Respondent Father scheduled a lengthy motion to be heard in Newmarket on Wednesday, December 15th, 2010. Counsel filed confirmations indicating that the matters heard together would take 60 minutes. After the first hour it was well apparent that this estimate was grossly in error.


2        Since this Application was issued on July 12, 2010, it has grown to five volumes in the Continuing Record, four of which are dedicated to this motion and its predecessor urgent motion brought by the mother. That urgent motion was brought by the mother for October 1st, prior to the case conference. It was agreed that the motion would be adjourned to the case conference on October 25th, then to today's hearing.


3        The father issued his motion on November 30, 2010. Cumulatively, the motions contained 27 heads of relief sought, including relief sought by the father that is not available on a temporary motion.


4        The parties are respectively 34 and 38 years of age. They are relatively recent immigrants to Canada who have invested heavily in real estate both in and out of this country. They carry much debt. The mother does not work outside the home, but does receive rental income from a property in her name in Moscow. She shows this on her July 12, 2010 Financial Statement as "Gifts from parents and/or rental income from Moscow property."


5        The father reported Canadian income of $92,918.57 in 2009; as well as rental income of $18,195, discounted to $1,280 for tax purposes. His Financial Statement sworn September 1, 2010 states that he is employed by Ruokolahden Linna OY in Finland and has earned in $73,653 in 2010 (converted to CAD.) He claims in his affidavit materials that his employment contract ends this month. The father was not present for the motion and his counsel advises that he is in Finland - not returning until next week.


6        Neither the mother nor the father placed current Financial Statements before the Court.


7        The mother and father are parents to Javid and Talat ages 14 and 11. I heard very little about the children in the course of this motion and suspect that their interests have been lost in the course of their parents' conflict. The children are primarily resident with the mother in the former matrimonial home.


Custody and Access


8        The mother is not seeking any order respecting the children today. The father seeks an order for custody of the children despite the fact that he has been out of the country for most of this year. On November 8, 2010 he was charged by the York Regional Police with mischief per section 430(4) of the Criminal Code. He is on terms of recognizance that prohibit him from residing at the home or communicating with the Applicant.


9        In submissions, his counsel does not refer to the relief sought of custody, but rather seeks an order that he have the children on alternating weeks in the home. In the alternative to that, she asks for an access schedule. This issue, perhaps the most important of the initial issues facing this family was raised at the end of submissions, past the usual time for court sitting. It is simply beyond the scope of this motion as it was scheduled by counsel. I have asked counsel to engage a mediator, or parenting coordinator to assist, once the father has returned to Canada.


10        I make no order today with respect to custody or access, but to confirm that the children are primarily resident with their mother.


Sale of the Home


11        Father's counsel is passionate in her submissions that the home must be sold and seeks an order accordingly. I decline to make such an order at such an early stage; particularly the week before Christmas when the husband is not even in the country to attend to the necessary planning for a sale which will dispose of his children's home. There are two other Canadian homes and four properties outside of Canada that could be sold, should it indeed prove as necessary reduce debt as counsel claims.


Exclusive Possession of the Home


12        Mother seeks an order for exclusive possession as a barrier to the father's claim for a sale of the home. This is a misperception of the law in that an order for exclusive possession is not fatal to an order for the sale of the property.


13        Nonetheless, I will grant the mother temporary exclusive possession until:


a. The terms of recognizance no longer prohibit the Father from attending at the home; and


b. Further order of this Court


14        I do so to prevent the children witnessing any further conflict and to prevent the situation escalating over the short term. This order is without prejudice to the father's claim to sell the home, which is to be considered on its own merits once the parties respective financial circumstances have settled and more information is known.


Questioning


15        The parties agree to an order for Questioning and it is sorely needed. To date it appears that the only exchanges of information have been through motion records. Each party is to serve an Affidavit of Documents, 14 days prior to the scheduled questioning. No further steps in this proceeding may be taken until the Questioning is complete or counsel agrees in writing to waive this requirement.


Financial Means of the Parties


16        Mother's counsel seeks to persuade me that the father has income for support purposes in the range of $345,674. He calculates this by adding the father's 2009 taxable income of $92,918.57 to an analysis of average monies spent in 2007 and 2008, automatically grossed up. His analysis is problematic: the periods do not match, some transfers may relate to a former business, and some transfers may relate to capital. I do not accept this income calculation.


17        I note that counsel only sought support on an imputed income of $186,598 within his October 1, 2010 Notice of Motion.


18        Father's counsel presses me to find that the father has no current income. I also decline to make that finding. It simply lacks the ring of truth. Moreover, the father cannot seek such a finding when his only sworn Financial Statement shows pre-tax income of $73,653 and after-tax expenses of $98,759. His 2009 Income Tax Return shows Line 150 income of $92,918.57 and rental income of $18,195 reduced for tax purposes to $1,280.


19        If I am wrong in this, then I impute to the father per section 19 of the Federal Child Support Guidelines a continuation of the income available to him during this prior year. He claims to have had notice since March 2010 that his contract is ending. He has had sufficient time to negotiate a further contract or obtain replacement income and he has an obligation to do so.


20        If I accept the father's evidence that he has $98,759 in annual after tax expenses and gross up this amount to reflect pre-tax income, his obligations for temporary support would be based on income of $152,695. Such an approach also has its limitations. I received no evidence on the taxable (if any) aspect of income from Finland - the father is currently paid in Euros. Some of the expenses may be necessary to earn that income, such as flights to and from Finland. The amount does not include rental property income which will include income from other jurisdictions in which differentiate tax treatments.


21        Temporary orders are not intended to be perfect. Rather, their purpose is to stabilize a situation, provide certainty and relieve hardship. In considering the lifestyle of the parties prior to marriage breakdown, their current level of debt, their assets and their respective evidence as to income, I find that the best approach is to gross up the after tax expenses of the father, resulting in an income of $152,694 per annum.


Child Support


22        On income of $152,694 the table child support is $2,023. Order to go that the father shall pay this amount commencing January 1, 2011. I decline to make a retroactive order given that the monies paid to date are consistent with the monies payable per this order.


Spousal Support


23        With respect to spousal support, I have included the mother's non-taxable rental income of $1,500 per month and grossed up this amount. The resulting range within the SSAG is 1,259 to $1,765 per month. Combined with child support, the ranges are $3,282 to $3,788.


24        I asked counsel to calculate the actual expenses currently being paid by the father for household and other expenses that benefit the mother and children. Within a range of $200 counsel have agreed that this monthly amount is $3,273.13. To his credit the father has also been providing $1,000 per month to the mother directly. Thus the actual amount (net of tax) being paid by the father is $4,273 per month: $485 per month more than the high range of taxable spousal support and table child support.


25        I order that the father shall pay the amount of $2,250 in spousal support, commencing January 1, 2011. I decline to make a retroactive order given that the monies paid to date are consistent with the monies payable per this order


26        This amount is in excess of the high table amount to reflect the fact that the mother must pay from her support the amount of $2,142.62 in housing expenses (mortgage, taxes, insurance) per month during this interim period while she has possession of the home. In making the household payments she will be benefitting the husband indirectly as she is maintaining a jointly held asset while reducing a joint debt.


Household Expenses


27        I order that commencing January 1, 2011 the mother shall be responsible for all the household costs for 38 Paperbark Avenue, except for maintenance costs of over $1,500 which are to be paid equally by the parties upon consent. For greater certainty, she is to pay the expenses set out in counsel's list of expenses which I have marked and attached to this endorsement as Schedule A. The parties are to fully cooperate in arranging for payment of the mortgage, insurance and utilities which may be in one or the other's name.


Next Attendance - Settlement Conference


28        The parties are to schedule a Settlement Conference once the Questioning is complete; they have exchanged their respective briefs and Offers to Settle. Each must attach a current Financial Statement (within 30 days) to their Settlement Conference Brief.


Interim Disbursements


29        I decline to make an order at this time. The father does not have sufficient funds from which to make a payment and the mother owns properties which can be sold to assist her in bearing the costs of this proceeding. Proportionality is an important principle in family law. The amount sought does not appear at this stage to be proportionate to the issues outstanding. Both parties must be more careful with their litigation budgets which to date, I expect, are well in excess of their means.


Costs


30        Each party to provide costs submissions by January 14, 2011 within 30 days, not to be more than 2 pages in length, exclusive of Offers to Settle and Bills of Costs.


Balance Dismissed


31        The balance of relief sought in the Motions dated October 1, 2010 and November 30, 2010 is dismissed.


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