Espiritu v. Javinal, 2012 ONCJ 13

Brampton Registry No. 10022/11 DATE: 2012·I·10 CITATION: Espiritu v. Javinal , 2012 ONCJ 13 ONTARIO COURT OF JUSTICE BETWEEN: JONAH ESPIRITU, Applicant — AND — KENNETH JAVINAL, Respondent Before Justice Juliet C. Baldock Heard on 12 December 2011 Reasons for Judgment released on 10 January 2012 Kenneth Javinal ................................................................................................... on his own behalf [ 1 ] JUSTICE J.C.

BALDOCK:— This is an application for child support brought pursuant to the Interjurisdictional Support Orders Act, 2002 , S.O. 2002, c. 13. [ 2 ] The applicant mother resides in Winnipeg, Manitoba, with the two children who are the subject of her claim, namely Kaelan Jayden Javinal, born December 11, 2002, and Kyle Joshua Javinal, born July 12, 1998. [ 3 ] The respondent father resides in Mississauga, Ontario with his wife, their two children, one aged 6 years and the other 6 months, and his mother-in-law, who is recovering from the effects of a stroke. [ 4 ] The applicant seeks support, retroactive to May 2006. [ 5 ] The respondent was granted an oral hearing and testified on his own behalf. [ 6 ] As the respondent has, in his material, claimed undue hardship, both parties were required to file additional material, with details as to the number of adults and children in their respective households and total household income. [ 7 ] I accept the respondent’s evidence that he earns $20.64 per hour at his job as a service technician.

He accepts as much overtime as he can get, for which he is paid $30.96 per hour. [ 8 ] His base monthly salary is therefore $3,577.60 or $42,931.26 per year. An additional eight to ten hours of overtime each week would add $247.68 to $309.60, or between $1,072.45 and $1,340.57 per month. Realistically, he is not able to do this every week but some overtime hours account for his 2010 income of $55,948.00. [ 9 ] The support payment under the of the Child Support Guidelines , O. Reg. 391/97, as amended, for two children based on that income is $841.00 per month, and, pursuant to the revised guidelines (O.

Reg. 463/11), $842.00 per month as of January 1, 2012. [ 10 ] I accept the respondent’s evidence with respect to his finances. Clearly, he is heavily in debt and struggling to support his new family, with the added responsibility of his mother-in-law in the home. [ 11 ] The respondent’s wife is currently on maternity leave, but unsure if her job will be available at the end of her period of leave. [ 12 ] The respondent frankly admitted that he has received some help from his father-in-law, who from time to time has assisted with his car loan payments.

This is not, however, regular income and the respondent has incurred various debts to family members who have loaned him money. [ 13 ] If and when his wife returns to work, they will incur a significant daycare expense, as his mother-in-law is not able to assist in this regard. [ 14 ] The applicant’s household consists of herself and three children. She receives $9,000.00 per year in child support for the third child (Kiara), who is not the subject of this proceeding. [ 15 ] The applicant works as a hair stylist and her 2010 income was $23,580.00 ($32,590.00 inclusive of the child support

received for Kiara). It is unclear whether this includes tips. [ 16 ] The respondent believes that she resides with a boyfriend who works and contributes to the household. This is, however, only speculation and there is no evidence to confirm this. [ 17 ] The respondent’s claim for undue hardship is based on his obligation to support his wife and two other children.

He may have a moral obligation with respect to his mother-in-law but not a legal one. [ 18 ] While the cost of exercising access would be very high, the respondent acknowledged that he does not in fact see his older two children and has had no contact with them for some time as the applicant has, essentially, cut him out of their lives. The respondent’s debts are in no way related to his prior relationship with the applicant and therefore cannot be considered as grounds for his undue hardship claim.

Nevertheless, subsection 10(2) of the Child Support Guidelines is not exclusive, and I am satisfied that with his new family and responsibilities, any order for support will place an onerous burden on the respondent, which in my view amounts to undue hardship. [ 19 ] In determining whether the court has the discretion to order support other than the Guideline amount, subsection 10(3) requires that a comparison of household incomes be considered.

The parties are unrepresented and have not provided the court with any calculation in this regard. [ 20 ] The reality is that the applicant has a household of one adult and three children with a total income of about $32,590.00 (or approximately $36,000.00 if one factors in the tax free child support). The respondent has a household of three adults and two children and a total income of approximately $55,000.00.

This would be increased by any income the respondent’s wife receives by way of employment or employment insurance, but then daycare costs would be incurred. [ 21 ] On this evidence, I cannot conclude that the respondent’s situation is significantly worse than that of the applicant, even though I find undue hardship exists. Nevertheless, I am concerned that applying the guidelines would have a detrimental effect on the respondent’s ability to provide for the two children in his care. [ 22 ] I note that the applicant offers no explanation for the delay in commencing her claim.

Accordingly, I do not grant her request for retroactivity. [ 23 ] I am satisfied that, at this time, the respondent’s ability to provide support for the two children of the applicant be limited to $400.00 per month. [ 24 ] The respondent shall pay for the support of two children, the sum of $400.00 per month commencing effective August 1, 2011 to and including December 31, 2011.

He shall be given credit for all payments made pursuant to the temporary order of September 21, 2011. [ 25 ] The respondent shall, each year on or before June 30 th , commencing 2012, provide the applicant with a sworn financial statement and proof of current income. [ 26 ] This order is made without prejudice to: (

a) the right of the respondent to bring the matter back before the court at any time, notwithstanding that six months may not have elapsed, in the event of a material change in circumstances or in the event he has further and better evidence with respect to the applicant’s household income, or in the event he chooses to exercise access; or (

b) the right of the applicant to bring the matter back on receipt of the respondent’s disclosure. Released: 10 January 2012 __________________________ Justice Juliet C. Baldock