Court File and Parties

COURT FILE NO.: FS-19-00013653 DATE: 20240517

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tania Maria Lucas de Pimentel, Applicant -and- Juan Moises Pimentel Rodriguez, Respondent

BEFORE: FL Myers J

COUNSEL: Marie G. Michaels, for the Applicant

READ: May 16, 2024

Endorsement

[1] I read this application in writing as an uncontested trial pursuant to the order of Faieta J dated January 5, 2024.

[2] After more than two decades of marriage, the respondent has fled the country to live with his girlfriend in his native Spain. He left a wake of debt behind him. Despite being the principal breadwinner for the family, he has paid nothing for child support or spousal support after leaving.

[3] The applicant is on ODSP due to disabilities.

[4] The respondent holds title to the matrimonial home. Yet he has paid nothing towards the mortgage nor upkeep of the home since leaving. He left the applicant and the children in desperate circumstances trying to deal with the mortgagee while not being the titled owner.

[5] The applicant’s evidence is that the respondent is an electrician by trade with certifications from Humber College and DeVry Institute of Technology. He worked as an Industrial Electrician. He was a Plant Electrician from 1995 to 2005 and then with a new employer from 2005 to 2007. He was self-employed from 2007 – 2010.

[6] In 2011, the respondent registered a sole proprietorship under the name of JP Cable Solutions that he operated successfully for a number of years. I do not know what he did in that business. The applicant says that he had private customers from whom he received cash payments at times. I do not know if he was an industrial electrician in that business.

[7] The applicant says that prior to leaving for Spain, the respondent was working as an “Electrical/Industrial Engineer.” But she does not indicate how he came to be credentialed as an engineer. She does not say he went back to school or that he had any engineering qualifications.

[8] The applicant’s only evidence about the respondent’s income is that he declared income of approximately $50,000 per year but she believes he received cash payments from customers that he did not report for tax purposes.

[9] The applicant has put into evidence printouts from “various employment listing websites” purporting to show job listings with proposed salaries for Electrical Engineers in Toronto. She averages three Toronto listings to swear he could be earning $89,682.67 here. As the respondent had many years of experience, the applicant says that “it is entirely possible that he is earning or ought to earn closer to the upper income for an Electrical Engineer.” She asks the court to impute income of $89,682.67 to the respondent.

[10] I asked the applicant’s lawyer to make submissions as to how the ads pulled from the internet could be admissible evidence for the truth of their contents. They are statements made on random websites by unknown authors of unknown veracity or reliability. There is no one who can be cross-examined to learn anything about the listed jobs or salaries.

[11] The ads are the clearest form of hearsay evidence being statements made out of court being proffered for the truth of their contents. They are inadmissible.

[12] Even if I could use internet ads to prove what Electrical Engineers earn, averaging three random ads is not a reliable method to draw industry wide conclusions. The first of the listings says that the average Electrical Engineer salary in Toronto is $75,383. That is not admissible either. But it demonstrates the unreliability of the applicant’s purported calculation. The ads list jobs with salaries ranging from $33,000 to well over $100,000 per year and hourly wages from $29 to $44 per hour.

[13] It is also significant that the respondent is not an Electrical Engineer at least as I understand that professional designation.

[14] The applicant also lists a few job ads seeking Industrial Electricians. Those listings show wage rates of $38 to $48.55 per hour. Those rates are well above the rates offered in the ads for professional Electrical Engineers.

[15] Without evidence from an expert witness, there is no way to take a seemingly cherry-picked small number of hearsay ads to make any form of generalization to enable me to infer an industry average. Moreover, I am told nothing of the respondent’s actual skillset or prior job duties apart from the names of businesses for whom he worked. I do not know if an “Industrial Electrician” is a very specific and highly lucrative job description or if it encompasses a broad group of tradespeople with various forms of certification and experience. I have no way to know if the jobs in the proffered ads are of any relevancy to the respondent by training or experience.

[16] The applicant submits that the decision of Akazaki J. in Osanebi v. Osanebi, 2023 ONSC 2546 stands for the proposition that the court should not infer that a party earns only minimum wage in the absence of evidence of what he or she actually earns. Akazaki J. fears that using minimum wage as a default encourages spouses to hide higher incomes. Although the applicant in Osanebi asked for imputation of minimum wage, Akazaki J held that a StatsCan website showing that an average Canadian hourly wage of $30 per hour provided a more realistic estimate of earnings in the absence of any evidence of what the respondent in that case actually earned. The judge also inferred that a spouse who left the country earns more at his new location than minimum wage in Toronto that he could have earned had he stayed here.

[17] Akazaki J. noted that in Drygala v. Pauli the Court of Appeal has allowed the court to consider demographic and vocational facts in imputing income such as a person’s age, education, experience, skills. and health. What the Court of Appeal said was:

[44] Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.

[45] When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent. See, for example, Hanson, supra, and Cholodniuk v. Sears (2001), 2001 SKQB 97, 14 R.F.L. (5th) 9, 204 Sask. R. 268 (Q.B.). I accept those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain. [Emphasis added.]

[18] Income imputation must not be arbitrary. It is an inference that must be grounded in admissible evidence adduced in the proceeding. Minimum wage is set by law. It is admissible in evidence because the court is required to take judicial notice of the law. Imputing minimum wage then is not a factual assumption based on misunderstanding or bias. Rather, when there is no other evidence of a respondent’s income, minimum wage is often the only imputation available on the evidentiary record.

[19] Plucking from a universe of government data a single average hourly rate for all employees ages across all industries is arbitrary. It ignores the respondent’s age, education, experience, skills, and health. Making just gross classifications, like a worker’s industry, the statistics show a wide range of average hourly rates from about $17 per hour for food service workers to more than $45 per hour for utilities workers. The undifferentiated average is a meaningless number to assess the earnings of an individual who is in a specific trade, with a specific skillset, specific education, a specific experience base, his or her own subjective job desires, a unique employment history, age, health etc.

[20] While I appreciate the desire to draw every adverse inference against a party who withholds legally required disclosure, I cannot draw from Drygala a license to be arbitrary or to impute income without evidence.

[21] In this case, inadmissible hearsay ads cannot be a basis for an imputation.

[22] The applicant points to a single chart taken from a StatsCan website page that seems to provide median incomes for journeyman (not Electrical Engineers) categorized by sex and geographic region. There is no information about the sampling methods or processes used to make or present the chart. According to this chart, in 2019, of 790 journeymen industrial electricians counted, 93.7 tax filers two years after certification reported median employment income of $83,950.

[23] As I recall my high school math, a median is a number found in a list with an equal number of entries above it and below it. In some cases, a median is used as an average. In other cases, a mean or a mode may be used. The applicant herself used a mean in calculating the average income from her employment ads.

[24] Assuming that the official government statistics are admissible under s. 25 of the Evidence Act, RSO 1990, c E.23 as applicable in this divorce proceeding under s. 40 of the Canada Evidence Act, in my view, the fact that half a group of 93.7 people made more than $83,000 and the other half made less, tells me nothing from which I can draw a meaningful inference about the respondent’s earnings. When he worked for many years for $50,000 I suppose he would have been situated in the bottom cohort. But I do not know the definitions of who was counted or how they might be relevant to the respondent if at all. This chart tells me nothing that I can use to draw an inference as to a reasonable income to impute to the respondent.

[25] Official government reports are admissible as an exception to the hearsay rule. But there remains an issue of how much weight can be ascribed to them in each case. J.N. v. C.G., 2023 ONCA 77.

[26] If an applicant wants to try to use statistics or industry data to support an inference about a respondent, in my view, an expert witness is required to ensure that data is used appropriately and that the data is applied to the respondent in a fair manner. I recognize that the cost of an expert witness does not make this an attractive alternative when the respondent has defaulted and left a family in need. But it is not attractive, permissible, or just for a court to make findings that are not based on valid, relevant, reliable evidence.

[27] I am not prepared to infer that the respondent would not have left Canada to earn less than he made here. The apparent inference in this case is that he left Canada with his girlfriend to try to avoid his obligations to his family. That tells me nothing at all about his or his girlfriend’s assets or their economic prospects in Spain.

[28] In this case, there is some evidence that the respondent earned at least $50,000 per year. Absent evidence of increases over time, $50,000 is the only income that I am prepared and able to impute to this respondent.

[29] The applicant’s income is $15,197 from disability benefits.

[30] The applicant is entitled to spousal support on both grounds. The respondent was the dominant breadwinner for the duration of the parties’ lengthy relationship. His leaving her with debt, an illiquid property, and the sole obligation to support the children through university supports the respondent’s claim to support at the high end of the range.

[31] I also agree that spousal support should be payable in a lump sum as calculated by Divorcemate. Unless he returns to Canada, the respondent will never realistically be required to pay support. The only way for the applicant to receive her just due is to order the payment as a lump sum and use the applicant’s share of the house to fund the payment.

[32] Child support for each child is due from the separation date of January, 2017 to April, 2018 when they finished school. Child support is to be determined under the Child Support Guidelines based on the respondent’s $50,000 imputed income. In addition, I order the respondent to pay to the applicant the s. 7 expenses set out in the applicant’s affidavit but with sharing revised to a 10:3 ratio of the parties’ respective incomes.

[33] The respondent is ordered to pay the applicant $65,736.09 for his share of expenses on the house to October, 2023. I am not prepared to accept a value of $30,000 for necessary remediation on the house by way of judicial notice as requested.

[34] The writ of seizure and sale registered on the house is to be charged to the respondent’s share of the house value. It represents his debt.

[35] I accept the applicant’s evidence that the respondent’s share of the house is valued at $206,000 (after mortgage).

[36] If there is any amount left over from the house for the respondent after crediting or payment of all the above amounts, I award it to the applicant an unequal sharing to give her whatever remains. The respondent has not disclosed his assets. I infer that he walked away from the house knowing that it would be cheaper to lose his half than to disclose his true equalization position.

[37] The applicant asks that any amount left owing after the respondent’s full entitlement to value from the house is exhausted shall be paid by him at the rate of $1,000 per month. So ordered.

[38] The applicant asks me to vest title to the house in the names of her children so she does not lose her entitlement to ODSP, to save Land transfer Tax, and to save on legal fees for a real estate transaction.

[39] In response to my questioning the legal basis for this request, the applicant’s counsel submits: Finally, the legal basis upon which a Court can award the matrimonial home to my client but then make an Order to transfer title to the name of another individual. Section 100 of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides authority for making vesting orders. Specifically:

“100 A court may by order vest in any person an interest in real or personal property that the court has authority to order be disposed of, encumbered or conveyed. R.S.O. 1990, c. C.43, s. 100.”

In the case at Bar, the children obtained part-time jobs while still in school to assist with the Applicant’s expenses. In her 23C Affidavit, the Applicant admitted to having borrowed over $125,000.00 from the children since separation, which she has no ability to repay except with her interest in the matrimonial home. Furthermore, with the remediative work to be conducted, the Applicant will have to refinance the existing mortgage to reduce the unfavourable interest rate, and obtain some monies for the work itself. With her only source of actual income being her disability benefits amounting to less than $15,000/year, she will not qualify for any mortgage. In fact, only the child, Carolina, would qualify for a mortgage. Since the parties have already been financially distressed (higher interest rate, having to purchase money orders each month to make the mortgage payments, paying parking tickets and for the cost of finally finding a spot to rent, the veterinary bills for the life-saving work on one of the dogs due to the mould), compelling them to spend further funds on a transfer from the Applicant (if this Court grants the Order that she is entitled to the matrimonial home) to Carolina in order to obtain the mortgage seems unnecessarily punitive. Additionally, it will likely have a negative impact on her eligibility for ODSP benefits. We therefore submit that this Court use the infrequently used (in family law) section of the Courts of Justice Act and Order that title to the matrimonial home be made as set out in the draft Order.

[40] While the court has the authority to vest assets in a person, there has to be a legal basis to do so. The children are not enforcing mortgages or trust interests against their mother. They are not parties to this proceeding. The applicant is free to transfer her property to them if she chooses to do so. I have no doubt that the children have given more than excellent support to their mother to repay her extraordinary efforts to help them through their education and the shock and pain of having their father abandon them all. But I do not see their good works as making legal costs of a transfer punitive.

[41] Plus, paying tax and whatever effect the applicant’s successful claims have on her ODSP eligibility, are the result of the operation of the law. The court’s power to vest property is not used to help people get around inconvenient laws.

[42] The car in the name of the respondent has been abandoned for several years. The applicant asks me to vest it in her name so she can have it removed. A person does not need title to have abandoned garbage removed from her property. If she seeks title to convey the car for consideration or as a gift, she should have said so and provided a legal basis for the order sought when given the opportunity to do so.

[43] The applicant has proven the requisites of a divorce order. OTG in the usual form.

[44] The applicant seeks costs but provides no costs outline or evidence about the quantum of her costs. She has not provided me with a basis to make the order sought.

[45] The applicant may submit a revised form of order that implements the operative terms of this endorsement.

FL Myers J Date: May 17, 2024