Rodrigo v. Rodrigo, 2011 ONCJ 138

Toronto (North York) Registry No. D047644/09 DATE: 2011·III·21 CITATION: Rodrigo v. Rodrigo, 2011 ONCJ 138 ONTARIO COURT OF JUSTICE BETWEEN: THENMOLI CROOS RODRIGO, Applicant, — AND — NAZERAN FERNANDO CROOS RODRIGO, Respondent. Before Justice Robert J. Spence Heard on 28 February 2011 Reasons for Judgment released on 21 March 2011 STATUTES AND REGULATIONS CITED Child Support Guidelines, O. Reg. 391/97 [as amended],

section 7. Employment Standards Act, 2000, S.O. 2000, c. 41 [as amended], subsection 22(1). Family Law Act, R.S.O. 1990, c. F-3 [as amended],

section 30. CASES CITED Drygala v. Pauli, , 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No.3731, 2002 Cars​well​Ont 3228 (Ont. C.A.). Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, 232 O.A.C. 213, 288 D.L.R. (4th) 513, 47 R.F.L. (6th) 235, [2008] O.J. No. 38,2008 Cars​well​Ont 43 (Ont. C.A.). Lachapelle v. Vezina, , 11 R.F.L. (5th) 328, [2000] O.J. No. 3171, 2000 Cars​well​Ont 3007 (Ont. Fam. Ct.). Lawson v. Lawson (2006), 81 O.R. (3d) 321, 214 O.A.C. 94, 29 R.F.L. (6th) 8, , [2006] O.J. No. 3179, 2006 Cars​-well​Ont 4789 (Ont. C.A.). Odendahl v.

Brule (1999), 45 R.F.L. (4th) 37, [1999] O.J. No. 1324, 1999 Cars​well​Ont 1030 (Ont. Fam. Ct.). Perino v. Perino, , 46 R.F.L. (6th) 448, [2007] O.J. No. 4298, 2007 Cars​well​Ont 7171 (Ont. S.C.). S.(R.) v. S.(T.), 2005 NBQB 357, 293 N.B.R. (2d) 313, 762 A.P.R. 313, 21 R.F.L. (6th) 411, [2005] N.B.J. No. 448, 2005 Cars​well​NB614 (N.B.Q.B., Fam. Div.). AUTHORS AND WORKS CITED Rogerson, Carol J. and D.A. Rollie Thompson: Spousal Support Advisory Guidelines, (Ottawa: Minister of Justice and Attorney Generalof Canada, July 2008). Cynthia T.C.

Mancia ..................................................................... counsel for the applicant mother John David Phillips ...................................................................... counsel for the respondent father

JUSTICE R.J. SPENCE:— 1: NATURE OF CASE [ 1 ] In this proceeding, the applicant, Thenmoli Rodrigo (“mother”), seeks an order for child and spousal support. The respondent, Nazeran Rodrigo (“father”), is not making any independent claims for relief of his own. [ 2 ] The other issues have been settled. On 7 June 2010, the parties consented to a final order granting sole custody of the child to the mother, no access to the father, and dispensing with the father’s consent for the mother to obtain the child’s passports and to travel outside Canada with the child.

The parties also consented on that date to a final restraining order against the father, in favour of both the child as well as the mother. 2: ISSUES [ 3 ] There are three issues that must be determined: 1. For the purposes of ascertaining any obligation to pay both child and spousal support, the court must determine the amount of the father’s annual income — either his actual income, or income that should be imputed to him. 2. Once the father’s income has been determined, the court must then decide how much he should pay in child support.

The mother is claiming only the table amount of support according to the Child Support Guidelines , O. Reg. 391/97, as amended (the “guidelines”). 3. Is the mother entitled to spousal support? If so, what is the appropriate amount of that support? 3: BACKGROUND [ 4 ] The mother is 39 years old, and the father is 40 years old. They were married in Germany on 2 November 1999. They separated on 17 January 2009. There is one child of the marriage, namely, Dorian, who was born on 25 April 2004. Dorian is presently in grade I at a public school in Toronto. [ 5 ] The mother’s place of birth is Sri Lanka.

She lived in Germany from 1991 to 1996. In 1996, [1] she immigrated to Canada. Once in Canada, the mother sponsored the father to come to Canada. He arrived in 2001. [ 6 ] The father is a trained chef. According to his résumé, he completed a chef’s course in Germany.

He also trained at the Hotel Movenpick in Germany, where he worked as a chef from 1993, until he came to Canada in 2001. [ 7 ] As I noted above, the threshold issue that must be decided before the child and spousal support issues can be determined, is the amount of income that the father is currently earning, or the annual income that he is capable of earning and, accordingly, that ought to be imputed to him. 4: THE FATHER — His Work History, His Ability to Work and His Credibility [ 8 ] Immediately upon his arrival in Canada, the father obtained employment as a chef at Movenpick Restaurant in Toronto, at a pay rate of $13 per hour.

He testified that he was able to get a job at Movenpick immediately upon his arrival in Canada because this had been arranged through Movenpick in Germany. I infer from that that his employer in Germany must have viewed him as a skilled chef and therefore worthy of a job with the same brand in Canada. [ 9 ] He remained at Movenpick until 2002, when he left and obtained a chef’s job at the Belfast Lounge, where he started at $14 per hour, increasing to $16 per hour by 2006. The father testified that he was working about 75 hours per week at Belfast. That would translate into $1,200 per week or $62,400 per year.

However, his T4-2006 slip from Belfast reveals a gross income of only $34,987. Accordingly, if I am to accept that father was working 75 hours per week, he must have been receiving a portion of his income in cash, which he did not declare for income tax purposes. He also testified at trial that his annual income at Belfast was about $45,000 for 2006. One of the exhibits at trial was a letter from the owner of Belfast dated 27 June 2007, stating that the father had been working there for four years at “an annual salary of $50,000”.

The father testified that he told his employer to write that letter, knowing it to be false in that, according to the father, he was only earning $37,000 at the time the letter was written. Those four different amounts — $62,400, $34,987, $45,000 and $50,000 — are not reconcilable. The letter, the circumstances under which the letter was written and the father’s conflicting evidence all undermine his credibility. [ 10 ] The father testified that his hours at Belfast began to decline in 2009. In January 2009, he commenced working at another restaurant called Mad Hatter.

He says that, from the two jobs, he was earning in total about $47,000. He testified that he eventually lost his job at Belfast toward the end of 2009 and continued working only at Mad Hatter, where he says he was earning $10.25 per hour. [ 11 ] What he did not say in his examination-in-chief — and what was revealed during cross-examination — was that he had a number of other jobs as well, after his employment at Belfast. None of these other jobs are disclosed on what he purports to be his current résumé, in which he inaccurately shows Belfast (2002 to 2009) as his last employer.

[12] In 2010, he says he worked for the following places, all as cook-chef: Lanka Gardens, for which he says he was paid $11per hour; Holiday Inn, for which he was paid $15.17 per hour; Four Points Hotel, for which he was paid $12 per hour; and Mad Hatter,where he says he is continuing to work, but earns only about $939 per month. His record of employment from Lanka Gardens revealsthat he quit his job on 21 May 2010. He testified that it was not worth his time and energy to work there for just a few hours at a time. In total, he says he had four jobs in 2010.

Apart from the few hours that he says he is working at Mad Hatter, the father says he has notworked since in or about July 2010 and, since that date, he has been actively looking for a job. [13] The father swore a financial statement on 25 February 2011, just prior to the commencement of this trial. In that financialstatement, he deposed that his current sole source of income comes from working at Mad Hatter. The expenses that he lists in thefinancial statement are for his entire family, that is, his present wife and their child. The

section dealing with bank accounts is shown as$Nil, with no bank accounts listed. Yet at trial, he acknowledged that in fact he does have bank accounts. However, he was unable forstate why he failed to list those accounts in his financial statement. [14] The financial statement does not disclose that he incurs cell phone expenses. Yet he owns and pays for a cell phone.

Hewas unable to explain that discrepancy. [15] He did not explain at trial how his yearly shortfall in expenses over income, in excess of $9,000, is met. [16] The father’s multiple omissions in his financial statement serve further to undermine his credibility. [17] The father says that he has been actively looking for employment since July 2010, as his current income fromemployment at Mad Hatter is minimal.

To prove the assertion that he is actively seeking employment, he produced what purports to behis current résumé, together with e-mails, which, he says, he has sent to prospective employers. [18] I turn first to the résumé, according to which he has not worked since his employment at Belfast — in 2009. Prospectiveemployers would look at this résumé and conclude that he has been entirely out of work since 2009. They would not know that,according to the father’s own evidence, he is continuing to work for Mad Hatter[2] and that he had three other jobs in 2010, none ofwhich are shown on his résumé.

I must ask myself why anyone who claims to be looking for employment would intentionally send outa résumé that is as incomplete as this one — especially in terms of showing relevant and current work experience — unless that personwas not actually seeking another job.

The only reasonable conclusion that I can reach is that the father is not looking for another jobbecause, in all likelihood, he is already fully employed, or as employed as he wants to be. [19] These glaring problems with the father’s résumé and the attendant implications once again call into question hiscredibility. [20] I turn next to the father’s e-mails. The father produced 16 e-mails, which, he says, he sent to so-called prospectiveemployers. However, all of the e-mails were sent between 25 January 2011 and 5 February 2011, that is, over a mere 11-day period, justprior to the commencement of trial.

As I noted earlier, apart from his job a Mad Hatter where the father asserts he is making onlyminimal income, the father says he has been without employment since July 2010. If, as the father asserts, he has been actively lookingfor employment since July 2010, where are his job applications between July 2010 and 25 January 2011? Why is his résumé soobviously incomplete?

I conclude from all of this that the e-mails are little more than a sham, something cobbled together at the lastminute in an effort to demonstrate to the court that he is genuinely looking for employment, when the reality is otherwise. [21] As I noted earlier, it is more likely than not that the reason that the father is not seeking employment is that he is alreadyworking full-time. And since he has not disclosed any cheque stubs or other documents to show how much he is earning, I am left toconclude that, apart from his minimal income from Mad Hatter, he is being paid in cash.

His misleading financial statement and hisassertions that he is somehow managing to support his current family on an income of about $11,000 per year simply does not makesense. [22] In his sworn financial statement, he stated that, in 2009, he earned $48,000. I find it interesting that the father’s incometook a precipitous decline shortly after the mother commenced her application in which she claimed child and spousal support. In theparticular circumstances of this case, I have real doubts that this decline in income is merely a coincidence.

In my view, the $48,000 thatthe father earned in 2009 is a more accurate representation of what the father is either actually earning today or is capable of earningtoday. [23] The father argued that, in order to earn $48,000 per annum, he would have to work close to 80 hours per week. He alsoargued that, if I were going to impute income to him,[3] I should only impute $24,000, on the theory that, if it takes him 80 hours perweek to earn $48,000, he would only be able to earn $24,000 during a 40-hour workweek.

And, the father argues, a court should notimpute income based on a workweek of greater than 40 hours, because 40 hours is generally accepted to be a normal workweek inOntario. [24] I disagree with both of the father’s arguments. First, I do not accept that the father would have to work an 80-hour weekin order to earn $48,000.

At $16 per hour, which I find the father has the ability to earn, based on his past work history,[4] the fatherwould be required to work no more than 57.7 hours per week, in order to reach an annual income of $48,000 (57.7 hours x $16/hour x52 weeks = $48,006).[5] And given that the father testified that he had previously willingly worked a 75 to 80-hour week, it is notunreasonable to expect him to work 57.7[6] hours per week. There is ample authority that income can be imputed to support payorsbased on working more than just a 40-hour workweek. See, for example, Odendahl v.

Brule (1999), 45 R.F.L. (4th) 37, [1999] O.J. No.1324, 1999 Cars​well​Ont 1030 (Ont. Fam. Ct.); and R.S. v. T.S., 2005 NBQB 357, 293 N.B.R. (2d) 313, 762 A.P.R. 313, 21 R.F.L. (6th)411, [2005] N.B.J. No. 448, 2005 Cars​well​NB 614 (N.B.Q.B., Fam. Div.). [25] In deciding to impute income to the father in the amount of $48,000, I am mindful of the test set out in the Court ofAppeal decision in Drygala v. Pauli, , 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293,[2002] O.J. No. 3731, 2002 Cars​well​Ont 3228 (Ont. C.A.). The three-part test is as follows:

1. Is the spouse intentionally underemployed or unemployed? 2. If so, is this required by virtue of his reasonable educational needs, or the needs of the child of the marriage, or arising fromreasonable medical needs? 3. If the answer to #2 is “no”, then the court must decide whether to exercise its discretion to impute income and, if so, inwhat amount. See also Lawson v. Lawson (2006), 81 O.R. (3d) 321, 214 O.A.C. 94, 29 R.F.L. (6th) 8, , [2006] O.J. No. 3179, 2006Cars​well​Ont 4789 (Ont.

C.A.), in which the same principles were applied by the Court of Appeal. [26] On the basis of my earlier analysis, the answer to #1 is “yes”. In my view, the father is either intentionallyunderemployed or, alternatively, fully employed and earning an income that he is not disclosing. [27] The answer to #2 is “no”.

There is no medical reason, educational reason or other needs pertaining to the child thatwould interfere with the father’s ability to maximize his income-earning potential. [28] Finally, as to #3, in the all the circumstances, including the father’s long-standing experience as a chef, as well as hishistory of being able to find gainful employment in that profession, I have concluded it is reasonable to impute income to him in theamount of $48,000 per year. 5: CHILD SUPPORT OBLIGATION [29] The guidelines provide that the table amount of support for one child, for a payor who earns $48,000 per year, is $444 permonth.

The mother has not made a claim for

section 7 expenses under the guidelines.[7] And the father did not advance a claim at trialfor undue hardship. Accordingly, the father will pay the table amount of support alone. That support shall be effective on 1 May 2009,being the first day of the month following the issuance of the application in which the mother claimed child support.

The father shallhave credit for any amount paid by him since that date, for child support, provided he paid those amounts through the FamilyResponsibility Office. 6: SPOUSAL SUPPORT [30] As I noted at the outset of these reasons, the mother has been in Canada for between 12 and 15 years. The mothertestified that, for the first number of years she was living in Canada, she was taking English courses. She testified that, prior to the birthof Dorian, she was working at two different jobs for some period of time,[8] until 2001, when she was laid off.

She earned a total of$28,000 from those two jobs. [31] In 2002, she obtained another job, as well as a number of other placements through various employment agencies. Eventually, she stopped working altogether in or around 2003 when she became pregnant with Dorian. She has not worked since thattime. [32] The mother testified that she began full-time schooling in September 2009. She is presently attending the ScarboroughCentre for Alternative Studies, which is a school for adult students. She is seeking to obtain her high school equivalency diploma.

Attrial, she produced her timetable, which reveals that her classes run from 8:30 a.m. until 3:20 p.m. each day. Her courses include“Accounting 1”, “Introduction to Business” and “Accounting 2” (term 4). Her final term runs from 21 April 2011 until 27 June 2011. She testified that her high school equivalency program at this school would be completed in January 2012. [33] Once completing this course of study, it is her stated wish to enrol in a three-year fashion design course at SenecaCollege.

She is seeking support at least until the completion of that fashion design course in 2015. [34] As I previously noted, the child is now in full-time attendance at school. There is no evidence of the mother having anyhealth issues that would interfere with her ability to obtain gainful employment. [35]

Section 30 of the Family Law Act, R.S.O. 1990, c. F-3, as amended, imposes a legal obligation on spouses to be self-supporting and, only if they are unable to do so, does the obligation then shift to the other spouse, to the extent of need and ability to pay: 30. Obligation of spouses for support.— Every spouse has an obligation to provide support forhimself or herself and for the other spouse, in accordance with need, to the extent that he or she iscapable of doing so. [36] Accordingly, I must first determine whether the mother has the ability to support herself.

I am not satisfied on theevidence that the mother must take any further English language courses as a precondition to finding employment. Because Dorian isnow in full-time attendance at school, the mother has the freedom to obtain a job without the need to remain at home to care for him.[9] [37] The remaining decision is whether it is reasonable for the mother to be continuing at school and, if so, for how long,before imputing an income to her in some amount. [38] In all the circumstances, I have concluded that it would be unreasonable to require the father to pay support to the motheruntil 2015.

The mother’s desire to take a fashion design course beginning in 2012 and running until 2015, and thereafter to obtaingainful employment in that field, is far too speculative. There was no evidence that explained to the court the basis for the mother’sdecision to take such a course, whether she would qualify for entrance into such a program, her aptitude or abilities in this area, or thelikelihood of even finding employment in fashion design after completing such a program. Accordingly, I give little weight to themother’s intentions in this regard in terms of her legal obligation to become self-supporting.

[39] However, I do conclude that is not unreasonable for her to continue to pursue her current program and course of study,leading to a high school equivalency diploma in January 2012. Although the mother might possibly be able to find some minimum wageemployment now — or in the near future — she is likely to be financially better off in the long run if she can at least obtain her highschool equivalency.[10] Once she accomplishes that, the mother should reasonably be expected to be in a position to look for gainfulemployment.

I would allow her six months to find employment following the completion of her program in January 2012, so that thesupport order I am making will run until 30 June 2012. [40] The court may impute income to the parties, where appropriate, in determining the parties’ respective abilities to be self-supporting or to pay spousal support. See Perino v. Perino, , 46 R.F.L. (6th) 448, [2007] O.J. No. 4298, 2007 Cars​-well​Ont 7171 (Ont. S.C.). Beginning on 1 July 2012, I would impute income to the mother in the amount of not less than $24,000 perannum.

Given that minimum wage in Ontario is $21,300, it would not be unreasonable to expect her to earn a modest amount above andbeyond minimum wage, particularly once she has completed her high school equivalency. I consider this to be a reasonable expectationgiven the lead time that the mother will have between now and 1 July 2012, as well as the fact of her prior work history.[11] [41] In Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, 232 O.A.C. 213, 288 D.L.R. (4th) 513, 47 R.F.L. (6th) 235, [2008]O.J.

No. 38, 2008 Cars​well​Ont 43, the Ontario Court of Appeal considered the applicability of the Spousal Support Advisory Guidelines,(Ottawa: Minister of Justice and Attorney General of Canada, July 2008) (“SSAG”) in a trial court’s determination of the quantum andduration of spousal support.

The Court of Appeal recognized that, although the SSAG are not binding on courts, they are nonetheless a“useful tool”.[12] The court also said that, when SSAG calculations are raised at trial and if the trial judge decides to make an awardoutside the SSAG, the trial judge has an obligation to give reasons explaining why the SSAG do not provide an appropriate result in thecase before it.[13] [42] In this case, I was referred to a number of SSAG calculations, including one calculation assuming the father’s income tobe $48,030 per year, and the mother’s income to be $Nil, with child support at $444 per month.

On the basis of what I have alreadydiscussed, I accept all of those figures as correct, and I rely upon those figures in determining the amount of spousal support to beordered. The SSAG calculation using those numbers produces the following results: spousal support payable at the low end is $873monthly, $991 monthly at the mid level, and $1,107 monthly at the high end.

The SSAG calculation also reveals that support should bepaid for a minimum duration of 4.5 years, to a maximum duration of 14 years from the date of separation. [43] I would accept the quantum of support, but at the lower end of the scale, namely, $900 per month. I do so, taking intoaccount that the father has a second family, and the court’s obligation to balance the needs of each child in determining what is fair andreasonable. See Lachapelle v. Vezina, , 11 R.F.L. (5th) 328, [2000] O.J. No. 3171, 2000 Cars​well​Ont 3007 (Ont.Fam. Ct.). [44] I would not accept the SSAG results for duration.

In my analysis of the mother’s circumstances, I have concluded thatshe should be capable of earning an income of at least $24,000 per annum beginning on 1 July 2012. The SSAG calculations using thatfigure for the mother disclose that spousal support would cease entirely once the mother reaches that level of income, assuming thefather’s income to be $48,000 and that he is continuing to pay child support in the amount of $444 per month. 7: CONCLUSION [45] Returning to the three issues at the outset of these reasons, my order is as follows: 1. The respondent’s income is imputed at $48,000 per annum. 2.

The respondent shall pay child support to the applicant, for one child, in the amount of $444 per month, effective 1May 2009, with credit to the respondent for amounts paid by him to the applicant since 1 May 2009, for childsupport, provided that support has been paid through the Family Responsibility Office, or that the FamilyResponsibility Office has a record of any such payments. 3. The respondent is to pay spousal support to the applicant in the amount of $900 per month.

Spousal support shallbe effective from 1 January 2010,[14] with credit to the respondent for the amounts paid by him under JusticeZuker’s temporary order dated 23 December 2009 and, once again, provided those amounts have been paidthrough the Family Responsibility Office, or that the Family Responsibility Office has a record of any suchpayments.