COURT FILE NO.: 266/02

DATE: 20020925

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

ARCHIE CAMPBELL, MCNEELY, ELLEN MACdONALD JJ.

B E T W E E N:

MICHAEL KAYE

Appellant

• and -

SUSAN KAYE

Respondent

F. Timothy Deeth, for the Appellant

Susan Anne Kaye, In Person

HEARD: September 25, 2002

ARCHIE CAMPBELL J.: (Orally)

1Michael Kaye appeals against the order of Madam Justice Low of November 27^th, 2001, whereby she reduced the appellant's child support arrears by $6,300.00, imputed to him an income of $39,000.00, and ordered child support according to the guidelines of $557.00 a month, plus arrears of $150.00 a month.

2The principal ground for appeal is that Mr. Kaye is now employed as a bingo caller with an income much below his previous income as a meat cutter and that the learned motions judge erred in imputing to him an income higher than his present income.

3The appellant relies on the case of Walker v. Walker 2001 ABCA 106, [2001] A.J. No. 553 for the proposition that contested credibility issues in relation to imputed income should not be decided on the basis of conflicting affidavit evidence. That case, unlike this case however, had to do with credibility. Insofar as the formal record of this case is concerned there is no conflict of evidence, but rather, a disagreement as to the proper conclusion the judge should have drawn from the unchallenged affidavit of the appellant and the financial information supplied by him.

4Mr. Deeth, in his able argument, says that the respondent who filed no affidavit was permitted to make oral submissions before Madam Justice Low, which submissions contradicted the record of the Court, and that the learned motions judge relied on these oral submissions which were not part of the record to the detriment of the appellant.

5Whatever may be said about listening in an affidavit case to oral submissions from an unrepresented party that contradict the written record, the succinct written reasons in this case reflect no reliance on any impugned submissions. There is nothing in the reasons or the result to suggest improper reliance on oral submissions or on anything outside the record.

6The affidavit material provides an ample basis for the finding of an income pattern averaging in the range of $39,000.00 a year in those years when the appellant was fully employed to the best of his ability.

7The fact, that the learned motions judge carefully addressed the evidence of employment history and income is reflected in the allowance for the lay-off time between the appellant's termination of the A&P meat cutting job in March, 1998, until his re-employment as a meat cutter at Dominion stores in January of 1999.

8The learned judge made this finding of fact in respect of underemployment:

"In my view, the moving party is underemployed as a bingo caller. He has skills and a long history of work in the supermarket industry. He has the ability to earn substantially more than that which he is earning as a bingo caller."

9It is unnecessary in cases like this to make a finding of fact that the appellant's underemployment is deliberately motivated in order to avoid his responsibility for child support.

10The appellant in his affidavit referred to accidental injuries to his fingers on two occasions while working as a meat cutter which he said led him to seek other employment. The affidavit evidence of the appellant however, taken as a whole, and in the absence of some better reason for accepting a lower paying job as a bingo caller for eight sessions a week, and in the absence of any evidence of attempts to find better paying work of any kind, provides an ample basis for the finding of underemployment.

11The evidence of underemployment and the evidence of income pattern was sufficient to support the findings of fact which controlled the result in this case.

12Where there is no issue as to entitlement to support, and assuming no other error, a disputed decision as to the appropriate quantum of support which has been resolved by a motions judge should not be interfered with by an appellate court where the quantum is within the "generous ambit within which disagreement is possible". See Silver v. Silver (1985), 1985 2075 (ON CA), 54 O.R. (2d) 591 at p.592, 49 R.F.L. (2d) 148 at p.150.

13There was evidence to support the conclusions, no indication of any error in principle, and the appeal must therefore be dismissed. Because the respondent incurred no expenses and asked for no costs, there shall be no order as to costs.

Date of Reasons for Judgment: September 25, 2002

Date of Release: September 27, 2002

COURT FILE NO.: 266/02

DATE: 20020925

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

ARCHIE CAMPBELL, MCNEELY, ELLEN MACdONALD JJ.