CITATION: Burisch v. Gosal, 2007 ONCA 569
DATE: 20070820
DOCKET: C46735
COURT OF APPEAL FOR ONTARIO
ROSENBERG, ARMSTRONG and JURIANSZ JJ.A.
BETWEEN:
CATARINA BURISCH
Applicant (Respondent in Appeal)
and
STEVEN GOSAL
Respondent (Appellant)
Michael J. Polisuk for the appellant
Mark Greenstein for the respondent in appeal
Heard: August 16, 2007
On appeal from the order of Justice G.P. DiTomaso of the Superior Court of Justice dated January 25, 2007.
ENDORSEMENT
[1] The appellant, Steven Gosal, appeals from the order of The Honourable Mr. Justice DiTomaso, dated January 25, 2007, of the Ontario Superior Court of Justice, dismissing his motion to expunge all child support arrears for the period December 1, 2001, to September 1, 2005 while he was unemployed.
[2] The appellant was let go from his position as a vice-president and CFO for a small company in 1999 after it was sold. He was then 50 years of age. While experienced in accounting he has neither formal designation nor university degree.
[3] The motion judge found that the appellant initially became unemployed through no fault of his own. He then went on to find that the appellant’s continued lack of employment was self-imposed, that he could have found other work, and that he chose not to work for four years allowing the child support arrears to grow without ever intending to pay them.
[4] The judge found that the appellant was capable of earning income in the amount of $72,500 and concluded that amount of amount of income should be imputed to him during the period that he was unemployed.
[5] The motion was argued on the basis of affidavit evidence without cross examinations.
[6] The appellant deposed that throughout his unemployment he diligently sought employment. He swore that he regularly scoured job application sites on the internet, used head hunters, made “cold calls” and applications, responded to help wanted ads he saw in newspapers, and spoke to friends, former colleagues, and acquaintances about obtaining employment. He provided a list of some of the jobs for which he had applied. He specifically deposed that he applied for jobs for less money than he had been earning beforehand, such as jobs as a bookkeeper and credit manager.
[7] The appellant’s affidavit was supported by that of his brother, with whom he resided during his unemployment, and by his adult daughter who lent him money.
[8] The respondent declined the appellant’s invitation to question him under oath on his financial statement and disclosure and no questioning has occurred.
[9] The respondent, in her affidavit, did not contest that the appellant legitimately sought employment, but deposed that it was her belief that even if he was unable to obtain employment, he had an obligation to open his own practice or start his own business to earn income as he has a child support obligation.
[10] In our view the motion judge erred. Whether the appellant was intentionally under-employed or unemployed was the central issue of the motion and the judge had no basis for rejecting the appellant’s uncontradicted affidavit evidence that he diligently sought employment without a trial or cross-examination. See Ierullo v Ierullo, [2006] O.J. No. 3912 (C.A.). Morever, the judge was mistaken in stating the evidence was that the appellant had restricted his job search to controller and financial director-type positions. As noted, the appellant did depose he applied for lower level jobs. It is true, as the judge noted, that when some money came into the appellant’s hands from non-employment sources he used it to pay down debts rather than to make child support payments. This, however, is not sufficient to support the conclusion he was intentionally unemployed.
[11] Moreover, we have concerns about the evidentiary base for quantifying the appellant’s imputed income in the amount of $72,500. The appellant relied, in part, on a Professional Compensation Survey of the Chartered Accountants of Ontario in 2005 filed by the respondent and on information she obtained from a Government of Canada Human Resources website indicating the average earnings of Canadian controllers in 2000. Both of these reports generally apply to persons with credentials that the appellant lacks. There was no evidence before the court regarding the amount of money he could earn as a bookkeeper or credit manager or running his own business.
[12] Therefore, we allow the appeal and remit the matter for a rehearing. The costs of the motion below are reserved to the judge on the rehearing. The appellant’s costs of the appeal are fixed in the amount of $2500.00 inclusive of disbursements and GST to be set off against any child support arrears that are outstanding.
“M. Rosenberg J.A.”
“R.P. Armstrong J.A.”
“R. Juriansz J.A.”