INTRODUCTION

The decision in Cirota v. Cirota had Justice Horkins address imputing income on a father for a potential lump sum child support payment. The lump sum was ordered because the court decided that the father was unlikely to make periodic payments in the circumstances. The court also addressed other financial issues including spousal support and occupation rent.

BACKGROUND

Mr. Cirota and Ms. Cirota had three children and separated in July of 2022.

Prior to separation, Mr. Cirota seldom helped care for the children, and knew little information regarding their health and education when cross examined. After separation, he lived in the matrimonial home alone and required two court orders to pay child support. This child support was only paid after the home was sold. Around this time, Mr. Cirota stopped working after his business began to struggle.

Mr. Cirota later moved to Italy and had little contact with the children, speaking on the phone only once. After returning to Canada, Mr. Cirota had three visits with the children before unilaterally cancelling them.

Regarding financial issues, at trial, Mr. Cirota sought spousal support and various monetary reliefs. Ms. Cirota sought a lump sum child support payment and occupation rent.

ANALYSIS

Regarding the financial issues, Justice Horkins first addressed the concept of imputing income. Justice Horkins followed previous case law that essentially asked whether a party was intentionally under or unemployed. In this case, Mr. Cirota failed to comply with the Family Law Rules by not providing financial disclosure. Mr. Cirota’s work history showed he had previously made relatively large incomes through his construction business but chose to quit when it grew unsuccessful. Mr. Cirota later said he could not work because of a sore back but provided no medical documentation to support this. As such, Justice Horkins concluded that Mr. Cirota could work, but was choosing not to, and imputed an income of $100,000.

With an imputed income, Ms. Cirota asked the court to award a lump sum payment for child support. To address this, Justice Horkins examined the circumstances of the case. More specifically, that Mr. Cirota already owed Ms. Cirota for retroactive child support, and there was a real risk that periodic payments would not be made, particularly after Mr. Cirota returned to Italy. As such, Justice Horkins ordered that a lump sum child support payment should be made from Mr. Cirota’s share of the net sale proceeds of the matrimonial home.

In response, Mr. Cirota requested spousal support. However, he could not prove entitlement and as a result, no support was awarded. More specifically, Ms. Cirota noted that her friends and family helped Mr. Cirota develop the skills necessary to open his construction business and supported him as a new immigrant to Canada. Likewise, the court had already established that Mr. Cirota was able to earn an income, likely even higher than what was imputed, but chose not to. Thus, Mr. Cirota failed to establish compensatory or non-compensatory support. Mr. Cirota also requested further money for claims such as ‘damage to the children’s mental health’ or the full net proceeds from the sale of the matrimonial home but failed for having no basis to the claims.

A final financial issue addressed in the case was occupation rent. Ms. Cirota sought occupation rent from Mr. Cirota for the time he spent living in the matrimonial home alone, while she paid the mortgage and taxes. Here, the court followed previous case law that examined factors such as whether the occupying spouse failed to pay support or paid the mortgage and other charges. This was the case here, and when Ms. Cirota tried to move back in the home with the children, Mr. Cirota refused. Thus, Justice Horkins also ordered occupation rent.

CONCLUSION

The court in Cirota v. Cirota presents an example of when a court is willing to impute income, particularly for a lump sum child support payment. Likewise, the court addresses when to order occupation rent. The party here failed to meet their financial disclosure requirements, was not reasonably unemployed, and unlikely to make periodic payments. The party also lived in the matrimonial home alone, without making any payments. As such, this case reflects how the court will ensure that all payment responsibilities by the payor parent will be met.