In this case, the parties were married in 2008 and separated in either 2018 or 2019. They had two children aged 13 and 12, and the father was also supporting two university age children from a previous marriage.
During the marriage, the mother operated a home-renovation business which became the subject of a reality TV show. She eventually gave up this job to be a stay-at-home mother.
The father originally worked in upper management at an international bank in Toronto. He is a high-income earner, earning about $300,000.00 when married, and about $900,000.00 when the parties separated. Because of his high-income, the parties lived a luxurious life.
After the parties had separated, the bank was sold which resulted in a career choice for the father: (1) accept a transfer to New York which provided an increase in potential income, or (2) accept a job in Toronto at a much lower pay scale without any guarantee of bonuses. The father chose option (1) as there was a risk that the position offered in Toronto was soon to be made redundant.
The issues in this motion were to address the mother’s requests for the following:
- A temporary order for decision-making regarding the children’s education (more specifically, the mother wanted the authority to withdraw her son from the local public school he was attending and instead enrol him in a specific private school),
- An increase of monthly child and spousal support, and
- An order for production of the text messages between the father and the mother’s ex-boyfriend.
On the topic of decision making, the court noted that the topic of private schooling generally blends the issues of decision-making and support as it is a topic usually introduced by a party seeking the other party’s financial contribution to the annual fees as a special or extraordinary expense under section 7 of the Child Support Guidelines.
The mother suggested the reasoning for enrolling her son in private school was to ensure he had the proper educational aids for his dyslexia and to have his athletic recreations in the same organization. The court was unconvinced by her reasoning upon discovery that the school had not accepted the son for enrollment, there was a lack of evidence demonstrating the private school was better suited than any other school (private or public) to address his educational needs, and that enrolling him in the selected private school entailed withdrawing him from his existing sports team.
The court found that this evidence revealed poor decision-making by the mother, and that enrolling him in the specific private school she selected was not in her son’s best interests.
The court then turned to the issue of support as the mother was requesting an increase of monthly child and spousal support whereas the father proposed that he continue providing $15,000.00 as he had voluntarily been doing, and to have the court devise a formula to account for his bonuses once they had been fully declared and paid.
The court found that based on the table amount of child support and the corresponding SSAG range for spousal support, the father’s voluntary payments of $15,000.00 equated to an upper-middle level of spousal support – in fact, the court noted that if the parties both resided in and paid taxes in Canada, this would actually be an overpayment. Therefore, the court declined to order the base amounts of child and spousal support holding that the issue was only to be revisited if the father were to either reduce or stop providing his voluntary payments.
On the issue of the father’s income bonus, the court declined to order a percentage of the bonus as spousal support as they equated such an order to be income splitting. The court nevertheless stated that the father is to disclose any bonus earned in 2022 or 2023 and seek proper legal advice to confirm whether he should make a further support contribution to the mother.
Finally, the court addressed the mother’s concerns regarding the text messages between the father and her ex-boyfriend. She believed the father was colluding with her ex-boyfriend to create “false evidence” to make her appear unfit to look after the children, and subsequently impact the courts decision regarding a decision-making order that is in the best interests of the children. Despite the court considering the possible relevance of the text messages, they struggled to see their importance as the mother was primarily seeking production of same to confirm her low opinion of the father. The court held that compelling production of these text messages would invite widening discovery into everything the parties might communicate to others, and in effort to ensure this did not occur, they exercised their discretion not to order production.
In summary, the court found the father had demonstrated his voluntary support payments were likely to be more than enough and maintained the mother and children’s level of relative affluence. The mother failed to justify ordering temporary decision-making authority to allow her to enrol her son in the private school of her choice as this decision did not appear to be in the son’s best interest. She also failed to establish the existing voluntary monthly support payments being provided by the father were lower than what the court could award, and subsequently failed to justify the increase in support she was seeking. Finally, the production of text messages sought by the mother was not justified by any purpose. For these reasons, the court dismissed the motion in its entirety.