Bonilla v Martinez-Lopez, 2011 ONCJ 649

Toronto (North York Registry) No. D50069/10 DATE: 18·V·2011 CITATION: Bonilla v Martinez-Lopez, 2011 ONCJ 649 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) IVANIA BONILLA ) ) ) Paulina Sbrocchi, agent for the City of Toronto, assisting the APPLICANT ) APPLICANT ) ) - and - ) ) MANUEL MARTINEZ-LOPEZ RESPONDENT ) Jarvis Y. Ortega, for the RESPONDENT ) ) ) ) ) ) ) ) HEARD: APRIL 13, 2011 JUSTICE S.B.

SHERR REASONS FOR DECISION Part One - Introduction [ 1 ] The applicant (the mother) and the City of Toronto, which has an interest in this matter arising out of an assignment of support executed by the mother, seek an order that the respondent (the father) pay the mother child and spousal support. They are asking the court to find that the father’s income is $75,978 annually and to calculate his support obligations on this basis from March 1, 2010. [ 2 ] The father states that he is willing to pay child support based on an annual income of $40,000 on an ongoing basis.

He opposes the mother’s request for spousal support as well as her request to start the support order on March 1, 2010. [ 3 ] The issues for this court to decide are:

a) What is the father’s income for support purposes?

b) What are the father’s child support obligations?

c) Is the mother entitled to spousal support?

d) If the mother is entitled to spousal support, what should be the amount and duration of the award?

e) What is the appropriate start date for the support order? [ 4 ] Only the parties testified at the trial of this matter. Part Two – Factual background [ 5 ] The mother is 45 years old. She was born in Nicaragua and came to live in Canada in 1990. She began living with the father in November of 1991. They were married on February 15, 1992. [ 6 ] The father is 53 years old. He has been living in Toronto since 1990. [ 7 ] The parties have two children, Tanisha, age 18, and Aislinn, age 14. [ 8 ] The mother has a grade 10 education, no additional skills training and speaks English poorly.

She required an interpreter during the trial. The mother worked as a cleaner at a hospital from 1992-1996. On agreement of the parties, the mother left the workforce and stayed at home after Aislinn was born. With the exception of doing some minimal part-time work as a lunch supervisor at Tanisha’s school during 2005-2006, she has not worked since that time. [ 9 ] The father has steadily worked in the construction field for many years. [ 10 ] The parties had a traditional marriage. The mother stayed at home and assumed primary responsibility for child-care and for managing the household.

The father worked long hours and supported the family. [ 11 ] The mother and the children were completely financially dependent on the father. [ 12 ] The parties separated in August of 2009 after the mother found the father with another woman. [ 13 ] The separation had a devastating financial effect on the mother. The family had lived a comfortable lifestyle. This all changed. The father chose to provide no support to the mother. The mother had to turn to social assistance and food banks to survive. She described in tears how she had to beg family and friends for money.

She remains on social assistance and is currently attending school taking courses in English as a second language (ESL). [ 14 ] Both children initially stayed with the mother after the separation. Shortly after, Tanisha went to live with her father. The mother said that when she asked Tanisha why she wanted to do this, Tanisha answered, “because with Dad I will have everything, and with you I will have nothing”. [ 15 ] The mother commenced this court action on January 14, 2010.

On April 27, 2010, the parties consented to a temporary order that the father pay the mother $601 per month for child support, based on the father’s stated income of $65,000 per annum, starting on May 1, 2010. The spousal support issue was deferred. [ 16 ] Tanisha returned to live with her mother in September of 2010. Both children have lived with her since then. Tanisha is in grade 12 and in full-time attendance at school. She plans to go to university in the fall.

The mother stated that Tanisha will work at a camp this summer. [ 17 ] At a contested temporary motion on November 24, 2010, the father was ordered to pay temporary child support of $972 per month (for both children) and spousal support of $900 per month starting on October 1, 2010. Again, this was based on his stated income of $65,000 per annum. [ 18 ] The father’s T4 for 2010 indicated that he earned $75,978 from his employer. He did not produce his 2010 Income Tax Return. [ 19 ] The mother attends ESL classes five days each week from 8:00 a.m. to 1:30 p.m.

She is in Level 5 and says that she wishes to complete Level 8 of this course. She said that this will take until the fall of 2011 to complete. She then hopes to have sufficient English skills to take a college course to become a health-care aide for the elderly. [ 20 ] The mother admitted that she has not sought employment since the separation and that she could likely obtain minimum wage work as a cleaner. She stated that several of her friends currently do this work. [ 21 ] The father has been living with another woman for over one year. She works full-time as a nanny.

The father stated that his partner is earning $150-200 each week. [ 22 ] The father had an injury at work on December 8, 2010 and fractured two bones in his back. He has received a mix of WSIB [1] and employment income from January-March of 2011, which will be reviewed in detail below. Part Three – The father’s credibility [ 23 ] The father’s credibility was relevant due to several allegations he made, including:

a) He claimed that he lived separate and apart from the mother within their home after 1997 and that any spousal support obligation that he might have had has already been satisfied.

b) He testified that the mother made minimal contributions to the household. He claimed that she never cleaned, rarely cooked and when she did, she did so poorly. In his words, “you had to shoot a cannon to get her out of bed in the morning”.

c) He stated that the mother refused to go to work and that they fought every day about this.

d) His position is that he only expects to earn $40,000 this year due to his injury. [ 24 ] The mother denied all of the father’s allegations. [ 25 ] I found the mother to be credible. She presented her evidence clearly, consistently and without guile. She is not educated or sophisticated and answered all of the questions to the best of her ability. She was forthright when questioned about her ability to obtain work as a cleaner. [ 26 ] Where the evidence of the mother and the father were in conflict, I accepted the mother’s evidence. [ 27 ] I did not find the father to be credible.

He was not clear and consistent in his evidence. He displayed a contemptuous attitude towards the mother and his obligations to support his family. At times, he provided evidence that made little sense or was false. Examples include:

a) The father swore that he was earning $60,000 per annum in his financial statement of April 30, 2010 (after stating his income was $65,000 per annum on April 28, 2010). He maintained that his income was still $65,000 on November 24, 2010. It was only when he provided full financial disclosure that it was discovered that he was earning closer to $76,000 per annum.

b) In his financial statement of February 23, 2011, the father swore that he was earning $650 per month, when he was earning far more than this from his mix of employment and WSIB income (see details below).

c) The father declared a debt of over $21,000 in his first financial statement of April 30, 2010. He did not disclose this debt in his second financial statement of February 23, 2011. He claimed that he stopped paying the debt in the fall of 2010 because he couldn’t afford it. This made no sense as he was earning substantial income at the time (he stopped paying the loan pre-injury). The father said that he had paid the loan down to $6,000 (apparently in only 5-6 months). He then said that he didn’t pay the loan because he needed to fix his credit history and paying the debt wouldn’t help him. This also made no sense.

d) The father claimed that his new partner only makes $150-200 per week as a full-time nanny. I find that highly unlikely. He was minimizing her income in an effort to portray a difficult financial condition.

e) I found that the father unreasonably minimized the mother’s contribution to the family. He worked very long hours leaving her to primarily care for the children, yet he held firmly to his stance that she contributed nothing to the household. He claimed that they were living separate and apart after 1997. On another occasion he claimed that “it was only a marriage for five months”, which would mean that the parties separated in 1993. Using either date, it stretches credibility that he would stay in this type of relationship and completely support the mother for such a long period of time if they were actually separated.

f) The father contradicted his own documentary evidence filed at the trial. His employer provided a letter dated April 1, 2011, stating that he works 44 hours per week and that they have assigned him light duties. He said that this information is wrong - he isn’t working these hours. He also presented pay stubs showing that he has worked full-time hours, but claimed that the information is wrong as the employer is paying him for these hours even though he isn’t working them. He called no evidence to corroborate this contention.

Part Four – The father’s income [ 28 ] The father’s income from 2007-2010 was as follows: 2007 - $81,809 2008 - $72,888 2009 - $64,244 2010 - $75,978 [ 29 ] At trial, the father produced all of his pay and WSIB stubs for 2011. As of the end of March of 2011, he had received gross income of $9,206.31 from his employer and $4,891.17 from WSIB (this money is not taxable). [ 30 ] The father’s position is that he will only earn $40,000 in 2011. This has no basis in reality.

Even if the father continued to earn income at the reduced rate he earned in the first quarter of 2011, a software analysis shows that this would project to an income of $65,889. [2] [ 31 ] A review of the father’s 2010 income pattern shows that he earned significantly more income after the first quarter of that year. This was because due to the seasonal nature of construction work, more overtime is available after the first quarter of the year - a fact that the father grudgingly admitted when questioned. The father produced his pay stub for the period ending April 2, 2010.

This showed gross year-to-date income of $16,758.50. This means that for the balance of 2010, the applicant earned $59,219 ($75,978- 16,758.50). When the income from the first quarter of 2011 ($65,889 divided by 4 = $16,472), is added to his income from the last three quarters of 2010, this comes to $75,691 ($59,219 plus 16,472). The father’s income for the year starting March 1, 2010 will be fixed at this amount.

[32] Assessing the father’s income on an ongoing basis is a bit more difficult. It appears that the father’s employer is willing toaccommodate him for his injury. The employer’s letter of April 1, 2011 sets out that the father has been employed with them since 2003at an hourly rate of $28.86 per hour and an average of 44 hours per week. It states that the father is currently on light duties at their jobsite. This letter does not include the overtime hours that the father has historically worked. [33] The father claims that the letter produced by his employer and the hours set out in the pay stubs are inaccurate.

He produced noevidence to corroborate this. Given his credibility issues, I am not willing to accept this evidence in the absence of corroboration. [34] The father has a significant motive to reduce his income at this time as it was very clear, both by his support payment history andhis presentation at trial, that he wants to pay the mother as little support as possible. [35] The court will impute income where, pursuant to clause 19(1)(

a) of the Ontario Child Support Guidelines (the guidelines), itfinds that a party is intentionally underemployed without a reasonable excuse. Imputing income is one method by which the court giveseffect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn whatthey are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(

a) of the guidelinesis perceived as being a test of reasonableness. Dryagla v. Pauli (ON CA), [2002] O.J. No. 3731 (C.A). [36] The test for imputing income for child support purposes applies equally for spousal support purposes. Rilli v. Rilli, [2006] O.J.No. 2142 (SCJ); Perino v. Perino (ON SC), [2007] O.J. No. 4298 (SCJ). [37] The onus is on the father to show that his normal earning level will be diminished due to medical reasons. Rilli v. Rilli, supra.

Hedid not do a good job in establishing this as he failed to provide current medical evidence that he is unable to perform the light dutiesoffered by his employer. The case law sets out that cogent medical evidence in the form of detailed medical opinion should be providedby the payor in order to satisfy the court that his reasonable health needs justify his decision to not work as many hours. See: Cook v.Burton (ON SC), [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen (ON SC), [2006] O.J. No.2902 (SCJ). [38] The father complained that WSIB is forcing him to go back to work.

He also complained that his family doctor is telling him thathe should be working and plans to take him off of pain killers. This indicates that the current medical evidence is that the father iscapable of performing the light duties offered by his employer. [39] I accept that the father may have some residual pain from his injury that may affect the amount of overtime hours he works in2011 - he had two broken bones in his back. I find that he is capable of earning income at the rate of $70,000 per annum for the balanceof 2011 and will impute that amount to him.

However, starting in 2012, his annual income will be imputed at the previous level of$75,691 for the purpose of assessing his support obligations. Part Five – Child support [40] The father argued that he should pay a lower amount of child support for Tanisha as she became 18 years old in March of 2011and is working on a part-time basis. [41] Since Tanisha is now over 18 years of age, the court must look at subsection 3(2) of the guidelines that reads as follows: Child the age of majority or over

(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age ofmajority or over, the amount of an order for the support of a child is, (

a) the amount determined by applying these guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition,means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of thechild. [42] The closer the circumstances of the child are to those upon which the usual guideline approach is based, the less likely it is thatthe usual guideline calculation will be found to be inappropriate. Rebenchuk v. Rebenchuk,, 2007 MBCA 22 , [2007] M.J. No.130 (Manitoba C.A.) par.30.

As Tanisha is living at home and intends to live at home when she attends post-secondary school in the fall,her needs have not really changed since she turned 18 years old. Her part-time and summer employment earnings do not warrant adeviation from the application of the guidelines.[3] This can be re-examined if the mother seeks a contribution towards Tanisha’s post-secondary expenses in the future pursuant to

section 7 of the guidelines. I find that the guideline amount is appropriate. [43] The father will be required to pay the table amount of child support for the children based on the incomes attributed to him in thisdecision. For the period when Tanisha resided with him, he will only be required to pay support for Aislinn. There will be no set-off ofsupport obligations during this period as the mother was on social assistance and did not earn sufficient income to incur a supportobligation.

Part Six – The mother’s entitlement to spousal support [44] The mother is entitled to spousal support on both a compensatory and non-compensatory basis. See Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420. The parties agreed that the mother would stay at home to care for their children. She was also

responsible for the management of the household. The mother has been financially disadvantaged by the breakdown of the relationship. She was completely financially dependent on the father. She has gone from a comfortable lifestyle to social assistance, charity and food banks. The father treated her very harshly by failing to provide her with any support after the separation. This was a lengthy marriage of 18 years.

The mother needs support and the father has the ability to pay it. [ 45 ] The father’s position is that the mother is capable of earning income at this time that would make her self-supporting. [ 46 ] The mother has an obligation to take reasonable steps to be self-supporting. Her ability to earn income is a factor in calculating how much spousal support she should receive. The principles of imputation set out above apply equally to her. [ 47 ] The court finds that the mother’s ability to earn income is limited. She has been out of the work-force for a long time. She has little education or skills training.

Her poor English skills are an impediment to her ability to become fully self-supporting. [ 48 ] The mother stated that she wanted to complete her ESL classes and then take courses as a health-care aide for the elderly so that she would be able to properly support herself. It appears that this would take her 2-3 years to complete. However, it was unclear how this plan would make her more economically self-sufficient as the mother stated that she hoped to earn $15,000-20,000 annually doing this work. The mother acknowledged that she could presently find work as a cleaner, possibly on a full-time basis.

She said that she has friends who do this work and there are no health reasons preventing her from doing this. She testified however, that she would rather work with the elderly. [ 49 ] I find that it has been reasonable for the mother to upgrade her English skills for her future marketability. However, at a certain point it becomes unreasonable for her not to apply for work that is available to her. We are getting close to that point as the parties separated in 2009. I will not impute any income to the mother for the balance of 2011.

However, I find that she can and should earn annual income of $15,000 starting in 2012. Part Six – Start date for support [ 50 ] The mother asks the court to adjust support from March 1, 2010. The father wants the court to only order support on a go- forward basis. The mother’s position is very reasonable. Her claim isn’t for retroactive support as the application was issued in January of 2010. If it had been requested by the mother, this would have been an appropriate case for retroactive support due to the blameworthy conduct of the father in not properly supporting his family after the separation.

The father is very fortunate that the mother did not ask for this. [ 51 ] The start date for both child and spousal support will be March 1, 2010. Part Eight – Amount and duration of spousal support [ 52 ] The Ontario Court of Appeal in Fisher v. Fisher 2008 ONCA 11 stated that the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008), by Carol J. Rogerson and D.A. Rollie Thompson (SSAG), while only advisory, are a useful starting point to assess the quantum of spousal support, once entitlement is established.

The decision also states that the court should express reasons if it is going to deviate from the SSAG. [ 53 ] There are no circumstances in this case which would lead me to deviate from the SSAG. [ 54 ] Due to the different living arrangements and incomes that I assessed, it was necessary to run four different SSAG calculations. These set out the monthly ranges of spousal support as follows: [4] Period One: March 1, 2010 until September 30, 2010, one child with each parent.

Father earning $75,691 per annum, mother on social assistance: Low Range: 1,314 Mid-range: 1,488 High Range: 1,663 Period Two: October 1, 2010 until March 31, 2011, both children with mother. Father earning $75,691 per annum, mother on social assistance: Low Range: 1,371 Mid-range: 1,549 High Range: 1,732 Period Three: April 1, 2011 until December 31, 2011, both children with mother. Father earning $70,000 per annum, mother on social assistance: Low Range: 1,227 Mid-range: 1,394 High Range: 1,562 Period Four: January 1, 2012 onwards, both children with mother.

Father’s income fixed at $75,000 per annum, mother’s income fixed at $15,000 per annum. Low Range: 672 Mid-range: 890 High range: 1,128 [ 55 ] I find the mid-range of the SSAG calculations to be appropriate given the duration of the marriage and the relative needs, means and circumstances of the parties.

This will leave the father with over 45% of the family’s total net disposable income on an ongoing basis. [ 56 ] The SSAG indicate that support should be for an indefinite (unspecified) duration, subject to variation and possibly review, with a minimum duration of nine years and a maximum duration of 18 years from the date of separation. I will not time-limit support at this time.

Part Nine – Conclusion [ 57 ] This order will immediately create arrears for the father. In recognition of his injury, I will provide him with an affordable repayment plan and defer the start of his arrears repayments until July 1, 2011. However, this privilege will only continue if he remains in good standing with the payments ordered. [ 58 ] A final order shall go on the following terms:

a) The father shall pay final child support as follows:

i) Commencing on March 1, 2010, the father shall pay the mother the sum of $686 each month on the first day of each and every month, being the table amount for one child based on his annual income of $75,691. ii) Commencing on October 1, 2010, the father shall pay the mother the sum of $1,107 per month on the first day of each and every month, being the table amount for two children based on his annual income of $75,691. iii) Commencing on April 1, 2011, the father shall pay the mother the sum of $1,043 per month on the first day of each and every month, being the table amount for two children based on his annual income imputed at $70,000. iv) Commencing on January 1, 2012, the father shall pay the mother the sum of $1,107 per month on the first day of each and every month, being the table amount for two children based on his annual income imputed at $75,691.

b) The father shall pay final spousal support to the mother as follows:

i) Commencing on March 1, 2010, the sum of $1,488 per month on the first day of each and every month. ii) Commencing on October 1, 2010, the sum of $1,549 per month on the first day of each and every month. iii) Commencing on April 1, 2011, the sum of $1,394 per month on the first day of each and every month. iv) Commencing on January 1, 2012, the sum of $890 per month on the first day of each and every month.

c) The Family Responsibility Office shall credit the father for support payments received to date.

d) The father may repay support arrears owing as of this date and as created by this order in the sum of $200 per month starting on July 1, 2011. However, if he is more than 30 days late in the payment of any ongoing or support arrears payment, the full amount of the arrears shall immediately become due and owing.

e) Nothing in this order precludes the Family Responsibility Office from collecting support arrears from any government source such as GST or income tax refunds or from any lottery or prize winnings.

f) The parties are to exchange their complete income tax returns and notices of assessment by June 30 th of each year.

g) A support deduction order is to issue. [ 59 ] If the mother, father or the City of Toronto believes that there is a mathematical error in these calculations that they would like this court to address, they are to serve and file particulars of such error with the trial coordinator’s office no later than April 26, 2011. [ 60 ] If the mother or the City of Toronto wishes to seek costs, they shall serve and file written submissions no later than April 29, 2011. The father will then have until May 9, 2011 to serve and file any written response.

Submissions are not to exceed three pages, not including any bill of costs or offer to settle. ___________________________ Justice S.B. Sherr Released: April 18, 2011