Court of Appeal for Ontario

Date: 2019-12-02 Docket: C66723

Judges: Lauwers, Paciocco and Fairburn JJ.A.

Between

Maria Trindade King Applicant (Appellant)

and

Lawrence Robert King Respondent (Respondent)

Counsel

For the Appellant: Jordan McKie and Jacob Damstra

For the Respondent: Lawrence Robert King, acting in person

Heard and Released Orally: November 27, 2019

On Appeal From: The judgment of Justice Marc Garson of the Superior Court of Justice, dated February 19, 2019.

Reasons for Decision

[1] The appellant, Ms. King, argues that the trial judge erred in imputing an income of $50,000 to the respondent, Mr. King, for purposes of calculating spousal support and that the trial judge failed to pay due regard to Mr. King's deliberate underemployment. We disagree. The trial judge stated, at para. 30: "I do not accept [Mr. King's] lengthy periods of self-imposed unemployment or underemployment."

He added at para. 32: "I am prepared to find that he has been intentionally underemployed between February 2016 to present."

[2] The trial judge gave cogent reasons for imputing an income figure of $50,000 which he set out at para. 33 of his reasons:

The amount of $50,000 is not some arbitrary or unreasonable figure. It is derived from the evidence I heard and accept that he is likely capable of earning an hourly wage of between $35 - $40/hour that is equivalent of approximately $75,000 annually and likely able to earn such income for at least two-thirds of the year, accounting for lay-offs and slowdowns. I also take into account his age, experience, skills, prior learning history and available job opportunities.

[3] There is nothing unreasonable in this determination since Mr. King has experienced layoffs on occasion in the past, as the transcript shows. There is no palpable and overriding error, no legal error, nor any error in principle. The appeal is dismissed.

[4] Costs to the respondent in the amount of $500, payable within 30 days.

P. Lauwers J.A.

David M. Paciocco J.A.

Fairburn J.A.