2010 ONSC 6616, 2010 ONSC 6616

CITATION : Luca v. Luca, 2010 ONSC 6616 COURT FILE NO.: 13250/02 DATE: 2010/11/30 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Patricia Ann Luca ) ) ) Foluke A. Ololade, for the Applicant ) Applicant ) ) - and - ) ) ) Joseph Luca ) ) ) James D. Conte, for the Respondent ) Respondent ) ) ) ) HEARD: November 17 & 18, 2010 The Honourable Justice C. A. Tucker ENDORSEMENT ISSUES [ 1 ] The issues to be determined are: 1. What quantum of child support should Joseph Luca pay for two of his children, Anthony and Lisa, who reside with Patricia Luca? 2.

Is child support payable by Patricia Luca for her son Nicholas who resides with Joseph Luca? 3. Should the car “voucher” be valued for support purposes? BACKGROUND [ 2 ] Mr. and Mrs. Luca were married on September 10, 1983, separated on April 15, 1998, and were divorced on August 16, 2000. They had five children together, three of whom are still “dependent”. Nicholas, who is 21, resides with his father and attends Niagara College. He is in his third year of a two-year program. Anthony is 17 and is in grade 12, and Lisa, 15, is in grade 10. Anthony and Lisa

reside with their mother. [ 3 ] Mr. Luca works for General Motors (“GM”). He was offered a severance “package” called a “grow-in package” last year which he accepted and received in June 2009. The package allowed for Mr. Luca being paid 65% of his wages for not working. Pursuant to this package, he is also entitled to a 30-year pension at the end of three years. It is this reduction of income that leads Mr. Luca to make this application to reduce his support obligation.

He argues that the choice to take the “buyout package” was reasonable in the circumstances and that he should be entitled to a reduction of support as a result. Mrs. Luca points out that the income reduction was a result of a voluntary choice and that Mr. Luca could and should be working at a fulltime job since he no longer has to “work” at GM. She argues that he has two children to support and that work is available and, as such, the court should impute income to him. [ 4 ] Ms.

Luca wishes to discontinue her support for Nicholas who at 21 is still in school completing a program which should have taken two years to complete, but now is in a third year as a result of failing last year. She also points out that Nicholas earned $13,318.19 last year from employment and is able to contribute to his own support. Mr. Luca pays the costs of Nicholas to attend school and he is simply looking for ongoing child support for Nicholas until April of 2011 when Mr. Luca says Nicholas will have finished school. Mr.

Luca unilaterally reduced his court-ordered child support payments to $410.00 in September of 2009. [ 5 ] Mr. Luca is presently 52 years old. He has issues with his back which resulted in having “light duty” work as a millwright. ISSUE NO. 1 What quantum of child support should Joseph Luca pay for two of his children, Anthony and Lisa, who reside with Patricia Luca? [ 6 ] I find that the employment change of Mr. Luca is a material change of circumstances giving him the right to bring this application. The evidence before the court is that Mr. Luca was a millwright at GM.

He was second from the bottom of the seniority list and accordingly was subject to imminent layoff. For three years he travelled to Oshawa to maintain his employment with that company. In the fall of 2008, given the negative financial situation of GM, it made time limited offers to certain employees known as “grow-in offers”. In Mr. Luca’s case, he had 27 years of employment at GM and he was offered an opportunity to receive 65% of his income for a three-year period and then he would be given credit for these three years to gain a 30-year pension.

He is also allowed to work anywhere during the three-year period and without having any money deducted from his “65%” salary. He also maintained all of his benefits. Given his low seniority and his concern about being laid off, and the general financial problems of GM, I agree with Joseph Luca’s choice to elect to take the “grow-in” option. There is certainty rather than chance in such an option. He can now be assured that until retirement his family will receive the benefit of a salary per year for three years and the benefits arising from a 30-year pension.

And, as noted, in addition his benefits package remains in place which the court acknowledges is very attractive. [ 7 ] Given that I find his choice to be a considered one, and appropriate in the circumstances, I must also consider whether additional income should be imputed to Mr. Luca given that he is able to work fulltime. Is he intentionally underemployed or unemployed? Mr. Luca only worked for a two-week period since taking the grow-in package. The evidence was that he has applied for over 30 jobs with no success. He is limited to light duty work given the condition of his back.

The court finds it surprising that Mr. Luca was not able to find any part-time, let alone fulltime employment, in over a year. I find that no real effort is being made to do so beyond his dropping off a number of resumes and attending two interviews. Given that his wife worked three jobs to maintain her children and herself, it is clear to the court that Mr. Luca should have been able to find “some” employment even part-time.

Given his health issue centering in his back, I will impute only $10,000.00 per year to him, which is less than minimum wage and less than fulltime work. [ 8 ] Accordingly, his income for support purposes from the time he received the grow-in package I find to be $65,434.00 and child support payable by him shall be $958.00 commencing July 1, 2009 and thereafter each month. This income figure includes the $1,146.00 he received from White Oaks. I would also find that based on his 2009 income of $75,355.00 his obligation to pay child support amounted to $1,103.00 per month from January until June 2009.

ISSUE NO. 2 Is Nicholas entitled to ongoing child support from his mother? [ 9 ] The evidence is that Nicholas is presently enrolled fulltime at Niagara College and he will complete his studies in April 2011. Nicholas is 21 years old. Last year during the school year he was employed and earned $13,318.19 in that year. Perhaps for this reason his academic year was a failure. The report from Niagara College at one point listed Nicholas as being part-time and, as such, the applicant argues that this is evidence that this “child” is not attending school fulltime and not entitled to support.

However, it is clear from the letter from Niagara College that in fact Nicholas was and is attending school on a fulltime basis. Ms. Luca points to the two children yet to educate and questions why she should be asked to support a child whose income exceeded $13,000.00 and who failed to apply himself to his studies resulting in another year of expense for his parents. [ 10 ] Mr. Luca seeks only base support for Nicholas, not assistance with tuition or books, and points out that the “child” is living with him and that he incurs expenses as a result. [ 11 ] The situation is troublesome.

While the court wishes to support Nicholas’ decision to return to school and to support himself, the court also questions the total lack of academic achievement last year while his mother worked three jobs to maintain two of her other children as well as Nicholas. Is a parent required to pay for a child who “attends” school fulltime without any success? Does a parent need to support a child who earns a modest income, which I acknowledge is less than minimum wage, but sufficient for the needs of a child who is living at home and has his academic costs covered?

Are you in school “fulltime” when you fail almost all of your courses? [ 12 ] I find that the equitable way of dealing with this situation is to terminate Nicholas’ support as of April 30, 2010. Support therefore has been paid by Ms. Luca during the two-year period that the academic course should have taken to complete. This finding on these facts, of course, does not mean that a child who fails to complete schooling within a set period of time automatically disentitles

himself from child support. This decision is based on the facts of this case given the age of Nicholas and the academic loss of the past year arising not from health or scholarly issues but from some other undetermined cause. This cause the court can only find arose from working too much or failure to apply himself. These factors, together with the income he earned during the year, leaves the court to conclude that Nicholas should not be considered a “child” for the purposes of support after April of 2010.

The monies paid for last year offset any monies that might have been payable for the present academic year. [ 13 ] Accordingly, I order that child support for Nicholas be terminated as at April 30, 2010. ISSUE NO. 3 Should the car “voucher” be valued for support purposes? [ 14 ] Mr. Luca received a right to obtain a car on retirement as part of his “package”, which is worth approximately $30,000.00. Ms. Luca wishes to have this option valued and included in income. The court finds that it is not appropriate to do so at this time. The option is not exercisable for two more years. It may never be taken by Mr. Luca.

Ms. Luca’s request on that point is dismissed without prejudice to review the same in the future. [ 15 ] If the parties are unable to agree upon costs, I may be spoken to. ___________________________ Tucker, J. Released: November 30, 2010 COURT FILE NO.: 13250/02 DATE: 2010/11/30

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Patricia Ann Luca Applicant - and – Joseph Luca Respondent ENDORSEMENT Tucker, J. Released: November 30, 2010