Court of Appeal for Ontario

Citation: Perino v. Perino, 2012 ONCA 899

Date: 2012-12-20

Docket: C55112

Before: Doherty, Goudge and Hoy JJ.A.

Between

Brenda Lea Perino

Applicant (Respondent)

and

Vito Perino

Respondent (Appellant)

Counsel:

Sandra Majic, for the appellant

Brenda Lea Perino, acting in person

Ian R. Mang, for the child

Heard and released orally: December 13, 2012

On appeal from the order of Justice David Corbett of the Superior Court of Justice, dated January 12, 2012.

ENDORSEMENT

[1] The appellant appeals the spousal support he was ordered to pay the respondent. His primary submission is that the trial judge erred in imputing income to him.

[2] This court does not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence or unless the award is clearly wrong. We are not persuaded that the appellant has made out any basis warranting this court’s interference with the trial judge’s order.

[3] The trial judge provided cogent reasons for imputing the income that he did to the appellant. The trial judge found that the appellant misrepresented his income and that it was higher than indicated. He gave reasons for that finding, which, in our view, are not open to successful appellate review. The trial judge properly included the value of services provided by the appellant in barter in the appellant’s income.

[4] The appellant also takes issue with the trial judge’s finding that this was an extreme case of parental alienation by the appellant because that finding, in part, underlay his conclusion that the appellant was intentionally under employed. The trial judge found that the appellant made a choice to exclude the respondent, who had theretofore cared for their daughter, and then work less as a consequence of caring for their daughter. The appellant has not established that the trial judge’s finding of parental alienation amounted to a palpable and overriding error. There is, therefore, no basis to challenge the trial judge’s imputation of income on that basis.

[5] Nor are we persuaded that the trial judge’s decision to impute income to the respondent on the basis of a 30-hour work week at $10 per hour as opposed to some greater number of hours at $10.25 per hour warrants interference.

[6] Finally, the appellant takes issue with the fact that the trial judge did not fix a sunset date for the procedures he established to monitor the respondent’s access to the daughter. The trial judge contemplated that the parties’ daughter, who at present is unable to live independently and is therefore a child of the marriage, may in the future be able to live independently. When appropriate, it is open to the parties to appear before the Superior Court to seek a sunset date.

[7] The appeal is dismissed, with costs fixed in the amount of $5,000, inclusive of disbursements and applicable taxes.

“Doherty J.A.”

“S.T. Goudge J.A.”

“Alexandra Hoy J.A.”