Court File and Parties
Court File No.: Brampton 143/10 Date: 2012-03-16 Ontario Court of Justice
Between: Gerri Gulino, Applicant
— And —
Diego Gulino, Respondent
Before: Justice J.C. Baldock
Heard on: February 29, 2012
Reasons for Judgment released on: March 16, 2012
Counsel:
- Mark S. Trenholme, for the applicant
- Daniel R. Furlan, for the respondent
BALDOCK, J.:
[1] Introduction
All issues in this matter have been resolved except for the child support payable from and after January 1, 2010, the income upon which that support should be based, and whether there are any outstanding arrears.
Background
[2] Agreed Statement of Facts
Counsel have filed an Agreed Statement of Facts which sets out the following information:
The parties were married in 1996
The parties separated in 2007
The parties are the parents of:
- Sienna Rosina Gulino, born January 8, 1997 (age 15)
- Tiago Antonio Gulino, born May 31, 2002 (age 9)
- Giordano Calogero Gulino, born January 12, 2005 (age 7)
- Adriana Lourdes Gulino, born November 2, 2007 (age 4)
The three younger children have at all times resided with the applicant mother
The oldest child, Sienna lived with the applicant mother until November 2011 when she moved to the home of the respondent father
Sienna continues to live with the respondent
The income of the applicant mother is $42,000.00
There is no claim for spousal support by either party
There is no claim for retroactive child support or Section 7 expenses prior to January 1, 2010
The respondent father is to be credited with having paid the applicant mother the following:
- $7,000.00 in 2010
- $14,890.00 in 2011
- $1,240.00 in January 2012
- $600.00 in February 2012
The Position of the Parties
[3] Applicant's Position
The applicant maintains that the respondent is wilfully underemployed and that the court should therefore impute income to the respondent, in line with past earnings.
[4] Respondent's Position
The respondent submits that he is doing what he can to maximize his income but has not been as successful as he would have liked and that his employment decisions have been reasonable if not always as productive as he had hoped. He seeks to have support based on his actual income for 2010 and 2011.
The Evidence
[5] Respondent's Age and Education
The respondent is 42 years of age. He attended college in 1994 towards a qualification in the hospitality industry. He has experience in owning and operating a pub/restaurant franchise and, more recently, he has been employed in real estate sales.
[6] Business Ventures
During the later years of the marriage he operated a franchise under the name of "The Frigate and Firkin". This was doing well at the time and he decided to expand by purchasing another "Firkin" franchise in Milton. He used funds from the Frigate and Firkin to operate "The Dickens and Firkin". This was not a successful venture and by 2005 both pubs were running at a loss. Both pubs were closed down in 2007 and the loss was claimed in his 2008 income tax return.
[7] Post-Separation Housing
The respondent remained living in the matrimonial home after the parties' separation and paid the household bills until the house sold in 2008.
[8] Real Estate Career
In July 2005 the respondent had obtained a real estate licence and began working with Century 21 in residential real estate. His income was somewhat limited and in 2007 he left to join Prudential Elfa, to work in commercial real estate. This was considerably more profitable. However he made several other moves in the real estate field including a period working for ReMax selling new homes for a developer, starting in June 2007. When the first phase of that development was sold out there was a delay in getting the second phase started so he went back to Century 21 and also applied to become a police officer, stating that this was something he had always wanted to do. Thus far he has not been hired by any police force although he would still like to pursue this career path.
[9] Current Employment
Currently the respondent works for Hudson Energy where he earns a base salary of $40,000.00. He has also enlisted as a reserve soldier in the military where he earns an average of $399.00 per month. His total income is therefore approximately $45,000.00 per year.
[10] Housing and Assets
At one time, after separation, the respondent owned his own home, but sold it as he was unable to afford the upkeep. He currently lives with his girlfriend. He still has a valid real estate licence.
[11] Future Employment Prospects
The respondent also testified that he has been approached by ReMax Realty to work weekends now that Phase II of the new development is opening up.
[12] Income History
I am satisfied on the evidence presented that the respondent's ("line 150") income has been as follows:
- 2003: $95,737.00
- 2004: $32,731.00
- 2005: $23,209.00
- 2006: $17,735.00 net (actual income consisted of a gross business income of $67,442.00 plus RRSPs which were cashed in)
- 2007: $102,801.00
- 2008: $115,994.00 (business loss also recorded in this year)
- 2009: $13,777.00 (net on gross commissions of $20,082.00)
- 2010: $12,060.00
- 2011: $42,487.00
[13] Applicant's Submissions
The applicant wants support based on either an imputed income, higher than the $45,000.00 the respondent is currently earning, or alternatively that the income be averaged over a number of years, to include the high earning years of 2007 and or 2008.
[14] Applicant's Evidence and Frustration
She clearly believes that the respondent is lazy and that he does not apply himself or his skills productively. She testified that the reason he moved from the commercial real estate job with Century 21 to the ReMax new home position was so that he would have a ready made supply of prospective purchasers and he did not have to make cold calls or actively try to find more clients. She was upset that at one time the respondent had purchased a home, played golf frequently and drove an expensive car.
[15] Respondent's Response
The respondent testified that when his income was higher, he could afford to live a different lifestyle but he had to give that up when his income dropped.
Conclusions
[16] Assessment of Respondent's Character
Overall, the respondent impressed me as a relatively industrious person. He has made some poor choices from a business perspective but he has never been without work for long. He is now proposing to work at three jobs, Hudson Energy, ReMax and the Canadian Armed Forces Reserves.
[17] Applicant's Frustration
The applicant's frustration and disappointment at not being able to rely on the respondent to produce a steady income and predictable child support is understandable, but to factor in his two high income years is not realistic.
[18] Income Pattern Post-Separation
However, when reviewing the respondent's income history, I note that there have only been two years since the separation (one being the actual year of separation) when the respondent enjoyed a significant income. In all other years post separation, he has struggled. It is to his credit that he does now have a reliable source of income and a realistic prospect of earning more.
[19] Test for Wilful Underemployment
This is not a situation where the respondent is suggesting that he has been a victim of circumstances beyond his control. However, in order to find that he is wilfully underemployed the Court must be satisfied that not only were his job decisions made intentionally, but also that the reduced income was intentional or at a minimum, reasonably foreseeable.
[20] Application of the Test
On the evidence before me I conclude that, for the most part, the respondent changed jobs to ones which he reasonably expected to be more, or at least equally, lucrative. In short, he intentionally changed jobs, but did not intentionally earn less. The fact that he was able to earn a higher income in 2007 and 2008 is not reflective of a pattern of earnings. In 2008 the business loss in fact reduced the respondent's income considerably. However, I also find that when a job proved to be unproductive in terms of income, the respondent did not always act swiftly to seek out other employment. In 2009 and 2010, it was obvious early on that his income was not going to be sufficient to sustain his own support let alone that of his family. I therefore attribute an income of $42,500.00 (i.e. that earned in 2011) to him for 2010.
[21] Income Basis from 2011 Onwards
The respondent's actual income should be used as the basis for child support from and after January 2011.
[22] Calculation of Support and Arrears
Accordingly, the respondent should have paid the following:
a) 2010 for 4 children, based on $42,500.00 - 12 months at $976.00 = $11,712.00
b) 2011 for 4 children, based on $42,487.00 - 10 months at $975.00 = $9,750.00
c) 2011 set off amount for 3 children - 2 months at $440.00 = $880.00
d) 2012 set off amount for 3 children *Based on $45,000.00 - 3 months at $479.00 = $1,437.00
Total which should have been paid: $23,779.00
Actual amount paid: $23,730.00
Total arrears owed: $69.00
(*new Guidelines effective January 1, 2012)
The ongoing amount will then be $479.00 commencing April 1, 2012.
Order
[23] Court Order
The respondent shall pay child support in the amount of $479.00 per month, commencing April 1, 2012. This amount is based on the following:
- a) The income of the respondent being approximately $45,000.00;
- b) The income of the applicant being $42,000.00;
- c) Three children residing with the applicant;
- d) One child residing with the respondent.
The respondent shall pay the arrears fixed as of today's date in the amount of $69.00 forthwith. Any and all other arrears as may be shown on the Family Responsibility Office Director's Statement of Arrears are rescinded.
The respondent shall be given credit for any payments made after February 29, 2012.
[24] Costs Submissions
Counsel for each party may make brief written submissions with respect to costs within 21 days, such submissions to be delivered to Ms. Ruth Evans, Judicial Secretary, at 7755 Hurontario Street, Suite 602, Brampton, Ontario, L6W 4T6, Fax Number 905-456-4839.
Released: March 16, 2012
Justice J.C. Baldock