Citation: Lin v. Chen, 2012 ONSC 165
DIVISIONAL COURT FILE NO.: 193/11
DATE: 20120105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, PEPALL AND HARVISON YOUNG JJ.
BETWEEN:
YUNDENG LIN
Applicant/Appellant
– and –
XIU CHEN
Respondent
Heng Du, for the Applicant (Appellant)
Peter J. Smith, for the Respondent
HEARD at Toronto: January 5, 2012
ASTON J. (ORALLY)
[1] Mr. Lin appeals the child support order of Sachs J. dated January 12, 2011, rendered after a four day trial. He was ordered to pay child support of $484.00 per month to his former spouse, Ms. Chen. Mr. Lin submits that the trial judge erred:
(a) in finding that his step-daughter Sharon was a child of the marriage for the purposes of the support provisions of the Divorce Act;
(b) in concluding on the evidence that his income was $40,000.00 per annum; and
(c) in ordering the full table amount of child support for his biological daughter Linda, without taking into account the joint custody order and the time Linda would be in his care.
[2] The appellant father essentially asks this Court to reverse findings of fact made by the trial judge. The appellant has failed to identify any error in law or error in principle. In fact, the grounds cited in the Notice of Appeal itself only identify alleged errors in fact-finding. The threshold for challenging a finding of fact in a child support case is high. The Supreme Court of Canada in Hickey v. Hickey (1999) 1999 691 (SCC), 172 D.L.R. (4th) 577 at pages 583-4 determined that a support award should not be overturned on appeal “unless there is an error in principle, a significant misapprehension of the evidence or unless the award is clearly wrong.”
[3] In this case the appellant alleges that the trial judge “failed to consider” the appellant’s evidence. That submission is simply not borne out by a review of the reasons of the trial judge. The trial judge considered all of the evidence that the appellant directs our attention to on this appeal but she rejected that evidence where it was in conflict with the evidence of the respondent.
[4] The trial judge heard conflicting testimony from the parties about whether the appellant had stood in the place of a parent to Sharon during the marriage. She made findings of fact which preferred the mother’s evidence and she explained why she did so.
[5] The trial judge referenced the legal test articulated by the Supreme Court of Canada in Chartier v. Chartier [1998] 1 S.C.R. 242. The critical findings and inferences drawn from the evidence are sufficient to support the ultimate conclusion of the trial judge that the appellant’s step-child, Sharon, is a child of the marriage within the extended meaning in the Divorce Act and that the appellant therefore has an obligation to pay child support for Sharon.
[6] As to the appellant’s income, Mr. Lin’s sworn financial statement stated that his 2010 income was $41,160.00 per annum and his prior year’s income was $34,466.28. Although he initially confirmed the accuracy of his financial statement, he changed his evidence to say that his actual income was “less than zero.” He claimed business expenses had not been deducted, but produced no evidence of those expenses.
[7] The trial judge concluded his evidence was not credible. He operates a business which includes cash transactions. He provided no corroborating records. Noting that some portion of his utility expense might be related to the convenience store, the trial judge fixed his income at $40,000.00. The trial judge rightly rejected as irrelevant evidence of his income from prior years, predating his acquisition of the convenience store.
[8] The evidence clearly justified a finding that the appellant’s income was $40,000.00 per annum. In short, the trial judge did not misapprehend the evidence or fail to consider relevant evidence. She simply rejected certain aspects of the appellant’s evidence and gave cogent reasons for doing so.
[9] The fact that the trial judge made an order for joint custody of the youngest child Linda, has no bearing on the quantum of child support for that child. The child is primarily in the day-to-day care of the respondent mother. The father’s time with the child does not meet the forty percent threshold in s.9 of the Child Support Guidelines. The table amount for the child Linda is mandatory.
[10] The appeal is therefore dismissed.
[11] We do observe however that the trial judge did not impute an income of $40,000.00 to the respondent. Rather, she found as a fact that the appellant was actually earning that income. It is, of course, open to the appellant to apply to vary his support obligation based on any significant change in his income. He has the option of trying to prove, with proper documentation and recordkeeping, to the satisfaction of the Court below, that his income now is in fact less than $40,000.00 annually.
COSTS
[12] I have endorsed the Appeal Book on behalf of the Panel, “For oral reasons given, this appeal is dismissed. The appellant is to pay the respondent costs of $3,500.00, such costs deemed payable as support and enforceable as such.”
ASTON J.
PEPALL J.
HARVISON YOUNG J.
Date of Reasons for Judgment: January 5, 2012
Date of Release: January 18, 2012
CITATION: Lin v. Chen, 2012 ONSC 165
DIVISIONAL COURT FILE NO.: 193/11
DATE: 20120105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, PEPALL AND HARVISON YOUNG JJ.
BETWEEN:
YUNDENG LIN
Applicant/Appellant
– and –
XIU CHEN
Respondent
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: January 5, 2012
Date of Release: January 18, 2012